NSW Caselaw
New South Wales District Court
CITATION: Myers v Wyong Shire Council [2007] NSWDC 194
HEARING DATE(S): 27 and 28 August 2007
JUDGMENT DATE: 4 September 2007
JURISDICTION: District Court - Civil Jurisdiction
JUDGMENT OF: Johnstone DCJ at 1
DECISION: Judgment for the plaintiff for $38,193; the defendant is to pay the plaintiff's costs, on the ordinary basis up to 20 November 2006 and thereafter on an indemnity basis, except that each party is to bear their own costs of the February 2007 sittings
CATCHWORDS: Negligence - child of 5 on bicycle collided with a vehicle on a street after emerging from an unguarded pathway - common practice of children in neighbourhood - the council was aware, and its response to the risk was not reasonable having regard to the configuration of the pathway - simple and inexpensive precautions were available that would have alleviated the risk of injury
LEGISLATION CITED: Civil Liability Act 2002: s 16(3) Civil Procedure Act 2005: s 77(3)(a)
Brodie v Singleton Shire Council [2001] HCA 29 David Jones (Canberra) Pty Ltd v Stone [1970] 123 CLR 185 at 193, 196 and 201 CASES CITED: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 at [56], [64], [66], [[69], 70] and [75] Rose v Abbey Orchard Property Investments Pty Ltd (1987) Aust Torts Reports 80-121 at 68,928 Rowes Business Service Pty Limited v Cowan [1999] NSWCA 268 Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at 35] – [36]
PARTIES: Benjamin William Myers (Plaintiff) Wyong Shire Council (Defendant)
FILE NUMBER(S): 53/2004 at Gosford
COUNSEL: Mr R Foord (Plaintiff) Mr S Glascott (Defendant)
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