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O'Brien v Little

O'Brien v Little

Case [2007] NSWSC 64 14 February 2007

Jurisdiction

Standing

Limitation Periods

Breach of Duty of Care

Negligence

Public Nuisance

Civil Litigation & Procedure

Local Government Law

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CITATION: Darren O'Brien v Robert Francis Little and ors; Stephen James Walsh v Robert Francis Little and ors [2007] NSWSC 64
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11/12/06
12/12/06

JUDGMENT DATE :
14 February 2007

JUDGMENT OF: Patten AJ at 1

DECISION: See paragraph 70

LEGISLATION CITED: Uniform Civil Procedure Rules

CASES CITED: Coal Cliff Collieries Pty Ltd v C E Health Insurance Broking ( Australia) Pty Ltd (1986) 5 NSWLR 703
Spedley Securities Ltd (In Liq) v Yuill and Ors 5 ACSR 758
Tooth & Co Ltd v Lane Cove Municipal Council (No4) (1968) 2 NSWLR 17
Pyrenees Shire Council v Day (1998) 72 ALJR 152
Norton v Hoare (No 2) (1913) 17 CLR 348
Kelly and Anor v Raymor (Illawarra) Pty Ltd (1981) 1 NSWLR 720
American Flange and Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) (1965) NSWR 193
Langley v The Age Co Ltd (2001) VSC 370

PARTIES: Darren Andrew O'Brien - Plaintiff
Stephen James Walsh - Plaintiff
Robert Francis Little & ors - Defendants

FILE NUMBER(S): SC 20308 of 2001; 20302 of 2001

COUNSEL: M Joseph SC with W Walsh- Plaintiffs
S Glascott - Defendant - The Bega Valley Shire Council

SOLICITORS: Carmody Cramptom - Plaintiffs
Shaw McDonald Pty Ltd - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten AJ

14 February 2007

No: 20308 of 2001
No: 20302 of 2001

Darren Andrew O’Brien – Plaintiff
v
Robert Francis Little and ors - Defendants

Stephen James Walsh - Plaintiff
v
Robert Francis Little and ors – Defendants
JUDGMENT

1 Each of the Plaintiffs in these actions alleges that on the night of 31 December 1993/ 1 January 1994, he suffered personal injuries when he fell down a cliff in a public reserve at Tathra on the south coast of NSW. The reserve was in the vicinity of the Tathra Hotel/Motel where a New Years Eve party was held.

2 The actions were commenced by Mr Walsh on 6 April 2001 and by Mr O’Brien on 9 April 2001 by Statements of Claim, each, so far at least as liability was concerned, being in similar terms and each naming some ten defendants.

3 The Statements of Claim have been amended on several occasions and some parties have been changed. The proceedings before me concern interrogatories administered to Bega Valley Shire Council (the Council), which was originally the tenth defendant but now, in the current pleading, the Fourth Further Amended Statement of Claim (to which for convenience I will hereafter simply refer as the Statement of Claim), appears to be the ninth defendant.

4 Those paragraphs of the Statement of Claim which appear to be relevant to the cause of action against the Council, some rather inelegantly expressed, are:

“2. From 1986 until at least 1 January 1994 the first and second defendants were owners and occupiers of Lot 30 in deposited plan 606559 and Lot…

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.

Continue reading O'Brien v Little

Details

AGLC: O'Brien v Little [2007] NSWSC 64
Case: [2007] NSWSC 64
Decision Date: 14 February 2007

CaseChat Overview and Summary

In O'Brien v Little, the plaintiffs, Darren Andrew O'Brien and Stephen James Walsh, sought to recover damages for personal injuries sustained after falling down a cliff in a public reserve at Tathra, New South Wales. The plaintiffs alleged that the defendants, including the Bega Valley Shire Council, were negligent in failing to provide adequate warnings and barriers around the cliff edge. The case was before the Supreme Court of New South Wales, with Patten AJ presiding. The court considered the defendants' objections to the plaintiffs' interrogatories and determined that certain interrogatories were either irrelevant, oppressive, or vexatious, and thus not allowable. The court allowed specific interrogatories that were deemed relevant and necessary for the fair disposal of the case, such as those regarding the council's knowledge of the risks associated with the New Year's Eve gatherings and the measures taken to mitigate those risks. The court's decision focused on ensuring that the interrogatories were relevant, not oppressive, and did not require the council to provide speculative opinions or information outside the scope of their duties.

Orders