Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Curtis v Harden Shire Council [2014] NSWCA 314 Hearing dates: 25 September 2013 Decision date: 10 September 2014 Before: Bathurst CJ at [1];
Beazley P at [58];
Basten JA at [230]Decision: In each of the matters CA 2012/241825 and
CA 2012/241832:
1. Appeal allowed.
2. Set aside the verdict for the respondent made by Fullerton J on 9 July 2012.
3. Remit the matter to the Common Law Division of the Supreme Court for the assessment of damages.
4. Order the respondent pay the appellant's costs of the liability hearing at first instance and of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - negligence - duty of care - breach of duty - whether Civil Liability Act 2002 (NSW), s 43A applied - whether placing certain traffic control signs and omitting other signage involved the exercise of a "special statutory power" - prohibition on any person installing prescribed traffic control devices combined with requirement for statutory authority to undertake such activity
WORDS AND PHRASES - "special statutory power" - Civil Liability Act 2002 (NSW), s 43A
TORTS - negligence - duty of care - breach of duty - standard of liability - Civil Liability Act 2002 (NSW), s 43A - motor vehicle accident - whether omission of signs on road was an act no authority could properly consider a reasonable exercise of its power - expert evidence - evidence of council officer - omission of "slippery road" sign despite direction in Traffic Control Plan - common sense
TORTS - negligence - causation - onus - balance of probabilities - whether primary judge erred in comparison of probabilities with possibilities
TORTS - negligence - causation - motor vehicle accident - whether absence of signage caused driver to lose control on first resurfaced section - balance of probabilities - no direct proof - whether circumstances give rise to a reasonable and definite inference - consideration of state of the road, circumstances of accident, expert evidence and competing hypothesesLegislation Cited: Civil Liability Act 2002 (NSW), ss 5D, 5E, 5T, 43A
Compensation to Relatives Act 1897 (NSW)
Criminal Procedure Act 1986 (NSW), s 214
Evidence Act 1995 (NSW), s 140
Judiciary Act 1903 (Cth), ss 56, 64
Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW), cl 131
Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 50, 51, 52; Pt 4, Div 1
Road Transport Act 2013 (NSW), ss 121, 122, 123
Roads Act 1993 (NSW), s 87
Supreme Court Act 1970 (NSW), s 75A;
Transport Administration Act 1988 (NSW),…
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- Case
- [2014] NSWCA 314
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the respondent council owed a duty of care to the appellant, and if so, whether that duty had been breached. A significant question was the applicability of section 43A of the *Civil Liability Act 2002* (NSW), which concerns the exercise of statutory powers. Specifically, the court had to determine if the council's decision to place certain traffic control signs and omit others constituted the exercise of a "special statutory power" within the meaning of that section, particularly in light of provisions that prohibit individuals from installing prescribed traffic control devices and require statutory authorities to undertake such activities.
The Court of Appeal found that the council's actions did not fall within the scope of section 43A of the *Civil Liability Act 2002* (NSW). The court reasoned that the council's conduct in relation to the traffic signage did not involve the exercise of a "special statutory power" as contemplated by the Act. Consequently, the council was not afforded the protection offered by that section. The court allowed the appeal, set aside the previous verdict for the respondent, and remitted the matter for an assessment of damages, ordering the respondent to pay the appellant's costs of the liability hearing and the appeal.
Orders
Orders of the court
In each of the matters CA 2012/241825 and CA 2012/241832:
1. Appeal allowed.
2. Set aside the verdict for the respondent made
by Fullerton J on 9 July 2012.
3. Remit the matter to the Common Law Division of the Supreme Court for the assessment of damages.
4. Order the respondent pay the appellant's costs of the liability hearing at first instance and of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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