Lake Macquarie City Council v McKellar

[2002] NSWCA 90

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Lake Macquarie City Council v McKellar [2002]  NSWCA 90

FILE NUMBER(S):
40386/01

HEARING DATE(S):               19 March 2002

JUDGMENT DATE: 02/04/2002

PARTIES:
Lake Macquarie City Council (Appellant)
Paul Edward McKellar (Respondent)

JUDGMENT OF:       Handley JA Heydon JA Ipp AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 597/00

LOWER COURT JUDICIAL OFFICER:     Sidis DCJ

COUNSEL:
Mr J E Maconachie QC/Mr R J Cheney (Appellant)
Mr J Rowe (Respondent)

SOLICITORS:
Crameri Lawyers (Appellant)
Stacks - The Law Firm (Respondent)

CATCHWORDS:
Tort - negligence - personal injury - District Court appeal - liability
Practice and procedure - written and oral submissions - oral argument lacking adequate basis in written submissions - necessity of compliance with procedure by counsel for efficient functioning of courts - D

LEGISLATION CITED:

DECISION:
Appeal dismissed
appellant to pay respondent's costs of the appeal

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40386/01
DC 597/00

HANDLEY JA
HEYDON JA
IPP AJA

2 April 2002

LAKE MACQUARIE CITY COUNCIL v McKELLAR

Judgment

1. HANDLEY JA:   I agree with Ipp AJA.

2. HEYDON JA:    This is an appeal against a verdict and judgment given by Sidis DCJ in the sum of $177,586.80 in favour of the plaintiff below against the defendant.  The trial took place on 9 May 2001 and judgment was delivered on 10 May 2001.  The grounds of appeal are limited to liability. 

   The pleadings

3. The Ordinary Statement of Claim alleged:

   “At all material times the Defendant was responsible for, and had the care, control and management of the basketball courts in the Kane Bruce Memorial Park in Main Road Edgeworth (herein after referred to as ‘the Courts’).

   At or approximately 11.00 am on 28 June 1997 the Plaintiff in the company of three friends entered the Courts for the purpose of playing a friendly game of ‘two on two’ basketball.

   During the course of the same game the Plaintiff stepped backwards on the Courts and his right foot became caught by a nail-rivet in the concrete surface of the Courts and, as a result fell back landing heavily onto both palms. 

   The said accident was caused by the negligence of the Defendant, by its servants and agents.

   Particulars of Negligence

   The defendant, by its servants and agents, was negligent in that it, inter alia:-

   (a)Failed to remove the said nail from the concrete Courts on completion of construction of the Courts;

   (b)Failed to carry out proper inspection of the said Courts prior to allowing members of the public to use the Courts;

   (c)Placed the Plaintiff in a position of danger which could have been easily avoided by reasonable care on its part;

   (d)Failed to warn the Plaintiff of the danger of the protruding nail by erecting a barrier or sign indicating the danger;

   (e)Exposed the Plaintiff to risk of injury which could have been avoided by reasonable care on its part;

   (f)Failed to take any, or any adequate care, for the safety of the Plaintiff.