Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Coffs Harbour City Council v Polglase [2020] NSWCA 265 Hearing dates: 17 September 2020 Decision date: 23 October 2020 Before: Basten JA at [1];
Macfarlan JA at [2];
Leeming JA at [3].Decision: 1. Grant leave to the Council and the Trust to appeal against the orders for costs in the court below, if such leave be necessary.
2. Appeal dismissed.
3. Application for leave to cross-appeal dismissed.
4. The appellants (the Council and the Trust) to pay the respondents’ costs of the appeal.
5. The cross-appellant (the plaintiff) to pay the cross-respondents’ costs of the cross-appeal.
Catchwords: NEGLIGENCE - public authorities - Council and Trust had care, control and management of jetty - young child fell through gap in jetty’s railing and sustained serious injury - history of young children falling through railing to Council’s knowledge - whether Council breached duty of care by failing to install additional railings or a mesh infill to prevent such falls - whether risk warning at jetty entrance meant no duty of care was owed - jetty built on Crown land and railing designed and constructed by State - State retained control of jetty for five years prior to handover to Council and Trust some nine years before plaintiff’s injury - whether State also liable as joint tortfeasor - whether grandparents walking with young grandson breached a duty of care - consideration of relationship between State, Council and Trust - consideration of significance of ownership, occupation, and care control and management of land for purposes of duty of care and breach
COSTS - plaintiff succeeded against Council and Trust but failed against State and grandparents - trial judge declined to make Bullock or Sanderson order in respect of State’s and grandparents’ costs - whether error in failing to find that Council caused plaintiff to join other parties - non-acceptance of Calderbank letter - whether trial judge erred in making partial indemnity costs order
Legislation Cited: Civil Liability Act 2002 (NSW), Pt 1A, ss 5B, 5D, 5F, 5M, 42, 43A
Coastal Waters (State Title) Act 1980 (Cth)
Crown Land Management Act 2016 (NSW), Sch 7, cl 7
Crown Lands Act 1989 (NSW), Pt 5, ss 92, 93, 95, 100, 102, 103, 117
Crown Lands and Other Acts (Reserves) Amendment Act 1974 (NSW)
Crown Lands Consolidation Act 1913 (NSW), Pt IIIB, ss 37R, 37X
Heritage Act 1977 (NSW), s 57
Lands Act 1910 (Qld), ss 180, 181
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Local Government Act 1906 (NSW)
Local Government Act 1919 (NSW), s 537
Local Government (Consequential Provisions) Act 1993 (NSW), ss 3, 4
Local Government (Shires) Act 1905 (NSW), s 17
Public Works Act 1912 (NSW), s 153
Seas and Submerged Lands Act 1973 (Cth)
State Environmental Planning Policy (Repeal of Concurrence and Referral Provisions) 2008, Sch 2, cl 2.9 [10]
Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases Cited:
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- Case
- [2020] NSWCA 265
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the Council and the Trust had breached their duty of care to the plaintiff by failing to install additional railings or a mesh infill to prevent such falls, and whether a risk warning sign at the jetty entrance negated any such duty of care. The court also considered the State's potential liability as a joint tortfeasor, given the jetty was built on Crown land and initially designed and constructed by the State, and the relationship between the State, Council, and Trust regarding ownership, occupation, and control of the land. Furthermore, the appeal addressed whether the trial judge erred in declining to make a *Bullock* or *Sanderson* order in favour of the State and the grandparents, and whether a partial indemnity costs order was appropriate.
The Court of Appeal reasoned that the Council and the Trust owed a duty of care to the plaintiff, and that this duty was breached by their failure to take reasonable steps to prevent foreseeable harm, despite the existence of a risk warning. The court found that the history of similar incidents put the Council and the Trust on notice of the specific danger posed by the gaps in the railing to young children. The court also considered the respective roles and responsibilities of the State, Council, and Trust, ultimately concluding that the State was not liable. The court upheld the trial judge's decision regarding the non-liability of the State and the grandparents, and the costs orders made at trial.
The Court of Appeal dismissed the appeal by the Council and the Trust, and also dismissed the plaintiff's application for leave to cross-appeal. The appellants, the Council and the Trust, were ordered to pay the respondents' costs of the appeal, and the cross-appellant, the plaintiff, was ordered to pay the cross-respondents' costs of the cross-appeal.
Orders
Orders of the court
1. Grant leave to the Council and the Trust to appeal against the orders for costs in the court below, if such leave be necessary.
2. Appeal dismissed.
3. Application for leave to cross-appeal dismissed.
4. The appellants (the Council and the Trust) to pay the respondents’ costs of the appeal.
5. The cross-appellant (the plaintiff) to pay the cross-respondents’ costs of the cross-appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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