Temora Shire Council v Stein

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.