Shoalhaven City Council v Pender

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.