Greater Shepparton City Council v Davis - [2004] VSCA 140

SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 3711 of 2003

GREATER SHEPPARTON CITY COUNCIL
	Appellant
v.
TAMMY LEE DAVIS
	Respondent

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JUDGES:	WINNEKE, P., CHERNOV, J.A. and BONGIORNO, A.J.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	1, 2 and 3 March 2004
DATE OF JUDGMENT:	20 August 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 140	1^strevision 21 October 2008

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Negligence – Footpaths – Pedestrian tripping over defect in footpath whilst crossing from adjoining house to car – Whether local Council owed duty of care to pedestrian – Application of principles stated in Brodie v. Singleton Shire Council (2001) 206 C.L.R. 512.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. A.G. Uren, Q.C. and Mr. G.J. Moloney	Ligeti Partners
For the Respondent	Mr. D.A. Kendall, Q.C. and Mr. D.M. O’Callaghan	Terence T. O’Brien

WINNEKE, P.:

This appeal by Greater Shepparton City Council (which I shall call “the appellant”) challenges a judgment given in the County Court on 25 March 2003 wherein the trial judge ordered damages in favour of Tammy Lee Davis (whom I shall call “the respondent”) in respect of injuries suffered by her on 29 November 2000 when she left the premises of her aunt at 9 Ross Street Mooroopna and tripped over a defect in the footpath whilst she was moving to her car which was parked in Ross Street slightly to the south of the gate of the premises whence the respondent had come.

The appeal was heard together with another appeal brought by the Boroondara City Council from a further judgment given in the County Court on 30 June 2003, wherein the Council was ordered to pay the respondent, Ellen Cattanach, damages for injuries sustained when she tripped and fell over a defect in the footpath of Gordon Street on 12 December 2000 whilst jogging along the footpath with her two dogs on a leash.

Although the issues in the two appeals overlap and involve the application of the principles explained in Brodie & Anor. v. Singleton Shire Council/Ghantous v. Hawkesbury City Council[1], the factual situation in each case was significantly different from the other. Accordingly, we have deemed it desirable to give separate reasons in each notwithstanding that the appeals were argued together and the appellant and the respondent in each of the appeals were represented by the same counsel.
[1](2001) 206 C.L.R. 512.

Facts

The respondent to this appeal was 25 years of age when she tripped and fell, suffering injury, outside her aunt’s place in Ross Street. She was at the time pregnant with her second child. She was a qualified hairdresser and had worked as such both in Melbourne and Shepparton. She had also completed courses in “tourism” and “office administration”. Following the birth of her first child in 1997 she had worked in Shepparton at the Shepparton Preserving Company. She ceased working in or about May 2000 when she became pregnant with her second child. She had intended to take approximately 12 months off following the birth of…

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.

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Details

Case: [2004] VSCA 140
Decision Date: 20 August 2004

CaseChat Overview and Summary

The Greater Shepparton City Council was sued by the plaintiff, Davis, who alleged that he had tripped and injured himself on a defect in the footpath while crossing from an adjoining house to his car. The dispute centred on whether the local council owed a duty of care to the pedestrian and, if so, whether it had breached that duty. The case was heard in the Supreme Court of Victoria.

The central legal issues the court had to address were whether the council owed a duty of care to the plaintiff and, if so, whether it had breached that duty. The court examined the principles established in the case of Brodie v. Singleton Shire Council, which set out the criteria for determining whether a local council owes a duty of care to a pedestrian in such circumstances. The court had to determine whether the defect in the footpath was a foreseeable risk and whether the council had taken reasonable steps to mitigate that risk.

In delivering its judgment, the court considered the applicable legal principles and the facts of the case. It concluded that the council did owe a duty of care to the plaintiff. The court found that the defect in the footpath was a foreseeable risk and that the council had not taken reasonable steps to address it. The court found that the council had breached its duty of care by failing to maintain the footpath in a reasonably safe condition. Consequently, the plaintiff was entitled to compensation for his injuries.

The court ordered the Greater Shepparton City Council to pay damages to Davis for his injuries and to cover his legal costs. The specific amount of damages was to be determined in a subsequent proceeding.

Orders