Connolly v Tweed Shire Council [2022] NSWDC 29

District Court New South Wales

Medium Neutral Citation: Connolly v Tweed Shire Council [2022] NSWDC 29 Hearing dates: 14 & 15 February 2022 Date of orders: 23 February 2022 Decision date: 23 February 2022 Jurisdiction: Civil Before: Priestley SC, DCJ Decision: See [87-88] Catchwords: NEGLIGENCE — Breach — Duty of care Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Plaintiff (Ronald Connolly) Defendant (Tweed Shire Council) Representation: Plaintiff self represented. Hanna Counsel for the Defendant File Number(s): 2019/00338994 Publication restriction: Unrestricted

Judgment 1. Ronald Connolly, the plaintiff, seeks damages from the defendant, Tweed Shire Council, on the basis that the defendant breached a duty of care owed to the plaintiff. The statement of claim pleads that duty of care arises from the defendant having the exclusive care and control of a jetty (also referred to at the hearing as a wharf, and the term "wharf" is adopted in these reasons) located at Tweed heads. The statement of claim at paragraph 9 sets out the particulars of negligence. There are nine particulars. In essence, the allegation is that the defendant failed to adequately repair or maintain the wharf including by failing to ensure a gangway was adequately secured to the wharf. 2. The Council denies the allegation of negligence. It is admitted that the defendant owned the wharf including a floating pontoon and gangway/walkway (also referred to at the hearing as a catwalk) and which prior to the incident the subject of the plaintiff's claim, connected the wharf to the pontoon. 3. The statement of claim was settled by counsel though at the trial the plaintiff was self represented. The Court gave leave for Mrs Noelene Connolly, the wife of the plaintiff, to assist Mr Connolly in the conduct of his own case. This included Mrs Connolly leading the evidence in chief from Mr Connolly. Mr Connolly was the only witness in his case. 4. In exchanges between Mrs Connolly and the court prior to the evidence commencing reference was made to photographs which became marked as MFI's 1 through to 12. In evidence only two of those photographs were tendered. In addition, there were a number of receipts said to be evidence of out-of-pocket expenses which became exhibits.