Sutherland Shire Council v Henshaw

CITATION:	SUTHERLAND SHIRE COUNCIL v HENSHAW [2004] NSWCA 386
HEARING DATE(S):	21/10/2004
JUDGMENT DATE:	10 December 2004
JUDGMENT 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.41
CASES 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 1
PARTIES :	Sutherland Shire Council - Appellant William Henshaw - Respondent
FILE NUMBER(S):	CA 40104 of 2004
COUNSEL:	P.R. Garling SC and K. Morgan - Appellant S. Norton SC and M. Fraser - Respondent
SOLICITORS:	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

SHELLER JA
HODGSON JA
BRYSON JA

FRIDAY 10 DECEMBER 2004

SUTHERLAND SHIRE COUNCIL v. WILLIAM HENSHAW

Judgment

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…