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. In December 1994, three months after the accident, Mr Tate moved with his family to Tamworth. The trial judge found that he did so for two reasons, one associated with family problems and the other "because he was having physical problems in doing his job as a locksmith, which involved standing and bending and lifting and carrying, all of which put stress on his ankle".! There was evidence to support that finding. Thus there was found a causal connection between the injury and the move to Tamworth. As a result of the move to Tamworth Mr Tate suffered economic loss as he could not earn as much in Tamworth as he could as a locksmith in Sydney. As there was a finding of a causal relationship between the move to Tamworth and the injury, I would reject the appellant's challenge to the finding of an entitlement to economic loss after 9 December 1994. There was a challenge to the trial judge's finding allowing $35,292 for future economic loss being "a cushion at the rate of $40 per week over 30 years". The appellant had contended that the loss, if any were to be allowed, should be calculated at the rate of $23.10 per week and for a lesser 1. Appeal Book, p208-p209. 2 UNREPORTED JUDGMENTS period of 22 years. Awarding $40 per week by way of cushion was plainly open to the trial judge and no ground has been shown for disturbing his finding of allowing a cushion for 30 years. In my view the appeal should be dismissed with costs. Priestley JA I agree. Stein JA I also agree. Priestley JA The Court's order therefore is that the appeal is dismissed with 19 costs. Appeal dismissed with costs. Counsel for the appellant: D B McGovern 15 Solicitors for the appellant: Phillips Fox Counsel for the respondent: A Leslie QC/C Locke Solicitor for the respondent: David Velleley