Kogarah Council v Maas

Case [2003] NSWCA 334
CITATION: Kogarah Council v Maas [2003] NSWCA 334
HEARING DATE(S): 11 November 2003
JUDGMENT DATE:
5 December 2003
JUDGMENT OF: Meagher JA at 1; Giles JA at 2; Wood CJatCL at 16
DECISION: 1. Leave to appeal granted; 2. Verdict and judgment for the plaintiff set aside and a verdict and judgment for the defendant substituted; 3. The opponent/respondent to pay the claimant's/appellant's costs; 4. The opponent to have a certificate under the Suitors Fund Act.
CATCHWORDS: Personal Injury - leave to appeal required - opponent injured on footpath - whether trial judge erred in finding negligence of Council - whether trial judge failed to find cause of injury - whether failure to find contributory negligence.
CASES CITED: Brodie v Singleton Shire Council (2001) 206 CLR 512
Burwood Council v Byrnes [2002] NSWCA 343
Carolan v AMF Bowling Pty Limited, NSWCA 16 November 1995
Chappel v Hart (1998) 195 CLR 232
Ghantous v Hawkesbury City Council (2001) 206 CLR 512
Hastings Council v Giese [2003] NSWCA 178
Henville v Walker (2001) 206 CLR 259
Kassem v Colonial Mutual General Insurance Company Limited [2001] NSWCA 38
Lombardi v Holroyd City Council [2002] NSWCA 252
March v E & MH Stramare Pty Limited (1991) 171 CLR 506
Rallis v Pang [2003] NSWCCA 202
Richmond Valley Council v Standing [2002] NSWCA 359

PARTIES :

 Kogarah Council (Claimant)
Coral Eugina Maas (Opponent)
FILE NUMBER(S): CA 40409/03
COUNSEL: M Joseph SC with S. Glascott (Claimant)
Sharon Norton SC with TDF Hughes (Opponent)
SOLICITORS: Phillips Fox (Claimant)
Stacks the Law Firm (Opponent)
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC4225/01
LOWER COURT
JUDICIAL OFFICER : 		Gamble ADCJ
- 1 -


                          CA40409/03
                          DC 4225/01

                          MEAGHER JA
                          GILES JA
                          WOOD CJ at CL

                          Friday 5 December 2003
Kogarah Council v Coral Eugina Maas
Judgment

1 MEAGHER JA: I agree with Wood CJ at CL.

2 GILES JA: I have had the advantage of reading the reasons of Wood CJ at CL in draft. Drawing upon his Honour’s reasons, in the following paragraphs I explain why I would grant leave to appeal, allow the appeal and order that there be a verdict and judgment for the claimant.

3 As Wood CJ at CL shows, on the opponent’s case the claimant’s negligence lay in leaving the concrete slab footpath in a hazardous condition because the sticky, stoney, and uneven (including sunken) asphalt area presented a trip hazard. That the grass verge presented a concealed hazard because of the stones or tar beneath the grass was a fact then employed for causation: the negligence in leaving the concrete slab footpath in a hazardous condition caused the opponent to diverge onto the grass verge and to suffer injury when she encountered the concealed hazard. Negligence on the claimant’s part in leaving the grass verge in a hazardous condition was not clearly pleaded, and from the opponent’s submissions to the judge no case of negligence in that respect had been presented or was maintained.

4 The judge correctly recognised the opponent’s case.…

Continue reading Kogarah Council v Maas

Sign in free to access the full text

Details
AGLC
Kogarah Council v Maas [2003] NSWCA 334
Case
[2003] NSWCA 334
Decision Date

CaseChat Overview and Summary

Kogarah Council appealed to the Court of Appeal of New South Wales against a judgment of the Supreme Court of New South Wales which found the Council liable for personal injuries sustained by the respondent, Mr Maas, who was injured when he tripped and fell on a footpath. The Council contended that the trial judge had erred in finding negligence on its part and had failed to adequately consider the issue of contributory negligence.

The central legal issues before the Court of Appeal were whether the trial judge had been correct in finding that the Council owed a duty of care to Mr Maas, whether that duty had been breached, and whether the breach had caused Mr Maas's injuries. Additionally, the Court was required to determine whether the trial judge had erred by failing to find that Mr Maas had been contributorily negligent.

The Court of Appeal, in allowing the appeal, reasoned that the trial judge had made an error in finding the Council negligent. The Court determined that the evidence did not establish that the condition of the footpath was such that the Council ought to have foreseen the risk of injury to a pedestrian. Furthermore, the Court found that even if there had been a breach of duty, the plaintiff had failed to establish that this breach was the cause of his fall. Consequently, the Court concluded that the trial judge had also erred in failing to find contributory negligence on the part of Mr Maas, as his own actions were the primary cause of his injuries.

The Court of Appeal granted leave to appeal, set aside the verdict and judgment for the plaintiff, and substituted a verdict and judgment for the defendant, Kogarah Council. The respondent, Mr Maas, was ordered to pay the appellant's costs, and was granted a certificate under the Suitors Fund Act.

Orders

Orders of the court

1. Leave to appeal granted; 2. Verdict and judgment for the plaintiff set aside and a verdict and judgment for the defendant substituted; 3. The opponent/respondent to pay the claimant's/appellant's costs; 4. The opponent to have a certificate under the Suitors Fund Act.

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.