Morris v Redland City Council - [2015] QSC 135

SUPREME COURT OF QUEENSLAND

CITATION:

Morris v Redland City Council & anor [2015] QSC 135

PARTIES:

ANDREW MORRIS

(plaintiff)

v
REDLAND CITY COUNCIL

(first defendant)
CUBVALE PTY LTD AS TRUSTEE FOR THE GREEN FAMILY TRUST, TRADING AS RAY WHITE NORTH STRADBROKE ISLAND
(second defendant)

FILE NO/S:

901 of 2013

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

16, 17, 18 February 2015

JUDGE:

Martin J

ORDER:

1.    The claim against the first defendant is dismissed;

2.    The claim against the second defendant is dismissed; and

3.    The plaintiff is to pay the second defendant’s costs of the action on the indemnity basis

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – PARTICULAR CASES – AFFECTING PUBLIC AUTHORITIES – where the plaintiff was holidaying on North Stradbroke Island – where the plaintiff believed that there were stairs leading to the beach somewhere across the road from their rental house – where the plaintiff had consumed alcohol – where the plaintiff tried to locate the stairs at night – where the plaintiff followed what he considered to be a path to the edge of a cliff – where the plaintiff leant against a tree to look for the stairs and fell to the beach below, suffering serious injuries – whether the path existed – whether the risk that someone might fall from the top of the cliff was reasonably foreseeable – whether the respondent should have erected warning signs – whether the respondent should have conducted a risk assessment – whether the respondent breached its duty of care – whether the risk of injury was an obvious risk

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where, at the beginning of the trial, the plaintiff elected to not lead any evidence against the second defendant – where judgment was entered for the second defendant by consent – where there was a relevant Calderbank offer – where the first and second defendants issued contribution notices to each other – whether the claim by the plaintiff against the second defendant was a hopeless case

Civil Liability Act 2003, s 13, s 15, s 47

Calderbank v Calderbank [1975] 3 WLR 586
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Di Carlo v Dubois [2002] QCA 225
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397

Mulligan v Coffs Harbour City Council (2005) 223 CLR 486
Neindorf v Junkovic (2005) 222 ALR 631
Re J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers [1993] FCA 42
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Rosenberg v Percival (2001) 205 CLR 434
State of Queensland v Kelly [2014] QCA 27

Vairy v Wyong Shire Council (2005) 223 CLR 422

COUNSEL:

K Fleming QC and L Willson for…

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.

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Details

Case: [2015] QSC 135
Decision Date: 22 May 2015

CaseChat Overview and Summary

The plaintiff, while holidaying on North Stradbroke Island, attempted to locate stairs that he believed led to a beach, having consumed alcohol. Following what he considered to be a path, the plaintiff leant against a tree to look for the stairs and fell to the beach below, sustaining serious injuries. The plaintiff brought proceedings against the Redland City Council, which was responsible for the management of the area, and a company, the second defendant, that had leased the house the plaintiff had rented. The plaintiff alleged that the Council had failed to erect warning signs and had not conducted a risk assessment, thereby breaching its duty of care. The plaintiff further claimed that the risk of falling from the top of the cliff was reasonably foreseeable, and the risk of injury was not an obvious risk. The Council denied liability, asserting that it had no duty to erect warning signs or conduct a risk assessment, and that the risk was obvious. The company denied any liability, and judgment was entered for it by consent. The primary issue before the court was whether the Council owed a duty of care to the plaintiff and whether that duty had been breached. A secondary issue was whether the risk of injury was an obvious risk.

The court found that the Council had no duty to erect warning signs or conduct a risk assessment. The court held that the risk of falling from the top of the cliff was not reasonably foreseeable, and that the risk was an obvious one. The court further held that the plaintiff had failed to establish that the Council had breached its duty of care. The court found that the claim against the company was hopeless, and that the plaintiff had elected not to lead evidence against it. The court held that the plaintiff's claim against the Council was a hopeless case, and that the plaintiff had made a Calderbank offer. The court ordered that the plaintiff pay the Council's costs of the action on the indemnity basis. The court dismissed the plaintiff's claim against both defendants.

Orders

Orders of the court

1. The claim against the first defendant is dismissed;

2. The claim against the second defendant is dismissed; and

3. The plaintiff is to pay the second defendant’s costs of the action on the indemnity basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Morris v Redland City Council & anor [2015] QSC 135
PARTIES:	ANDREW MORRIS (plaintiff) v REDLAND CITY COUNCIL (first defendant) CUBVALE PTY LTD AS TRUSTEE FOR THE GREEN FAMILY TRUST, TRADING AS RAY WHITE NORTH STRADBROKE ISLAND (second defendant)
FILE NO/S:	901 of 2013
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 May 2015
DELIVERED AT:	Brisbane
HEARING DATE:	16, 17, 18 February 2015
JUDGE:	Martin J
ORDER:	1. The claim against the first defendant is dismissed; 2. The claim against the second defendant is dismissed; and 3. The plaintiff is to pay the second defendant’s costs of the action on the indemnity basis
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – PARTICULAR CASES – AFFECTING PUBLIC AUTHORITIES – where the plaintiff was holidaying on North Stradbroke Island – where the plaintiff believed that there were stairs leading to the beach somewhere across the road from their rental house – where the plaintiff had consumed alcohol – where the plaintiff tried to locate the stairs at night – where the plaintiff followed what he considered to be a path to the edge of a cliff – where the plaintiff leant against a tree to look for the stairs and fell to the beach below, suffering serious injuries – whether the path existed – whether the risk that someone might fall from the top of the cliff was reasonably foreseeable – whether the respondent should have erected warning signs – whether the respondent should have conducted a risk assessment – whether the respondent breached its duty of care – whether the risk of injury was an obvious risk PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where, at the beginning of the trial, the plaintiff elected to not lead any evidence against the second defendant – where judgment was entered for the second defendant by consent – where there was a relevant Calderbank offer – where the first and second defendants issued contribution notices to each other – whether the claim by the plaintiff against the second defendant was a hopeless case Civil Liability Act 2003, s 13, s 15, s 47 Calderbank v Calderbank [1975] 3 WLR 586 Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Di Carlo v Dubois [2002] QCA 225 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 Neindorf v Junkovic (2005) 222 ALR 631 Re J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers [1993] FCA 42 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Rosenberg v Percival (2001) 205 CLR 434 State of Queensland v Kelly [2014] QCA 27 Vairy v Wyong Shire Council (2005) 223 CLR 422
COUNSEL:	K Fleming QC and L Willson for…