Hornsby Shire Council v Catling and 2 Ors

Hornsby Shire Council appealed to the New South Wales Court of Appeal against a judgment in favour of the first respondent, Ms. Catling, who had sued the Council and two other respondents for damages for negligence. Ms. Catling had suffered injuries when she fell from a retaining wall adjacent to a public road. The dispute concerned whether the Council owed a duty of care to Ms. Catling in relation to the design and construction of the road and its associated infrastructure, and if so, whether that duty had been breached, causing her injuries.

The Court of Appeal was required to determine whether the Council, as the approving authority for the development, owed a duty of care to a member of the public using the road. Specifically, the court considered whether this duty extended to ensuring that pedestrian access, as well as vehicular access, was safe, and whether the Council had acted reasonably in approving the development under section 333 of the *Local Government Act 1919* (NSW). The court also had to assess causation and the extent of any contributory negligence on the part of Ms. Catling.

The Court of Appeal found that the Council did owe a duty of care to Ms. Catling. It reasoned that the Council, in approving the subdivision and road construction, had a responsibility to consider the safety of all foreseeable users of the road, including pedestrians. The court held that the Council had breached this duty by approving a design that did not adequately address pedestrian safety, particularly in relation to the retaining wall. The court also found that the Council's breach was a cause of Ms. Catling's injuries, although it did apportion some responsibility to Ms. Catling for her own actions.

The appeal was allowed in part, with the original verdict and judgment being set aside and a new judgment entered for Ms. Catling against the appellant (Hornsby Shire Council) and the second and third respondents. The damages were to be paid in the proportion of 80% by the appellant and 20% by the second and third respondents. The trial judge's costs order was confirmed, and the appellant was ordered to pay the costs of the respondents for the appeal. The cross-appeal was also allowed in part, with no order as to costs.