PENRITH CITY COUNCIL v TATE [1998] NSWCA 171

PENRITH CITY COUNCIL v TATE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, COLE and STEIN JJA 27 April 1998, 27 April 1998

[1998] NSWCA 171

COUNCIL held negligent at first instance — trial judge's finding of fact not able to be challenged on appeal — causal relationship as it related to economic loss was established at trial — the finding of future economic loss was open to the trial judge.

Cole JA The trial judge found that on 18 August 1994 the respondent whilst stepping from fire escape stairs which he had been invited to use as a means of egress whilst repairing locks in the Council Chambers, stepped from the stairs onto an adjacent turfed area and stepped into a recess in the turf, which recess was about "12 inches by 12 inches in size and about an inch to half an inch in depth". The turf had been left at about four inches in length the indent was not visible. Mr Tate suffered injury to his ankle when it fumed on that concealed indent. The trial judge found that the concealed danger created a risk of injury to persons using the stairway which was neither far fetched nor fanciful. The indentation could easily have been removed by placing a shovel full of soil in it. Accordingly the council was negligent.

In my view these findings of fact are not able to be challenged on appeal. Alternative views of the facts were available but were not found by the trial judge. It was plainly open to the trial judge to find that a concealed indentation at the foot of fire stairs constituted a danger which ought to have been detected and removed. The area at the foot of the fire stairs had been inspected but the concealed danger was not detected.

Notwithstanding a ground of appeal challenging the trial judge's rejection of contributory negligence, no submissions in support of that challenge were advanced.