Folkes v Calabaro - [2004] NSWCA 191

CITATION: Folkes v Calabaro & Ors [2004] NSWCA 191

HEARING DATE(S): 16 June 2004

JUDGMENT DATE:
16 June 2004

JUDGMENT OF: Giles JA at 1; Tobias JA at 14; Cripps AJA at 15

DECISION: Appeal dismissed with costs.

CATCHWORDS: Negligence - pedestrian tripped on boarding laid across footpath as protection during building works - found visible to pedestrian exercising reasonable care for own safety - whether failed to pay regard to all evidence - whether failure to give sufficient reasons - whether incorrect to apply approach of a pedestrian exercising reasonable care for own safety. ND

CASES CITED: Brodie v Singleton Shire Council (2001) 206 CLR 512;
Ghantous v Hawkesbury City Council (2001) 206 CLR 512;
Wyong Shire Council v Shirt (1980) 146 CLR 40.

PARTIES :
Dale Lynette Folkes - Appellant
Alfio and Maria Anne Calabro - First and Second Respondents
Leon Constructions Pty Ltd - Third Respondent
City of Canada Bay Council - Fourth Respondent

FILE NUMBER(S): CA 40730/03

COUNSEL: A Stenmark SC & S Hughes - Appellant
S Campbell SC & H J Halligan - First and Second Respondents
C Bridge SC & J Ringrose - Third Respondent
J Turnbull - Fourth Respondent

SOLICITORS: Shaw McDonald Pty Ltd - Appellant
Hicksons - First and Second Respondents
Pricewaterhouse Coopers Legal - Third Respondent
Phillips Fox - Fourth Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 206/02

LOWER COURT
JUDICIAL OFFICER : Black DCJ

CA 40730/03
DC 206/02

GILES JA
TOBIAS JA
CRIPPS AJA
Wednesday 16 June 2004

FOLKES v CALABARO & ORS

Judgment

1 GILES JA: This is a plaintiff's appeal from verdicts and judgments for the defendants upon a claim in negligence that she was injured because of boarding on a footpath over which she tripped.

2 The first defendants owned 73 Wellbank Street, Concord in the local government area of the third defendant. They obtained a development consent from the third defendant, one of its conditions being that during the carrying out of the works the footpath at the driveway into the property was to be protected against damage "by means of close boarding with chamfered ends". They engaged the second defendant as their builder, and it constructed the boarding.

3 On the evening of 20 April 2000 the plaintiff, who lived in the vicinity, was out walking with her husband and their dog. They were walking briskly. They went along Wellbank Street, and as they passed the property a little after 6.30pm the plaintiff felt her foot come into contact with something hard and fell. She injured her left elbow. She brought proceedings in the District Court against the three sets of defendants, alleging that she tripped on the boarding and that she was exposed to the risk of injury in that way by negligence of one or more of the defendants.

4 There was an issue at the trial over whether all the ends of the boarding were chamfered. Mr Burn, an engineer called for the plaintiff, said that…

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.

Continue reading Folkes v Calabaro

Details

AGLC: Folkes v Calabaro [2004] NSWCA 191
Case: [2004] NSWCA 191
Decision Date: 16 June 2004

CaseChat Overview and Summary

The appeal concerned a claim in negligence brought by the plaintiff, Mr. Folkes, against the defendant, Mr. Calabaro. Mr. Folkes had tripped and fallen on a boarding laid across a footpath as protection during building works, sustaining injuries. The central dispute revolved around whether the defendant had breached their duty of care to the plaintiff.

The court was required to determine whether the primary judge erred in finding that the boarding was visible to a pedestrian exercising reasonable care for their own safety. Further issues included whether the primary judge failed to give sufficient reasons for their findings and whether the approach taken, focusing on a pedestrian exercising reasonable care, was incorrect.

The appellate court found no error in the primary judge's reasoning. It was held that the boarding was sufficiently visible to a pedestrian exercising reasonable care, and therefore the defendant had not breached their duty of care. The court affirmed that the appropriate standard was that of a reasonable pedestrian, and that the primary judge had adequately considered all relevant evidence in reaching their conclusion.

The appeal was dismissed, and the defendant was awarded costs.

Orders

Orders of the court

Appeal dismissed with costs.

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:	Folkes v Calabaro & Ors [2004] NSWCA 191
HEARING DATE(S):	16 June 2004
JUDGMENT DATE:	16 June 2004
JUDGMENT OF:	Giles JA at 1; Tobias JA at 14; Cripps AJA at 15
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	Negligence - pedestrian tripped on boarding laid across footpath as protection during building works - found visible to pedestrian exercising reasonable care for own safety - whether failed to pay regard to all evidence - whether failure to give sufficient reasons - whether incorrect to apply approach of a pedestrian exercising reasonable care for own safety. ND
CASES CITED:	Brodie v Singleton Shire Council (2001) 206 CLR 512; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Wyong Shire Council v Shirt (1980) 146 CLR 40.
PARTIES :	Dale Lynette Folkes - Appellant Alfio and Maria Anne Calabro - First and Second Respondents Leon Constructions Pty Ltd - Third Respondent City of Canada Bay Council - Fourth Respondent
FILE NUMBER(S):	CA 40730/03
COUNSEL:	A Stenmark SC & S Hughes - Appellant S Campbell SC & H J Halligan - First and Second Respondents C Bridge SC & J Ringrose - Third Respondent J Turnbull - Fourth Respondent
SOLICITORS:	Shaw McDonald Pty Ltd - Appellant Hicksons - First and Second Respondents Pricewaterhouse Coopers Legal - Third Respondent Phillips Fox - Fourth Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 206/02
LOWER COURT JUDICIAL OFFICER :	Black DCJ