Richmond Valley Council v Standing

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Reported Decision:

 (2003) 127 LGERA 237
(2002) Aust Torts Reports 81-679

New South Wales


Court of Appeal

CITATION: Richmond Valley Council v Standing [2002] NSWCA 359
FILE NUMBER(S): CA 40999/01
HEARING DATE(S): 8 August 2002
JUDGMENT DATE:
4 November 2002

PARTIES :
Richmond Valley Council (Appellant)
Ethyl Lynda Standing (Respondent)
JUDGMENT OF: Handley JA at 1; Sheller JA at 2; Heydon JA at 3
LOWER COURT JURISDICTION : District Court
LOWER COURT
FILE NUMBER(S) : 		DC 410/00
LOWER COURT
JUDICIAL OFFICER :		 Blanch J
COUNSEL: Mr M J Joseph SC/Mr S P W Glascott (Appellant)
Mr S G Campbell (Respondent)
SOLICITORS: Phillips Fox (Appellant)
Mitchell, Playford and Radburn (Respondent)
CATCHWORDS: Tort - negligence - duty of care - existence and scope of duty - whether council owed plaintiff a duty of care to ensure pavement in a safe condition - nonfeasance - Local government - councils - liability in tort - nonfeasance - relevance of budgetary allocation for pavement repairs to assessment of breach of any duty of care - ND
CASES CITED:
 Brodie v Singleton Shire Council (2001) 206 CLR 512
Ghantous v Hawkesbury City Council (2001) 206 CLR 512
Littler v Liverpool Corporation [1968] 2 All ER 343
Lombardi v Holroyd City Council [2002] NSWCA 252
Parramatta City Council v Watkins [2001] NSWCA 364
Wyong Shire Council v Shirt (1980) 146 CLR 40
DECISION: See paragraph 62



                          CA 40999/01
                          DC 410/00

                          HANDLEY JA
                          SHELLER JA
                          HEYDON JA

                          4 November 2002

RICHMOND VALLEY COUNCIL v Ethyl Lynda STANDING


Tort – negligence – duty of care – existence and scope of duty – whether council owed plaintiff a duty of care to ensure pavement in a safe condition – nonfeasance

Local government – councils – liability in tort – nonfeasance – relevance of budgetary allocation for pavement repairs to assessment of breach of any duty of care

The plaintiff was injured when she tripped and fell on an irregular paved concrete surface in the vicinity of a school which she had just visited. The relevant surface was a junction between a footpath and a driveway. The concrete surface contained cracks and holes of various sizes, and some differences in height between its various portions. The plaintiff alleged that she tripped when her foot caught in a hole present in a crack between portions of the concrete surface. The trial judge found that the council owed the plaintiff a duty of care to ensure that the pavement was in a safe condition, that that duty had been breached, and judgment was entered for the plaintiff.


The defendant sought leave to appeal against the finding of liability.


(Heydon JA, Handley and Sheller JJA agreeing), granting leave to appeal and allowing the appeal,

      As to existence of a duty of care:

1. Whether the defendant owed a duty of care to the plaintiff depended on whether there was a reasonably foreseeable risk of harm to a pedestrian exercising reasonable care for her own safety, bearing in mind the particular advantages of pedestrians:…

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Details
Case
[2002] NSWCA 359
Decision Date

CaseChat Overview and Summary

Richmond Valley Council appealed to the New South Wales Court of Appeal against a judgment of the District Court of New South Wales which found the Council liable in negligence for injuries sustained by the respondent, Mr. Standing, when he tripped and fell on a public footpath. The dispute concerned whether the Council owed Mr. Standing a duty of care to ensure the pavement was in a safe condition and, if so, whether it had breached that duty.

The Court of Appeal was required to determine whether the Council owed a duty of care to a member of the public using a footpath to maintain it in a safe condition, and whether the Council's failure to repair a defect in the footpath constituted a breach of that duty. The Court also considered the relevance of the Council's budgetary allocations for pavement repairs to the assessment of whether any duty of care had been breached.

The Court applied the principles established in *Sutherland Shire Council v Heyman* and *Dorset Yacht Co Ltd v Home Office*, which distinguish between misfeasance and nonfeasance in the context of a public authority's liability in negligence. The Court held that a council does not owe a duty of care to maintain public footpaths in a safe condition merely by virtue of its statutory power to do so. A duty of care in relation to nonfeasance typically arises only where the authority has created the danger or has assumed responsibility for the safety of the area. The Court found that the Council had not created the defect and had not assumed responsibility for the safety of the footpath in a manner that would give rise to a duty of care. The Court also noted that budgetary considerations were relevant to the question of breach, but only after a duty of care had been established.

The appeal was allowed, and the judgment of the District Court was set aside. The Court ordered that the respondent pay the appellant's costs of the appeal and the costs of the proceedings in the District Court.

Orders

Orders of the court

See paragraph 62

Background

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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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