Leichhardt Municipal Council -v-Green

This matter concerned an appeal by Leichhardt Municipal Council (the appellant) against a District Court judgment that found it liable for injuries sustained by a respondent who stepped into a pothole while alighting from a truck. The respondent's injury occurred when he stepped from the cabin of his truck into a pothole. The central dispute revolved around whether the council's alleged negligence caused the respondent's injury.

The court was required to determine several legal issues. These included whether the council owed a duty of care to the respondent, whether that duty had been breached, and crucially, whether the injury was caused by the council's negligence. A significant point of contention was the admissibility of expert reports tendered by the respondent, and whether the trial judge erred in admitting them into evidence. The court also considered whether the onus of proof had been improperly reversed, requiring the appellant to prove its inspection system rather than the respondent proving the council's negligence.

The court reasoned that the trial judge had erred in admitting the expert reports, finding them speculative and lacking a proper evidentiary basis. It was held that there was insufficient evidence to establish that the appellant, or its contractor, had performed the work associated with the pothole, or to identify who had done the work and when. Consequently, the court found that there was no evidence of an inspection system by the council that could support a finding of negligence. The court concluded that the trial judge had effectively reversed the onus of proof, which was impermissible.

Accordingly, the appeal was allowed with costs, and the judgment of the District Court was set aside. A verdict was entered for the defendant (the appellant) with costs. The respondent was to receive a certificate under the Suitors Fund Act, 1951, if otherwise qualified.