Saidden v Drummoyne Muncipal Council - [2002] NSWCA 42

CITATION: Saidden v Drummoyne Muncipal Council [2002] NSWCA 42

FILE NUMBER(S): CA 40593 of 2001

HEARING DATE(S): 26/02/02

JUDGMENT DATE:
26 February 2002

PARTIES :

Monier Saidden
v
Drummoyne Municipal Council

JUDGMENT OF: Meagher JA at 1; Ipp AJA at 17; Campbell J at 18

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 4942 of 1999

LOWER COURT
JUDICIAL OFFICER : Knight DCJ

COUNSEL: A: S Norton SC with A Healey
R: G Watson

SOLICITORS: A:Maxwell Berghouse & Ives Solicitors
R: Phillips Fox Lawyers

CATCHWORDS: Personal Injury - appellant fell while riding bicycle - whether sea wall should have been made level with path - breach of duty of care - causation - appeal dismissed with costs.

DECISION: Appeal dismissed with costs.

CA 40593 of 2001

MEAGHER JA
IPP AJA
CAMPBELL J
Tuesday, 26 February 2002

MONIER SAIDDEN v DRUMMOYNE MUNICIPAL COUNCIL

Judgment

1 MEAGHER JA: This is an appeal by Mr Monier Saidden, an appellant who unsuccessfully sued the respondent Drummoyne Municipal Council for personal injuries sustained by him when he fell off his bicycle within the boundaries of the Council.

2 He suffered injuries, including damage to his arm, which were all the more serious because by profession he was a dentist and the impairment of his arm must have impeded him from practicing his normal business.

3 These are the circumstances of the accident. He was an experienced cyclist and on this occasion, as on many occasions, he was riding on the bicentennial pathway within Taplin Park, Drummoyne. He was well and truly familiar with the pathway. He had ridden on it literally hundreds of times. Taplin Park is on Sydney Harbour. An historic sandstone sea wall separates the harbour from the park. The top of the sea wall is uneven, consistent with wind and water erosion over its long age. The bicentennial pathway sits on the land immediately adjacent to the sea wall.

4 At the point where the accident occurred the sea wall was broken by a boat ramp which slopes from the park down to the water. The boat ramp is covered by concrete. The bitumen car park lies behind the landward end of the boat ramp.

5 Mr Saidden was riding slowly along the pathway with the harbour on his left. When he reached the boat ramp he turned to his right and followed the pathway towards where it met the top of the boat ramp and adjoined the car park. His usual practice was to keep riding until he came to a level area where the pathway, boat ramp and car park met. He would then continue to ride on the surface of the car park to rejoin the pathway on the other end of the boat ramp. For reasons which he did not make clear on this occasion he did not follow his usual practice. He turned left before reaching the level area. When he turned left he moved off the surface of the pathway and on…

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.

Keep reading for free

Create a free CaseChat account to read Saidden v Drummoyne Muncipal Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] NSWCA 42
Decision Date: 26 February 2002

CaseChat Overview and Summary

The appellant, Saidden, appealed to the New South Wales Court of Appeal against a decision of the District Court concerning injuries sustained when he fell from his bicycle. The dispute arose from an incident where the appellant fell while riding his bicycle, alleging that the respondent, Drummoyne Municipal Council, had breached its duty of care by failing to ensure a sea wall was level with the adjacent path.

The Court of Appeal was required to determine whether the Council had breached its duty of care owed to the appellant, and if so, whether that breach caused the appellant's injuries. The central question was whether the Council ought to have taken steps to make the sea wall level with the path to prevent such an accident.

The Court dismissed the appeal, finding that the Council had not breached its duty of care. The reasoning applied was that the path was not intended for cycling, and the presence of the sea wall, while creating a height difference, did not constitute a dangerous defect in the circumstances. The Court held that the Council was not obliged to make the path safe for all possible uses, particularly those for which it was not designed. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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:	Saidden v Drummoyne Muncipal Council [2002] NSWCA 42
FILE NUMBER(S):	CA 40593 of 2001
HEARING DATE(S):	26/02/02
JUDGMENT DATE:	26 February 2002
PARTIES :	Monier Saidden v Drummoyne Municipal Council
JUDGMENT OF:	Meagher JA at 1; Ipp AJA at 17; Campbell J at 18

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 4942 of 1999
LOWER COURT JUDICIAL OFFICER :	Knight DCJ

COUNSEL:	A: S Norton SC with A Healey R: G Watson
SOLICITORS:	A:Maxwell Berghouse & Ives Solicitors R: Phillips Fox Lawyers
CATCHWORDS:	Personal Injury - appellant fell while riding bicycle - whether sea wall should have been made level with path - breach of duty of care - causation - appeal dismissed with costs.
DECISION:	Appeal dismissed with costs.