Burling v Optus Fixed Infrastructure Pty Limited

[2019] NSWDC 54

District Court

New South Wales

Medium Neutral Citation:

Burling v Optus Fixed Infrastructure Pty Limited [2019] NSWDC 54

Hearing dates:

6, 7 and 8 March 2019

Date of orders:

15 March 2019

Decision date:

15 March 2019

Jurisdiction:

Civil

Before:

Russell SC DCJ

Decision:

(1)   Judgment for the plaintiff against the defendant for $156,026.19.
(2)   Order the defendant to pay the plaintiff’s costs.
(3)   Grant leave to the parties to approach my Associate if either party seeks a different costs order.

Catchwords:

TORTS – negligence – plaintiff slipped on metal telecommunications pit lid resulting in fracture to left leg

 

TORTS – negligence – duty of care – whether there was a duty of care in relation to installation only or also a duty in relation to inspection and repair – failure to take reasonable precautions – s 5B Civil Liability Act 2002

 

TORTS – negligence – causation – s 5D(1) Civil Liability Act 2002

  TORTS – damages – non-economic loss – past out-of-pocket expenses – future out-of-pocket expenses – domestic assistance and care – past and future economic loss

Legislation Cited:

Civil Liability Act 2002 (NSW)
Telecommunications Act 1997 (C’th)

Cases Cited:

Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
Mamo v Surace [2014] NSWCA 58; 86 NSWLR 275
Rickards v Australian Telecommunications Commission (1983) 3 NSWLR 155

Category:

Principal judgment

Parties:

Garry Burling (Plaintiff)
Optus Fixed Infrastructure Pty Limited (Defendant)

Representation:

Counsel:
E Walsh with P Macarounas (Plaintiff)
R Perla (Defendant)

 

Solicitors:

  Brydens Lawyers (Plaintiff)
Hunt & Hunt Lawyers (Defendant)

File Number(s):

2018/22719

Judgment

Introduction

1. The plaintiff slipped and fell in Bligh Street, Sydney on 7 March 2017. He fractured his left leg. He alleges that he slipped upon the metal lid of an Optus telecommunications pit located on the footpath on the western side of Bligh Street.

2. Bligh Street runs roughly north to south between Bent Street and Hunter Street. On the eastern side is the rear of the Wentworth Hotel. On the day of his accident the plaintiff parked his car in the Wentworth Hotel and emerged onto the eastern footpath of Bligh Street. He crossed Bligh Street at about its mid-point and went to the western footpath. The plaintiff then walked south on Bligh Street towards the traffic lights at the corner of Bligh Street and Hunter Street. He was intending to cross at those lights and go on towards a business appointment in Pitt Street.

3. By an Amended Statement of Claim filed on 9 March 2019 the plaintiff alleged that the defendant was the owner and occupier of the telecommunications pit and its lid. This was admitted by the defendant in the Defence filed on 2 August 2018.

4. The plaintiff also pleaded that the pit lid was bowed and was slippery when wet. This was denied by the defendant.

5. The plaintiff pleaded that as the owner and occupier of the pit and its lid, the defendant was responsible to ensure that the lid was reasonably safe for pedestrian use.…