Port Stephens Council v Theodorakakis

New South Wales

Court of Appeal

CITATION:	PORT STEPHENS COUNCIL v THEODORAKAKIS [2006] NSWCA 70
HEARING DATE(S):	23/03/2006
JUDGMENT DATE:	6 April 2006
JUDGMENT OF:	Giles JA at 1; Ipp JA at 2; Bryson JA at 3
DECISION:	Leave to appeal refused.
CATCHWORDS:	NEGLIGENCE - highway - trip and fall on footpath - application for leave to appeal from judgment for plaintiff - consideration of - whether in fact obvious risk - whether issue under Civil Liability Act s.42 - financial and other allocation of resources - observations that reliance on CLAct s.42 or s.45 should be pleaded - on assessment of prospects of success on appeal, leave to appeal refused.
LEGISLATION CITED:	Civil Liability Act 2002 ss.13, 42 & 45 District Court Rules Pt.9 r.9(2) Uniform Civil Procedure r.14.14
PARTIES:	Port Stephens Council - Claimant Maria Theodorakakis - Opponent
FILE NUMBER(S):	CA 40422/05
COUNSEL:	Mr P.R. Garling SC & Mr P. Cummings - Claimant Mr M.R. Aldridge SC & Ms E. Welsh - Opponent
SOLICITORS:	Phillips Fox - Claimant Bryden's Law Office - Opponent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 654/03
LOWER COURT JUDICIAL OFFICER:	Rein DCJ

CA 40422/2005

GILES JA
IPP JA
BRYSON JA

THURSDAY 6 APRIL 2006
PORT STEPHENS COUNCIL v MARIA THEODORAKAKIS

Judgment

1 GILES JA: I agree with Bryson JA.

2 IPP JA: I agree with Bryson JA.

3 BRYSON JA: The claimant seeks leave to appeal from judgment for the opponent given by Judge Rein SC in the District Court on the opponent's claim for damages for personal injuries suffered when she tripped and fell on the footpath on the south side of Shoal Bay Road, Shoal Bay on 18 January 2002. Damages were assessed and judgment was entered for $67,936.16. The opponent made a cross-application for leave to cross appeal, claiming that the award of damages was too low; her application was conditional upon grant of leave to appeal to the claimant. The parties presented their arguments on the proposed appeals with their applications for leave.

4 The opponent claimed and the Trial Judge found that she tripped on a lip at the edge of a depression in an otherwise regular concrete pavement. At some time in the past, probably 20 or more years earlier, the previous concrete path in this area was raised and resurfaced, probably as part of redevelopment of the adjacent dwellings. A telephone pit was set in the footpath at the previous level of the footpath. The area in which the pit was set was filled or partly filled in a way which left the pit accessible: a rectangular concrete patch was put over the pit, and the patch was less well formed than the surrounding footpath and created an irregular depression. It is not known by whom this work was done; it was not necessarily done by the claimant and may have been done by a developer; and the work on the pit was not necessarily done at the same time as the…