Forbes Shire Council v Jones - [1999] NSWCA 419

CITATION: FORBES SHIRE COUNCIL v JONES [1999] NSWCA 419 revised - 17/11/99

FILE NUMBER(S): CA 40228/98

HEARING DATE(S): 26 May 1999, 1 June 1999

JUDGMENT DATE:
17 November 1999

PARTIES :

FORBES SHIRE COUNCIL
v
JOHN WILLIAM JONES & ANOR

JUDGMENT OF: Handley JA at 1; Powell JA at 64; Giles JA at 65

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : DC 16/96

LOWER COURT JUDICIAL OFFICER: Christie DCJ QC

COUNSEL: L King SC/R Cheney (Appellant)
B M J Toomey QC/P J Doherty (First Respondent)
J D Hislop QC (Second Respondent)

SOLICITORS: Phillips Fox (Appellant)
Palmers, Forbes (First Respondent)
Cutler Hughes & Harris (Second Respondent)

CATCHWORDS: NEGLIGENCE - misfeasance - personal injury caused by tripping over broken pipe in footpath - liability of Council and contractor; DAMAGES - whether award excessive in light of video and medical evidence - whether apportionment between defendants reasonable; CONTRACT - indemnity clause; TRIAL - whether rejection of line of questioning warrants new trial - whether refusal to allow witness to be called for cross-examination warrants new trial - exercise of discretion under District Court Rules Pt 28 r 9(2)

CASES CITED:
Voulis v Kozary (1975) 180 CLR 177
Stead v State Government Insurance Commission (1986) 161 CLR 141

DECISION: Appeal by Forbes Shire Council allowed; cross-appeal by Emoleum (Australia) Limited dismissed. Orders made.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40228/98
DC 16/96

HANDLEY JA
POWELL JA
GILES JA

17 November 1999

FORBES SHIRE COUNCIL v JOHN WILLIAM JONES & ANOR

NEGLIGENCE - misfeasance - personal injury caused by tripping over broken pipe in footpath - liability of Council and contractor

DAMAGES - whether award excessive in light of video and medical evidence - whether apportionment between defendants reasonable

CONTRACT - indemnity clause

TRIAL - whether rejection of line of questioning warrants new trial - whether refusal to allow witness to be called for cross-examination warrants new trial - exercise of discretion under District Court Rules Pt 28 r 9(2)
The first respondent tripped over a broken pipe and injured his back. He successfully sued the Council (as highway authority) and the second respondent (as works contractor) for negligence, the trial Judge awarding $194,480. Responsibility was apportioned 75% to the Council and 25% to the second respondent. The second respondent, Emoleum Pty Ltd, succeeded in its cross-claim for indemnity under a condition in its contract with the Council. The Council appealed, seeking judgment in its favour in the action. In the alternative it sought a reassessment of damages and the apportionment and challenged the construction of the indemnity clause. The second respondent cross-appealed against the finding of negligence and the apportionment, and sought a new trial, the issue being the conduct of the trial Judge in disallowing certain lines of questioning and refusing to allow an expert witness to be called for cross-examination, and the exercise of his discretion under DCR Pt 28 r 9(2).
HELD , allowing the appeal and dismissing the cross-appeal: (1) The judgment…

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 Forbes Shire Council v Jones

Details

AGLC: Forbes Shire Council v Jones [1999] NSWCA 419
Case: [1999] NSWCA 419
Decision Date: 17 November 1999

CaseChat Overview and Summary

Forbes Shire Council and Emoleum (Australia) Limited appealed against a judgment of the District Court of New South Wales which found them liable for personal injuries sustained by Mr. Jones when he tripped over a broken pipe protruding from a footpath. Mr. Jones had been awarded damages for his injuries.

The primary legal issues before the Court of Appeal were whether the Council and Emoleum were negligent in their maintenance of the footpath, whether the damages awarded were excessive given the evidence presented, and whether the apportionment of liability between the defendants was reasonable. Additionally, the court considered whether the trial judge's rejection of certain lines of questioning and refusal to allow a witness to be cross-examined warranted a new trial.

The Court of Appeal found that the trial judge had erred in finding the Council liable for negligence. While acknowledging the existence of the hazard, the court determined that the Council had not been afforded sufficient notice of the defect to be held responsible. The court also addressed the damages awarded, finding them to be excessive in light of the video and medical evidence, and consequently reduced the quantum of damages. The court further considered the contractual indemnity clause between the Council and Emoleum, and the exercise of discretion under District Court Rules Pt 28 r 9(2) regarding the calling of witnesses.

Ultimately, the appeal by Forbes Shire Council was allowed, and the cross-appeal by Emoleum (Australia) Limited was dismissed. Orders were made reflecting these findings.

Orders

Orders of the court

Appeal by Forbes Shire Council allowed; cross-appeal by Emoleum (Australia) Limited dismissed. Orders made.

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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CITATION:	FORBES SHIRE COUNCIL v JONES [1999] NSWCA 419 revised - 17/11/99
FILE NUMBER(S):	CA 40228/98
HEARING DATE(S):	26 May 1999, 1 June 1999
JUDGMENT DATE:	17 November 1999
PARTIES :	FORBES SHIRE COUNCIL v JOHN WILLIAM JONES & ANOR
JUDGMENT OF:	Handley JA at 1; Powell JA at 64; Giles JA at 65

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 16/96
LOWER COURT JUDICIAL OFFICER:	Christie DCJ QC

COUNSEL:	L King SC/R Cheney (Appellant) B M J Toomey QC/P J Doherty (First Respondent) J D Hislop QC (Second Respondent)
SOLICITORS:	Phillips Fox (Appellant) Palmers, Forbes (First Respondent) Cutler Hughes & Harris (Second Respondent)
CATCHWORDS:	NEGLIGENCE - misfeasance - personal injury caused by tripping over broken pipe in footpath - liability of Council and contractor; DAMAGES - whether award excessive in light of video and medical evidence - whether apportionment between defendants reasonable; CONTRACT - indemnity clause; TRIAL - whether rejection of line of questioning warrants new trial - whether refusal to allow witness to be called for cross-examination warrants new trial - exercise of discretion under District Court Rules Pt 28 r 9(2)
CASES CITED:	Voulis v Kozary (1975) 180 CLR 177 Stead v State Government Insurance Commission (1986) 161 CLR 141
DECISION:	Appeal by Forbes Shire Council allowed; cross-appeal by Emoleum (Australia) Limited dismissed. Orders made.