Eddy v Goulburn Mulwaree Council - [2022] NSWCA 87

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Eddy v Goulburn Mulwaree Council [2022] NSWCA 87
Hearing dates: 26 April 2022
Date of orders: 7 June 2022
Decision date: 07 June 2022
Before: Bell CJ at [1]
Gleeson JA at [2]
Kirk JA at [3]
Decision:
(1) Appeal allowed with costs.
(2) Orders (1) and (2) made by the District Court on 30 April 2021 are set aside.
(3) Matter remitted to the District Court to be determined according to law.

Catchwords:
NEGLIGENCE — Defences — Civil Liability Act 2002 (NSW), s 45 — Whether defendant had actual knowledge of the particular risk the materialisation of which resulted in the harm — Extent of specificity required by phrase “particular risk”

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 5B, 5C, 5F, 5G, 5H, 5L, 5M, 45
Civil Liability Act 2003 (Qld), s 37

Cases Cited:
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Botany Bay City Council v Latham (2013) 197 LGERA 211; [2013] NSWCA 363
Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29
Buckle v Bayswater Road Board (1936) 57 CLR 259; [1936] HCA 65
Collins v Clarence Valley Council (2015) 91 NSWLR 128; [2015] NSWCA 263
Collins v Clarence Valley Council (No 3) [2013] NSWSC 1682
Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36
Goondiwindi Regional Council v Tai (2020) 92 MVR 218; [2020] QCA 119
Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65
Nightingale v Blacktown City Council (2015) 91 NSWLR 556; [2015] NSWCA 423
North Sydney Council v Roman (2007) 69 NSWLR 240; [2007] NSWCA 27
Roads and Traffic Authority of NSW v Dederer (2007) 243 CLR 330; [2007] HCA 42
Sibraa v Brown [2012] NSWCA 328
Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited (2002) 399 ALR 535; [2022] HCA 11
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12

Category: Principal judgment
Parties: Ricky Eddy (Appellant)
Goulburn Mulwaree Council (Respondent)
Representation:
Counsel:
JE Sexton SC / DP Kelly (Appellant)
R Sheldon SC / RG Gambi (Respondent)
Solicitors:
Stacks Law Firm (Appellant)
Mills Oakley (Respondent)

File Number(s): 2021/00152128
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

[2021] NSWDC 150

Date of Decision:

30 April 2021

Before:

Strathdee DCJ

File Number(s):

2020/95802

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant fell and was injured when the ramp on which he was walking slipped from under him. The ramp had been placed over repaving work outside a shopping centre. In the weeks before the accident the respondent local council had twice been notified about problems with ramps in the work area where the accident took place. The appellant brought proceedings in the District Court against the Council, which accepted it had…

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: [2022] NSWCA 87
Decision Date: 07 June 2022

CaseChat Overview and Summary

In *Eddy v Goulburn Mulwaree Council*, the Court of Appeal of New South Wales considered an appeal concerning a claim in negligence. The appellant, Eddy, had suffered injury and sought damages from the respondent, Goulburn Mulwaree Council. The central dispute revolved around whether the Council could rely on a defence under section 45 of the *Civil Liability Act 2002* (NSW).

The primary legal issue before the Court of Appeal was the interpretation of section 45 of the *Civil Liability Act 2002* (NSW), specifically the requirement that a defendant must have had "actual knowledge of the particular risk" that materialised and caused the harm. The Court had to determine the extent of specificity required by the phrase "particular risk" in the context of the Council's knowledge.

The Court of Appeal allowed the appeal, finding that the District Court had erred in its application of section 45. The Judges reasoned that the defence under section 45 requires actual knowledge of the specific risk that eventuated, not merely a general awareness of a potential danger. The Court held that the District Court had not correctly assessed whether the Council possessed the requisite actual knowledge of the particular risk that caused the appellant's injury. Consequently, the Court set aside the orders of the District Court and remitted the matter for redetermination according to law.

Orders

Orders of the court

(1) Appeal allowed with costs.

(2) Orders (1) and (2) made by the District Court on 30 April 2021 are set aside.

(3) Matter remitted to the District Court to be determined according to law.

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:	Eddy v Goulburn Mulwaree Council [2022] NSWCA 87
Hearing dates:	26 April 2022
Date of orders:	7 June 2022
Decision date:	07 June 2022
Before:	Bell CJ at [1] Gleeson JA at [2] Kirk JA at [3]
Decision:	(1) Appeal allowed with costs. (2) Orders (1) and (2) made by the District Court on 30 April 2021 are set aside. (3) Matter remitted to the District Court to be determined according to law.
Catchwords:	NEGLIGENCE — Defences — Civil Liability Act 2002 (NSW), s 45 — Whether defendant had actual knowledge of the particular risk the materialisation of which resulted in the harm — Extent of specificity required by phrase “particular risk”
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5C, 5F, 5G, 5H, 5L, 5M, 45 Civil Liability Act 2003 (Qld), s 37
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Botany Bay City Council v Latham (2013) 197 LGERA 211; [2013] NSWCA 363 Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 Buckle v Bayswater Road Board (1936) 57 CLR 259; [1936] HCA 65 Collins v Clarence Valley Council (2015) 91 NSWLR 128; [2015] NSWCA 263 Collins v Clarence Valley Council (No 3) [2013] NSWSC 1682 Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36 Goondiwindi Regional Council v Tai (2020) 92 MVR 218; [2020] QCA 119 Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65 Nightingale v Blacktown City Council (2015) 91 NSWLR 556; [2015] NSWCA 423 North Sydney Council v Roman (2007) 69 NSWLR 240; [2007] NSWCA 27 Roads and Traffic Authority of NSW v Dederer (2007) 243 CLR 330; [2007] HCA 42 Sibraa v Brown [2012] NSWCA 328 Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited (2002) 399 ALR 535; [2022] HCA 11 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12
Category:	Principal judgment
Parties:	Ricky Eddy (Appellant) Goulburn Mulwaree Council (Respondent)
Representation:	Counsel: JE Sexton SC / DP Kelly (Appellant) R Sheldon SC / RG Gambi (Respondent) Solicitors: Stacks Law Firm (Appellant) Mills Oakley (Respondent)
File Number(s):	2021/00152128
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Citation: [2021] NSWDC 150 Date of Decision: 30 April 2021 Before: Strathdee DCJ File Number(s): 2020/95802