The Council of the City of Grafton v Musall

[2001] NSWCA 228

CITATION:	The Council of the City of Grafton v. Musall & Anor [2001] NSWCA 228
FILE NUMBER(S):	CA 40776/00
HEARING DATE(S):	23 June 2001
JUDGMENT DATE:	12 July 2001
PARTIES :	The Council of the City of Grafton - appellant Betty Evelyn Musall - 1st respondent McConaghey Developments Pty. Ltd. - 2nd respondent
JUDGMENT OF:	Hodgson JA at 1; Davies AJA at 32; Grove AJA at 33

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	42/99
LOWER COURT JUDICIAL OFFICER :	Herron DCJ

COUNSEL:	Mr. J. Machonachie QC with Mr. H. Marshall for appellant Mr. B. Murray QC with Mr. G. Petty SC for 1st respondent Mr. G. Parker for 2nd respondent
SOLICITORS:	Crameri Lawyers, Newcastle for appellant Pollack Greening & Hampshire, Grafton for 1st respondent Thompson Wheelahan & Hampshire, Grafton for 2nd respondent
CATCHWORDS:	LOCAL GOVERNMENT - Shopping centre development - Landscaping plan - Involvement of Council - Tree with aggressive roots liable to damage footpath - Whether Council responsible - TORTS - Negligence - Plaintiff trips on damaged footpath - Whether Council liable. ND
LEGISLATION CITED:	Local Government Act 1919 s.310 (since repealed)
CASES CITED:	Sutherland Shire Council v. Heyman (1984-5) 157 CLR 424 at 455-7 Greham Barclay Oysters Pty. Ltd. v. Ryan [2000] FCA 1099 par.231
DECISION:	Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40776/00
DC 42/99

Thursday 12 July 2001

COUNCIL OF THE CITY OF GRAFTON V. MUSALL & ANOR.

JUDGMENT

1   HODGSON JA: On 11th February 1999, the plaintiff tripped and fell on or near a footpath not far from an entrance to Grafton Shopping World, then owned and occupied by the second defendant (McConaghey Developments). The plaintiff brought proceedings claiming damages for injury caused by the fall against the first defendant (the Council) and McConaghey Developments.

2   On 1st September 2000, Herron DCJ found that the plaintiff’s injury had been caused by the negligence of each defendant, and he gave judgment in favour of the plaintiff against each defendant in the sum of $268,233.40. The Council has appealed to this Court from that judgment.

BACKGROUND

3   The plaintiff was born on 23rd March 1922, and thus was 76 at the time of the accident. Prior to the accident, she was walking along a concrete footpath in Duke Street, Grafton, adjacent to the Grafton Shopping World complex. The plaintiff attempted to walk on to a sloping concrete path leading from the footpath towards the shopping centre. It is clear that the plaintiff tripped over a small step that had developed between the footpath and the sloping concrete path, shown in a photograph taken just under a fortnight after the accident, and estimated in the evidence as being between 20 millimetres and 40 millimetres high.

4   The primary judge made no finding as to the height of the step, but he did find that it was a danger to persons using the path in the way the plaintiff used it, and indeed noted that the…