Waverly Municipal Council v Wagner

Reported Decision: 119 LGERA 167

New South Wales

Court of Appeal

CITATION:	Waverley Municipal Council v Wagner [2002] NSWCA 10
FILE NUMBER(S):	CA 40441/00
HEARING DATE(S):	7/12/01
JUDGMENT DATE:	8 February 2002
PARTIES :	Waverley Municipal Council (Appellant) Barrie Wagner (Respondent)
JUDGMENT OF:	Meagher JA at 1; Sheller JA at 2; Young CJ in Eq at 3-20

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	1204/99
LOWER COURT JUDICIAL OFFICER :	Puckeridge DCJ

COUNSEL:	D Davies SC (Appellant) S Norton and I Ryan (Respondent)
SOLICITORS:	Phillips Fox (Appellant) Brydens Law Office (Respondent)
CATCHWORDS:	TORT- Accident on highway- No evidence as to who carried out work on item causing accident- Plaintiff must fail- Proposition 1 of Powell JA in Lake Macquarie CC v Bottomley endorsed. (D)
CASES CITED:	Brodie v Singleton SC (2001) 75 ALJR 992 Lake Macquarie CC v Bottomley (1999) 103 LGERA 77 Hawkesbury CC v Ryan [2001] NSWCA 212
DECISION:	Appeal allowed with costs: Respondent to have certificate under Suitors' Fund Act if qualified.

CA 40441 of 2000
DC 1204 of 1999
MEAGHER JA
SHELLER JA
YOUNG CJ in EQ


Friday 8 February 2002

WAVERLEY MUNICIPAL COUNCIL v BARRIE WAGNER

Judgment

1 MEAGHER JA: I agree with Young CJ in Eq.

2 SHELLER JA: I agree with Young CJ in Eq.

3 YOUNG CJ in EQ: This is an appeal from a judgment of his Honour Judge Puckeridge in the District Court awarding the plaintiff a verdict of $117,236.00 in respect of personal injuries suffered when he tripped and fell over a loose paver in Spring Street, Bondi Junction.

4 There is no doubt at all that on 23 June 1996, the plaintiff parked his motor vehicle close to the kerb in Spring Street, Bondi Junction for the purpose of taking some parcels to the Post Office. Next to the area where he had parked his vehicle was a small sapling tree. The footpath was a paved footway. The plaintiff got out of his vehicle, stepped onto the roadway to open the door of his van to remove the articles so that he could carry them into the Post Office. He stepped from the roadway onto the footpath and in the first step he took with his right foot his ankle went over. He looked behind him and saw a paver on its side. It was a paver which was around the tree and it was tilted down towards the tree. The plaintiff said he had put his foot down on the paver which was tilted on its side and his ankle went over.

5 The learned Judge said that there was no contrary evidence, and indeed, the plaintiff was not cross-examined on the vital part of this statement and he must find that the plaintiff stepped on a paver which went onto its side. Nothing was said to us contrary to this view.

6 The Judge found the local council liable for the plaintiff’s accident. He said at Red 13:

“Whenever the pavers were…