Sutherland Shire Council v Pallister - [2002] NSWCA 66

CITATION: Sutherland Shire Council v Pallister [2002] NSWCA 66

FILE NUMBER(S): CA 40550/2001

HEARING DATE(S): 25 February 2002

JUDGMENT DATE:
19 March 2002

PARTIES :

Sutherland Shire Council - Appellant
Marie Patricia Pallister - Respondent

JUDGMENT OF: Stein JA at 1; Ipp AJA at 2; Mathews AJA at 3

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 400/98

LOWER COURT
JUDICIAL OFFICER : J B Phelan DCJ

COUNSEL: P R Garling SC with R Gambi - Appellant
I Wales SC - Respondent

SOLICITORS: Phillips Fox - Appellant
J R Lough & Associates - Respondent

CATCHWORDS: NEGLIGENCE - Breach of duty - failure to repair footpath although alerted to potential danger - relevance of Council's footpath policy that only certain defects will be rectified.

CASES CITED:
Crimmins v Stevedoring Industry Finance Committee (1999) 67 ALR 1 at 9-10
Associated Provincial Picture Houses, Limited v Wednesbury Corporation (1948) 1 KB 223

DECISION: Appeal dismissed with costs.

CA 40550/01

STEIN JA
IPP AJA
MATHEWS AJA
19 March 2002

SUTHERLAND SHIRE COUNCIL v Marie Patricia PALLISTER

JUDGMENT

1 STEIN JA: I agree with Mathews AJA

2 IPP AJA: I agree with Mathews AJA

3 MATHEWS AJA: On 7 January 1997 the respondent, Mrs Marie Pallister, sustained injuries when she fell on the appellant’s footpath at Gymea. She commenced proceedings in the District Court claiming damages for her injuries which she said were sustained as a result of the Council’s negligence. The Council denied negligence and asserted contributory negligence. On 30 January 2001 Judge JB Phelan of the District Court found in favour of Mrs Pallister on all issues and ordered the Council to pay damages of $144,472.95. The Council has appealed against this decision. The appeal is restricted to issues of liability and does not seek to challenge the trial judge’s findings as to damages.

4 Mrs Pallister’s fall took place on the western side of Gymea Road on a paved area of footpath immediately adjacent to a pedestrian crossing. It was an area of busy pedestrian traffic in the Gymea shopping centre. The footpath was paved with concrete masonry rectangular pavers which were bedded in sand. A mature London plane tree was planted about a metre inside the kerb on each side of the pedestrian traffic route adjacent to the pedestrian crossing. It was Mrs Pallister’s case that the root system from these trees had caused some of the pavers to lift, with the result that the walkway area was dangerously uneven. Moreover the shadows thrown by the plane trees made it difficult for pedestrians to discern the unevenness of the pavement

5 There was clear evidence that the Council had been alerted to the potential danger of the footpath in the general area where Mrs Pallister’s accident occurred. On 6 March 1996 a local resident, Mrs Purkis, wrote a letter to the Council which contained the following comments:

“The other matter concerns the paving in the area between the arcade mentioned above and the crossing near Trimboli Pharmacy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWCA 66
Decision Date: 19 March 2002

CaseChat Overview and Summary

Sutherland Shire Council appealed a decision of the District Court of New South Wales in favour of the respondent, Mr Pallister. The dispute concerned an alleged failure by the Council to repair a footpath, despite being alerted to a potential danger. The appeal was heard by Stein JA, Ipp AJA, and Mathews AJA in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the Council had breached its duty of care to Mr Pallister by failing to repair a defect in the footpath. This involved considering the relevance of the Council's internal footpath policy, which stipulated that only certain types of defects would be rectified, and whether adherence to this policy absolved the Council of liability for negligence.

The Court of Appeal considered the principles of negligence in the context of a public authority's duty of care. It was held that a public authority's policy, while relevant, does not necessarily determine whether a breach of duty has occurred. The court must assess whether the authority acted reasonably in all the circumstances, including the foreseeability of the risk of harm and the adequacy of the steps taken to mitigate that risk. The court found that the Council's policy did not excuse its failure to address the known danger, and therefore, the Council had breached its duty of care.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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.

CITATION:	Sutherland Shire Council v Pallister [2002] NSWCA 66
FILE NUMBER(S):	CA 40550/2001
HEARING DATE(S):	25 February 2002
JUDGMENT DATE:	19 March 2002
PARTIES :	Sutherland Shire Council - Appellant Marie Patricia Pallister - Respondent
JUDGMENT OF:	Stein JA at 1; Ipp AJA at 2; Mathews AJA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	400/98
LOWER COURT JUDICIAL OFFICER :	J B Phelan DCJ

COUNSEL:	P R Garling SC with R Gambi - Appellant I Wales SC - Respondent
SOLICITORS:	Phillips Fox - Appellant J R Lough & Associates - Respondent
CATCHWORDS:	NEGLIGENCE - Breach of duty - failure to repair footpath although alerted to potential danger - relevance of Council's footpath policy that only certain defects will be rectified.
CASES CITED:	Crimmins v Stevedoring Industry Finance Committee (1999) 67 ALR 1 at 9-10 Associated Provincial Picture Houses, Limited v Wednesbury Corporation (1948) 1 KB 223
DECISION:	Appeal dismissed with costs.