Waverley Council v Lodge - [2001] NSWCA 439

Reported Decision:
(2001) 117 LGERA 447

New South Wales

Court of Appeal

CITATION: WAVERLEY COUNCIL v. LODGE [2001] NSWCA 439

FILE NUMBER(S): CA 40180 of 2001

HEARING DATE(S): 15/11/2001

JUDGMENT DATE:
29 November 2001

PARTIES :

Council of the Municipality of Waverley - Appellant
John James Lodge - Respondent

JUDGMENT OF: Meagher JA at 1; Heydon JA at 2; Bryson J at 3

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 8758 of 1997

LOWER COURT
JUDICIAL OFFICER : Judge Phegan and Judge Finnane Q.C.

COUNSEL: P.R. Garling SC & S.P.W. Glascott - Appellant
J.J. Graves SC & R.J. de Meyrick - Respondent

SOLICITORS: Phillips Fox Solicitors - Appellant
T.D. Kelly & Co. Solicitors - Respondent

CATCHWORDS: NEGLIGENCE - Local council - control of beachside promenade, pools and steps - bather left rock pool and walked across rocks towards concrete steps - rocks not under control by Council but gave access to area under control - slipped and fell on marine growth on rock - scope of duty and whether breach of duty - findings of breach based on failure to erect warning sign were set aside - scope of duty did not extend to erecting warning sign.

CASES CITED:
The Council of the Shire of Wyong v. Shirt (1980) 146 CLR 40
Phillis v. Daly (1988) 15 NSWLR 65
Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479
Romeo v. Conservation Commission of the Northern Territory (1988) 192 CLR 431
Department of Natural Resources and Energy v. Harper [2000] VSCA 36
Prast v. Town of Cottesloe [2000] WASCA 274
Nagle v. Rottnest Island Authority (1993) 177 CLR 423

DECISION: (1) Appeal allowed with costs.; (2) Verdicts and judgment of the District Court set aside and in lieu thereof give judgment for the defendant.; (3) Order that the plaintiff appellant pay the defendant respondent's costs of the proceedings in the District Court.

CA 40180/2001
DC 8758/1997

MEAGHER JA
HEYDON JA
BRYSON J

Thursday 29 November 2001

THE COUNCIL OF THE MUNICIPALITY OF WAVERLEY (APPELLANT) v. JOHN JAMES LODGE (RESPONDENT)

Judgment

1 MEAGHER JA: I agree with Bryson J.

2 HEYDON JA: I agree with Bryson J.

3 BRYSON J: The appellant, defendant in the District Court, appealed from decisions of his Honour Judge Phegan and his Honour Judge Finnane Q.C. After hearing the question of liability on 27 and 28 May 1999 Judge Phegan in an ex tempore judgment on 28 May 1999 found that the appellant was liable for a breach of duty of care in failing to warn the respondent adequately of the danger which caused his fall, found that there was contributory negligence and determined that damages should be reduced from those otherwise recoverable by 30 per cent. After a later hearing Judge Finnane Q.C. on 23 February 2001 gave judgment for the respondent for $434,056.08. When the hearing began the appellant’s counsel abandoned the appeal on damages. There was no cross-appeal and no notice of contention against any…

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: [2001] NSWCA 439
Decision Date: 29 November 2001

CaseChat Overview and Summary

Waverley Council appealed to the Court of Appeal of New South Wales against a District Court judgment that found the Council liable for negligence. The dispute arose from injuries sustained by a bather who slipped and fell on marine growth on rocks adjacent to a rock pool and concrete steps, both of which were under the Council's control. The bather had exited the rock pool and was walking across the rocks towards the concrete steps when the incident occurred.

The central legal issues before the Court of Appeal were the scope of the Council's duty of care in relation to the beachside promenade, pools, and steps it controlled, and whether the Council had breached that duty. Specifically, the court had to determine whether the Council's duty extended to warning of potential hazards on the rocks, even though those rocks were not directly under the Council's control but provided access to areas that were.

The Court of Appeal reasoned that the Council's duty of care did not extend to erecting a warning sign on the rocks where the plaintiff fell. The court found that the rocks themselves were not under the Council's control, and while they provided access to controlled areas, the duty of care did not encompass warning about every potential hazard on adjacent, uncontrolled land. Consequently, the findings of breach of duty based on the failure to erect a warning sign were set aside.

The Court of Appeal allowed the appeal, setting aside the verdicts and judgment of the District Court and entering judgment for the defendant, Waverley Council. The plaintiff was ordered to pay the defendant's costs of the proceedings in the District Court.

Orders

Orders of the court

(1) Appeal allowed with costs.; (2) Verdicts and judgment of the District Court set aside and in lieu thereof give judgment for the defendant.; (3) Order that the plaintiff appellant pay the defendant respondent's costs of the proceedings in the District Court.

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. LODGE [2001] NSWCA 439
FILE NUMBER(S):	CA 40180 of 2001
HEARING DATE(S):	15/11/2001
JUDGMENT DATE:	29 November 2001
PARTIES :	Council of the Municipality of Waverley - Appellant John James Lodge - Respondent
JUDGMENT OF:	Meagher JA at 1; Heydon JA at 2; Bryson J at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 8758 of 1997
LOWER COURT JUDICIAL OFFICER :	Judge Phegan and Judge Finnane Q.C.

COUNSEL:	P.R. Garling SC & S.P.W. Glascott - Appellant J.J. Graves SC & R.J. de Meyrick - Respondent
SOLICITORS:	Phillips Fox Solicitors - Appellant T.D. Kelly & Co. Solicitors - Respondent
CATCHWORDS:	NEGLIGENCE - Local council - control of beachside promenade, pools and steps - bather left rock pool and walked across rocks towards concrete steps - rocks not under control by Council but gave access to area under control - slipped and fell on marine growth on rock - scope of duty and whether breach of duty - findings of breach based on failure to erect warning sign were set aside - scope of duty did not extend to erecting warning sign.
CASES CITED:	The Council of the Shire of Wyong v. Shirt (1980) 146 CLR 40 Phillis v. Daly (1988) 15 NSWLR 65 Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479 Romeo v. Conservation Commission of the Northern Territory (1988) 192 CLR 431 Department of Natural Resources and Energy v. Harper [2000] VSCA 36 Prast v. Town of Cottesloe [2000] WASCA 274 Nagle v. Rottnest Island Authority (1993) 177 CLR 423
DECISION:	(1) Appeal allowed with costs.; (2) Verdicts and judgment of the District Court set aside and in lieu thereof give judgment for the defendant.; (3) Order that the plaintiff appellant pay the defendant respondent's costs of the proceedings in the District Court.