Bernasconi v Newcastle City Council - [2005] NSWCA 422

CITATION:
Bernasconi v Newcastle City Council [2005] NSWCA 422

HEARING DATE(S):
21 November 2005

JUDGMENT DATE:

5 December 2005

JUDGMENT OF:
Giles JA at 1; McColl JA at 2; Brownie AJA at 36

DECISION:
Leave to appeal refused with costs

CATCHWORDS:
APPEAL – leave to appeal – NEGLIGENCE - Pedestrian injured when she tripped and fell on an uneven section of footpath in shopping mall – whether primary judge placed excessive emphasis on the issue of obviousness of risk in finding Council had not breached its duty of care – relevance of earlier falls in the mall – leave to appeal refused (ND)

LEGISLATION CITED:
n/a

CASES CITED:
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512
Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380
Mulligan v Coffs Harbour City Council [2005] HCA 63
Richmond Valley Council v Standing [2002] NSWCA 359; (2002) 127 LGERA 237
Sutherland Shire Council v Pallister [2002] NSWCA 66
Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418
Turnbull v Alm [2004] NSWCA 173
Vairy v Wyong Shire Council [2005] HCA 62
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491

PARTIES:
Jean Marie Bernasconi (Claimant)
Newcastle City Council (Opponent)

FILE NUMBER(S):
CA 40081/05

COUNSEL:
P C B Semmler QC/A C Canceri (Claimant)
M T McCulloch SC/G J Hickey (Opponent)

SOLICITORS:
CMC Lawyers (Claimant)
Phillips Fox Lawyers (Opponent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 2254/02

LOWER COURT JUDICIAL OFFICER:
McGrowdie ADCJ

CA 40081/05
DC 2254/02

GILES JA
McCOLL JA
BROWNIE AJA
Monday, 5 December 2005

Jean Marie BERNASCONI v NEWCASTLE CITY COUNCIL

Judgment

1 GILES JA: I agree with McColl JA.

2 McCOLL JA: The claimant was injured on 11 July 2000 when she fell in the Hunter Street Mall in Newcastle. She sued the opponent as the local government authority with the care and control of the Mall. McGrowdie ADCJ dismissed her claim, finding that the opponent had not breached its duty of care. His Honour also held that if he was erroneous on his finding on liability, he would have awarded the claimant $31,750.50.

3 The claimant seeks leave to appeal and, if leave is granted, to appeal both from his Honour’s conclusion on liability and his assessment of damages.

4 Hunter Street Mall is located in the central business district of Newcastle. It generally runs east/west with shops along its northern and southern sides. The claimant had visited the Mall on a weekly basis for about four years until about six months before her fall accompanied by her daughter, Cheryl. They were principally interested in shops on the southern side of the Mall. The weekly visits ceased about six months prior to the fall when Cheryl’s daughter became ill.

5 On 11 July 2000 the claimant walked to the Mall and first visited a number of shops along the southern side. She was walking back towards her home along…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWCA 422
Decision Date: 5 December 2005

CaseChat Overview and Summary

Bernasconi appealed to the Court of Appeal of New South Wales against a decision of the primary judge who found that Newcastle City Council had not breached its duty of care to the appellant, who suffered injury when she tripped and fell on an uneven section of footpath in a shopping mall.

The central legal issue before the Court of Appeal was whether the primary judge had placed undue emphasis on the obviousness of the risk of tripping on the uneven footpath when determining that the Council had not breached its duty of care. The appellant also sought to argue the relevance of earlier falls occurring in the same mall.

Giles and McColl JJA, and Brownie AJA, refused leave to appeal. Their Honours considered that the primary judge's findings were open to her on the evidence presented. The primary judge had properly considered the nature of the risk, the likelihood of injury, and the burden of taking precautions, and had concluded that the risk was obvious and that the Council had not breached its duty of care. The relevance of earlier falls was also considered to be a matter for the primary judge's factual assessment.

Leave to appeal was refused with costs.

Orders

Orders of the court

Leave to appeal refused with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bernasconi v Newcastle City Council [2005] NSWCA 422
HEARING DATE(S):	21 November 2005
JUDGMENT DATE:	5 December 2005
JUDGMENT OF:	Giles JA at 1; McColl JA at 2; Brownie AJA at 36
DECISION:	Leave to appeal refused with costs

CATCHWORDS:	APPEAL – leave to appeal – NEGLIGENCE - Pedestrian injured when she tripped and fell on an uneven section of footpath in shopping mall – whether primary judge placed excessive emphasis on the issue of obviousness of risk in finding Council had not breached its duty of care – relevance of earlier falls in the mall – leave to appeal refused (ND)
LEGISLATION CITED:	n/a
CASES CITED:	Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 Mulligan v Coffs Harbour City Council [2005] HCA 63 Richmond Valley Council v Standing [2002] NSWCA 359; (2002) 127 LGERA 237 Sutherland Shire Council v Pallister [2002] NSWCA 66 Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 Turnbull v Alm [2004] NSWCA 173 Vairy v Wyong Shire Council [2005] HCA 62 Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491
PARTIES:	Jean Marie Bernasconi (Claimant) Newcastle City Council (Opponent)
FILE NUMBER(S):	CA 40081/05
COUNSEL:	P C B Semmler QC/A C Canceri (Claimant) M T McCulloch SC/G J Hickey (Opponent)
SOLICITORS:	CMC Lawyers (Claimant) Phillips Fox Lawyers (Opponent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2254/02
LOWER COURT JUDICIAL OFFICER:	McGrowdie ADCJ