Plaskitt v Pittwater Council - [2012] NSWSC 1356

Supreme Court

New South Wales

Medium Neutral Citation: Plaskitt v Pittwater Council [2012] NSWSC 1356
Hearing dates: 12/12/2011-16/12/2011
Decision date: 12 November 2012
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) Judgment for the defendants on the statement of claim;
(2) Cross-claims dismissed;
(3) The plaintiff shall pay the defendants' costs of and incidental to the proceedings on a party-party basis;
(4) The parties have liberty, within 28 days of these reasons for judgment, to seek different orders as to the payment of costs or orders in relation to any other matter not otherwise dealt with in these orders;
(5) Proceedings are otherwise dismissed.

Catchwords: TORTS - occupier's liability - council undertaking repairs to footpath owned by other defendants - no issue of principle - risk of harm obvious - no lack of care in construction or repair of footpath - no further precautions required by reasonable person for foreseeable, not insignificant risk of harm
Legislation Cited: Civil Liability Act 2002
Occupational Health and Safety Act 2002
Cases Cited: Adeels Palace v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Angel v Hawkesbury City Council [2008] NSWCA 130
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512
Modbury Triangle Shopping Centre v Anzil [2000] HCA 61; (2000) 205 CLR 254
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Richmond Valley Council v Standing [2002] NSWCA 359
Sibraa v Brown [2012] NSWCA 328
Category: Principal judgment
Parties: Danielle Plaskitt (Plaintiff)
Pittwater Council (First Defendant)
C & A Berk Holdings Pty Ltd (Second Defendant)
Wechsler Holdings Pty Ltd (Third Defendant)
Representation: Counsel:
HN Kelly SC/DJ Williams/S Alexandre-Hughes (Plaintiff)
R Gambi (First Defendant)
R Cavanagh SC (Second and Third Defendants)
Solicitors:
Carroll & O'Dea Lawyers (Plaintiff)
DLA Piper Australia (First Defendant)
Holman Webb Lawyers (Second and Third Defendants)

File Number(s): 2008/319308

Judgment

HIS HONOUR: The plaintiff, Danielle Plaskitt, was walking with her two children in a laneway off Bungan Street, Mona Vale when she fell over on the uneven surface of the concrete footpath. The plaintiff was injured and sues Pittwater Council (hereinafter, the "first defendant"), as the body responsible for the repair of the footpath, and the second and third defendants, C & A Berk Holdings Pty Ltd and Wechsler Holdings Pty Ltd, as the owners of the land on which the footpath is situated, for damages allegedly caused by their negligence.

The incident

On 29 September 2005, the plaintiff was walking from the rear of 16 Waratah Street, Mona Vale along an unnamed laneway (hereinafter "the laneway") in a westerly direction to a position in Bungan Street, Mona Vale. Bungan Street runs north/south. The plaintiff was walking with her two children, aged 10 and almost 2 years of age. The plaintiff was 7 months' pregnant at the time.

According to the plaintiff, at the intersection of Bungan Street and the laneway, her right ankle rolled outward (i.e. to the right, which was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Plaskitt v Pittwater Council

Details

AGLC: Plaskitt v Pittwater Council [2012] NSWSC 1356
Case: [2012] NSWSC 1356
Decision Date: 12 November 2012

CaseChat Overview and Summary

The case of Plaskitt v Pittwater Council involved a dispute between the plaintiff, Plaskitt, and the council, Pittwater Council, regarding liability for injuries sustained by Plaskitt. Plaskitt had tripped and injured herself on a footpath owned by another party but repaired by the council. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was whether the council was liable for the injuries suffered by the plaintiff due to the condition of the footpath, despite the council's involvement only in the repairs and not the initial construction.

The court had to determine whether the council had a duty of care towards the plaintiff and if they breached this duty by failing to take sufficient precautions against a foreseeable risk of harm. The court considered whether the risk of harm was obvious and whether any lack of care in the construction or repair of the footpath contributed to the injury. Given that the risk of harm was obvious, the court examined whether any further precautions were required by a reasonable person to mitigate this foreseeable, though not insignificant, risk.

The Supreme Court found that the council did not owe a duty of care to the plaintiff as the risk of harm was obvious, and no lack of care in the construction or repair of the footpath contributed to the injury. The court concluded that no further precautions were necessary under the circumstances. Consequently, the council was not liable for the injuries suffered by the plaintiff. The court's decision was based on the principle that, in cases where the risk of harm is apparent, a reasonable person would not be expected to take additional precautions beyond those reasonably necessary. This judgment highlights the importance of the obviousness of the risk in determining the liability of an occupier in such circumstances.

Orders