Reported Decision: 73 NSWLR 44
New South Wales
Court of Appeal
CITATION: SKULANDER v WILLOUGHBY CITY COUNCIL [2007] NSWCA 116 HEARING DATE(S): 15 December 2006
JUDGMENT DATE:
18 May 2007JUDGMENT OF: Mason P at 1; Beazley JA at 77; Basten JA at 81 DECISION: (By majority) Appeal upheld. Remit to District Court to assess damages. Damages reduced by 50% for contributory negligence. CATCHWORDS: TORTS – Negligence – essentials of action for negligence – duty of care – occupier’s liability – passenger at bus interchange collides with object protruding from wall - TORTS – Negligence – essentials of action for negligence – breach of duty of care – risk of collision – careless or inadvertent plaintiff – means and options of alleviating risk – placing obstacle around hazard – making object more visible – whether reasonable to do so - TORTS – negligence – contributory negligence – failure to keep a proper lookout – passenger at bus interchange collides with object protruding from wall - JUDGMENTS AND ORDERS – Judges’ failure to agree – whether “equally divided in opinion” – obtaining order of the court – convention – withdrawal of judgment – highest common denominator – judgment by seniority – Supreme Court Act 1970, s 45(2) LEGISLATION CITED: Federal Court of Australia Act 1976 (Cth)
Judiciary Act 1903 (Cth)
Supreme Court Act 1970
Supreme Court Act 1981 (UK)CASES CITED: Arbest Pty Ltd v State Bank of New South Wales Ltd [1996] ATPR 41,963
British Fame (Owners) v Macgregor (Owners) [1943] AC 197
Brodie v Singleton Shire Council (2001) 206 CLR 512
CES v Super Clinics (Australia) Pty Ltd (1995) 38 NSWLR 47
Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469
Evans v Minister for Immigration (2003) 135 FCR 306
Farley v Skinner (No 2) [2000] PNLR 441
Gosford City Council v Needs [2003] NSWCA 144
Government Insurance Office of New South Wales v Rozniak (1992) 27 NSWLR 665
Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438
Hill v Chiaverini [2004] NSWCA 265
John Fairfax & Sons Ltd v Carson (1991) 24 NSWLR 259
Jones v Bartlett (2000) 205 CLR 166
Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34
Leichhardt Municipal Council v Montgomery [2007] HCA 6
Mabo v Queensland (No 2) (1992) 175 CLR 1
McPherson’s Ltd v Eaton (2005) 65 NSWLR 187
Metropolitan Water Sewerage & Drainage Board v Histon [1982] 2 NSWLR 720
Mulligan v Coffs Harbour City Council (2005) 223 CLR 486
O’Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 60
Pateman v Higgin (1957) 97 CLR 521
Perpetual Trustee Co Ltd v Tindal (1940) 63 CLR 232
Phillis v Daly (1988) 15 NSWLR 65
Pippos v Craig [1993] 1 VR 603
Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492
R v Ashwell (1885) 16 QBD 190
R v Lubke (1988) 15 NSWLR 318
R v Wilson (2005) 153 A Crim R 257
Riverina Transport Pty Ltd v Victoria…
Keep reading for free
Create a free CaseChat account to read Skulander v Willoughby City 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2007] NSWCA 116
- Decision Date
CaseChat Overview and Summary
The Court of Appeal of New South Wales considered a claim brought by Mr Skulander against Willoughby City Council. Mr Skulander suffered injuries when he collided with an object protruding from a wall at a bus interchange managed by the Council. The dispute concerned whether the Council owed Mr Skulander a duty of care and, if so, whether it had breached that duty, and whether Mr Skulander had contributed to his own injuries.
The primary legal issues before the Court were whether the Council, as the occupier of the bus interchange, had breached its duty of care to a lawful visitor by failing to take reasonable steps to prevent the risk of collision with the protruding object. The Court also had to determine whether Mr Skulander had been contributorily negligent by failing to keep a proper lookout, and if so, to what extent his damages should be reduced. A further procedural issue arose due to the judges being equally divided in opinion on one aspect of the appeal, requiring the application of conventions for determining the court's order.
The Court reasoned that the Council owed a duty of care to persons using the bus interchange, including Mr Skulander. It found that the risk of collision with the protruding object was foreseeable and that the Council had failed to take reasonable precautions to mitigate this risk. The Court considered various measures the Council could have implemented, such as placing a barrier around the object or making it more visible. However, the Court also found that Mr Skulander had failed to keep a proper lookout, contributing to his own injuries.
Ultimately, the appeal was upheld. The matter was remitted to the District Court for an assessment of damages. The damages awarded to Mr Skulander were reduced by 50% to account for his contributory negligence.
The primary legal issues before the Court were whether the Council, as the occupier of the bus interchange, had breached its duty of care to a lawful visitor by failing to take reasonable steps to prevent the risk of collision with the protruding object. The Court also had to determine whether Mr Skulander had been contributorily negligent by failing to keep a proper lookout, and if so, to what extent his damages should be reduced. A further procedural issue arose due to the judges being equally divided in opinion on one aspect of the appeal, requiring the application of conventions for determining the court's order.
The Court reasoned that the Council owed a duty of care to persons using the bus interchange, including Mr Skulander. It found that the risk of collision with the protruding object was foreseeable and that the Council had failed to take reasonable precautions to mitigate this risk. The Court considered various measures the Council could have implemented, such as placing a barrier around the object or making it more visible. However, the Court also found that Mr Skulander had failed to keep a proper lookout, contributing to his own injuries.
Ultimately, the appeal was upheld. The matter was remitted to the District Court for an assessment of damages. The damages awarded to Mr Skulander were reduced by 50% to account for his contributory negligence.
Orders
Orders of the court
Appeal upheld. Remit to District Court to assess damages. Damages reduced by 50% for contributory negligence.
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.