Middleton v Parramatta City Council

CITATION:	Middleton v Parramatta City Council [1999] NSWCA 448
FILE NUMBER(S):	CA 40373/98
HEARING DATE(S):	22 September 1999
JUDGMENT DATE:	8 December 1999
PARTIES :	Jack Middleton (Appellant) v Parramatta City Council (Respondent)
JUDGMENT OF:	Priestley JA at 1; Stein JA at 9; Fitzgerald JA at 15

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	3388/94
LOWER COURT JUDICIAL OFFICER:	Twigg DCJ

COUNSEL:	A: Mr J L Sharpe R: Mr M McCulloch
SOLICITORS:	A: Steve Masselos & Co R: Phillips Fox
CATCHWORDS:	Personal injury; fall at swimming pool; per majority: (Priestley JA dissenting) no arguable case of negligence and no justification for a new trial.
CASES CITED:	Freeman v G J Coles & Co Ltd (1967) 1 NSWLR 297 at 300
DECISION:	Appeal dismissed.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40373/98
DC 3388/94

PRIESTLEY JA
STEIN JA
FITZGERALD JA

WEDNESDAY 8 DECEMBER 1999

Jack MIDDLETON v PARRAMATTA CITY COUNCIL

JUDGMENT

1   PRIESTLEY JA: The facts are sufficiently stated in the reasons of Fitzgerald JA for me to state my opinion by reference to, and without enlargement, of them. 2   I agree generally with what Fitzgerald JA says in his reasons, with one exception, which leads me to a different conclusion. 3   The point of difference between us is his view that Mrs Denton’s case was devoid of persuasive evidence which could reasonably support a conclusion that the respondent was negligent to leave the lane divider in the gutter. The lane divider case was the second of the alternative cases put forward by Mrs Denton at the trial. The first was the one evidently firmly based on her own belief that she had been bumped by a school pupil. The alternative one, which was contrary to her belief, was that she had slipped on the lane divider. It may be that on the evidence in her own case, there could have been no finding for her on her alternative, lane divider, case. However, there was other evidence before the court beyond that in her own case. Once the trial judge rejected Mrs Denton’s primary case, it became necessary for him to consider whether, on the whole of the evidence, the alternative case of negligence was made out. What he said about this was as follows:

“There is, on my findings, nothing to suggest that the Plaintiff caused her injury by stepping onto a plastic lane divider and then falling. The suggestion by the Second Defendant that the Plaintiff fell in close proximity to the lane divider, placed there by the First Defendant, is wholly contrary to the whole of the evidence.”

4   Unfortunately this conclusion overlooks direct evidence from at least one witness that Mrs Denton slipped on the lane divider and from others tending to support the directly observing witness. 5   Due to this oversight, the trial judge did not give any real consideration to the alternative case. This would not have any consequences if that case was in any event, on the…