Hastings Council v Giese - [2003] NSWCA 178

Reported Decision:
(2003) 127 LGERA 109

Court of Appeal

CITATION: Hastings Council v Giese [2003] NSWCA 178

HEARING DATE(S): 17 June 2003

JUDGMENT DATE:
9 July 2003

JUDGMENT OF: Handley JA at 1; Sheller JA at 2; Tobias JA at 3

DECISION: a) Appeal allowed; b) Set aside judgment in the District Court and in lieu thereof enter judgment for the defendant with costs; c) The appellant to pay the respondent's costs of the proceedings in this Court.

CATCHWORDS: Tort - Negligence - Duty of care of council to pedestrian - D

CASES CITED: Ghantous v Hawkesbury City Council (2001)
Littler v Liverpool Corporation (1968)
Webb v South Australia (1982)
Hawkesbury City Council v Ryan (2001)
Parramatta City Council v Watkins (2001)
Lombardi v Holroyd City Council (2002)
Roads & Traffic Authority v McGuinness (2002)
Burwood Council v Byrnes (2002)
Richmond Valley Council v Standing (2002)
Brodie v Singleton Shire Council (2001)
Watson v George (1953)
Cailin v Greater Union Organisation Pty Ltd (1991)
Wyong Shire Council v Shirt (1980)

PARTIES :
Hastings Council
Shirley Dawn Giese

FILE NUMBER(S): CA 40025/02

COUNSEL: A - S G Campbell SC / R Anthony
R - M B Williams SC / Ms Kumar

SOLICITORS: A - Hunt & Hunt - Newcastle
R - Stacks - The Law Firm - Port Macquarie

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 131/00

LOWER COURT
JUDICIAL OFFICER : Delaney J

CA 40025/02

HANDLEY JA
SHELLER JA
TOBIAS JA
9 July 2003

HASTINGS COUNCIL v SHIRLEY DAWN GIESE

Judgment

1 HANDLEY JA: I agree with Tobias JA

2 SHELLER JA: I agree with Tobias JA

3 TOBIAS JA: On 19 December 1997 the respondent, a woman of nearly 65 years of age, fell and was injured when crossing a marked pedestrian crossing provided by the appellant in William Street, between Short and Houghton Streets, Port Macquarie. She commenced action in the District Court at Port Macquarie against the appellant claiming that it owed her a duty of care to make the crossing safe as a means of access which it had breached. The matter came on for hearing before his Honour Judge Delaney who, on 19 December 2001, found in the respondent’s favour and entered judgment for her in the sum of $12,278.85.

4 The appellant, with leave, appeals to this Court and challenges the primary judge’s findings that it owed the respondent a duty of care and that it relevantly breached that duty.

The facts

5 The evidence established that for a period commencing towards the end of 1995 the appellant undertook in stages improvement works throughout the town centre of Port Macquarie. In or about October 1997 those works had reached the stage where it was necessary to provide a temporary pedestrian crossing in William Street between Short and Houghton Streets. According to Mr Brian Rollinson, a consulting civil engineer who, in 1997, was the Director of Engineering Services of the appellant, the location of the crossing was chosen by him…

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: [2003] NSWCA 178
Decision Date: 9 July 2003

CaseChat Overview and Summary

Hastings Council appealed to the Court of Appeal of New South Wales against a judgment of the District Court which had found the Council liable in negligence to a pedestrian, Ms Giese. Ms Giese had suffered injuries when she tripped and fell on a public footpath.

The central legal issue before the Court of Appeal was whether the Council owed a duty of care to Ms Giese in relation to the condition of the footpath, and if so, whether it had breached that duty. The court was required to consider the scope of a local council's duty of care concerning the maintenance of public infrastructure and the foreseeability of harm arising from defects in such infrastructure.

The Court of Appeal found that while a council may owe a duty of care to users of public footpaths, the mere existence of a minor defect in the footpath, such as a slight unevenness, did not automatically give rise to a breach of that duty. The court applied the principles of negligence, considering the foreseeability of the risk of injury and the reasonableness of the council's actions or omissions. In this instance, the court determined that the defect was not of such a nature that the council ought to have foreseen that it would cause injury to a pedestrian exercising ordinary care for her own safety. Consequently, the Council was not found to have breached its duty of care.

The appeal was allowed, the judgment of the District Court was set aside, and judgment was entered for the defendant, Hastings Council, with costs. The appellant, Hastings Council, was also ordered to pay the respondent's costs of the proceedings in the Court of Appeal.

Orders

Orders of the court

a) Appeal allowed; b) Set aside judgment in the District Court and in lieu thereof enter judgment for the defendant with costs; c) The appellant to pay the respondent's costs of the proceedings in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hastings Council v Giese [2003] NSWCA 178
HEARING DATE(S):	17 June 2003
JUDGMENT DATE:	9 July 2003
JUDGMENT OF:	Handley JA at 1; Sheller JA at 2; Tobias JA at 3
DECISION:	a) Appeal allowed; b) Set aside judgment in the District Court and in lieu thereof enter judgment for the defendant with costs; c) The appellant to pay the respondent's costs of the proceedings in this Court.
CATCHWORDS:	Tort - Negligence - Duty of care of council to pedestrian - D
CASES CITED:	Ghantous v Hawkesbury City Council (2001) Littler v Liverpool Corporation (1968) Webb v South Australia (1982) Hawkesbury City Council v Ryan (2001) Parramatta City Council v Watkins (2001) Lombardi v Holroyd City Council (2002) Roads & Traffic Authority v McGuinness (2002) Burwood Council v Byrnes (2002) Richmond Valley Council v Standing (2002) Brodie v Singleton Shire Council (2001) Watson v George (1953) Cailin v Greater Union Organisation Pty Ltd (1991) Wyong Shire Council v Shirt (1980)
PARTIES :	Hastings Council Shirley Dawn Giese
FILE NUMBER(S):	CA 40025/02
COUNSEL:	A - S G Campbell SC / R Anthony R - M B Williams SC / Ms Kumar
SOLICITORS:	A - Hunt & Hunt - Newcastle R - Stacks - The Law Firm - Port Macquarie

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	131/00
LOWER COURT JUDICIAL OFFICER :	Delaney J