Newcastle City Council v Mason

CITATION:	Newcastle City Council v. Mason [2004] NSWCA 108
HEARING DATE(S):	29 March 2004
JUDGMENT DATE:	29 March 2004
JUDGMENT OF:	Giles JA at 25; Hodgson JA at 2; McColl JA at 28
DECISION:	Appeal dismissed with costs
CATCHWORDS:	TORT - Negligence - Hole in footpath - Whether a hazard - Whether council knew or ought to have known of it.
CASES CITED:	Brodie v. Singleton Shire Council (2001) 206 CLR 512 Graham Barclay Oysters Pty. Ltd. v. Ryan (2002) 211 CLR 540
PARTIES :	Newcastle City Council - appellant Craig Mason - respondent
FILE NUMBER(S):	CA 40317/03
COUNSEL:	Mr. P. Garling SC with Mr. J. Sheller for appellant Mr. P. Biggins for respondent
SOLICITORS:	Phillips Fox, Sydney for appellant Whitelaw McDonald, Kotara for respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC57/00
LOWER COURT JUDICIAL OFFICER :	Sidis DCJ

CA 40317/03
DC 57/00

GILES JA
HODGSON JA
McCOLL JA

Monday 29 March 2003

NEWCASTLE CITY COUNCIL V. MASON

Judgment

1 HODGSON JA: On 3 April 2003 her Honour Judge Sidis ordered that there be a verdict and judgment for the respondent Craig Mason in the sum of $149,417.76 in proceedings brought by him against the appellant, the Newcastle City Council. Her Honour also made a costs order in favour of the respondent. The appellant appeals from those orders.

2 The proceedings arose out of an accident which occurred on 15 October 1997, when the respondent fell on a footpath in Union Street, The Junction. The accident was caused by the respondent’s right foot going into a hole in the footpath.

3 The footpath in the area consisted of pavers located from the gutter right up to the brick wall of a building and adjoining shops, creating a paved area that appears from photographs to be about three metres wide. At a point next to the building, near where it adjoined the shops, several pavers were missing, creating a hole about forty millimetres deep and appearing from photographs to be about 400 millimetres long and to extend about 500 millimetres out from the wall. The hole was adjacent to a Telstra pit.

4 The fall occurred at between 7 and 7.30 at night, when it was just on dark and there was drizzling rain. The respondent had been walking along the front of the shops close to the building because this gave some shelter from the rain. He looked in the window of the shop close to the hole, and in fact stepped up a step at the entrance to the shop. Then he turned and walked three or four steps and fell when his foot went into the hole. He said he did not see the hole before falling into it.

5 There was evidence the hole had been in that condition since 1995, and the primary judge accepted that the defect was one of long standing. There was also evidence that the appellant had a street sweeper in the area about once a week sweeping the footpath.