Hornsby Shire Council v King

Link copied
Case Copied 13 min read
CITATION:

Hornsby Shire Council v King [2005] NSWCA 67

HEARING DATE(S):

11/03/05

 
JUDGMENT DATE: 


21 March 2005

JUDGMENT OF:

Mason P at 1; Ipp JA at 2; Brownie AJA at 41

DECISION:

(1) The Shire's application for leave to appeal is dismissed with costs (2) Ms King's application for leave to cross-appeal is granted (3) The cross-appeal is upheld with costs (4) The award of $29,738 in respect of damages is increased to the sum of $70,443, being $29,738 plus $15,705 plus $25,000 (5) Ms King be given 14 days from delivery of judgment to file written submissions in regard to variations that need to be made to the award in respect of superannuation loss, and the Shire be given a further 14 days thereafter to reply (6) The Shire to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.

CATCHWORDS:

DAMAGES - Future economic loss - Buffer - Section 13(1) of the Civil Liability Act 2002 (NSW). ND

LEGISLATION CITED:

Civil Liability Act 2002 (NSW), s 13(1)

CASES CITED:

Briscoe-Hough v AVS Australian Venue Security Services Pty Limited [2005] NSWCA 51
K'Mart Australia Limited v McCann [2004] NSWCA 283
The Nominal Defendant v Lane [2004] NSWCA 405

PARTIES:

Hornsby Shire Council (claimant)
Joanna King (opponent)

FILE NUMBER(S):

CA 40807/03

COUNSEL:

D Davies SC/N Confos (Claimant)
G B Hall QC/E Welsh (Opponent)

SOLICITORS:

Phillips Fox (Claimant)
Gerard Malouf & Partners (Opponent)

LOWER COURT JURISDICTION:

District Court

LOWER COURT FILE NUMBER(S):

DC 1715/02

LOWER COURT JUDICIAL OFFICER:

Garling DCJ



                          CA 40807/03
                          DC 1715/02

                          MASON P
                          IPP JA
                          BROWNIE AJA

                          Monday, 21 March 2005
HORNSBY SHIRE COUNCIL v JOANNA KING
Judgment

1 MASON P: I agree with Ipp JA.

2 IPP JA: On 21 July 2000 the opponent (Ms King) fell at the intersection of Muriel Lane and Florence Street, Hornsby. She had walked across Muriel Lane where it intersected with Florence Street. She intended to continue walking, in the same direction, along a footpath that ran adjacent to Florence Street.

3 A pram ramp led from Muriel Lane to the footpath in Florence Street. There was a metal box drain between the pram ramp and the end of the verge that ran along Muriel Lane. The lid of the box drain was more or less the same height as the top of the verge. There was a gap between the lid of the box and the surface of Muriel Lane, forming, as it were, a hole in the side of the verge. The box itself extended, to a degree, across the pram ramp. Thus, a pedestrian, intending to cross Muriel Lane opposite Florence Street so as to walk along the Florence Street footpath (as was Ms King), would have to walk over or past the open box drain.

4 As Ms King was so walking, her left foot hooked into the hole of the box drain. This caused her fall. She testified that she was looking where she was going but had not seen the box…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Hornsby Shire Council v King and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2005] NSWCA 67
Decision Date

CaseChat Overview and Summary

Hornsby Shire Council and Ms King were the parties in proceedings before the New South Wales Court of Appeal concerning an appeal and cross-appeal regarding an award of damages. The dispute centred on the assessment of future economic loss, specifically the application of a buffer under section 13(1) of the *Civil Liability Act 2002* (NSW).

The Court of Appeal was required to determine whether the primary judge had erred in their assessment of future economic loss, particularly in relation to the inclusion and quantum of a buffer. The appeal also raised questions about the appropriate calculation of damages for future economic loss in light of the statutory provisions.

The Court of Appeal, in its reasoning, found that the primary judge had made an error in the assessment of future economic loss. The Court upheld Ms King's cross-appeal, increasing the original award of damages. The Court's decision indicates a re-evaluation of the components of the damages award, specifically the buffer applied to future economic loss.

The Shire's application for leave to appeal was dismissed with costs. Ms King's application for leave to cross-appeal was granted, and the cross-appeal was upheld with costs. The total award of damages was increased from $29,738 to $70,443. Further submissions were to be made regarding variations to the award for superannuation loss.

Orders

Orders of the court

(1) The Shire's application for leave to appeal is dismissed with costs (2) Ms King's application for leave to cross-appeal is granted (3) The cross-appeal is upheld with costs (4) The award of $29,738 in respect of damages is increased to the sum of $70,443, being $29,738 plus $15,705 plus $25,000 (5) Ms King be given 14 days from delivery of judgment to file written submissions in regard to variations that need to be made to the award in respect of superannuation loss, and the Shire be given a further 14 days thereafter to reply (6) The Shire to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.

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.