HRONIS v KOGARAH MUNICIPAL COUNCIL [1995] NSWCA 201

HRONIS v KOGARAH MUNICIPAL COUNCIL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, POWELL and COLE JJA

17 February 1995, 17 February 1995

[1995] NSWCA 201

Personal injury — no question of principle

Clarke JA The Court is in a position to give judgment. I will ask Cole JA to give the first judgment.

Cole JA. The appellant Peter Hronis suffered an injury on 27 August 1981. He did not commence proceedings until May 1988. The injury was said to have been suffered when Mr Hronis, accompanied by some friends, went to a park within the control of the Kogarah Municipal Council to play football. He fell and injured his elbow. The appellant's case was that he had injured it on a cut-off pipe which was embedded in the ground.

The evidence accepted by the trial judge was that the pipe was of a jagged nature and its top-most surface was about two inches in diameter and was protruding from the ground not more than approximately five millimetres. The pipe at the time was covered by grass.

Having suffered the injury, the appellant and his friends then sought to discover the cause of the injury and, apparently, they took some significant time before they found what was said to be the pipe which caused the injury.

The claim brought by the appellant was based upon the circumstance that the park was in the care and control of the respondent Council. Negligence was sought to be established in circumstances where there was no direct evidence at all as to how long this pipe had been in the ground, who had put it there, or how it had come to be there. The fact, however, that it was covered by grass and thus was not visible to the naked eye meant that it had been there for some time, although that time was indeterminate.

Absent direct evidence of how long the pipe had been there, or who put it there, the appellant was forced to rely upon the drawing of inferences in his favour to establish negligence. There was evidence before the trial judge that there had been regular weekly inspections of the park carried out by appropriate council officers.