Clarke v Energy Australia

[2003] NSWCA 193

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Clarke v Energy Australia [2003]  NSWCA 193

FILE NUMBER(S):
410409/02

HEARING DATE(S):               14/07/03

JUDGMENT DATE: 14/07/2003

PARTIES:
Joyce Margaret Clarke (Appellant)
Energy Australia (Respondent)

JUDGMENT OF:       Ipp JA Tobias JA McColl JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 3115/01

LOWER COURT JUDICIAL OFFICER:     Hogan ADCJ

COUNSEL:
D E Baran (Appellant)
J Timbs QC/ A M Enright (Respondent)

SOLICITORS:
Keddies (Appellant)
Colin Biggers & Paisley (Respondent)

CATCHWORDS:
NEGLIGENCE - Appellant injured when her foot caught in an embedded footprint in concrete - Evidence that tended to establish that respondent had not repaired the footpath was overwhelming - Appellant failed to establish that whomsoever repaired the footpath did so in a negligent manner.

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41049/02
DC 3115/01

IPP JA
TOBIAS JA
McCOLL JA

Monday 14 July 2003

JOYCE MARGARET CLARKE v ENERGY AUSTRALIA

Judgment

1. IPP JA:  This appeal concerns an action for damages for personal injuries.  The appellant was injured on 15 December 1998 when she fell while walking along a footpath alongside Stirling Street, Redfern.  As she walked past a telegraph pole her foot caught in an impression of a footprint that had been made in the concrete surrounding the pole.  The impression had been made by a person walking on the concrete before it had completely set.

2. It was common ground that in 1993 or early 1994 the respondent caused the telegraph pole in question to be inserted in the footpath in replacement of another that had previously stood there.  The appellant contended that, in replacing the pole, the concrete surround had cracked and this led to the respondent applying fresh concrete to the cracked area. 

3. The appellant contended that after leaving the concrete to dry the respondent had failed to ensure that it had set in a level form.  The particulars of negligence alleged that the respondent was negligent in failing to ensure that nobody deformed the concrete, in failing to put up barricades to ensure that no person could walk through the wet concrete, in failing to inspect the job after completion and in failing to repair the damaged concrete.

4. After reviewing the evidence the trial judge held against the appellant.  He said:

   “[E]ven if I were satisfied, (which I am not), that the defendant probably did damage the footpath in extracting the previous pole, it does not follow that the defendant probably did the work of repairing it”.

5. The footpath fell within the jurisdiction of the South Sydney Council.  The appellant attempted to prove that the Council did not carry out any repairs to the concrete on the footpath.  This was essential to the appellant’s case, as she sought, on the basis of circumstantial evidence, to establish an inference that the work had been done by the respondent.  The drawing of such an inference depended, partly, on the exclusion of the reasonable possibility that the work had…