Newcastle City Council v McShane

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CITATION: Newcastle City Council v McShane [2004] NSWCA 425
HEARING DATE(S): 22 October 2004
JUDGMENT DATE:
1 December 2004
JUDGMENT OF: Mason P at 1; Sheller JA at 2; Giles JA at 14
DECISION: (1) Grant leave to appeal and direct that the notice of appeal be filed within seven days; (2) Dismiss the appeal; (3) Refuse leave to cross-appeal; (4) Appellant/opponent pay eighty-five per cent of the respondent/claimant's costs of the application for leave to appeal and appeal and the application for leave to cross-appeal.
CATCHWORDS: PERSONAL INJURY - footbridge in park blocked off by plastic mesh - plaintiff running for train at night - did not see mesh - fell and was injured - whether insufficient illumination - whether fact plaintiff not keeping proper lookout meant no duty of care - hazard created when defendant could have used more visible means of blocking footbridge - was duty of care - breach of duty of care - CONTRIBUTORY NEGLIGENCE - whether finding of contributory negligence open - DAMAGES - claim to buffer because injury could disadvantage plaintiff on open labour market - whether prospect of pecuniary loss from disadvantage established - no buffer. D
CASES CITED: Boroondara City Council v Cattanach [2004] VSCA 139;
Borough of Bathurst v Macpherson (1879) LR 4 App Cas 256;
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512;
Burwood Council v Byrnes [2002] NSWCA 343;
Byrnes v Burwood Council [2003] HCA Trans 462;
Fisher v Ruislip-Northwood Urban District Council [1945] KB 58;
Greater Shepparton City Council v Davis [2004] VSCA 140;
Junkovic v Neindorf [2004] SASC 235;
K Mart Australia Ltd v McCann [2004] NSWCA 283;
MacArthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145;
McClelland v Manchester Corporation [1912] 1 KB 118;
Meurs v Taieri County (1954) NZLR 1081;
Municipality of Pictou v Geldert [1893] AC 524;
Newcastle City Council v Lindsay [2004] NSWCA 198;
Nominal Defendant v Lane [2004] NSWCA 405;
Penrith City Council v Parks [2004] NSWCA 201;
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR; 492
Richmond Valley Council v Standing (2002) 126 LGERA 237;
State of New South Wales v Moss (2000) 54 NSWLR 536;
Stoddard v Ashburton County [1926] NZLR 399;
Temora Shire Council v Stein [2004] NSWCA 236;
Webb v South Australia (1982) 56 ALJR 912;
Wyong Shire Council v Shirt (1980) 146 CLR 40.

PARTIES :

 Newcastle City Council - Appellant
Travis McShane - Respondent
FILE NUMBER(S): CA 40009/04
COUNSEL: P Garling SC & K Morgan - Appellant
M Williams SC & G Beauchamp - Respondent
SOLICITORS: Phillips Fox - Appellant
Carroll & O'Dea - Respondent
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 4527/02
LOWER COURT
JUDICIAL OFFICER : 		Robison DCJ

                          CA 40009/04
                          DC 4527/02

                          MASON P
                          SHELLER JA
                          GILES JA

                          Wednesday 1 December 2004
NEWCASTLE CITY COUNCIL v McSHANE
Judgment

1 MASON…

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Details
Case
[2004] NSWCA 425
Decision Date

CaseChat Overview and Summary

Newcastle City Council appealed to the Court of Appeal of New South Wales against a judgment awarding damages to Mr McShane for personal injuries sustained when he fell on a footbridge in a park. Mr McShane was running for a train at night and did not see plastic mesh erected to block off the footbridge, resulting in his fall and injury. The Council contended that Mr McShane's failure to keep a proper lookout constituted contributory negligence, negating any duty of care owed by the Council.

The Court of Appeal was required to determine whether the Council owed a duty of care to Mr McShane, whether that duty was breached, and whether Mr McShane's own conduct amounted to contributory negligence. Additionally, the Court considered whether a "buffer" in damages was warranted due to a potential disadvantage Mr McShane might face in the open labour market as a result of his injury.

The Court found that the Council had created a hazard by using a less visible means to block the footbridge and that a duty of care was owed to users of the park. This duty was breached due to insufficient illumination of the mesh. The Court also held that the finding of contributory negligence was open. Regarding damages, the Court determined that the prospect of pecuniary loss from a disadvantage in the labour market had not been sufficiently established to justify a buffer.

Consequently, the Court of Appeal granted leave to appeal, directed that the notice of appeal be filed within seven days, and dismissed the appeal. Leave to cross-appeal was refused. The Appellant (Newcastle City Council) was ordered to pay eighty-five per cent of the Respondent's (Mr McShane's) costs of the application for leave to appeal, the appeal, and the application for leave to cross-appeal.

Orders

Orders of the court

(1) Grant leave to appeal and direct that the notice of appeal be filed within seven days; (2) Dismiss the appeal; (3) Refuse leave to cross-appeal; (4) Appellant/opponent pay eighty-five per cent of the respondent/claimant's costs of the application for leave to appeal and appeal and the application for leave to cross-appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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