Lahoud v Lahoud

Case [2006] NSWCA 126

New South Wales


Court of Appeal


CITATION: Porter v. Lachlan Shire Council [2006] NSWCA 126
HEARING DATE(S): 24 April 2006
 
JUDGMENT DATE: 
24 May 2006
JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Hodgson JA at 3
DECISION: 1. Appeal dismissed. 2. Appellant to pay the respondent's costs of the appeal.
CATCHWORDS: TORTS - NEGLIGENCE - ROADS - Pedestrian injured when he put his foot into a hole in nature strip between formed footpath and gutter - Whether claim was for failure of a roads authority to carry out roadwork within s.45 of the Civil Liability Act 2002 - Whether it was proved that the authority had actual knowledge of the risk.
LEGISLATION CITED: Civil Liability Act 2002, s.45
Roads Act 1993, Dictionary
CASES CITED: Leichhardt Council v. Serratore [2005] NSWCA 406
PARTIES: James Stanley Porter - appellant
Lachlan Shire Council - respondent
FILE NUMBER(S): CA 40227/05
COUNSEL: Mr. B.J. Gross QC with Mr. D. Williams for appellant
Mr. D. Davies SC with Mr. S.McCarthy for respondent
SOLICITORS: Matthews Williams, Parkes for appellant
Phillips Fox, Sydney for respondent
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 955/04
LOWER COURT JUDICIAL OFFICER: Garling DCJ
LOWER COURT DATE OF DECISION: 03/03/2005
LOWER COURT MEDIUM NEUTRAL CITATION: Not applicable





                          CA40227/05
                          DC 955/04

                          BEAZLEY JA
                          GILES JA
                          HODGSON JA

                          Wednesday 24 May 2006
PORTER V. LACHLAN SHIRE COUNCIL
HEADNOTE
      FACTS

The appellant suffered a fractured right ankle when he accidentally put his foot into a hole in the nature strip between the made footpath and the gutter of a street in Condobolin.

At about the time of the accident, the Lachlan Shire Council was engaged in a project of resurfacing the area in question, and there was evidence that two Council officers had inspected the area about one year earlier, at a time when the hole was already there. However, that evidence was not within particulars of negligence given by the appellant, and the judge refused the Council’s application for adjournment made on the basis that the Council was not in a position to cross-examine or answer that evidence.

The primary judge held that, but for s.45 of the Civil Liability Act 2002, he would have found the Council liable on the ground that it should have known about the hole; but he was not satisfied that the Council had actual knowledge of it. The appellant appealed, inter alia on the ground that s.45 did not apply, and the Council cross-appealed inter alia against the refusal of the adjournment.


      HELD
      (1) Section 45 of the Civil Liability Act applied, on either of two bases: the nature strip was part of a road work which the Council failed to maintain, and filling the hole would be a road work which the Council failed to construct or install.

      (2) The refusal of the adjournment was within the primary judge’s discretion, but it meant that the appellant could not rely on the absence of cross-examination or evidence in reply to remedy shortcomings in the…

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Lahoud v Lahoud [2006] NSWCA 126
Case
[2006] NSWCA 126
Decision Date

CaseChat Overview and Summary

The appellant, Lahoud, sustained injuries when he stepped into a hole located in the nature strip between the formed footpath and the gutter. He brought proceedings against the respondent, the Roads and Traffic Authority of New South Wales, alleging negligence. The central question before the Court of Appeal of New South Wales was whether the Authority was liable for the injuries sustained by the appellant.

The primary legal issues before the court were whether the appellant's claim fell within the ambit of section 45 of the *Civil Liability Act 2002* (NSW), which concerns the liability of roads authorities for failure to carry out roadwork, and, if so, whether the Authority had actual knowledge of the specific risk that caused the appellant's injury. Section 45 requires proof of actual knowledge of the risk for a claim to succeed against a roads authority for failure to carry out roadwork.

The court considered the nature of the appellant's injury and the location of the hole. It was determined that the claim did not relate to a failure to carry out roadwork in the sense contemplated by section 45 of the *Civil Liability Act 2002*. Instead, the court found that the Authority had not been shown to have actual knowledge of the particular risk posed by the hole in the nature strip. Without proof of actual knowledge of the risk, the statutory protection afforded to roads authorities under section 45 was engaged, and the claim could not succeed.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed. 2. Appellant to pay the respondent's costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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