Lithgow City Council v Jackson - [2009] HCATrans 184

[2009] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S569 of 2008

B e t w e e n -
LITHGOW CITY COUNCIL
Applicant
and
CRAIG WILLIAM JACKSON
Respondent
Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 JULY 2009, AT 2.28 PM

MR S.G. CAMPBELL, SC: I appear for the applicant, may it please the Court. (instructed by DLA Phillips Fox)

MR J.S. WHEELHOUSE, SC: May it please the Court, I appear with MR D.W. ELLIOTT for the respondent. (instructed by Gerard Malouf & Partners)

HAYNE J: Just before we begin, the Court has received affidavits of Nicola Lee Scoble and Vrege Kolokossian which seem to be directed to a debate about what was or was not the exhibit that was tendered at trial. Having regard to what appears at page 307 of the record of the black appeal book in the Court of Appeal and the record of proceedings before the primary judge where it is recorded in the course of debate about the ambulance records:

HER HONOUR: What, query fall from ‑ ‑
CAMPBELL: Yes, your Honour.
HER HONOUR: ‑ ‑ but isn’t that the issue? Isn’t that for me?

Is there really going to be a serious debate in this Court about whether the exhibit at trial had the question mark in it?

MR CAMPBELL: Your Honour, I understand that there will be no serious debate. My learned friend, Mr Wheelhouse, and I were able to have a discussion about this during the adjournment.

HAYNE J: Very well.

MR CAMPBELL: We agree, your Honour, that it is more or less in the form at application book 116. However, more accurately, although it will not be necessary for me now to read the affidavit of Ms Scoble, it is more accurately exhibit G to that affidavit.

HAYNE J: About whether it contains a stamp about obtained “under F.O.I. Act”. Yes, I understand that.

MR CAMPBELL: Yes, your Honour, but the question mark, your Honours, is there.

HAYNE J: Yes. Now, Mr Wheelhouse, again before we begin, is it plain from paragraph 49 of the reasons for judgment of the Court of Appeal as recorded at page 58 that the hinge about which President Allsop’s reasoning turned was “the note of the ambulance officer read in the way that I read it,” which is to say, the ambulance officer’s note read as saying, “Fall from

1.5 metres onto concrete”. Is that the hinge about which the reasoning turned?

MR WHEELHOUSE: Yes, your Honour. I am mindful of what President Allsop said at appeal book page 60, paragraph 56, I think.

HAYNE J: Yes.

MR WHEELHOUSE: The President, with great respect to him, his Honour makes it abundantly clear that his conclusion is premised on his interpretation of the second line without the question mark.

HAYNE J: Is it also plain that the record that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lithgow City Council v Jackson

Details

AGLC: Lithgow City Council v Jackson [2009] HCATrans 184
Case: [2009] HCATrans 184
Decision Date

CaseChat Overview and Summary

Lithgow City Council v Jackson concerned an appeal to the High Court of Australia from a decision of the New South Wales Court of Appeal. The dispute arose from a claim for damages for personal injury brought by Mr. Jackson against Lithgow City Council. Mr. Jackson alleged that he had suffered injury as a result of the Council's negligence in failing to maintain a public reserve.

The High Court was required to determine whether the Council owed a duty of care to Mr. Jackson in relation to the condition of the reserve, and if so, whether that duty had been breached. A further issue was whether the Council's alleged breach of duty had caused Mr. Jackson's injuries, and whether any contributory negligence on Mr. Jackson's part should reduce the damages awarded.

In their joint judgment, Hayne and Heydon JJ considered the principles governing the liability of occupiers of land for injury sustained by persons entering the land. They affirmed that the occupier's duty of care is to take reasonable steps to protect persons lawfully on the premises from foreseeable risks of injury. The Court analysed the evidence to determine whether the risk of injury was foreseeable and whether the Council had taken reasonable precautions to mitigate that risk. They also examined the causal connection between the Council's conduct and Mr. Jackson's injuries, and the extent to which Mr. Jackson's own actions may have contributed to his harm.

The High Court allowed the appeal in part, finding that while the Council owed a duty of care, the damages awarded should be reduced due to Mr. Jackson's contributory negligence.

Orders