Georgopoulos v Telstra Corporation Ltd

CITATION:	GEORGOPOULOS v TELSTRA CORPORATION LTD [2004] NSWCA 266
HEARING DATE(S):	15 July 2004
JUDGMENT DATE:	6 August 2004
JUDGMENT OF:	Mason P at 1; Sheller JA at 27; Beazley JA at 28
DECISION:	Leave to appeal refused and summons dismissed with costs.
CATCHWORDS:	Negligence - claimant tripped on concrete cover in footpath whilst jogging - whether Telstra failed to take reasonable steps to inspect and repair - whether sufficient evidence to infer breach - whether hazard in the nature of a trap. (ND)
PARTIES :	Andrew GEORGOPOULOS TELSTRA CORPORATION LTD
FILE NUMBER(S):	CA 41245/03
COUNSEL:	Appellant: C Evatt/ M Rollinson Respondent: G M Watson SC. G Hickey
SOLICITORS:	Appellant: Teakle Ormsby George Respondent: Sparke Helmore

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 11231/01
LOWER COURT JUDICIAL OFFICER :	Certoma ADCJ

CA 41245 of 2003
DC 11231 of 2001

MASON P
SHELLER JA
BEAZLEY JA

Friday 6 August 2004

Andrew GEORGOPOULOS v TELSTRA CORPORATION LTD

BACKGROUND

The Claimant sued the Opponent for damages after he was injured whilst jogging along a footpath in Bridge Street, Epping. It was after 10.00pm at the time of the fall. The Claimant fell because he stood on the damaged and uneven corner of a concrete cover over a Telstra installation in the footpath. The corner was cracked diagonally to a width of about 20mm. The depth of the hole around the casing was approximately 15mm. A light pole was located about 2 metres from the cover, however visibility was poor.

It was common ground that the Opponent owed the Claimant a duty of care in the circumstances, however breach was denied and it was contended at trial that the Claimant had not taken reasonable care for his own safety.

At trial, Certoma ADCJ found for the Opponent. His Honour held that the hazard was not in the nature of a trap but was rather obvious and a typical imperfection found in everyday life. Further, the evidence did not disclose sufficient facts to determine the reasonableness or otherwise of the Opponent’s failure to inspect and ascertain the damage to the cover which caused the injury.

HELD: per Mason P (Sheller and Beazley JJA agreeing) refusing leave to appeal:

1. The trial judge did not err in concluding that the claimant had failed to establish unreasonableness on the opponent’s part. [25]

· The content of the duty includes the taking of reasonable steps to inspect and repair: Ghantous v Hawkesbury City Council (2001) 206 CLR 512 referred. [22]

· The burden of proof lies on the plaintiff: Brady v Girvan Bros Pty Ltd (t/a Minto Mall) (1986) 7 NSWLR 241 and Kocis v S E Dickens Pty Ltd [1998] 3 VR 408 referred. [23]

· There is insufficient evidence from which to infer that the cover had been in its damaged condition for a considerable period of time prior to the accident. [20]

· There is an absence of evidence indicative of an unreasonable system of inspection and maintenance, and/or the breakdown of…