Gosford City Council v Timbs

CITATION:	Gosford City Council v Timbs [1999] NSWCA 255
FILE NUMBER(S):	CA 40013/99
HEARING DATE(S):	16 July 1999
JUDGMENT DATE:	16 July 1999
PARTIES :	Gosford City Council - Claimant Patricia Timbs - Opponent
JUDGMENT OF:	Sheller JA at 11; Giles JA at 2; Cole AJA at 12

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	70162/97 (Gosford)
LOWER COURT JUDICIAL OFFICER:	Puckeridge DCJ

COUNSEL:	S G Campbell - Claimant R E Quickenden - Opponent
SOLICITORS:	Hunt & Hunt, Newcastle - Claimant Robert Stephen, East Gosford - Opponent
CATCHWORDS:	NEGLIGENCE - fall on footpath - council approved driveway - council held liable as occupier - alternative basis of liability as approving authority not decided - verdict and judgment $25,000 plus interest - application for leave to appeal - bases of liability probably wrong - but council permitted case to be fought on basis it was occupier - did not refer to relevant common law and statute - in circumstances, leave to appeal refused.
DECISION:	Application for leave to appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40013/99
DC 7162/97
(Gosford)

SHELLER JA
GILES JA
COLE AJA

Friday 16 July 1999

GOSFORD CITY COUNCIL v PATRICIA TIMBS

JUDGMENT

1    SHELLER JA: I will ask Giles JA to give the first Judgment.

2    GILES JA: This is an application for leave to appeal in which the claimant seeks to overturn a verdict and judgment for the opponent for $25,000 plus interest. The proposed appeal does not challenge the amount of the verdict and judgment. The claimant says that it should not have been found liable to the opponent.

3    The opponent was injured when she slipped and fell on the footpath. She slipped and fell on the part of the footpath providing a driveway to a property. The driveway had been constructed by or on behalf of the owners of the property, the opponent’s neighbours, at a slope which, it was held, created an unnecessary danger such that a person walking as the opponent was walking could slip and fall.

4    The owners of the property had applied to the claimant for approval to the construction of an access crossing to the property. The plan submitted with the application showed a slope at the relevant part, when scaled off, of one in eight. The approval was given subject to conditions including that the access crossing should be in accordance with the plan, that the claimant's officer should be contacted when formwork was complete, and that the work was to be completed to the satisfaction of the City Engineer. The driveway was constructed with a slope of one in six. No one contacted the claimant when the formwork was complete, or at all in relation to the construction of the driveway, and it seems that no inspection was made by the claimant in relation to satisfaction of the City Engineer or otherwise.

5    The claimant was found liable in negligence. It was held that…