Fuller v Logan City Council

[2006] QDC 305

DISTRICT COURT OF QUEENSLAND

CITATION:	Fuller v Logan City Council [2006] QDC 305
PARTIES:	AARON FULLER

Plaintiff

V

LOGAN CITY COUNCIL

Defendant

FILE NO/S:	BD2284/04
DIVISION:
PROCEEDING:	Trial
ORIGINATING  COURT:	District Court, Brisbane
DELIVERED ON:	1 September 2006
DELIVERED AT:	Brisbane
HEARING DATE:	21-23 February 2006
JUDGE:	McGill DCJ
ORDER:	Judgment that the defendant pay the plaintiff $229,093.
CATCHWORDS:	NEGLIGENCE – Occupier’s Liability – local authority – footpath – hazard not obvious – authority having notice of problems at this site
DAMAGES – Assessment – ankle - 6% whole person – psychological injury – 10% whole person
Ghantous v Hawkesbury City Council (2001) 206 CLR 512 – applied. Langham v Connells Point Rover Soccer Club Inc [2005] NSWCA 461 – applied. Roman Catholic Bishop of Broome v Watson [2002] WASCA 7 – followed. Spencer v Maryborough City Council [2002] QCA 250 – distinguished. Sutherland Shire Council v Henshaw [2004] NSWCA 386 – distinguished.
Burwood Council v Byrnes [2002] NSWCA 343 – applied. considered.
COUNSEL:	J. P. Kimmins for the plaintiff G. W. Diehm for the defendant
SOLICITORS:	Carew Lawyers for the plaintiff Blake Dawson Waldron for the defendant

1. On 11 April 2002 the plaintiff was injured in the course of his employment when he fell on a footpath at Westgate Avenue, Springwood. He and others had attended at that site to remove two trees. He had driven a cherry picker, and a truck had been parked facing the incorrect way against the kerb nearby. He had climbed into the cab of the truck to collect some safety gear, and as he climbed down from the cab he put his right foot on the step, grabbed the handle of the truck with his left hand and put his left foot on the ground, let go with his right hand and went to turn around. However, he spun around and fell over. As a result he suffered an injury. The plaintiff claimed that he fell because when he stepped down from the truck his left foot went on to the corner of a piece of concrete which was largely buried in the ground. The plaintiff said that prior to that time he had not realised that the concrete was there, not having noticed it as he was approaching the truck cab and climbing into the truck. The plaintiff claims that his injuries were caused by the negligence of the defendant as occupier of the footpath at the relevant time. Liability and quantum are both in issue.

Background – footpath

1. The footpath at this point was adjacent to a vacant lot; there was a house on the lot next door, and apparently both blocks were owned together at some time. There was no paved footway in the footpath, and it did not have a developed lawn typical of suburban footpaths. Its appearance at the time of the accident[1] is illustrated by some photographs in Exhibit 3. These show grass which is somewhat longer and coarser than ordinary footpath grass, but not very long…