Parramatta City Council v Watkins

CITATION:	PARRAMATTA CITY COUNCIL V. WATKINS [2001] NSWCA 364
FILE NUMBER(S):	CA 40709/99
HEARING DATE(S):	5 October 2001
JUDGMENT DATE:	12 October 2001
PARTIES :	Parramatta City Council - appellant Beverley Watkins - respondent
JUDGMENT OF:	Powell JA at 1; Hodgson JA at 2-30; Rolfe AJA at 31

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 16/98
LOWER COURT JUDICIAL OFFICER :	Robison DCJ

COUNSEL:	Mr. P. Garling SC with Mr. V. Heath for appellant Mr. P. Bates for respondent
SOLICITORS:	Phillips Fox, Sydney for appellant Gerard Malouf & Partners, Parramatta for respondent
CATCHWORDS:	LOCAL GOVERNMENT - Roads - Alleged danger to pedestrians - Council's liability - TORT - Negligence - Pedestrian injured by fall in road - Whether road hazardous - Whether Council should have taken steps to alleviate danger. D.
CASES CITED:	Brodie v. Singleton Shire Council (2001) 75 ALJR 992 Webb v. South Australia (1982) 56 ALJR 912 David Jones v. Bates [2001] NSWCA 233
DECISION:	Appeal dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40709/99
DC 16/98

POWELL JA

HODGSON JA

ROLFE AJA

Friday 12th October 2001


PARRAMATTA CITY COUNCIL V. WATKINS

Judgment

: I agree with the reasons of Hodgson JA as set out below.

On 10th September 1999, Robison DCJ gave judgment for Beverley Watkins against Parramatta City Council in the sum of $131,078.35, as damages for injuries suffered by Ms. Watkins when she fell in South Street, Granville on 29th March 1996. Parramatta City Council has appealed to this Court against the finding that it was liable for damages, but does not challenge the quantum of damages.

CIRCUMSTANCES

3 At about 12.00 noon on 29th March 1996 the respondent, who was then 55 years of age, drove her Ford Laser motor vehicle to South Street, Granville with her brother Brian Lawler as a passenger. She parked the vehicle in a designated parking area beside the kerb. She got out of the vehicle, and was walking around the front of it to get to the footpath, when she fell in the vicinity of a manhole cover which was partly protruding from under the vehicle, causing her the injuries in respect of which she claimed.

4 The evidence showed that this was a busy area of Granville, with shops in the vicinity. The road was sealed to the kerb with what appeared to be asphalt, there was then a concrete gutter and a sealed footpath. According to evidence accepted by the primary judge and not challenged on appeal:

(1) The part of the manhole cover nearest the kerb was approximately flush with the road surface, while the part furthest from the kerb was about 50 millimetres below the road surface; and the road surface at the latter region fell steeply to the level of the manhole cover.
(2) The road surface extended slightly onto the manhole cover in some areas.
(3) The appellant Council had re-surfaced the road in the early 1990s.
(4) There…