Parsons v Randwick Municipal Council

CITATION:	PARSONS v RANDWICK MUNICIPAL COUNCIL [2003] NSWCA 171
HEARING DATE(S):	22 May 2003
JUDGMENT DATE:	9 December 2003
JUDGMENT OF:	Sheller JA at 1; Beazley JA at 50; Ipp JA at 68
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	Appeal - tort - negligence - duty of care - existence and scope of duty - whether Council breached duty of care owed to appellant - whether appellant when intoxicated exercised reasonable care for own safety - when appellant fell from broken footpath at night.
LEGISLATION CITED:	N/A
CASES CITED:	Borough of Bathurst v Macpherson (1879) 4 App Cas 256 Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Buckle v Bayswater Road Board (1936) 57 CLR 259 Francis & Ors v Lewis [2003] NSWCA 152 Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357 March v Stramare Pty Limited (1991) 171 CLR 506 Reynolds v Katoomba RSL All Services Club Limited (2001) 53 NSWLR 43 Richmond Valley Council v Standing [2002] NSWCA 359 Tomlinson v Congleton Borough Council (2003) UKHL 47 Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Waverley Municipal Council v Swain (2003) Aust Torts Reports 81-694
PARTIES :	Barry John Parsons - Appellant Randwick Municipal Council - Respondent
FILE NUMBER(S):	CA 40702/02
COUNSEL:	B M J Toomey QC/E G Romaniuk - Appellant M J Joseph SC/S P W Glascott - Respondent
SOLICITORS:	Helliars City - Appellant Phillips Fox - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	869/01
LOWER COURT JUDICIAL OFFICER :	Sorby DCJ

CA 40702/02
DC 869/01

SHELLER JA
BEAZLEY JA
IPP JA

PARSONS v RANDWICK MUNICIPAL COUNCIL

The appellant was returning home late at night from a social function where he had been drinking. He was being driven by another man, with a third man also in the vehicle. The third man left the car and walked off along the footpath. The appellant left the car and followed. The appellant fell from the footpath onto the kerb and hit the back of his head. At the point where the appellant fell, the footpath was broken in a U-shape and there was a grass verge that sloped up from the kerb to the footpath.

At first instance the appellant claimed that the respondent, the Council, had been negligent in failing to maintain the section of footpath, which the appellant fell on, which was in the Council’s care and control. The trial Judge held that the Council did owe the appellant a duty of care, however that duty did not extend as far as to cover a situation as depicted by the appellant, where his state of sobriety at the time of the fall would have been such that he was extremely impaired physically and mentally. Further, the trial Judge said that because of his self-induced alcoholic state, the appellant was not able to take reasonable care of himself by seeing the large, obvious subsidence at the edge of the footpath and avoiding it.

The…