Cessnock City Council v Suvaal - [2001] NSWCA 428

CITATION: Cessnock City Council v Suvaal [2001] NSWCA 428

FILE NUMBER(S): CA 40945/00

HEARING DATE(S): 22 October 2001

JUDGMENT DATE:
5 December 2001

PARTIES :

Cessnock City Council - Appellant
Anthony Peter Suvaal - Respondent

JUDGMENT OF: Powell JA at 1; Giles JA at 2; Rolfe AJA at 23

LOWER COURT JURISDICTION : Supreme Court - Common Law Division

LOWER COURT
FILE NUMBER(S) : 20668/94

LOWER COURT
JUDICIAL OFFICER : Master Harrison

COUNSEL: D F Rofe QC & M J Lawler - Appellant
T F Bathurst QC, D R Conti, C Mirales - Respondent

SOLICITORS: Moray & Agnew - Appellant
McClellands - Respondent

CATCHWORDS: NEGLIGENCE - bicycle accident - claim against council because of potholes in road - whether loss of steering control because hit potholes or hit potholes because of loss of steering control - on facts, the former not established - claim fails. ND.

CASES CITED:
Holloway v McFeeters (1956) 94 CLR 470.

DECISION: (1) Appeal allowed. (2) Set aside the verdict and judgment for the plaintiff against the second defendant and in lieu thereof verdict and judgment for the second defendant. (3) Set aside order 3 made by the Master on 10 November 2000, order 1 made by the Master on 20 November 2000 so far as it was ordered that the second defendant pay half the first defendant's costs and order 8 made by the Master on 20 November 2000 and in lieu thereof order that the plaintiff pay the second defendant's costs. (4) Respondent pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if qualified.

CA 40945/00
SC 20668/94

POWELL JA
GILES JA
ROLFE AJA

Wednesday 5 December 2001

CESSNOCK CITY COUNCIL v SUVAAL

Judgment

1 POWELL JA: I have read in draft the Judgment which has been prepared by Giles JA. I agree with the orders which his Honour proposes for the disposition of the appeal and with his reasons for so doing.

2 GILES JA: The respondent, Mr Anthony Suvaal, was seriously injured in a fall from his bicycle when riding along Quorrobolong Road between Heaton and Cessnock. He sued the Nominal Defendant, alleging that the accident was caused by the negligence of the driver of an unidentified motor vehicle; he also sued in the alternative the appellant, Cessnock City Council, alleging that the accident was caused by its negligence in the design, construction, maintenance and repair of Quorrobolong Road. His claim was heard by Master Harrison. Damages were agreed, being $2,350,000 as against the Nominal Defendant and $2,800,000 as against the appellant, and the hearing was concerned only with liability. The Master held in favour of the Nominal Defendant but against the appellant.

3 The grounds of appeal were broadly concerned with two issues, causation of the accident and negligence of the appellant. The Court first heard the parties on the issue of causation of the accident. It then announced that it proposed to uphold the appeal, but that the formal orders would be…

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: [2001] NSWCA 428
Decision Date: 5 December 2001

CaseChat Overview and Summary

Cessnock City Council (the appellant) appealed to the New South Wales Court of Appeal against a verdict and judgment entered in favour of the plaintiff, Mr Suvaal (the respondent), in a claim for damages arising from a bicycle accident. The plaintiff alleged that the council was negligent in its maintenance of a road, which caused him to lose control of his bicycle due to potholes, resulting in his injuries. The central dispute concerned whether the plaintiff's loss of steering control was caused by the potholes, or whether he lost control for other reasons and then encountered the potholes.

The Court of Appeal was required to determine whether the trial judge erred in finding that the council's negligence in maintaining the road caused the plaintiff's loss of steering control and subsequent accident. Specifically, the court had to consider whether the evidence supported the conclusion that the presence of potholes was the causative factor of the plaintiff's loss of control, or if the plaintiff had failed to establish this causal link on the balance of probabilities.

The Court of Appeal found that the plaintiff had not established, on the facts, that the potholes were the cause of his loss of steering control. The court reasoned that the plaintiff's own evidence did not demonstrate that hitting the potholes preceded and caused the loss of control. Instead, the evidence was equally consistent with the plaintiff losing control of his bicycle for reasons unrelated to the road's condition, and subsequently hitting the potholes. Therefore, the necessary causal connection between the council's alleged breach of duty and the plaintiff's injuries was not proven.

Consequently, the appeal was allowed. The verdict and judgment in favour of the plaintiff against the council were set aside, and judgment was entered for the council. The orders regarding costs were also varied, with the plaintiff ordered to pay the council's costs of the proceedings and the appeal.

Orders

Orders of the court

(1) Appeal allowed. (2) Set aside the verdict and judgment for the plaintiff against the second defendant and in lieu thereof verdict and judgment for the second defendant. (3) Set aside order 3 made by the Master on 10 November 2000, order 1 made by the Master on 20 November 2000 so far as it was ordered that the second defendant pay half the first defendant's costs and order 8 made by the Master on 20 November 2000 and in lieu thereof order that the plaintiff pay the second defendant's costs. (4) Respondent pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if qualified.

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:	Cessnock City Council v Suvaal [2001] NSWCA 428
FILE NUMBER(S):	CA 40945/00
HEARING DATE(S):	22 October 2001
JUDGMENT DATE:	5 December 2001
PARTIES :	Cessnock City Council - Appellant Anthony Peter Suvaal - Respondent
JUDGMENT OF:	Powell JA at 1; Giles JA at 2; Rolfe AJA at 23

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	20668/94
LOWER COURT JUDICIAL OFFICER :	Master Harrison

COUNSEL:	D F Rofe QC & M J Lawler - Appellant T F Bathurst QC, D R Conti, C Mirales - Respondent
SOLICITORS:	Moray & Agnew - Appellant McClellands - Respondent
CATCHWORDS:	NEGLIGENCE - bicycle accident - claim against council because of potholes in road - whether loss of steering control because hit potholes or hit potholes because of loss of steering control - on facts, the former not established - claim fails. ND.
CASES CITED:	Holloway v McFeeters (1956) 94 CLR 470.
DECISION:	(1) Appeal allowed. (2) Set aside the verdict and judgment for the plaintiff against the second defendant and in lieu thereof verdict and judgment for the second defendant. (3) Set aside order 3 made by the Master on 10 November 2000, order 1 made by the Master on 20 November 2000 so far as it was ordered that the second defendant pay half the first defendant's costs and order 8 made by the Master on 20 November 2000 and in lieu thereof order that the plaintiff pay the second defendant's costs. (4) Respondent pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if qualified.