Shoalhaven City Council v Pender

Link copied
Case Copied 79 min read

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Shoalhaven City Council v Pender [2013] NSWCA 210
Hearing dates:28 March 2013
Decision date: 10 July 2013
Before: McColl JA [1]
Barrett JA [98]
Ward JA [99]
Decision:

1. Appeal allowed.

2. Verdict and judgment of Balla DCJ and order 2 of the orders made on 30 March 2012 and entered on 2 April 2012 be set aside.

3. In lieu thereof order that there be verdict in favour of the appellant.

4. Order that the Respondent pay the Appellant's costs of the appeal and the proceedings in the District Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORTS - negligence - occupier's liability - slip and fall on ferry ramp - whether conclusion as to how plaintiff fell available either from direct evidence or by inference - whether circumstances raised a more probable inference in favour of plaintiff's case

TORTS - negligence - Civil Liability Act 2002, s 5B and s 5C - breach of duty of care - identification of risk of harm - whether risk of slipping on dry concrete surface of boat ramp "not insignificant" - whether evidence of unreasonable failure to take precautions against risk of harm

TORTS - negligence - Civil Liability Act 2002, s 5D - causation - necessary condition of harm - whether absence of adequate cleaning system cause of injury

TORTS - contributory negligence

DAMAGES - apportionment of responsibility as between employer and occupier for purposes of s 151Z(2)(c) Workers Compensation Act 1987 - assessment of damages for future economic loss and future paid domestic assistance
Legislation Cited: Civil Liability Act 2002
Civil Liability Act 2003 (Qld)
Workers Compensation Act 1987
Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452
Arabi v Glad Cleaning Service Pty Ltd [2010] NSWCA 208
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Dulhunty v J B Young Ltd (1975) 50 ALJR 150
Flounders v Millar [2007] NSWCA 238
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367
Hoffmann v Boland [2013] NSWCA 158
CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Shoalhaven City Council v Pender 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
[2013] NSWCA 210
Decision Date

CaseChat Overview and Summary

Shoalhaven City Council (the appellant) appealed to the Court of Appeal of New South Wales against a District Court judgment that found it liable for negligence in a slip and fall incident involving Mr. Pender (the respondent). The respondent had suffered injuries when he slipped and fell on a ferry ramp owned and maintained by the appellant. The primary dispute concerned whether the appellant had breached its duty of care to the respondent and whether this breach caused the respondent's injuries.

The Court of Appeal was required to determine whether the trial judge erred in finding that the risk of slipping on the dry concrete surface of the boat ramp was "not insignificant" under section 5B of the *Civil Liability Act 2002* (NSW). It also had to consider whether the circumstances raised a more probable inference that the respondent's fall was caused by the appellant's negligence, or whether the absence of an adequate cleaning system constituted a necessary condition of the respondent's harm under section 5D of the *Civil Liability Act 2002* (NSW). The court also considered issues of contributory negligence and the apportionment of responsibility for damages.

The Court of Appeal found that the trial judge had erred in concluding that the appellant was negligent. The court reasoned that there was no direct evidence as to how the respondent fell, and the circumstances did not give rise to a more probable inference that the fall was due to the appellant's negligence. The court held that the risk of slipping on a dry concrete surface was not "not insignificant" in the context of the *Civil Liability Act 2002* (NSW), and that the respondent had failed to establish that the absence of a cleaning system was a causative factor in his fall.

Consequently, the Court of Appeal allowed the appeal, setting aside the verdict and judgment of the District Court. The court entered a verdict in favour of the appellant and ordered that the respondent pay the appellant's costs of both the appeal and the proceedings in the District Court.

Orders

Orders of the court

1. Appeal allowed.

2. Verdict and judgment of Balla DCJ and order 2 of the orders made on 30 March 2012 and entered on 2 April 2012 be set aside.

3. In lieu thereof order that there be verdict in favour of the appellant.

4. Order that the Respondent pay the Appellant's costs of the appeal and the proceedings in the District Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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.