Penrith City Council v Parks

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CITATION: Penrith City Council v Parks [2004] NSWCA 201
HEARING DATE(S): 21 May 2004
JUDGMENT DATE:
21 June 2004
JUDGMENT OF: Giles JA at 1; Cripps AJA at 8; McClellan AJA at 12
DECISION: (1) The claimant has leave to appeal against the judgment of the District Court with respect to the quantum of damages found by that court; (2) The appeal be allowed; (3) The amount of the judgment be varied by reducing the amount of it from $76,530 to $29,030; (4) List the proceedings before Giles JA at 9.30 am on Monday 28 June 2004 for orders by consent as to costs or directions for written submissions on outstanding issues of costs, as the case may be.
CATCHWORDS: Negligence - defective paving slab - council cut slab preparatory to repairs - created hazard of cut section tilting underfoot - tilted and pedestrian tripped - whether negligence - whether damages for non-economic loss excessive - reassessment of damages for non-economic loss - whether damages for future economic loss excessive - whether s 13 of Civil Liability Act 2002 complied with - no material error and damages not excessive. D.
CASES CITED: Burwood City Council v Byrnes [2002] NSWCA 343;
Ghantous v Hawkesbury City Council (2001) 206 CLR 512;
Husher v Husher (1999) 197 CLR 138;
MacArthur Districts Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145;
Medlin v State Government Insurance Commission (1995) 182 CLR 1.

PARTIES :

 Penrith City Council - Appellant
May Elizabeth Parks - Respondent
FILE NUMBER(S): CA 40586/03
COUNSEL: M Joseph SC & N Chen - Appellant
P Frame - Respondent
SOLICITORS: Tress Cocks Maddox - Appellant
Lamrocks - Respondent
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 136/02 (Penrith)
LOWER COURT
JUDICIAL OFFICER : 		Delaney DCJ


                          CA 40586/03
                          DC 136/02 (Penrith)

                          GILES JA
                          CRIPPS AJA
                          McCLELLAN AJA

                          Monday 21 June 2004
PENRITH CITY COUNCIL v Mary Elizabeth PARKS
Judgment

1 GILES JA: I have had the advantage of reading the reasons of McClellan AJA in draft. Subject to what follows concerning future economic loss, I agree with them.

2 The meaning and effect of s 13 of the Civil Liability Act 2002 is most obscure, and I add my voice to the suggestions that Parliament should reconsider its wording. It is nonetheless necessary to say something of its application in order to determine the question of future economic loss.

3 A claimant’s entitlement to damages for future economic loss, in concept for loss of earning capacity (Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 4; Husher v Husher (1999) 197 CLR 138 at 143), involves a comparison between the economic benefit to the claimant from exercising earning capacity before injury and the economic benefit from exercising earning capacity after injury. I agree that s 13(1) appears to address the former.

4 I do not think there is much difference in the result between the operation of s 13(2) identified by Hodgson JA in MacArthur…

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Details
Case
[2004] NSWCA 201
Decision Date

CaseChat Overview and Summary

In *Penrith City Council v Parks*, the Court of Appeal of New South Wales considered an appeal by Penrith City Council against a District Court judgment awarding damages to a pedestrian who tripped and fell on a defective paving slab. The council had cut the slab as part of preparatory work for repairs, inadvertently creating a hazard where the cut section could tilt underfoot, leading to the pedestrian's fall.

The primary legal issues before the Court of Appeal were whether the council had been negligent in its actions, and whether the quantum of damages awarded by the District Court, particularly for non-economic and future economic loss, was excessive. The court was also required to consider whether section 13 of the *Civil Liability Act 2002* (NSW) had been complied with in the assessment of damages.

The Court of Appeal found that there was no material error in the District Court's finding of negligence. However, it concluded that the damages awarded were indeed excessive. The court reasoned that the assessment of damages, particularly for non-economic loss, did not reflect the appropriate application of the principles governing such awards. Consequently, the appeal was allowed, and the judgment amount was significantly reduced. The court varied the judgment from $76,530 to $29,030, and listed the proceedings for further orders regarding costs.

Orders

Orders of the court

(1) The claimant has leave to appeal against the judgment of the District Court with respect to the quantum of damages found by that court; (2) The appeal be allowed; (3) The amount of the judgment be varied by reducing the amount of it from $76,530 to $29,030; (4) List the proceedings before Giles JA at 9.30 am on Monday 28 June 2004 for orders by consent as to costs or directions for written submissions on outstanding issues of costs, as the case may be.

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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