Reported Decision: 150 LGERA 11
(2006) Aust Torts Reports 81-864
Court of Appeal
CITATION: Shellharbour City Council v Rhiannon Rigby & Anor [2006] NSWCA 308 HEARING DATE(S): 10, 11 & 12 May 2006
JUDGMENT DATE:
27 November 2006JUDGMENT OF: Beazley JA at 1; Ipp JA at 293; Basten JA at 294 DECISION: 1. Appeal and cross-appeal allowed in part; 2. Vary the award of damages by deducting the amount of $101,684; 3. Verdict for the first respondent/plaintiff in the sum of $1,745,852.70 and judgment accordingly; 4. The appellant and second respondent/cross-appellant are to pay the first respondent/plaintiff’s costs of the appeal and cross-appeal; 5. The appellant and second respondent/cross-appellant are to pay their own costs of the appeal and cross-appeal insofar as it relates to the issue of contribution. CATCHWORDS: DUTY OF CARE – occupier’s liability – statutory authority as occupier – control over land an important factor in determining duty – liability dependent on content of duty in particular case – duty not extinguished or restricted by obviousness of risk - BREACH OF DUTY – duty to avoid injury to inexperienced riders – whether breach of duty by failing to fence off an area of the BMX track particularly likely to cause injury - OBVIOUS RISK – relevant to breach of duty of care – not determinative of breach – whether obvious risks of BMX riding undertaken by inexperienced riders – whether occupier entitled to expect reasonable care of young entrants - CAUSATION – common sense reasoning – inferential reasoning sufficient in absence of precise evidence - CONTRIBUTORY NEGLIGENCE – comparison of culpability required - JUDGMENT – adequacy of reasons – whether basic requirements of a statement of reasons were met by the trial judge - JUDGMENT – acceptance and weight of evidence, and findings of credit, are matters for the trial judge unless error established – preference of trial judge for particular witness – whether any error established - DAMAGES – whether award outside discretionary range – whether Griffiths v Kerkemeyer damages can be awarded for care of plaintiff’s child – whether award for costs of fund management to be reduced by contributory negligence LEGISLATION CITED: Evidence Act 1995 (NSW) ss 63, 67, 69, 79, 135, 136
Supreme Court Rules 1970 (NSW) Pt 51 r23CASES CITED: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Booksan Pty Ltd v Wehbe [2006] NSWCA 103
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; [2001] HCA 29
Burnicle v Cutelli [1982] 2 NSWLR 26
Commercial Union Assurance Company of Australia Limited v Ferrcom Pty Limited (1991) 22 NSWLR 389
Cooper v Southern Portland Cement Ltd (1972) 128 CLR 427
CSR Limited & Anor v Eddy (2005) 222 ALR 1; [2005] HCA 64
David Jones Limited v Bates [2001] NSWCA 233
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Fox v Percy (2003) 214 CLR 118;
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Details
- AGLC
- Shellharbour City Council v Rigby [2006] NSWCA 308
- Case
- [2006] NSWCA 308
- Decision Date
CaseChat Overview and Summary
Shellharbour City Council (the appellant) appealed from a judgment of the District Court of New South Wales, which found it liable for injuries sustained by Mr Rigby (the first respondent) while using a BMX track. Mr Rigby had cross-appealed regarding the quantum of damages. The dispute concerned the extent of the Council's duty of care as the occupier of the land on which the BMX track was situated, and whether it had breached that duty.
The Court of Appeal was required to determine whether the Council, as occupier, owed a duty of care to an inexperienced rider using the BMX track, and if so, whether that duty had been breached by failing to fence off a particular section of the track. The court also considered whether the obviousness of the risks associated with BMX riding, particularly for an inexperienced rider, negated or restricted the Council's duty of care. Further issues included causation of the injury, the extent of any contributory negligence by Mr Rigby, and the adequacy of the trial judge's reasons for judgment and assessment of damages.
The Court of Appeal held that the Council, as occupier, owed a duty of care to users of the BMX track, including inexperienced riders. The obviousness of the risks did not extinguish this duty, although it was a relevant consideration in assessing whether the duty had been breached. The court found that the Council was entitled to expect reasonable care from young entrants, but this did not absolve it of its duty to take reasonable steps to avoid foreseeable injury. The court applied common sense reasoning to infer causation in the absence of precise evidence. The court also considered the principles of contributory negligence, requiring a comparison of culpability.
The appeal and cross-appeal were allowed in part. The award of damages was varied by deducting $101,684, resulting in a final verdict for Mr Rigby in the sum of $1,745,852.70. The appellant and the second respondent were ordered to pay Mr Rigby's costs of the appeal and cross-appeal, and their own costs in relation to the issue of contribution.
The Court of Appeal was required to determine whether the Council, as occupier, owed a duty of care to an inexperienced rider using the BMX track, and if so, whether that duty had been breached by failing to fence off a particular section of the track. The court also considered whether the obviousness of the risks associated with BMX riding, particularly for an inexperienced rider, negated or restricted the Council's duty of care. Further issues included causation of the injury, the extent of any contributory negligence by Mr Rigby, and the adequacy of the trial judge's reasons for judgment and assessment of damages.
The Court of Appeal held that the Council, as occupier, owed a duty of care to users of the BMX track, including inexperienced riders. The obviousness of the risks did not extinguish this duty, although it was a relevant consideration in assessing whether the duty had been breached. The court found that the Council was entitled to expect reasonable care from young entrants, but this did not absolve it of its duty to take reasonable steps to avoid foreseeable injury. The court applied common sense reasoning to infer causation in the absence of precise evidence. The court also considered the principles of contributory negligence, requiring a comparison of culpability.
The appeal and cross-appeal were allowed in part. The award of damages was varied by deducting $101,684, resulting in a final verdict for Mr Rigby in the sum of $1,745,852.70. The appellant and the second respondent were ordered to pay Mr Rigby's costs of the appeal and cross-appeal, and their own costs in relation to the issue of contribution.
Orders
Orders of the court
1. Appeal and cross-appeal allowed in part; 2. Vary the award of damages by deducting the amount of $101,684; 3. Verdict for the first respondent/plaintiff in the sum of $1,745,852.70 and judgment accordingly; 4. The appellant and second respondent/cross-appellant are to pay the first respondent/plaintiff's costs of the appeal and cross-appeal; 5. The appellant and second respondent/cross-appellant are to pay their own costs of the appeal and cross-appeal insofar as it relates to the issue of contribution.
Background
Background to the litigation
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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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