Willis v Orange City Council

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Willis v Orange City Council [2025] NSWDC 208

Hearing dates:

19, 20, 21, 24 March 2025

Date of orders:

12 June 2025

Decision date:

12 June 2025

Jurisdiction:

Civil

Before:

Russell SC DCJ

Decision:

(1)   Judgment for the Plaintiff against the Defendant for $133,751.

(2)   Order the Defendant to pay the costs of the Plaintiff.

Catchwords:

NEGLIGENCE – risk was foreseeable – risk was not insignificant – reasonable person in the position of the council would have taken precautions – significant probability that the harm would occur – serious harm could result – minimal burden to take precautions – social utility – factual causation established – scope of liability extends to the harm so caused

DAMAGES – non-economic loss – past and future out of pocket expenses – future domestic assistance

OTHER – trip in hole in nature strip – council had actual knowledge

Legislation Cited:

Civil Liability Act2002 (NSW), ss 3, 5B, 5D, 16, 42, 43A, 45

Category:

Principal judgment

Parties:

Peter Warren Willis (Plaintiff)
Orange City Council (Defendant)

Representation:

Counsel:
P Macarounas (Plaintiff)
S Glascott (Defendant)

Solicitors:
Rickards Whiteley (Plaintiff)
McCulloch & Buggy (Defendant)

File Number(s):

2023/00213330

JUDGMENT

Introduction

1. On 9 July 2020 the plaintiff Mr Peter Willis was walking in Byng Street in the city of Orange, when he tripped on a hole in the grass verge between the footpath and the kerb. A parking sign had been installed in the grass verge many years before, but it had been removed, leaving the hole. The hole was not apparent, as grass had grown over it. Mr Willis put out his arms to break his fall. He injured his right shoulder. The defendant Orange City Council (the Council) was the local government authority in the city. It had control over and responsibility for the roadway, the footpath, and the grass verge in Byng Street.

2. By a Statement of Claim filed on 4 July 2023 Mr Willis has sued the Council in negligence seeking damages for his injuries, disabilities, loss and expenses. The Civil Liability Act2002 (NSW) (the CLA) applies to both liability and quantum. Both were in dispute. In addition, the Council raised issues under ss 43A and 45 of the CLA, which apply to public authorities such as the Council. While s 42 of the CLA was pleaded, reliance on this provision was abandoned in final submissions.

Witnesses Called for Mr Willis

Mr Peter Willis

3. Mr Willis gave evidence that he is a retired plant operator. He was born in 1948 and is presently 76 years of age. He gave the following evidence concerning his past medical history. In 2002 Mr Willis had a melanoma removed from his left arm. He went back to his GP because he could not lift his left shoulder. He was told that he had torn some ligaments in his left shoulder. He was put off work for two weeks and then went back on light duties. After about a…