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Waverley Council v Ferreira

Waverley Council v Ferreira

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Case Copied 1 December 2005 36 min read

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Reported Decision:
(2005) Aust Torts Reports 81-818

Court of Appeal

CITATION:
Waverley Council v Ferreira [2005] NSWCA 418

HEARING DATE(S):
18/11/05

JUDGMENT DATE:

1 December 2005

JUDGMENT OF:
Spigelman CJ at 1; Ipp JA at 2; Tobias JA at 109

DECISION:
(1) The appeal is partially allowed (2) The verdict in favour of Mr Ferreira is set aside and in lieu thereof a verdict of $115,900 should be substituted (3) The Council should pay 75% of Mr Ferreira's costs of appeal.

CATCHWORDS:
NEGLIGENCE - liability of Council as occupier - claim for mental trauma - death of child occurring in park managed by Council - discussion of factors set out in s 5B of Civil Liability Act 2002 (NSW) - Council's breaches of duty. - NEGLIGENCE - contributory negligence - whether child aged 12 could perceive the relevant risk - s 5R of the Civil Liability Act 2002 (NSW). D

LEGISLATION CITED:
Civil Liability Act 2002 (NSW), ss 5B, 5G(1), 5R, 30, 32(1)

CASES CITED:
Annetts v Australia Stations Pty Ltd (2002) 211 CLR 317
Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380
Cooke v Midland Great Western Railway of Ireland (1909) AC 229
Doubleday v Kelly [2005] NSWCA 151
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Jones v Bartlett (2000) 205 CLR 166
Lynch v Nurdin (1841) 1 QB 29
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Thompson v Bankstown Municipal Council (1953) 87 CLR 619
Vairy v Wyong Shire Council [2005] HCA 62
Watt v Hertfordshire County Council [1954] 2 All ER 368
Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES:
Waverley Council (Appellant)
Rogelio Ferreira (Respondent)

FILE NUMBER(S):
CA 41171/04

COUNSEL:
M Joseph SC/N Polin (Appellant)
L King SC/P Regattiera (Respondent)

SOLICITORS:
Phillips Fox (Appellant)
Collins & Thompson (Respondent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 5834/03

LOWER COURT JUDICIAL OFFICER:
Garling DCJ

CA 41171/04
DC 5834/03

SPIGELMAN CJ
IPP JA
TOBIAS JA
Thursday, 1 December 2005

WAVERLEY COUNCIL v ROGELIO FERREIRA

Judgment

1 SPIGELMAN CJ: I agree with Ipp JA.

2 IPP JA:

The main issues on appeal

3 On 15 December 2000 Martin Ferreira, then aged 12 years, died when he fell to the ground through a skylight in the roof of a building situated in a park known as the Kimberley Reserve. The building had been opened in 1985. It was used as a part-time play centre and was known as the Community Centre. The Community Centre and the park were under the care, control and management of the appellant (“the Council”). The park was designed to attract children and was equipped with swings and other playground equipment. Children came to play there every day.

4 Martin was the son of the respondent (Mr Ferreira). Mr Ferreira sued the Council for damages for mental harm he suffered by reason of Martin’s death. Garling DCJ held that the Council had breached the duty of care it owed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWCA 418
Decision Date: 1 December 2005

CaseChat Overview and Summary

Waverley Council appealed to the New South Wales Court of Appeal against a judgment awarded to Mr Ferreira in the Supreme Court of New South Wales. Mr Ferreira had sued the Council for damages for mental trauma suffered as a result of the death of his 12-year-old son, who drowned in a pond within a park managed by the Council.

The Court of Appeal was required to determine whether the Council owed a duty of care to Mr Ferreira, and if so, whether it had breached that duty. Specifically, the Court considered the application of sections 5B and 5R of the *Civil Liability Act 2002* (NSW) in assessing the Council's liability, including whether the Council had failed to take reasonable precautions to prevent the harm, and whether Mr Ferreira's son, being 12 years old, could have perceived the risk of drowning in the pond.

The Court found that the Council, as the occupier of the park, owed a duty of care to persons using the park, including the deceased child. It determined that the Council had breached this duty by failing to take reasonable steps to mitigate the risk of drowning, such as installing adequate fencing around the pond. The Court also considered the issue of contributory negligence, finding that while the child may have been aware of the water, he could not have fully appreciated the specific risk of drowning in the circumstances. The Court ultimately found the Council to be 75% liable for the death.

The appeal was partially allowed. The original verdict in favour of Mr Ferreira was set aside, and a substituted verdict of $115,900 was ordered. The Council was also ordered to pay 75% of Mr Ferreira's costs of the appeal.

Orders

Orders of the court

(1) The appeal is partially allowed (2) The verdict in favour of Mr Ferreira is set aside and in lieu thereof a verdict of $115,900 should be substituted (3) The Council should pay 75% of Mr Ferreira's costs of appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Waverley Council v Ferreira [2005] NSWCA 418
HEARING DATE(S):	18/11/05
JUDGMENT DATE:	1 December 2005
JUDGMENT OF:	Spigelman CJ at 1; Ipp JA at 2; Tobias JA at 109
DECISION:	(1) The appeal is partially allowed (2) The verdict in favour of Mr Ferreira is set aside and in lieu thereof a verdict of $115,900 should be substituted (3) The Council should pay 75% of Mr Ferreira's costs of appeal.

CATCHWORDS:	NEGLIGENCE - liability of Council as occupier - claim for mental trauma - death of child occurring in park managed by Council - discussion of factors set out in s 5B of Civil Liability Act 2002 (NSW) - Council's breaches of duty. - NEGLIGENCE - contributory negligence - whether child aged 12 could perceive the relevant risk - s 5R of the Civil Liability Act 2002 (NSW). D
LEGISLATION CITED:	Civil Liability Act 2002 (NSW), ss 5B, 5G(1), 5R, 30, 32(1)
CASES CITED:	Annetts v Australia Stations Pty Ltd (2002) 211 CLR 317 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 Cooke v Midland Great Western Railway of Ireland (1909) AC 229 Doubleday v Kelly [2005] NSWCA 151 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Jones v Bartlett (2000) 205 CLR 166 Lynch v Nurdin (1841) 1 QB 29 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Thompson v Bankstown Municipal Council (1953) 87 CLR 619 Vairy v Wyong Shire Council [2005] HCA 62 Watt v Hertfordshire County Council [1954] 2 All ER 368 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	Waverley Council (Appellant) Rogelio Ferreira (Respondent)
FILE NUMBER(S):	CA 41171/04
COUNSEL:	M Joseph SC/N Polin (Appellant) L King SC/P Regattiera (Respondent)
SOLICITORS:	Phillips Fox (Appellant) Collins & Thompson (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 5834/03
LOWER COURT JUDICIAL OFFICER:	Garling DCJ