Hornsby Shire Council v Viscardi

Hornsby Shire Council appealed a decision of the District Court of New South Wales, which had found the Council liable in negligence for injuries sustained by Mr. Viscardi when he fell in a car park. The fall was attributed to a depression in a bitumen patch within the car park pavement. The central dispute concerned whether the Council had performed negligent restoration work on this bitumen patch, which allegedly caused Mr. Viscardi's fall.

The Court of Appeal was required to determine several key issues. Firstly, it had to consider whether the trial judge erred in finding that the Council's restoration work on the bitumen patch was negligent. Secondly, the Court was asked to assess whether the trial judge correctly applied section 5D of the *Civil Liability Act 2002* (NSW) in determining that the alleged negligent restoration work caused Mr. Viscardi's fall. Further, the appeal raised questions about the trial judge's assessment of Mr. Viscardi's credit and the severity of his injuries for the purpose of non-economic loss damages. Finally, the Court had to review the trial judge's assessment of past and future domestic assistance, particularly the evidence required to establish the need for commercial assistance when gratuitous assistance was currently provided.

The Court of Appeal upheld the trial judge's findings. It found no error in the assessment of the Council's negligence or in the application of the causation principles under the *Civil Liability Act 2002* (NSW). The Court also found no basis to interfere with the trial judge's assessment of Mr. Viscardi's credit or the severity of his injuries. Regarding damages for domestic assistance, the Court confirmed that while gratuitous assistance was relevant, the need for future commercial assistance required specific evidence to demonstrate that need, which had been adequately presented and considered by the trial judge.

The appeal was dismissed, and Hornsby Shire Council was ordered to pay Mr. Viscardi's costs.