Lockhart Shire Council v King

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Lockhart Shire Council v. King [2004]  NSWCA 169

FILE NUMBER(S):
40630/03

HEARING DATE(S):               27 May 2004

JUDGMENT DATE: 27/05/2004

PARTIES:
Lockhart Shire Council - claimant
Juana Mardones King - opponent

JUDGMENT OF:       Handley JA Hodgson JA McClellan AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC289/01

LOWER COURT JUDICIAL OFFICER:     Sidis DCJ

COUNSEL:
Mr. L. King SC for claimant
Mr. M. Cranitch SC with Mr. H. Halligan for opponent

SOLICITORS:
Leitch Hasson Dent, Sydney for claimant
Commins Hendriks, Wagga Wagga for opponent

CATCHWORDS:
TORTS
NEGLIGENCE - Undulation in footpath - Whether Council negligent.

LEGISLATION CITED:

DECISION:
Leave to appeal should be granted.  Appeal allowed.  Verdict and judgment for plaintiff set aside, and in lieu thereof verdict and judgment for the Council.  Plaintiff ordered to pay the Council's costs of the proceedings and of the application for leave and of the appeal, and to have a Suitors Fund certificate if otherwise entitled.  Notice of Appeal to be filed within fourteen days.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40630/03
DC 289/01

HANDLEY JA
HODGSON JA
McCLELLAN AJA

Thursday 27 May 2004

LOCKHART SHIRE COUNCIL  V.  KING

Judgment

1. HODGSON JA:  On 4 July 2003, Judge Sidis gave judgment in favour of the plaintiff, the opponent in this application, in proceedings brought by her against the claimant Cuncil for damages for personal injury, in a sum which we are told is in the order of $70,000.  The Council seeks leave to appeal.  The leave application has been argued on the basis that if leave is granted, the appeal will be decided without further argument.

2. The proceedings arise out of a fall which the plaintiff suffered on 5 August 1999 on a footpath in Green Street, Lockhart. 

3. There was evidence from Mr Murphy, who at the relevant time was the manager of technical services for the Council, that as at April 1999 the footpath in Green Street, Lockhart, between the post office and the Council administrative offices, was in poor condition.  At that time the surface was of chip seal but there were undulations, tree roots, cracks and repaired potholes.  There had been complaints.  As a result, in April 1999 this footpath was overlaid with asphalt.

4. The plaintiff’s evidence was that she tripped on a lump on the footpath within this area, in the general vicinity of but not at the edge of a Telstra pit.  This evidence was accepted by the primary judge, who also found that what the plaintiff tripped on was “an undulation of minimum depth fifteen millimetres and maximum of twenty millimetres in the footpath.”

5. On 17 August 1999, that is twelve days after the accident, the plaintiff attended on Mr Murphy and showed Mr Murphy where she had fallen.  As a result of this encounter, Mr Murphy became aware of a lip at the edge of the Telstra pit with a height differential of up to fifteen millimetres, and gave instructions to a Council…