Sydney Harbour Foreshore Authority v Perrett - [2010] NSWCA 160

New South Wales

Court of Appeal

CITATION: Sydney Harbour Foreshore Authority & Anor v Perrett & Anor [2010] NSWCA 160

HEARING DATE(S): 08/07/2010

JUDGMENT DATE:
23 September 2010

JUDGMENT OF: Tobias JA at 1; McColl JA at 2; Handley AJA at 3

EX TEMPORE JUDGMENT DATE: 2 September 2010

DECISION: Appeal dismissed with costs.

CATCHWORDS: NEGLIGENCE – Occupier’s liability – breach of duty – risk not obvious – no question of principle. - OCCUPIER’S LIABILITY – breach of duty – risk not obvious – no question of principle.

LEGISLATION CITED: Civil Liability Act 2002
Workers Compensation Act 1987, s 151Z(1)(d)

CATEGORY: Principal judgment

CASES CITED: Angel v Hawkesbury City Council [2008] NSWCA 130
Carey v Lake Macquarie City Council [2007] NSWCA 4
Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40

PARTIES: Sydney Harbour Foreshore Authority - First Appellant
Darling Harbour Convention and Exhibition Pty Ltd - Second Appellant
Ian Douglas Perrett - First Respondent
Wine & Vine Personnel Pty Ltd - Second Respondent

FILE NUMBER(S): CA 08/289604

COUNSEL: CT Barry QC with G Doherty - Appellant
BW Rayment QC with JC Rowe - First Respondent
SG Campbell SC with MJ Jenkins - Second Respondent

SOLICITORS: HWL Ebsworth - Appellants
Miller Noyce - First Respondent
Turks Legal - Second Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20429/06 & 20528/08

LOWER COURT JUDICIAL OFFICER: McCallum J

LOWER COURT DATE OF DECISION: 30.09.09

LOWER COURT MEDIUM NEUTRAL CITATION: [2009] NSWSC 1026

08/289604

TOBIAS JA
McCOLL JA
HANDLEY AJA
THURSDAY 23 SEPTEMBER 2010

SYDNEY HARBOUR FORESHORE AUTHORITY & ANOR V PERRETT & ANOR

CATCHWORDS

NEGLIGENCE – Occupier’s liability – breach of duty – risk not obvious – no question of principle.
OCCUPIER’S LIABILITY – breach of duty – risk not obvious – no question of principle.

ORDERS

Appeal dismissed with costs.

08/289604

TOBIAS JA
McCOLL JA
HANDLEY AJA
THURSDAY 23 SEPTEMBER 2010

SYDNEY HARBOUR FORESHORE AUTHORITY & ANOR V PERRETT & ANOR

Judgment

1 TOBIAS JA: I agree with Handley AJA.

2 McCOLL JA: I agree with Handley AJA.

3 HANDLEY AJA: This is an appeal by the owner and the occupier of the Darling Harbour Convention Centre from the judgment of McCallum J of 30 September 2009 in an occupier’s liability case. The Judge entered judgments for the first respondent (the plaintiff) for $735,667.07, and for his employer under s 151Z(1)(d) of the Workers Compensation Act 1987 for $223,308.93. It was common ground that s 151Z(1)(e1) applied and the plaintiff had to give credit for the amount of the judgment in favour of his employer and was only entitled to the net figure.

4 The appeal challenged the Judge’s findings on liability based on the common law as modified by the Civil Liability Act 2002.

5 The summary of the salient facts which follows is based on the findings of the trial Judge.

6 The accident happened on the ground floor of the Convention Centre at Darling Harbour near the base of…

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: [2010] NSWCA 160
Decision Date: 23 September 2010

CaseChat Overview and Summary

The Sydney Harbour Foreshore Authority appealed a decision of the District Court of New South Wales, which had found the Authority liable in negligence for injuries sustained by Mr Perrett. Mr Perrett had suffered injuries when he tripped and fell on a public pathway managed by the Authority. The core of the dispute concerned whether the Authority had breached its duty of care to Mr Perrett by failing to adequately warn of or address a hazard on the pathway.

The Court of Appeal was required to determine whether the Authority had breached its duty of care to Mr Perrett. Specifically, the court considered whether the risk of tripping on the pathway was an obvious one, and if not, whether the Authority had taken reasonable steps to prevent injury. The appeal also concerned the application of principles of occupier's liability in the context of public spaces.

The Court of Appeal found that the risk of tripping on the pathway was not an obvious one, and that the Authority had failed to take reasonable precautions to prevent injury to users of the pathway. The court applied established principles of negligence and occupier's liability, finding that the Authority owed a duty of care to those who used the foreshore area under its management. The court concluded that the Authority had breached this duty by failing to address the hazard that caused Mr Perrett's fall.

The appeal was dismissed, and the Sydney Harbour Foreshore Authority was ordered to pay Mr Perrett's 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

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CITATION:	Sydney Harbour Foreshore Authority & Anor v Perrett & Anor [2010] NSWCA 160
HEARING DATE(S):	08/07/2010
JUDGMENT DATE:	23 September 2010
JUDGMENT OF:	Tobias JA at 1; McColl JA at 2; Handley AJA at 3
EX TEMPORE JUDGMENT DATE:	2 September 2010
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	NEGLIGENCE – Occupier’s liability – breach of duty – risk not obvious – no question of principle. - OCCUPIER’S LIABILITY – breach of duty – risk not obvious – no question of principle.
LEGISLATION CITED:	Civil Liability Act 2002 Workers Compensation Act 1987, s 151Z(1)(d)
CATEGORY:	Principal judgment
CASES CITED:	Angel v Hawkesbury City Council [2008] NSWCA 130 Carey v Lake Macquarie City Council [2007] NSWCA 4 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
PARTIES:	Sydney Harbour Foreshore Authority - First Appellant Darling Harbour Convention and Exhibition Pty Ltd - Second Appellant Ian Douglas Perrett - First Respondent Wine & Vine Personnel Pty Ltd - Second Respondent
FILE NUMBER(S):	CA 08/289604
COUNSEL:	CT Barry QC with G Doherty - Appellant BW Rayment QC with JC Rowe - First Respondent SG Campbell SC with MJ Jenkins - Second Respondent
SOLICITORS:	HWL Ebsworth - Appellants Miller Noyce - First Respondent Turks Legal - Second Respondent
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20429/06 & 20528/08
LOWER COURT JUDICIAL OFFICER:	McCallum J
LOWER COURT DATE OF DECISION:	30.09.09
LOWER COURT MEDIUM NEUTRAL CITATION:	[2009] NSWSC 1026