Burwood Council v Byrnes

CITATION:	Burwood Council v Byrnes [2002] NSWCA 343
FILE NUMBER(S):	CA 40944/01
HEARING DATE(S):	5 August 2002
JUDGMENT DATE:	4 November 2002
PARTIES :	Burwood Council v Lorraine Byrnes
JUDGMENT OF:	Handley JA at 1; Beazley JA at 41; Hodgson JA at 42

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 132/00
LOWER COURT JUDICIAL OFFICER :	Dent DCJ

COUNSEL:	Appellant - M J Joseph QC/R Gambi Respondent - M Perry
SOLICITORS:	Appellant - Phillips Fox Sydney Respondent - Voros Lawyers Burwood
CATCHWORDS:	NEGLIGENCE - HIGHWAY RULE - DUTY OF CARE TO PEDESTRIAN
CASES CITED:	Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Hawkesbury City Council v Ryan [2001] NSW CA 212 Parramatta City Council v Watkins [2001] NSW CA 364 Lombardi v Holroyd City Council [2002] NSW CA 252
DECISION:	Leave to appeal granted on terms. Appeal allowed. Orders made

40944/01
DC 132/00
HANDLEY JA
BEAZLEY JA
HODGSON JA


4 November 2002

BURWOOD COUNCIL v LORRAINE BYRNES

NEGLIGENCE - HighWAY RULE - duty of care TO PEDESTRIAN

The plaintiff tripped over a concrete paver on a Council footpath and fell heavily. One paver had sunk more than others, resulting in a height difference of 20 mm. The trial Judge found that the condition was discoverable on reasonable inspection and that the defendant Council had been negligent but also found contributory negligence and reduced the plaintiff’s damages.

: The Judge misdirected himself as to the Council’s duty of care. A Council’s duty to pedestrians is to take reasonable care to prevent or eliminate dangers to pedestrians taking reasonable care for their own safety. See Ghantous v Hawkesbury City Council (2001) 206 CLR 512. The Council had not been negligent as the height differential of 20 mm was obvious and was not dangerous to a pedestrian taking reasonable care for his on her own safety.

ORDERS


(1) Leave to appeal granted on terms that the appellant pay the respondent’s costs in this Court subject to the appellant filing and serving the notice of appeal within 14 days;

(2) Appeal allowed;

(3) Set aside the judgment in the District Court and in lieu thereof enter judgment for the defendant with costs;

(4) The appellant to pay the respondent’s costs of the proceedings in this Court.

40944/01
DC 132/00
HANDLEY JA
BEAZLEY JA
HODGSON JA


4 November 2002

BURWOOD COUNCIL v LORRAINE BYRNES

Judgment

1 HANDLEY JA: On 28 May 1999 Mrs Lorraine Byrnes tripped on a concrete paver on the footpath of Burwood Road just north of the north western corner of the intersection with Milton Lane and fell heavily. She brought proceedings for negligence against the Council and on 12 November 2001 Dent DCJ awarded her damages of $43,699.47 after allowing for her contributory negligence which he assessed at 20%.

2 The Council has applied for leave to appeal on grounds limited to liability and contributory negligence. The parties were heard fully on the basis that, if leave were granted, the Court would determine…