Passmore v Maitland City Council

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Passmore v Maitland City Council [2017] NSWCA 253

Hearing dates:

4 October 2017

Date of orders:

04 October 2017

Decision date:

13 October 2017

Before:

Basten JA at [1];
White JA at [8];
Sackville AJA at [38]

Decision:

(1) Grant the appellant leave to rely on the second amended notice of appeal filed in court;
(2) Dismiss the appeal;
(3) Order that the appellant pay the costs of the first and second respondents.

Catchwords:

TORTS — Negligence — Proof of negligence — primary judge not satisfied the appellant was injured as a result of the condition of the tennis court — no error in primary judge’s accepting evidence of respondent’s witnesses — no issue of principle raised

 

CIVIL PROCEDURE — Hearings — Adjournment — no error in primary judge’s refusal to adjourn hearing

  CIVIL PROCEDURE — Separate determination of questions — no error in primary judge’s ordering that question of liability be determined separately and in advance of other issues

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Category:

Principal judgment

Parties:

Duncan McFarlane Cavendish Passmore (Appellant)
Maitland City Council (1st Respondent)
Maitland City Tennis Club Inc (2nd Respondent)

Representation:

Counsel:
C A W Hart (Appellant)
G Jensen (1st Respondent)
P Cummings SC (2nd Respondent)

  Solicitors:
Bale Boshev Lawyers (Appellant)
Moray & Agnew (Newcastle) (1st Respondent)
Colin Biggers & Paisley (2nd Respondent)

File Number(s):

2016/368572

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

Not published on Caselaw

Date of Decision:

11 November 2016

Before:

Balla DCJ

File Number(s):

2015/170841

Judgment

1. BASTEN JA: On 16 June 2012 the appellant, then aged 71 years, was playing competitive tennis at the Maitland City Tennis Club. Whilst running backwards to play a ball lobbed over his head, he tripped and fell. His head hit the ground hard and he suffered a significant head injury.

2. On 6 August 2015 the appellant commenced proceedings against the Club and the Maitland City Council, as the bodies responsible for maintaining the tennis courts. His claim in negligence depended on two factual propositions, namely that (i) due to wearing of the court’s artificial surface, the lines were raised a few millimetres above the surrounding surface, and (ii) the appellant tripped because his left foot caught against the raised area of the tramline as he moved backwards. The first proposition was not in dispute; the second was.

3. Following the rejection of an adjournment application, the trial proceeded on the question of liability in early November 2016. The plaintiff gave evidence that his left foot caught as he tried to regain his balance; it was his unshaken belief that it caught against the raised tramline, although he was not, of course, looking at his feet at the time and did not see what caused him to trip.

4. Five witnesses who gave evidence as to how the appellant had fallen contradicted his evidence that the fall was precipitated by his left foot catching on…