Upper Lachlan Shire Council v Rodgers

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Upper Lachlan Shire Council v Rodgers [2012] NSWCA 259

Hearing dates:

13 August 2012

Decision date:

23 August 2012

Before:

Allsop P at [1]
Campbell JA at [52]
Barrett JA at [53]

Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

NEGLIGENCE - duty of care - breach - inadequate lighting in car park - car park user tripped on log in darkness en route to vehicle - reasonable requirement for car park operator to take precautions - no contributory negligence

NEGLIGENCE - damages - past domestic assistance - sufficient evidence to justify conclusion of 1-2 hours per day of gratuitous care

Legislation Cited:

Civil Liability Act 2002 (NSW)
Interpretation Act 1987 (NSW)

Cases Cited:

Carey v Lake Macquarie City Council [2007] NSWCA 4
Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380
Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380
Hill v Forrester [2010] NSWCA 170
Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406

Category:

Principal judgment

Parties:

Upper Lachlan Shire Council (Appellant)
Terry Rodgers (Respondent)

Representation:

R Sheldon SC/G Donnellan (Appellant)
D Campbell SC/A Foel (Respondent)
DLA Piper (Appellant)
Galland Elder Lulham (Respondent)

File Number(s):

2009/338667

 Decision under appeal 

Date of Decision:

2011-09-28 00:00:00

Before:

Murrell SC DCJ

File Number(s):

2009/338667

Judgment

1. ALLSOP P: On the evening of 11 October 2008, the plaintiff (respondent to the appeal), Mr Terry Rodgers, then 65 years of age, fell in the darkened car park adjacent to the corner of Spring and Goulburn Streets in Crookwell. Mr Rodgers and his wife had just had dinner across the road at the "Top Pub Hotel". Mr Rodgers was not affected by alcohol. The car park was owned and operated by the defendant (appellant in the appeal), the Upper Lachlan Shire Council.

1. Mr Rodgers had parked his car in a north/south direction in the north east corner of the car park during the hours of dusk. Visible at that time, and to Mr Rodgers, was a wooden pole or log lying horizontally in an east/west direction some feet from a brick wall in the same direction. The pole acted as a barrier to further movement by cars in the direction of the wall. The log was at about shin height, somewhat below the knee height of an average adult. Also adjacent to the north east corner of the carpark was a bus shelter. From where Mr Rodgers parked his car there were two ways of reaching the footpath near the corner of Spring and Goulburn Streets, from which one would cross Spring Street to the…