Reported Decision:
134 LGERA 407
Court of Appeal
CITATION: Temora Shire Council v Stein [2004] NSWCA 236 HEARING DATE(S): 5 July 2004 JUDGMENT DATE:
21 July 2004JUDGMENT OF: Giles JA at 1; Hodgson JA at 56; Pearlman AJA at 62 DECISION: (1) Appeal allowed; (2) Set aside the verdict and judgment for the respondent and the order for costs made on 14 November 2003; (3) Verdict and judgment for the appellant; (4) Respondent pay the appellant's costs of the trial and the appeal, and have a certificate under the Suitors Fund Act if otherwise qualified. CATCHWORDS: NEGLIGENCE - tripping case - raised edge of driveway across footpath - obvious in daylight to pedestrian taking reasonable care for own safety - plaintiff tripped at night - evidence of street light across road - no evidence of state of illumination of driveway or that plaintiff could not or did not see it - defendant owed duty of care - correct question whether in breach of duty - action or inaction of reasonable council to be assessed on basis of pedestrians taking reasonable care for own safety - whether plaintiff had burden of proof that driveway not visible to such a pedestrian (yes) - whether other matters made it a hazard which, acting reasonably, the defendant should have rectified (no) - not shown defendant failed to act reasonably - negligence not established. D CASES CITED: Brodie v Singleton Shire Council (2001) 206 CLR 512;
Burwood Council v Byrnes [2002] NSWCA 343;
Calfest v Tombleson [2003] NSWCA 210;
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389;
Dunn v Star City Pty Ltd [2004] NSWCA 223;
Ghantous v Hawkesbury City Council (2001) 206 CLR 512;
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540;
Liftronic Pty Ltd v Unver (2001) 179 ALR 321;
Newcastle City Council v Lindsay [2004] NSWCA 198;
Parramatta City Council v Watkins [2001] NSWCA 364;
Parsons v Randwick Municipal Council [2003] NSWCA 191;
Richmond Valley Council v Standing (2002) 127 LGERA 237;
Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337;
Tame v New South Wales (2002) 211 CLR 317;
Wyong Shire Council v Shirt (1980) 146 CLR 40.PARTIES :
Temora Shire Council - Appellant
Yvonne Stein - RespondentFILE NUMBER(S): CA 41125/03 COUNSEL: J E Marshall SC & P M Sibtain - Appellant
M J Cranitch SC & M Inglis - RespondentSOLICITORS: Phillips Fox - Appellant
Commins Hendricks - Respondent
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 83/02 LOWER COURT
JUDICIAL OFFICER :Williams DCJ
CA 41125/03
DC 83/02 (Wagga Wagga)Wednesday 21 July 2004GILES JA
HODGSON JA
PEARLMAN AJA
TEMORA SHIRE COUNCIL v STEIN
Judgment
1 GILES JA: The respondent fell and was injured when, at about 11 pm on 21 February 2002, she tripped on the edge of a raised driveway crossing the footpath…
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Details
- AGLC
- Temora Shire Council v Stein [2004] NSWCA 236
- Case
- [2004] NSWCA 236
- Decision Date
CaseChat Overview and Summary
Temora Shire Council appealed to the Court of Appeal of New South Wales against a judgment entered in favour of Mr Stein in his negligence action concerning injuries sustained from tripping on a raised edge of a driveway that crossed a footpath.
The primary legal issues before the Court of Appeal were whether the Council owed a duty of care to Mr Stein, and if so, whether the Council had breached that duty by failing to rectify the raised edge of the driveway. The Court was required to determine the correct test for assessing whether the Council had acted reasonably in the circumstances, and to consider the burden of proof regarding the visibility of the hazard.
The Court held that while the Council owed a duty of care, the crucial question was whether it had breached that duty. It reasoned that the standard of care for a council in such a situation should be assessed on the basis that pedestrians are taking reasonable care for their own safety. The Court found that the plaintiff bore the burden of proving that the driveway was not visible to a pedestrian exercising reasonable care. Given that the incident occurred at night, and while there was evidence of a street light across the road, there was no evidence that the driveway was not illuminated or that Mr Stein could not have seen it. The Court concluded that the raised edge did not constitute a hazard that a reasonably acting council should have rectified, and therefore, the Council had not failed to act reasonably, and negligence was not established.
The appeal was allowed, and the verdict and judgment for Mr Stein were set aside, with a verdict and judgment entered for Temora Shire Council. Mr Stein was ordered to pay the Council's costs of the trial and the appeal.
The primary legal issues before the Court of Appeal were whether the Council owed a duty of care to Mr Stein, and if so, whether the Council had breached that duty by failing to rectify the raised edge of the driveway. The Court was required to determine the correct test for assessing whether the Council had acted reasonably in the circumstances, and to consider the burden of proof regarding the visibility of the hazard.
The Court held that while the Council owed a duty of care, the crucial question was whether it had breached that duty. It reasoned that the standard of care for a council in such a situation should be assessed on the basis that pedestrians are taking reasonable care for their own safety. The Court found that the plaintiff bore the burden of proving that the driveway was not visible to a pedestrian exercising reasonable care. Given that the incident occurred at night, and while there was evidence of a street light across the road, there was no evidence that the driveway was not illuminated or that Mr Stein could not have seen it. The Court concluded that the raised edge did not constitute a hazard that a reasonably acting council should have rectified, and therefore, the Council had not failed to act reasonably, and negligence was not established.
The appeal was allowed, and the verdict and judgment for Mr Stein were set aside, with a verdict and judgment entered for Temora Shire Council. Mr Stein was ordered to pay the Council's costs of the trial and the appeal.
Orders
Orders of the court
(1) Appeal allowed; (2) Set aside the verdict and judgment for the respondent and the order for costs made on 14 November 2003; (3) Verdict and judgment for the appellant; (4) Respondent pay the appellant's costs of the trial and the appeal, and have a certificate under the Suitors Fund Act if otherwise qualified.
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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