Telstra Corporation Ltd v Bisley - [2005] NSWCA 128

CITATION:
Telstra Corporation Ltd. v. Bisley [2005] NSWCA 128

HEARING DATE(S):
18 April 2005

JUDGMENT DATE:

22 April 2005

JUDGMENT OF:
Handley JA at 1; Hodgson JA at 2; Bryson JA at 28

DECISION:
Appeal dismissed with costs.

CATCHWORDS:
TORT - Negligence - Public authority - Pit created by Telstra - Plaintiff falls into pit after cover removed - No evidence from Telstra as to placing or nature of cover - Whether inferences open that cover easily removable, and that warning signs should have been provided.

LEGISLATION CITED:
Civil Liability Act 2002, ss.5B, 5C, 5D, 5E, 42

CASES CITED:
Nelson v. John Lysaght (Australia) Ltd. (1975) 132 CLR 201
Rickards v. Australian Telecommunications Commission [1983] 2 NSWLR 155

PARTIES:
Telstra Corporation Limited - appeallant
Richard Glen Bisley - respondent

FILE NUMBER(S):
CA 40343/04

COUNSEL:
Mr. G. Watson SC with Mr. N. Chen for appellant
Miss A. Katzmann SC with Mr. G. Rich for respondent

SOLICITORS:
Henry Davis York, Sydney for appellant
Merrick Spicer & Associates, Taree for respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 16/03

LOWER COURT JUDICIAL OFFICER:
Phegan DCJ

CA 40343/04
DC 16/03

HANDLEY JA
HODGSON JA
BRYSON JA
Friday 22 April 2005

TELSTRA CORPORATION LIMITED V. BISLEY

Judgment

1 HANDLEY JA: I agree with Hodgson JA.

2 HODGSON JA: On 13 February 2004, Phegan DCJ gave his decision in proceedings brought by the respondent (Mr. Bisley) against the appellant (Telstra), to the effect that there should be judgment for Mr. Bisley in the sum of $75,000.00 plus certain medical expenses. Telstra has brought an appeal from that decision. It appears that a document entitled Consent Orders was filed, in which the respondent consented to an extension of time in which to file the Notice of Appeal, and consented to leave to appeal being granted. I would not consider that the filing of such a document satisfactorily overcomes the need to obtain leave for such an appeal, but in my opinion the convenient course in this case is simply to proceed to deal with the appeal on its merits.

3 On 15 May 2000, Mr. Bisley was demolishing a fence at Wingham, working on a section of land between the fence line and Gloucester Road. The area was heavily grassed, and was used as a stock route.

4 Mr. Bisley was removing old wire from the fence and gradually moving backwards, when he fell into a pit which was 3 feet deep, 3 feet long and 18 inches wide, and which had been created there by Telstra. There was no cover over this pit, and the pit was, on findings of the primary judge which have not been challenged, hidden from ordinary view by grass.

5 In the Statement of Claim, Mr. Bisley alleged negligence in failing to cover the manhole, failing to provide any sign or warning of the existence of the manhole, and res ipsa loquitur.

6 Telstra led no evidence at the hearing.

7 Since the…

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.

Continue reading Telstra Corporation Ltd v Bisley

Details

AGLC: Telstra Corporation Ltd v Bisley [2005] NSWCA 128
Case: [2005] NSWCA 128
Decision Date: 22 April 2005

CaseChat Overview and Summary

Telstra Corporation Ltd appealed to the New South Wales Court of Appeal against a judgment of the Supreme Court of New South Wales. The dispute concerned a claim in negligence brought by the respondent, Bisley, who suffered injury after falling into a pit maintained by Telstra. The pit cover had been removed, and there was no evidence from Telstra regarding its placement or the nature of the cover itself.

The Court of Appeal was required to determine whether the trial judge was entitled to draw inferences that the pit cover was easily removable and that Telstra ought to have provided warning signs to prevent such an accident. Specifically, the court considered whether Telstra owed a duty of care to members of the public who might encounter the pit and whether it had breached that duty.

The Court of Appeal upheld the trial judge's findings. It reasoned that in the absence of any evidence from Telstra explaining the pit cover's security or the circumstances of its removal, it was open to infer that the cover was not adequately secured and that a reasonable authority would have foreseen the risk of injury. The court applied the principles of negligence, finding that Telstra's failure to secure the cover or provide warnings constituted a breach of its duty of care to the public.

The appeal was dismissed, and Telstra was ordered to pay the costs of the appeal.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Telstra Corporation Ltd. v. Bisley [2005] NSWCA 128
HEARING DATE(S):	18 April 2005
JUDGMENT DATE:	22 April 2005
JUDGMENT OF:	Handley JA at 1; Hodgson JA at 2; Bryson JA at 28
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	TORT - Negligence - Public authority - Pit created by Telstra - Plaintiff falls into pit after cover removed - No evidence from Telstra as to placing or nature of cover - Whether inferences open that cover easily removable, and that warning signs should have been provided.
LEGISLATION CITED:	Civil Liability Act 2002, ss.5B, 5C, 5D, 5E, 42
CASES CITED:	Nelson v. John Lysaght (Australia) Ltd. (1975) 132 CLR 201 Rickards v. Australian Telecommunications Commission [1983] 2 NSWLR 155
PARTIES:	Telstra Corporation Limited - appeallant Richard Glen Bisley - respondent
FILE NUMBER(S):	CA 40343/04
COUNSEL:	Mr. G. Watson SC with Mr. N. Chen for appellant Miss A. Katzmann SC with Mr. G. Rich for respondent
SOLICITORS:	Henry Davis York, Sydney for appellant Merrick Spicer & Associates, Taree for respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 16/03
LOWER COURT JUDICIAL OFFICER:	Phegan DCJ