Leichhardt Council v Serratore

Case [2005] NSWCA 406
CITATION:

Leichhardt Council v Serratore [2005] NSWCA 406
HEARING DATE(S):

17 November 2005
 
JUDGMENT DATE: 


24 November 2005

JUDGMENT OF:

Giles JA at 1; Hodgson JA at 49; Ipp JA at 50
DECISION:

Refer para 48.
CATCHWORDS:

Negligence - trip hazard - whether Council had actual knowledge of risk - whether reasonable response was to do nothing - back and elbow injury - whether percentage of a most extreme case excessive - whether adequate reasons for findings of economic loss - turns on facts - ND.
LEGISLATION CITED:

Civil Liability Act 2002
CASES CITED:

Dell v Dalton (1991) 23 NSWLR 528;
Giorginis v Kastrali (1988) 48 SASR 371
Trajkovski v Ken's Painting & Decorating Services Pty Ltd [2002] NSWSC 568;
Wyong Shire Council v Shirt (1980) 146 CLR 40;
PARTIES:

Leichhardt Council - Appellant
Rosy Serratore - Respondent

FILE NUMBER(S):

CA 41172/04
COUNSEL:

R Sheldon - Appellant
L King SC & P Regattieri - Respondent
SOLICITORS:

Phillips Fox - Appellant
Doherty Partners - Respondent

LOWER COURT JURISDICTION:

District Court

LOWER COURT FILE NUMBER(S):

DC 24/03

LOWER COURT JUDICIAL OFFICER:

Balla DCJ



                          CA 41172/04
                          DC 24/03

                          GILES JA
                          HODGSON JA
                          IPP JA

THURSDAY, 24 NOVEMBER 2005

LEICHHARDT COUNCIL v SERRATORE
Judgment

1 GILES JA: The respondent was injured when she fell on the footpath in Norton Street, Leichhardt, adjacent to the Italian Forum shopping complex. The appellant had the care and control of the footpath.

2 The Italian Forum had been recently completed, the work including marble paving of the footpath out to the kerb and blocks of sandstone forming the kerb. It was found that the respondent fell when her right foot caught on the end of the new sandstone block abutting the existing footpath, the sandstone standing proud of the old and sunken sandstone kerb of the existing footpath. It was held that the appellant was liable in negligence to the respondent, and her damages were assessed at $140,996.22. The respondent had served an offer of compromise, which was not accepted and which this bettered, and the appellant was ordered to pay her costs on a solicitor/client basis.

3 The appellant appealed on liability, quantum and costs.


      Liability

4 The appellant challenged the finding that the respondent had caught her foot on the end of the sandstone block. It submitted that there was no direct evidence that the particular defect had caused her to fall, that she might equally have stumbled on one of the other irregularities in the existing footpath or fallen because she had inadvertently stepped from the footpath, and that the judge’s reasons did not recognise the extent to which the evidence of the respondent and her husband were a reconstruction of how she had come to fall or the possible alternative causes for the respondent’s fall.

5 The judge’s reasons for finding as she did were well founded in the evidence. The respondent and her husband described what had occurred; their statements, beyond the descriptions, that the respondent caught her foot…

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Leichhardt Council v Serratore [2005] NSWCA 406
Case
[2005] NSWCA 406
Decision Date

CaseChat Overview and Summary

The New South Wales Court of Appeal considered a claim by Mr. Serratore against Leichhardt Council for injuries sustained from a trip and fall. Mr. Serratore alleged that the Council was negligent in failing to maintain a public footpath, creating a trip hazard that caused him to fall and suffer injuries to his back and elbow. The central dispute revolved around whether the Council had actual knowledge of the risk posed by the defect in the footpath and whether, even if aware, its decision to do nothing constituted a breach of its duty of care.

The Court was required to determine whether the Council had actual knowledge of the specific risk that caused Mr. Serratore's fall. It also had to assess whether, assuming the Council did have knowledge, its response of taking no action was a reasonable one in the circumstances, thereby negating liability for negligence. Furthermore, the Court considered whether the assessment of damages, specifically the percentage awarded for a "most extreme case" of economic loss, was excessive and whether the reasons provided for the findings of economic loss were adequate.

The Court found that the evidence did not establish that the Council had actual knowledge of the particular defect that caused Mr. Serratore to trip. While there was evidence of general awareness of potential trip hazards on footpaths, this did not equate to knowledge of the specific risk. The Court applied the principles of negligence, focusing on the requirement for actual knowledge of the risk to establish liability in this context. The assessment of damages was also scrutinised, with the Court considering whether the awarded percentage for economic loss was justified and if the reasons for the economic loss findings were sufficiently articulated.

The Court of Appeal upheld the primary judge's findings on liability and damages, dismissing the Council's appeal. The orders made by the Court are detailed in paragraph 48 of the judgment.

Orders

Orders of the court

Refer para 48.

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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