Burling v Optus Fixed Infrastructure Pty Limited

Case [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.…

Continue reading Burling v Optus Fixed Infrastructure Pty Limited

Sign in free to access the full text

Details
AGLC
Burling v Optus Fixed Infrastructure Pty Limited [2019] NSWDC 54
Case
[2019] NSWDC 54
Decision Date

CaseChat Overview and Summary

The plaintiff, Burling, brought an action against Optus Fixed Infrastructure Pty Limited after slipping on a metal lid covering a telecommunications pit, resulting in a fracture to his left leg. The matter was heard in the District Court of New South Wales. The plaintiff alleged that the defendant was negligent in the installation, inspection, and maintenance of the telecommunications pit lid, leading to his injuries. The primary legal issues before the court were whether the defendant had a duty of care not only in the installation of the lid but also in its subsequent inspection and repair, and if the defendant breached this duty by failing to take reasonable precautions. Additionally, the court had to determine if the injuries were caused by the breach of duty, and if so, what damages were payable.

The court found that the defendant had a duty of care in the installation, inspection, and maintenance of the telecommunications pit lid. It was held that the defendant breached this duty by failing to ensure that the lid was securely fixed in place, and this breach caused the plaintiff's injuries. The court applied section 5B of the Civil Liability Act 2002 to establish the existence of the duty and the breach, and section 5D(1) of the same Act to confirm causation. The court awarded damages for non-economic loss, past and future out-of-pocket expenses, domestic assistance and care, and past and future economic loss.

The judgment concluded with a determination of the amount of damages to be paid by the defendant to the plaintiff. The court awarded $156,026.19 to the plaintiff, and ordered the defendant to pay the plaintiff's costs. The court also granted leave to the parties to approach the Associate if either party sought a different costs order. This decision highlights the importance of taking reasonable precautions in the installation, inspection, and maintenance of infrastructure to prevent injuries and potential negligence claims.

Orders

Orders of the court

(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.

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.