Wollongong City Council v Williams [2021] NSWCA 140

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wollongong City Council v Williams [2021] NSWCA 140 Hearing dates: 15 June 2021 Decision date: 09 July 2021 Before: McCallum JA at [1]; Simpson AJA at [19]; Adamson J at [34] Decision: (1) The appeal be dismissed. (2) The cross-appeal be allowed. (3) The parties bring in a form of order calculating the judgment amount within 7 days. (4) The appellant pay the respondent's costs of the appeal and the cross-appeal. Catchwords: TORTS — Negligence — Appellant injured as a result of falling on the first step on a stepped path in a park — Whether the primary judge erred in finding that the appellant had breached the duty of care which it owed to the respondent — Primary judge found the respondent to be a witness of credit who maintained that he was taking care and was not distracted —Experts agreed that single steps presented a hazard — Primary judge was not in error in finding that the appellant failed to take reasonable precautions against the risk of harm and was negligent — Appeal dismissed NEGLIGENCE — Cross Appeal — Damages — Challenged findings of contributory negligence and discount of damages for past economic loss — Primary judge concluded that contributory negligence was established — Finding of contributory negligence not contradicted by the finding of liability — No want of reasonable care on the part of the respondent that might have contributed to his failure to perceive the steps — Primary judge reduced the appellant's damages for past economic loss by 10% to allow for circumstances in the respondent's circumstances that would have caused him to retire earlier — Where primary judge made no express finding on the degree of probability that the respondent would have retired before 66 — Evidence accepted by the primary judge contradicted the prospect of early retirement — The discount of 10% was inconsistent with the positive findings of the primary judge — Cross-appeal allowed Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5F, 5H, 5R, 13 Cases Cited: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6 Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 Butterfield v Forrester (1809) 103 ER 926 Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Penrith City Council v Parks [2004] NSWCA 201 Ratewave Pty Limited v Illingby [2017] NSWCA 103 Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 Category: Principal judgment Parties: Wollongong City Council (Appellant) Bernard Roy Williams (Respondent) Representation: Counsel: J Sexton SC (Appellant) R Sheldon SC / R O'Keefe / A Lim (Respondent)