CITATION: Pearson v Sutherland Shire Council [2010] NSWDC 1 HEARING DATE(S): 9, 10, 11, 12, 26, 27 and 30 November 2009
JUDGMENT DATE:
10 February 2010JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ DECISION: 1. Verdict for the plaintiff in the sum of $836,317;
2. Judgment for the plaintiff in the sum of $750,000;
3. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered.CATCHWORDS: TORTS – negligence – road authority – liability of council for unsafe condition of road – stationary vehicle with ignition off, handbrake on and in gear, slid down a roadside embankment – whether death of owner of vehicle who was standing beside it was due to negligence of council – road surface incorporated a 12 per cent sloping cross-fall – failure of council to adequately respond to repeated concerns of residents regarding safety of road – whether a guardrail should have been installed before the accident – whether any fault on the part of the deceased contributed to his death – whether defendant has established defences pursuant to ss 5F, 5H, 5I, 42, 43, 43A and 45 of the Civil Liability Act 2002 – consideration of whether another council would have acted as defendant council did in the circumstances - EVIDENCE – expert evidence – need for expert reports to comply with Sch 7 cl 5(c) of Uniform Civil Procedure Rules 2005 - DAMAGES – assessment of damages for pure mental harm under the Civil Liability Act 2002 – assessment of damages under Compensation to Relatives Act 1897 LEGISLATION CITED: Civil Liability Act 2002, ss 5B, 5C, 5D, 5F, 5H, 5I, 16, 30, 31, 32, 42, 43, 43A, 44 and 45
Compensation to Relatives Act 1897, ss 3(1) and 4
District Court Act 1973, s 51
Roads Act 1993, ss 7(4), 7(5), 71, 87 and 146(d)
Road Design Guidelines, s 6CASES CITED: Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512
Chotiputhsilpa v Waterhouse [2005] NSWCA 295
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Edson v RTA [2006] NSWCA 68
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161
John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218
Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 233 ALR 200
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
North Sydney Council v Binks [2007] NSWCA 245
Rickard & Ors v Allianz Australia Insurance Ltd & Ors [2009] NSWSC 1115
RTA v Dederer [2007] HCA 42; (2007) 234 CLR 330
RTA v Refrigerated Roadways Pty Limited [2009] NSWCA 263
Sutherland Shire Council v Henshaw [2004] NSWCA 386
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Turnbull v Alm & Anor [2004] NSWCA 173
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
Waverley Municipal Council v Swain [2003] NSWCA 61
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Details
- AGLC
- Pearson v Sutherland Shire Council [2010] NSWDC 1
- Case
- [2010] NSWDC 1
- Decision Date
CaseChat Overview and Summary
The plaintiff, Pearson, sought damages from the Sutherland Shire Council for the death of his father, who died when a stationary vehicle slid down an embankment onto him. The vehicle had been left with the ignition off, handbrake on and in gear. The Council had been notified of concerns about the road’s cross-fall and safety, but did not take action. Pearson argued that the Council was negligent in maintaining the road and failing to install a guardrail, and that this contributed to his father’s death. The Council claimed that Pearson’s father’s own actions contributed to the accident and that they were not negligent, relying on several defences under the Civil Liability Act 2002.
The court was required to determine whether the Council’s failure to respond to safety concerns and install a guardrail was negligent, whether any fault on the part of Pearson’s father contributed to his death, and if the Council had established any defences under the Civil Liability Act 2002. The court also had to consider whether another council would have acted as the Sutherland Shire Council did in the circumstances. Additionally, the court had to assess the evidence, particularly the expert evidence, and whether it complied with the requirements of the Uniform Civil Procedure Rules 2005. Finally, the court had to assess the damages for pure mental harm under the Civil Liability Act 2002 and under the Compensation to Relatives Act 1897.
The court found that the Council’s failure to install a guardrail and respond to safety concerns was negligent, and that this contributed to Pearson’s father’s death. The court rejected the Council’s defences and found that another council would have acted differently. The court found that Pearson’s father’s actions did not contribute to his death. The court assessed the damages for pure mental harm and found that Pearson was entitled to $836,317. The court also assessed damages under the Compensation to Relatives Act 1897 and found that Pearson was entitled to $750,000.
The court ordered that the Council pay Pearson $836,317 in damages for pure mental harm, $750,000 in damages under the Compensation to Relatives Act 1897, and the Council’s costs on the ordinary basis unless otherwise ordered.
The court was required to determine whether the Council’s failure to respond to safety concerns and install a guardrail was negligent, whether any fault on the part of Pearson’s father contributed to his death, and if the Council had established any defences under the Civil Liability Act 2002. The court also had to consider whether another council would have acted as the Sutherland Shire Council did in the circumstances. Additionally, the court had to assess the evidence, particularly the expert evidence, and whether it complied with the requirements of the Uniform Civil Procedure Rules 2005. Finally, the court had to assess the damages for pure mental harm under the Civil Liability Act 2002 and under the Compensation to Relatives Act 1897.
The court found that the Council’s failure to install a guardrail and respond to safety concerns was negligent, and that this contributed to Pearson’s father’s death. The court rejected the Council’s defences and found that another council would have acted differently. The court found that Pearson’s father’s actions did not contribute to his death. The court assessed the damages for pure mental harm and found that Pearson was entitled to $836,317. The court also assessed damages under the Compensation to Relatives Act 1897 and found that Pearson was entitled to $750,000.
The court ordered that the Council pay Pearson $836,317 in damages for pure mental harm, $750,000 in damages under the Compensation to Relatives Act 1897, and the Council’s costs on the ordinary basis unless otherwise ordered.
Orders
Orders of the court
1. Verdict for the plaintiff in the sum of $836,317;
2. Judgment for the plaintiff in the sum of $750,000;
3. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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