Fitzgibbon v The Waterways Authority - [2003] NSWCA 294

CITATION: Daniel Gerard FITZGIBBON v THE WATERWAYS AUTHORITY & ORS [2003] NSWCA 294 revised - 5/12/2003

HEARING DATE(S): 13/10/2003

JUDGMENT DATE:
3 December 2003

JUDGMENT OF: Meagher JA at 1; Santow JA at 2; Foster AJA at 3-54

DECISION: 1. The appeal be upheld.; 2. The judgment in favour of the defendants be set aside.; 3. That there be a new trial of the action conducted on the basis that it is established in favour of the appellant that, through being jostled or pushed, he lost his balance and fell from the jetty into the water.; 4. That the respondents pay the appellant's costs of the appeal and his costs of the first trial.

CATCHWORDS: Appellant struck his head upon the sandy bottom of shallow waters within the premises of the Middle Harbour Yacht Club after competing in a regatta at that club.

CASES CITED: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (at 431)
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Mifsud v Campbell (1991) 21 NSWLR 725
Fox v Percy (2003) 77 ALJR 989 at 995

PARTIES :
Daniel Gerard FITZGIBBON - Appellant
THE WATERWAYS AUTHORITY - First Respondent
MIDDLE HARBOUR YACHT CLUB - Second Respondent
MOSMAN MUNICIPAL COUNCIL - Third Respondent

FILE NUMBER(S): CA 41223/02

COUNSEL: Mr J. Hislop QC / Mr Ian Cullen - Appellant
Mr J. Glissan QC /Mr Michael Fordham - First Respondent
Mr I.G. Harrison SC/Mr R. Cavanagh - Second Respondent
Mr Peter Taylor SC /Mr S. Glascott - Third Respondent

SOLICITORS: Paul A. Curtis & Co - Appellant
Messrs McCabe Terrill - First Respondent
Messrs Riley, Gray-Spencer - Second Respondent
Messrs Phillips Fox - Third Respondent

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20293/99

LOWER COURT
JUDICIAL OFFICER : NEWMAN AJ

CA 41223/02
MEAGHER JA
SANTOW JA
FOSTER AJA

Wednesday, 3 December, 2003

Judgment

1 MEAGHER JA: I agree with Foster AJA.

2 SANTOW JA: I agree with Foster AJA.

3 FOSTER AJA: This is an appeal from the decision of a judge sitting in the Common Law Division of the Court on 20 December 2002. His Honour dismissed the claim of the plaintiff, Daniel Gerard Fitzgibbon, against each of the defendants, entered judgment for each of them and also judgment for the cross-defendants in respect of the various cross-claims that they had brought amongst themselves. By his appeal, the appellant (to whom I shall also refer as “Mr Fitzgibbon”) asserts that his Honour erred in dismissing his claim, in that the basis upon which the dismissal occurred involved errors of fact and defects in his Honour’s reasoning. A new trial is sought on a limited basis to which I shall refer later. Alternatively, it is claimed that his Honour failed to provide adequate reasons for his decision, with the result that a full new trial should be ordered.

4 Mr Fitzgibbon suffered the injuries in respect of which he sued when he struck his head upon the sandy bottom of shallow waters…

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: [2003] NSWCA 294
Decision Date: 3 December 2003

CaseChat Overview and Summary

The appellant, Mr. Fitzgibbon, appealed to the Court of Appeal of New South Wales against a judgment in favour of the respondents, The Waterways Authority and others. The dispute arose from injuries sustained by the appellant when he struck his head on the sandy bottom of shallow waters at the Middle Harbour Yacht Club after participating in a regatta.

The central legal issue before the Court of Appeal was whether the trial judge had erred in finding that the appellant had not established that he lost his balance and fell into the water due to being jostled or pushed. This determination was crucial for establishing liability on the part of the respondents.

The Court of Appeal, comprising Meagher JA, Santow JA, and Foster AJA, found that the trial judge had made an error in his assessment of the evidence. The Court concluded that it was established in favour of the appellant that he had indeed lost his balance and fallen into the water as a result of being jostled or pushed. Consequently, the Court upheld the appeal, set aside the judgment in favour of the defendants, and ordered a new trial. The respondents were also ordered to pay the appellant's costs of the appeal and the first trial.

Orders

Orders of the court

1. The appeal be upheld.; 2. The judgment in favour of the defendants be set aside.; 3. That there be a new trial of the action conducted on the basis that it is established in favour of the appellant that, through being jostled or pushed, he lost his balance and fell from the jetty into the water.; 4. That the respondents pay the appellant's costs of the appeal and his costs of the first trial.

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:	Daniel Gerard FITZGIBBON v THE WATERWAYS AUTHORITY & ORS [2003] NSWCA 294 revised - 5/12/2003
HEARING DATE(S):	13/10/2003
JUDGMENT DATE:	3 December 2003
JUDGMENT OF:	Meagher JA at 1; Santow JA at 2; Foster AJA at 3-54
DECISION:	1. The appeal be upheld.; 2. The judgment in favour of the defendants be set aside.; 3. That there be a new trial of the action conducted on the basis that it is established in favour of the appellant that, through being jostled or pushed, he lost his balance and fell from the jetty into the water.; 4. That the respondents pay the appellant's costs of the appeal and his costs of the first trial.
CATCHWORDS:	Appellant struck his head upon the sandy bottom of shallow waters within the premises of the Middle Harbour Yacht Club after competing in a regatta at that club.
CASES CITED:	Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (at 431) Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Mifsud v Campbell (1991) 21 NSWLR 725 Fox v Percy (2003) 77 ALJR 989 at 995
PARTIES :	Daniel Gerard FITZGIBBON - Appellant THE WATERWAYS AUTHORITY - First Respondent MIDDLE HARBOUR YACHT CLUB - Second Respondent MOSMAN MUNICIPAL COUNCIL - Third Respondent
FILE NUMBER(S):	CA 41223/02
COUNSEL:	Mr J. Hislop QC / Mr Ian Cullen - Appellant Mr J. Glissan QC /Mr Michael Fordham - First Respondent Mr I.G. Harrison SC/Mr R. Cavanagh - Second Respondent Mr Peter Taylor SC /Mr S. Glascott - Third Respondent
SOLICITORS:	Paul A. Curtis & Co - Appellant Messrs McCabe Terrill - First Respondent Messrs Riley, Gray-Spencer - Second Respondent Messrs Phillips Fox - Third Respondent

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20293/99
LOWER COURT JUDICIAL OFFICER :	NEWMAN AJ