RTA v McGuinness

[2002] NSWCA 210

Reported Decision: (2003) Aust Torts Reports 81-688

New South Wales

Court of Appeal

CITATION:	RTA v McGUINNESS [2002] NSWCA 210
FILE NUMBER(S):	CA 40045/00
HEARING DATE(S):	28 June 2002
JUDGMENT DATE:	4 November 2002
PARTIES :	ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v RONALD JOHN McGUINNESS
JUDGMENT OF:	Mason P at 1; Handley JA at 2; Foster AJA at 41

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 8899/97
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

COUNSEL:	Appellant - J E Maconachie QC/P R Sternberg Respondent - C T Barry QC/J R K Pryde
SOLICITORS:	Appellant - I V Knight Crown Solicitor Respondent - Keddies
CATCHWORDS:	NEGLIGENCE - HIGHWAY RULE - FOOTPATH - DUTY OF CARE TO PEDESTRIAN
LEGISLATION CITED:	State Roads Act 1986
CASES CITED:	Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 75 ALJR 992 Wyong Shire Council v Shirt (1980) 146 CLR 40 Urban Transit Authority v Purcell (1994) 82 LGERA 284, 295 Rose-Beresford v The Commonwealth (1971) 45 ALJR 178 Hawkesbury City Council v Ryan [2001] NSW CA 212 Parramatta City Council v Watkins [2001] NSW CA 364 Lombardi v Holroyd City Council [2002] NSW CA 252
DECISION:	Appeal allowed with costs. Orders made

40045/00
DC 8899/97
MASON P
HANDLEY JA
FOSTER AJA


4 November 2002

ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v RONALD JOHN McGUINNESS

NEGLIGENCE – HIGHWAY RULE – footpath – duty of care to pedestrian

The respondent caught her right foot on the upstanding corner of a manhole cover on a footpath and fell heavily. The upstanding corner was 13 mm above the surrounding pavement. The trial Judge awarded $599,752.07 to the respondent.

The appellant submitted that the trial Judge erred on three points, that the manhole cover was dangerous, the extent of the duty owed to pedestrians and his finding that the Authority knew or ought to have known that the manhole was dangerous.

HELD per Handley JA (with Mason P and Foster AJA agreeing): The Authority’s only obligation was to exercise reasonable care. Proof that the state of the footpath “could possibly be an occasion of harm” was not sufficient. Ghantous v Hawkesbury City Council (2001) 206 CLR 512 applied. The upstanding corner was obvious and the modest height difference did not make the footpath unsafe for a person taking ordinary care. There was also no evidence that the Authority knew or ought to have known of the upstanding corner.

ORDERS

(1) Appeal allowed with costs;

(2) Judgment of the District Court in favour of the plaintiff set aside and in lieu thereof order that judgment be entered for the third defendant in the action with costs;

(3) Judgment for the appellant against Ronald John McGuinness, also known as Ronald John McGuiness, the administrator of the estate of the late Marion Amelia McGuinness, also known as Marion Amelia McGuiness, for $300,000 together with interest at judgment rates from 24 December 1999 to date;

(4) Respondent to have…