Turnbull v Alm

[2004] NSWCA 173

CITATION:	TURNBULL v. ALM & ANOR [2004] NSWCA 173
HEARING DATE(S):	02/06/2004
JUDGMENT DATE:	26 August 2004
JUDGMENT OF:	Giles JA at 1; Tobias JA at 2; Bryson JA at 3
DECISION:	Dismiss appeal by Occupier against Entrant: allow cross-appeals so as to award 50% contribution against City Council; See para [79]
CATCHWORDS:	NEGLIGENCE - Occupier's Liability - footpath on private land outside shops at periphery of shopping area - Occupier landlord leased out shops and retained Common Areas including footpath - plaintiff using footpath while shopping after dark tripped and fell in hole 4" wide 6" long 1" deep in otherwise regular concrete footpath - Trial Judge wrongly applied test requiring Occupier to ensure safety - liability reconsidered on facts - challenges to factual findings of Trial Judge considered - City Council repaired footpath inadequately several times - Occupier took no action to repair - negligence found against both and apportioned 50%-50%.
LEGISLATION CITED:	Evidence Act 1995 s.54
CASES CITED:	Tame v. State of New South Wales; Annetts v. Australian Stations Pty Ltd (2002) 211 CLR 317 Cafest Holdings Pty Ltd v. Tombleson [2003] NSWCA 210 Australian Safeway Stores Ltd v. Zaluzna (1987) 162 CLR 479 Phillis v. Daly (1988) 15 NSWLR 65 Wyong Shire Council v. Shirt (1980) 146 CLR 40 Waverley Municipal Council v. Swain [2003] NSWCA 61 David Jones Ltd v. Bates [2001] NSWCA 233 Richmond Valley Council v. Standing [2002] NSWCA 359 Brodie v. Singleton Shire Council; Ghantous v. Hawkesbury Shire Council (2001) 206 CLR 512
PARTIES :	Gai Lynette Turnbull - Appellant Gillian Thesere Alm - Respondent/Cross-Appellant The Council of the City of Dubbo - Cross-Respondent
FILE NUMBER(S):	CA 40911/2003
COUNSEL:	J. Maconachie QC and P. Perry - Appellant L. King SC and P. Regattieri - Respondent/Cross-Appellant P. Arden SC and R. Anthony - Cross-Respondent
SOLICITORS:	Ebsworth & Ebsworth - Appellant Peacocke, Dickens & Price - Respondent/Cross-Appellant Leitch Hasson Dent - Cross-Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	21 of 2002
LOWER COURT JUDICIAL OFFICER :	Woods DCJ

40911/2003

GILES JA
TOBIAS JA
BRYSON JA

Thursday 26 August 2004

GAI LYNETTE TURNBULL v. GILLIAN THERESE ALM & THE COUNCIL OF THE CITY OF DUBBO

Judgment

1 GILES JA: I agree with Bryson JA.

2 TOBIAS JA: I agree with Bryson JA.

3 BRYSON JA: The appellant Mrs Turnbull appeals from the decision of Sir Robert Woods CBE, Acting District Court Judge, in the District Court at Dubbo on 19 September 2003. The respondent Mrs Alm as plaintiff claimed damages for personal injuries which she suffered on 3 July 2001 when she stepped into a hole in the footpath adjacent to shops in Tamworth Street, Dubbo, fell and sustained injuries. In the District Court Mrs Turnbull was the first defendant; the Council of the City of Dubbo (“the City Council”) was the second defendant and the learned Trial Judge gave judgment for Mrs Alm against Mrs Turnbull, and judgment for the City Council against Mrs Alm. Mrs Turnbull by a Cross-claim claimed…