Ryde City Council v Wendy Joyce Smith

NEW SOUTH WALES COURT OF APPEAL

CITATION:      RYDE CITY COUNCIL v WENDY JOYCE SMITH [2003]  NSWCA 57

FILE NUMBER(S):
40265/02

HEARING DATE(S):               6 March 2003

JUDGMENT DATE: 06/03/2003

PARTIES:
RYDE CITY COUNCIL v WENDY JOYCE SMITH

JUDGMENT OF:       Mason P Handley JA Beazley JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 3996/01

LOWER COURT JUDICIAL OFFICER:     Robison DCJ

COUNSEL:
Appellant: M T McCulloch
Respondent: A S Morrison SC/ M J Claridge

SOLICITORS:
Appellant: Phillips Fox
Respondent: Patrick Timbs & Co

CATCHWORDS:
Negligence - pedestrian trips in council plaza - drain covered by grates - grates allowed to become unsecured - particular grate not replaced flush - negligent system of maintenance and inspection (ND)

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40265/02

MASON P
  HANDLEY JA
  BEAZLEY JA

Thursday 6 March 2003

RYDE CITY COUNCIL  v  Wendy Joyce SMITH

JUDGMENT

1. MASON P:  The respondent tripped and fell in a busy shopping mall on 9 May 1998.  She sued the appellant as the responsible council in negligence.  Damages were reduced by fifteen per cent for contributory negligence, leaving a verdict of $110,194.95.  The council appeals as to liability and contributory negligence.

2. The Rowe Street Eastwood Shopping Mall was built in 1973.  It separates two rows of shops.  Running for about 130 metres along the mall closer to its northern side is a drain.  It is formed by 215 grates, uniform in shape colour and size.  The grates consist of parallel steel bars, alternating with apparently equally sized voids.

3. The visual impact of the whole drain is that of an extended zebra pattern.  Each grate is 0.6 metres long and 0.36 metres wide.  It weighs between 25 and 30 kilos.  The grates rest upon a longitudinal bar or frame and are designed to be held down by two bolts passing through the grate into the bar or frame.

4. The council built the mall and has the statutory right to maintain and control structures such as the drain (see s142 of the Roads Act 1993). 

5. Mr Johnson who gave evidence had been the council maintenance co-ordinator since 1989.  He was responsible for pedestrian safety in the mall (Black 68).  He also supervised the evening and day cleaning crews that cleaned the mall twice daily.  Their work included sweeping litter and debris and general tidying up of the mall.  This work would, from time to time, involve the lifting of particular grates.

6. The respondent’s evidence about the accident was accepted by the learned trial judge.  She was crossing the mall diagonally.  She tripped on the raised edge of a grate that protruded approximately 33 millimetres above the edge of its neighbour.  The grate had not been put back flat onto the longitudinal frame. 

7. The respondent was wearing flat shoes with an 18 millimetre sole.  The front of one shoe caught on or under the grate.  The respondent tried to pull it out but it stuck and forced the shoe…