CITATION: SUTHERLAND SHIRE COUNCIL v HENSHAW [2004] NSWCA 386 HEARING DATE(S): 21/10/2004 JUDGMENT DATE:
10 December 2004JUDGMENT OF: Sheller JA at 1; Hodgson JA at 18; Bryson JA at 24 DECISION: Appeal dismissed with costs. CATCHWORDS: NEGLIGENCE - highway - pedestrian injured by fall at hole in broken edge of asphalt paving on footpath - consideration of significance of observability of hazard - consideration whether duty of care owed if the hazard can be observed by pedestrian - extensive consideration of Brodie at [163] - Trial Judge's findings of negligence and no contributory negligence were reasonably available - appeal dismissed LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1965 s.10
Highways Act 1980 (U.K.) s.41CASES CITED: Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512
Searle v. Metropolitan Water, Sewerage and Drainage Board (1936) 13 LGR 115
Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317
Webb v. The State of South Australia [1982] 56 ALJR 912
Wyong Shire Council v. Shirt (1980) 146 CLR 40
Smith v. Broken Hill Proprietary Co Ltd (1957) 97 CLR 337
Miller v. McKeon (1905) 3 CLR 50
Liftronic Pty Ltd v. Unver (2001) 75 ALJR 867
Pelley v. The Maitland Benevolent Society [2004] NSWCA 323
Alford v. Magee (1952) 85 CLR 437.
Richmond Valley Council v. Standing (2002) 127 LGERA 237
Burwood Council v. Byrnes [2002] NSWCA 343
Rallis v. Pang [2003] NSWCA 202
Temora Shire Council v. Stein [2004] NSWCA 236
Newcastle City Council v. Lindsay [2004] NSWCA 198
Graham Barclay Oysters Pty Limited v. Ryan (2002) 211 CLR 540
Boroondara City Council v. Cattanach [2004] VSCA 139
Greater Shepparton City Council v. Davis [2004] VSCA 140
Almeda v. Attorney General for Gibraltar [2003] UKPC 81
Gorringe v. Transport Commission (Tasmania) (1950) 80 CLR 357
Thompson v. Hampshire County Council [2004] EWCA (Civ) 1016
Avenhouse v. Hornsby S.C. (1998) 44 NSWLR 1PARTIES :
Sutherland Shire Council - Appellant
William Henshaw - RespondentFILE NUMBER(S): CA 40104 of 2004 COUNSEL: P.R. Garling SC and K. Morgan - Appellant
S. Norton SC and M. Fraser - RespondentSOLICITORS: Phillips Fox - Appellant
Bryden's Law Office - Respondent
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 3897/2002 LOWER COURT
JUDICIAL OFFICER :WALMSLEY DCJ
40104 of 2004
FRIDAY 10 DECEMBER 2004SHELLER JA
HODGSON JA
BRYSON JA
1 SHELLER JA: I have had the benefit of reading the judgments in draft form prepared by Hodgson and Bryson JJA. Bryson JA has set out the facts giving rise to Mr Henshaw’s claim against the Sutherland Shire Council and the relevant parts of the trial Judge’s reasons for judgment. I agree that the trial Judge’s findings on the facts are not shown to be erroneous. The trial Judge was not persuaded that Mr Henshaw was in breach of the duty that he had to take reasonable care for his own safety. Accordingly, applying what was…
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- Case
- [2004] NSWCA 386
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the trial judge's findings that the Council owed a duty of care to Mr Henshaw and had breached that duty were reasonably available on the evidence. This involved considering the significance of the observability of the hazard to a pedestrian and whether a duty of care could still be owed even if the hazard was observable. The Court also considered whether the trial judge's finding of no contributory negligence was sustainable.
The Court of Appeal extensively considered the principles of negligence, particularly in the context of public authorities and the maintenance of footpaths. It was held that the trial judge's findings of negligence were reasonably open on the evidence presented. The Court affirmed that the foreseeability of harm, even if the hazard was observable, was a crucial element in establishing a breach of duty. Furthermore, the Court found that the trial judge's conclusion that Mr Henshaw was not contributorily negligent was also a reasonably available finding.
Consequently, the appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
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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