Coffs Harbour City Council v Backman - [2001] NSWCA 202

Reported Decision:
[2001] Aust Torts Reports 81-614
[2001] ACL Rep 265 NSW 64

New South Wales

Court of Appeal

CITATION: Coffs Harbour City Council v Backman & Ors [2001] NSWCA 202

FILE NUMBER(S): CA 40463/99

HEARING DATE(S): 5 June 2001

JUDGMENT DATE:
29 June 2001

PARTIES :

Coffs Harbour City Council (Appellant)
Theodore Backman (1st Respondent)
William David Featherstone and Margaret Featherstone (2nd Respondents)

JUDGMENT OF: Handley JA at 1; Stein JA at 2; Grove AJA at 45

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 8/97

LOWER COURT
JUDICIAL OFFICER : Delaney DCJ

COUNSEL: Appellant - C R C Newlinds/S P W Glascott
1st Respondent - L King SC/J Neal
2nd Respondents/Cross-Appellant - A P Coleman

SOLICITORS: Appellant - Phillips Fox
1st Respondent - Henry Davis York
2nd Respondents - B L Abbott & Co, Coffs Harbour

CATCHWORDS: TORT - negligence - Order under s 124 of the Local Government Act 1993 to slash vegetation - liability of Council in absence of further complaint - whether danger was one the Council could have reasonably suspected to exist or known to arise - TORT - negligence - liability - duty of care owed to a trespasser - whether it was reasonably forseeable that a person would enter the land in question - D

LEGISLATION CITED: Local Government Act 1993

CASES CITED:
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Brodie v Singleton Shire Council [2000] HCA 29, 31 May 2001
Hackshaw v Shaw (1984) 155 CLR 614
Phillis v Daly (1988) 15 NSWLR 65

DECISION: 1. Appeal allowed. 2. Pursuant to the undertaking given to the Court on the granting of leave to appeal, the appellant to pay the costs of the first respondent. 3. Verdict and judgment entered in the Court below against the appellant be set aside and a verdict for the appellant entered. 4. In substitution therefor, a verdict and judgment be entered for the first respondent against the second respondents in the sum of $24,000. 5. The second respondents pay the costs of the first respondent and appellant in the Court below. 6. The cross-appeal be dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40463/99
DC 8/97

HANDLEY JA
STEIN JA

GROVE AJA
Friday, 29 June 2001

COFFS HARBOUR CITY COUNCIL v Theodore BACKMAN & ORS

The first respondent, Mr Backman, was injured when he fell into an open sewer access point on vacant land owned by the second respondents. Due to the long grass on the land, he did not see the open access point. The Council was joined as a defendant as they had issued an Order under s 124 of the Local Government Act 1993 in 1995 to have the owners slash the land. It appears that the land was slashed after the notice was served, however there is no direct evidence of this. There is no evidence of any further complaint being made. If there was an…

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 202
Decision Date: 29 June 2001

CaseChat Overview and Summary

Coffs Harbour City Council (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the District Court which found the Council liable in negligence for injuries sustained by Mr Backman (the first respondent). Mr Backman had been injured when he tripped on a hidden obstruction while walking on a reserve managed by the Council. The Council had previously issued an order under s 124 of the *Local Government Act 1993* to slash vegetation on the land, but it was argued that the Council had not taken sufficient steps to ensure the safety of the reserve thereafter.

The primary legal issues before the Court of Appeal were whether the Council owed a duty of care to Mr Backman, who was a trespasser on the land, and if so, whether the Council had breached that duty. Specifically, the Court had to determine whether the danger that caused Mr Backman's injuries was one that the Council could have reasonably suspected to exist or known to arise, and whether it was reasonably foreseeable that a person would enter the land in question.

The Court of Appeal found that the Council did not owe a duty of care to Mr Backman in the circumstances. The Court reasoned that while a landowner may owe a duty of care to a trespasser in certain situations, this duty is generally limited to preventing injury from a known or reasonably foreseeable danger. In this case, the Court held that the obstruction that caused Mr Backman's fall was not something the Council could have reasonably foreseen or known about, particularly given the nature of the reserve and the absence of any prior complaints or incidents. The Court concluded that the Council had not breached any duty of care owed to Mr Backman.

Consequently, the appeal was allowed. The verdict and judgment entered in the District Court against the appellant (Coffs Harbour City Council) were set aside, and a verdict for the appellant was entered. The Court also made orders regarding the costs of the appeal and the District Court proceedings, including a substitution of judgment against the second respondents.

Orders

Orders of the court

1. Appeal allowed. 2. Pursuant to the undertaking given to the Court on the granting of leave to appeal, the appellant to pay the costs of the first respondent. 3. Verdict and judgment entered in the Court below against the appellant be set aside and a verdict for the appellant entered. 4. In substitution therefor, a verdict and judgment be entered for the first respondent against the second respondents in the sum of $24,000. 5. The second respondents pay the costs of the first respondent and appellant in the Court below. 6. The cross-appeal be dismissed with costs.

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:	Coffs Harbour City Council v Backman & Ors [2001] NSWCA 202
FILE NUMBER(S):	CA 40463/99
HEARING DATE(S):	5 June 2001
JUDGMENT DATE:	29 June 2001
PARTIES :	Coffs Harbour City Council (Appellant) Theodore Backman (1st Respondent) William David Featherstone and Margaret Featherstone (2nd Respondents)
JUDGMENT OF:	Handley JA at 1; Stein JA at 2; Grove AJA at 45

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 8/97
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

COUNSEL:	Appellant - C R C Newlinds/S P W Glascott 1st Respondent - L King SC/J Neal 2nd Respondents/Cross-Appellant - A P Coleman
SOLICITORS:	Appellant - Phillips Fox 1st Respondent - Henry Davis York 2nd Respondents - B L Abbott & Co, Coffs Harbour
CATCHWORDS:	TORT - negligence - Order under s 124 of the Local Government Act 1993 to slash vegetation - liability of Council in absence of further complaint - whether danger was one the Council could have reasonably suspected to exist or known to arise - TORT - negligence - liability - duty of care owed to a trespasser - whether it was reasonably forseeable that a person would enter the land in question - D
LEGISLATION CITED:	Local Government Act 1993
CASES CITED:	Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Brodie v Singleton Shire Council [2000] HCA 29, 31 May 2001 Hackshaw v Shaw (1984) 155 CLR 614 Phillis v Daly (1988) 15 NSWLR 65
DECISION:	1. Appeal allowed. 2. Pursuant to the undertaking given to the Court on the granting of leave to appeal, the appellant to pay the costs of the first respondent. 3. Verdict and judgment entered in the Court below against the appellant be set aside and a verdict for the appellant entered. 4. In substitution therefor, a verdict and judgment be entered for the first respondent against the second respondents in the sum of $24,000. 5. The second respondents pay the costs of the first respondent and appellant in the Court below. 6. The cross-appeal be dismissed with costs.