Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson

The Bathurst Regional Council, as trustee for the Bathurst City Council Crown Reserves Reserve Trust, appealed a decision of the primary judge concerning negligence. The respondent, Mr. Thompson, had suffered a serious leg fracture after falling down the steps of a rotunda in Machattie Park, which was property of the Trust. The appeal concerned both the finding of liability against the Council and the quantum of damages awarded for future loss of earning capacity.

The court was required to determine whether the Council, as trustee, was negligent in its duty of care to visitors, specifically whether the defect in the steps of the rotunda was reasonably foreseeable and what a reasonable response would have been. The court also considered the application of sections 5B and 42 of the *Civil Liability Act 2002* (NSW), including whether the Council could rely on the principles in section 42 without adducing evidence. Furthermore, the court examined the inferences that could be drawn from the respondent's admissions and the absence of evidence regarding previous accidents or complaints, and whether photographic evidence was impermissibly used. Finally, the court assessed whether causation was established and whether there was an evidentiary basis for the trial judge's finding of future loss of earning capacity.

The court allowed the appeal in part, finding that the Council had succeeded in its challenge to one head of damage, specifically the award for future loss of earning capacity. However, the appeal against the finding of liability was dismissed. The court reasoned that while the Council had failed to establish a defence under section 42 of the *Civil Liability Act 2002* (NSW) without evidence, the evidence presented, including the respondent's own admissions and photographic evidence, supported a finding of negligence. The court found that the narrowness of the top step was a foreseeable risk and that the Council had failed to take reasonable precautions. The court varied the judgment amount to reflect the successful challenge to the damages for future loss of earning capacity.

The appeal was allowed in part, with the judgment in favour of the respondent being reduced from $223,381.58 to $213,381.58. The appellant was ordered to pay the respondent's costs of the appeal.