Theodorakakis v Telstra Corporation Limited

CITATION:	Theodorakakis v Telstra Corporation Limited [2005] NSWDC 11
HEARING DATE(S):	23-25 February 2005
JUDGMENT DATE:	28 April 2005
JURISDICTION:	Civil
JUDGMENT OF:	Rein SC DCJ
DECISION:	See [73].
CATCHWORDS:	Plaintiff fell over on a footpath due to presence of pit lid which was not flush with pavement - Hazard had been identified by council 14 months earlier but not rectified - Claim against council and party responsible for the installation of the pit lid - Whether defect was obvious - Burden of proof - Duty of care and breach of duty - Relevance of budgetary constraints on council - Whether s 45 of the Civil Liability Act applied - Contributory negligence - Quantum
LEGISLATION CITED:	Civil Liability Act 2002, ss 16, 45 Roads Act 1993, s 4
CASES CITED:	Blatch v Archer (1774) 98 ER 969 Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; [2001] HCA 29 Burwood Council v Byrnes [2002] NSWCA 343 Council of the Municipality of Waverly v Lodge [2001] NSWCA 439 Georgopoulos v Telstra Corporation Ltd [2004] NSWCA 266 Graham v Baker (1961) 106 CLR 340 Hampton Court Ltd v Crooks (1957) 97 CLR 367 Hastings Council v Giese [2003] NSWCA 178 K-Mart Australia Ltd v McCann [2004] NSWCA 283 Lake Macquarie City Council v Bottomley [1999] NSWCA 28 Lake Macquarie City Council v Holt [2004] NSWCA 305 Lombardi v Holroyd City Council [2002] NSWCA 252 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Newcastle City Council v Mason [2004] NSWCA 108 Newcastle City Council v McShane [2004] NSWCA 425 Penrith City Council v Parks [2004] NSWCA 201 Richmond Valley Council v Standing [2002] NSWCA 359 Roads and Traffic Authority of New South Wales v McGuinness [2002] NSWCA 210 Ryde City Council v Saleh [2004] NSWCA 219 Ryde Council v Smith [2003] NSWCA 57 Sutherland Shire Council v Henshaw [2004] NSWCA 386 Telstra Corporation Ltd v Smith (1998) Aust Torts Reports 81-487 Temora Shire Council v Stein [2004] NSWCA 236 Turnbull v Alm [2004] NSWCA 173 Waverly Municipal Council v Wagner [2002] NSWCA 10 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	Maria Theodorakakis (Plaintiff) Telstra Corporation Limited (First Defendant) Port Stephens Council (Second Defendant)
FILE NUMBER(S):	654/03
COUNSEL:	Ms Norton SC; Mr Khandhar (Plaintiff) Mr J Ryan (First Defendant) Mr Gambi (Second Defendant)
SOLICITORS:	Brydens Law Office (Plaintiff) Henry Davis York (First Defendant) DLA Phillips Fox (Second Defendant)

JUDGMENT

1 The Plaintiff in this case, who was born on 5 December 1966 and is now 38 years of age, was injured when she fell whilst walking on a footpath on Shoal Bay Road, New South Wales. There is no dispute that she suffered injuries on 18 January 2002 as a result of the fall – a spiral comminuted fracture of the left ankle of both the tibia and the fibula – or that the ankle had to be fixed with plates and screws. She also suffered superficial burns to her buttocks because the…