South Sydney Council v Morris

Reported Decision: (2000) Aust Torts Reports 81-576

New South Wales

Court of Appeal

CITATION:	South Sydney Council v Morris [2000] NSWCA 158
FILE NUMBER(S):	CA 40263/99
HEARING DATE(S):	30 May 2000
JUDGMENT DATE:	28 June 2000
PARTIES :	South Sydney Council (Appellant) Teresa Morris (Respondent)
JUDGMENT OF:	Meagher JA at 1; Fitzgerald JA at 2; Heydon JA at 9

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 5713/96
LOWER COURT JUDICIAL OFFICER :	Moore DCJ

COUNSEL:	S Rares SC/V M Heath (Appellant) C Evatt/J Henness (Respondent)
SOLICITORS:	Phillips Fox Lawyers (Appellant) Newman & Associates (Respondent)
CATCHWORDS:	NEGLIGENCE - 'trip and fall' - appeal against finding by trial judge that the defendant constructed and laid footpath pavers which the plaintiff contended were defective and caused her injuries when she tripped against a grate held by the pavers - whether defendant constructed the pavers and had control over the land where the plaintiff fell - whether the condition of the pavers at the time the plaintiff's cause of action arose was caused by an intervening event rather than the negligence of the defendant - defendant omitted to call any evidence to prove who laid the pavers or whether there had been any third party interference with the pavers. - Held on appeal that it was open to the trial judge to find on the evidence that it was the defendant who laid the pavers. D
LEGISLATION CITED:	Arbitration (Civil Actions) Act 1983
CASES CITED:	Agbaba v Witter (1977) 51 ALJR 503 Courtenay v Proprietors Strata Plan 12125 (unreported, 30 October 1998) MacDougall v Curlevski (1996) 40 NSWLR 430 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306
DECISION:	Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40263/99
DC 5713/96

MEAGHER JA
FITZGERALD JA
HEYDON JA

Wednesday, 28 June 2000

SOUTH SYDNEY COUNCIL v Teresa MORRIS
JUDGMENT

1    MEAGHER JA: I agree with Heydon JA.

2    FITZGERALD JA: The circumstances giving rise to this appeal are set out in the judgment of Heydon JA. I agree with the order proposed and, subject only to what follows, with his Honour’s reasons.

3    The respondent’s case was that the appellant had laid the material pavers negligently, resulting in the unevenness which caused her to trip and fall. The appellant’s primary case was a denial that it had laid the pavers. For the reasons given by Heydon JA, it was open to the trial judge to find, as his Honour did, that the appellant laid the pavers.

4    Nonetheless, the unsafe condition of the pavers at the time when the respondent tripped might not have been caused by the manner in which they were laid but by the effluxion of time or some intervening event. The pavers could have become unsafe notwithstanding that they were properly laid, or a person for whose activities the appellant is not liable could have interfered with the pavers.

5…