Coffs Harbour City Council v McLeod - [2016] NSWCA 94

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Coffs Harbour City Council v McLeod [2016] NSWCA 94
Hearing dates: 26 April 2016
Decision date: 03 May 2016
Before: Gleeson JA at [1]
Simpson JA at [60]
Sackville AJA at [61]
Decision:
(1)   Refuse leave to appeal.
(2)   The Court notes that although it is accepted by the respondent that there was an error in relation to the award of $40,000 for non-economic loss, the parties are agreed that this figure is not to be disturbed.
(3)   Applicant to pay the respondent’s costs in this Court.

Catchwords: APPEAL AND NEW TRIAL - appeal - general principles – leave to appeal –discretion - slip and fall case – challenges to factual findings of primary judge concerning slip hazard – challenge to finding as to precautions which a reasonable person in the applicant’s position would have taken to avoid the risk of harm – challenges to assessment of damages – whether errors of law – where no issue of principle or question of general public importance – whether more shown than that the primary judge was arguably wrong – whether reasonably clear that injustice beyond merely arguable error occurred
Legislation Cited: Civil Liability Act 2000 (NSW), ss 5B, 5B(1)(a), 5B(1)(b), 5C, 5D, 16, 16(3), 42, 42(a), 42(c), 43A, 43A(2), 45, 45(3)
Roads Act 1993 (NSW), ss 71, 87, 115(1)(d)
Supreme Court Act 1970 (NSW), s 101(2)(r)
Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512
Curtis v Harden Shire Council [2014] NSWCA 314; 203 LGERA 352
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397
Rockdale City Council v Simmons [2015] NSWCA 102
Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598
Category: Principal judgment
Parties: Coffs Harbour City Council (appellant)
Matthew Peter McLeod (respondent)
Representation:
Counsel:
Mr J Sexton SC with Mr R Gambi of counsel (Appellant)
Mr DRJ Toomey SC with Ms G Guiguis of counsel
Solicitors:
Mills Oakley (Appellant)
Stacks Law Firm (Respondent)

File Number(s): 2015/295752
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

2 October 2015

Before:

Williams ADCJ

File Number(s):

2013/255451

Judgment

GLEESON JA: On 15 August 2010 at about 6.10pm, the respondent, Matthew McLeod, slipped and fell on a patch of water on a concrete footpath in the vicinity of 246 Harbour Drive, Coffs Harbour. The respondent claimed that as a result of the fall he suffered injuries, including aggravating a pre-existing injury to his left ankle, injury to his right arm and right shoulder, injury to his right sternoclavicular joint, and injury to his neck and lower back.
On 14 August 2013, the respondent commenced proceedings in the District Court against the Coffs Harbour City Council (the Council), seeking damages for his injuries.…

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: [2016] NSWCA 94
Decision Date: 03 May 2016

CaseChat Overview and Summary

Coffs Harbour City Council appealed to the Court of Appeal of New South Wales against a decision of the District Court in favour of McLeod. The dispute concerned a slip and fall incident where McLeod suffered injuries. The Council challenged the primary judge's factual findings regarding the existence of a slip hazard and the adequacy of precautions taken by the Council to avoid the risk of harm. Additionally, the Council contested the assessment of damages awarded to McLeod.

The Court of Appeal was required to determine whether there were errors of law in the primary judge's findings. Specifically, the Court considered whether the Council had demonstrated more than that the primary judge was arguably wrong, and whether it was reasonably clear that an injustice beyond merely arguable error had occurred. The appeal did not raise any issue of principle or question of general public importance.

The Court refused leave to appeal. While acknowledging that the respondent accepted there was an error in the award of $40,000 for non-economic loss, the parties had agreed that this figure would not be disturbed. Consequently, the applicant was ordered to pay the respondent's costs in the Court of Appeal.

Orders

Orders of the court

(1) Refuse leave to appeal.

(2) The Court notes that although it is accepted by the respondent that there was an error in relation to the award of $40,000 for non-economic loss, the parties are agreed that this figure is not to be disturbed.

(3) Applicant to pay the respondent’s costs in this Court.

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.

Medium Neutral Citation:	Coffs Harbour City Council v McLeod [2016] NSWCA 94
Hearing dates:	26 April 2016
Decision date:	03 May 2016
Before:	Gleeson JA at [1] Simpson JA at [60] Sackville AJA at [61]
Decision:	(1) Refuse leave to appeal. (2) The Court notes that although it is accepted by the respondent that there was an error in relation to the award of $40,000 for non-economic loss, the parties are agreed that this figure is not to be disturbed. (3) Applicant to pay the respondent’s costs in this Court.
Catchwords:	APPEAL AND NEW TRIAL - appeal - general principles – leave to appeal –discretion - slip and fall case – challenges to factual findings of primary judge concerning slip hazard – challenge to finding as to precautions which a reasonable person in the applicant’s position would have taken to avoid the risk of harm – challenges to assessment of damages – whether errors of law – where no issue of principle or question of general public importance – whether more shown than that the primary judge was arguably wrong – whether reasonably clear that injustice beyond merely arguable error occurred
Legislation Cited:	Civil Liability Act 2000 (NSW), ss 5B, 5B(1)(a), 5B(1)(b), 5C, 5D, 16, 16(3), 42, 42(a), 42(c), 43A, 43A(2), 45, 45(3) Roads Act 1993 (NSW), ss 71, 87, 115(1)(d) Supreme Court Act 1970 (NSW), s 101(2)(r)
Cases Cited:	Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 Curtis v Harden Shire Council [2014] NSWCA 314; 203 LGERA 352 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397 Rockdale City Council v Simmons [2015] NSWCA 102 Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598
Category:	Principal judgment
Parties:	Coffs Harbour City Council (appellant) Matthew Peter McLeod (respondent)
Representation:	Counsel: Mr J Sexton SC with Mr R Gambi of counsel (Appellant) Mr DRJ Toomey SC with Ms G Guiguis of counsel Solicitors: Mills Oakley (Appellant) Stacks Law Firm (Respondent)
File Number(s):	2015/295752
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 2 October 2015 Before: Williams ADCJ File Number(s): 2013/255451