Randwick City Council v Muzic - [2006] NSWCA 66

New South Wales

Court of Appeal

CITATION: Randwick City Council v Muzic [2006] NSWCA 66

HEARING DATE(S): 28 September 2005

JUDGMENT DATE:
6 April 2006

JUDGMENT OF: Handley JA at [1]; Ipp JA at [2]; Hunt AJA at [3]

DECISION: (1) The appeal against liability is dismissed. ; (2) Leave is granted to the respondent to file her cross-appeal against the judge’s finding that she was guilty of contributory negligence.; (3) The cross-appeal is allowed.; (4) The appeal against the damages awarded is allowed. ; (5) The appellant is to pay the respondent the sum of $164,187.; (6) This judgment, as to the sum of $124,187, is to take effect as from the date of the judgment in the District Court and, as to the balance of $40,000, it is to take effect as from the date of this judgment.; (7) The appellant is to pay the respondent’s costs of the trial.; (8) The appellant is to pay 60% of the respondent’s costs of the appeal.

CATCHWORDS: Algae on concrete promenades giving access to council pool over many years because of council's inability to remove it — notice of frequent accidents, some serious — advice given to undertake remedial work — council decides to do nothing. - Presence of algae obvious — risk of serious injury from slipping on it not necessarily obvious — discharge of duty of care to persons invited to use promenades as access to pool required closure of promenades until remedial work completed — appeal against finding of liability dismissed — volenti not fit injuria defence fails — judge finds that plaintiff had not failed to take reasonable care for her own safety, but finds 15% contributory negligence — cross-appeal against contribution allowed. - Plaintiff had relevant pre-existing ailments — judge finds post-accident condition caused solely by accident — appeal against non-economic loss allowed — judge awards future gratuitous attendant care services on the same basis — appeal against award allowed.

LEGISLATION CITED: Civil Liability Act 2002
Crown Lands Act 1989

CASES CITED: Ainger v Coffs Harbour City Council [2005] NSWCA 424
Booksan Pty Ltd v Wehbe [2006] NSWCA 3
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512
Browne v Dunn (1894) 6 R 67
Canterbury Municipal Council v Taylor [2002] NSWCA 24
Coleman v Barrat [2004] NSWCA 27
Commissioner for Railways (NSW) v Anderson (1961) 105 CLR 42
Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380
Hadland v Council of the City of Blacktown (Court of Appeal, 21 May 1996, unreported)
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Roggenkamp v Bennett (1950) 80 CLR 292
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Swain v Waverley Municipal Council (2005) 220 CLR 517
Vairy v Wyong Shire Council (2005) 221 ALR 711
Video Excellence Pty Ltd v Cincotta (1998) 44 NSWLR 742
Waverley Municipal Council v Lodge [2001] NSWCA 439
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460

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.

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Details

Case: [2006] NSWCA 66
Decision Date: 6 April 2006

CaseChat Overview and Summary

The case of Randwick City Council v Muzic concerned an appeal and cross-appeal arising from a District Court judgment where the plaintiff, Ms Muzic, was awarded damages for injuries sustained from slipping on algae on a concrete promenade providing access to a council pool. The Randwick City Council, as the occupier of the promenade, was found liable for the plaintiff's injuries.

The primary legal issues before the Court of Appeal were whether the Council had breached its duty of care to persons using the promenade, whether the defence of volenti non fit injuria was applicable, whether the plaintiff was contributorily negligent, and the assessment of damages, including non-economic loss and future gratuitous attendant care services. The Council also appealed against the finding of liability and the quantum of damages, while the plaintiff cross-appealed against the finding of contributory negligence.

The Court of Appeal dismissed the Council's appeal against liability, upholding the finding that the Council had breached its duty of care by failing to close the promenades until remedial work was undertaken to address the obvious presence of algae, which posed a foreseeable risk of serious injury. The defence of volenti non fit injuria was rejected. However, the Court allowed the plaintiff's cross-appeal regarding contributory negligence, finding that the initial 15% apportionment was too high. The Court also allowed the Council's appeal against the damages awarded, specifically concerning the assessment of non-economic loss and future gratuitous attendant care services. The final orders involved a revised damages award of $164,187, with specific dates for the commencement of interest, and directions regarding the costs of the trial and appeal.

Orders

Orders of the court

(1) The appeal against liability is dismissed. ; (2) Leave is granted to the respondent to file her cross-appeal against the judge’s finding that she was guilty of contributory negligence.; (3) The cross-appeal is allowed.; (4) The appeal against the damages awarded is allowed. ; (5) The appellant is to pay the respondent the sum of $164,187.; (6) This judgment, as to the sum of $124,187, is to take effect as from the date of the judgment in the District Court and, as to the balance of $40,000, it is to take effect as from the date of this judgment.; (7) The appellant is to pay the respondent’s costs of the trial.; (8) The appellant is to pay 60% of the respondent’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Randwick City Council v Muzic [2006] NSWCA 66
HEARING DATE(S):	28 September 2005
JUDGMENT DATE:	6 April 2006
JUDGMENT OF:	Handley JA at [1]; Ipp JA at [2]; Hunt AJA at [3]
DECISION:	(1) The appeal against liability is dismissed. ; (2) Leave is granted to the respondent to file her cross-appeal against the judge’s finding that she was guilty of contributory negligence.; (3) The cross-appeal is allowed.; (4) The appeal against the damages awarded is allowed. ; (5) The appellant is to pay the respondent the sum of $164,187.; (6) This judgment, as to the sum of $124,187, is to take effect as from the date of the judgment in the District Court and, as to the balance of $40,000, it is to take effect as from the date of this judgment.; (7) The appellant is to pay the respondent’s costs of the trial.; (8) The appellant is to pay 60% of the respondent’s costs of the appeal.
CATCHWORDS:	Algae on concrete promenades giving access to council pool over many years because of council's inability to remove it — notice of frequent accidents, some serious — advice given to undertake remedial work — council decides to do nothing. - Presence of algae obvious — risk of serious injury from slipping on it not necessarily obvious — discharge of duty of care to persons invited to use promenades as access to pool required closure of promenades until remedial work completed — appeal against finding of liability dismissed — volenti not fit injuria defence fails — judge finds that plaintiff had not failed to take reasonable care for her own safety, but finds 15% contributory negligence — cross-appeal against contribution allowed. - Plaintiff had relevant pre-existing ailments — judge finds post-accident condition caused solely by accident — appeal against non-economic loss allowed — judge awards future gratuitous attendant care services on the same basis — appeal against award allowed.
LEGISLATION CITED:	Civil Liability Act 2002 Crown Lands Act 1989
CASES CITED:	Ainger v Coffs Harbour City Council [2005] NSWCA 424 Booksan Pty Ltd v Wehbe [2006] NSWCA 3 Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512 Browne v Dunn (1894) 6 R 67 Canterbury Municipal Council v Taylor [2002] NSWCA 24 Coleman v Barrat [2004] NSWCA 27 Commissioner for Railways (NSW) v Anderson (1961) 105 CLR 42 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 Hadland v Council of the City of Blacktown (Court of Appeal, 21 May 1996, unreported) Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Roggenkamp v Bennett (1950) 80 CLR 292 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Swain v Waverley Municipal Council (2005) 220 CLR 517 Vairy v Wyong Shire Council (2005) 221 ALR 711 Video Excellence Pty Ltd v Cincotta (1998) 44 NSWLR 742 Waverley Municipal Council v Lodge [2001] NSWCA 439 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460