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Bowman v Nambucca Shire Council

Bowman v Nambucca Shire Council

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Case Copied 21 August 2020 81 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Bowman v Nambucca Shire Council [2020] NSWSC 1121
Hearing dates: 19-21 November 2018; 24-25 June 2019
Date of orders: 21 August 2020
Decision date: 21 August 2020
Jurisdiction: Common Law
Before: Walton J
Decision:
The defendant is to bring in short minutes of order reflecting this judgment within 7 days of the publication of this judgment.

Catchwords:
TORTS – negligence – personal injury – slip and fall on boat ramp – determination of liability – risk of harm – duty of care – precautions taken – whether reasonable person in position of defendant would have taken precautions – s 5B(2) considerations – causation
LOCAL GOVERNMENT – legal proceedings – torts – negligence
TORTS – defences – Civil Liability Act 2002, s 5M – whether recreational activity – obvious risk – warnings – Civil Liability Act 2002, ss 5H, 5F and 5G – contributory negligence

Legislation Cited:
Civil Liability Act 2002 (NSW)

Cases Cited:
Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128
Angel v Hawkesbury City Council
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; [1987] HCA 7
Bathurst Regional Council (as Trustee for the Bathurst City Council Crown Reserves Reserve Trust) v Thompson [2012] NSWCA 340
Bunnings Group Ltd v Giudice [2018] NSWCA 144
Carey v Lake Macquarie City Council [2007] NSWCA 4
Carter v Hastings River Greyhound Racing Club [2019] NSWSC 780
Collins v Clarence Valley Council [2015] NSWCA 263
Council of the City of Sydney v Bishop [2019] NSWCA 157
Fallas v Mourlas [2006] NSWCA 32
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 350
Goode v Angland [2017] NSWCA 311
Jones v Bartlett (2000) 205 CLR 166
Kanwar v Lynch [2020] NSWCA 152
Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308
Letang v Ottawa Electric Ry Co [1926] AC 725
McKenna v Hunter & New England Local Health District [2013] NSWCA 476
McNeilly v Imbree (2007) 47 MVR 536
Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65
Neindorf v Junkovic [2005] HCA 75
Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Port Macquarie Hastings Council v Mooney [2014] NSWCA 156
Randwick City Council v Muzic [2006] NSWCA 66
Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
Rootes v Shelton (1967) 116 CLR 383
Sharp v Parramatta City Council [2015] NSWCA 260
Streller v Albury City Council [2013] NSWCA 348
Tame v New South Wales (2002) 211 CLR 317
Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19
Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320
Waverley Council v Ferreira [2005]…

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: [2020] NSWSC 1121
Decision Date: 21 August 2020

CaseChat Overview and Summary

In Bowman v Nambucca Shire Council, the plaintiff, Bowman, sought damages from the defendant, the Nambucca Shire Council, for injuries sustained when he slipped and fell on a boat ramp. The case was heard in the Supreme Court of New South Wales. Bowman argued that the Council was negligent in maintaining the boat ramp, which he claimed was slippery and dangerous. The Council, on the other hand, contended that it had taken reasonable precautions to ensure the safety of users of the ramp, and that the risks associated with the use of the ramp were obvious and had been adequately warned.

The primary legal issues before the court were whether the Council owed a duty of care to Bowman, whether that duty was breached, and whether the Council's actions were a cause of Bowman's injuries. Additionally, the court needed to consider whether the activity Bowman was engaged in was a recreational activity for the purposes of the Civil Liability Act 2002 and whether any defences available to the Council under the Act applied. The court considered the statutory provisions of the Act and the common law principles of negligence in determining these issues.

The court found that the Council did owe a duty of care to Bowman and that this duty was breached. The Council had failed to take reasonable steps to ensure the safety of the boat ramp, which was not self-evident to a reasonable person. The court also found that the Council's breach of duty was a cause of Bowman's injuries. Regarding the statutory defences, the court found that the activity Bowman was engaged in was a recreational activity and that the risk of slipping on the ramp was an obvious risk. However, the court found that the Council had not taken reasonable steps to warn Bowman of this risk, and therefore, this defence was not available to the Council. The court also found that Bowman was contributorily negligent, but this did not bar his recovery.

The court ordered the Council to pay damages to Bowman for his injuries, reduced by 25% for his contributory negligence. The court also ordered the Council to pay costs of the proceedings. The Council was left to appeal the decision if it chose to do so.

Orders