Hornsby Shire Council v King

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…