Newcastle City Council v McShane

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.