Pearson v Sutherland Shire Council [2010] NSWDC 1

New South Wales District Court

CITATION: Pearson v Sutherland Shire Council [2010] NSWDC 1

HEARING DATE(S): 9, 10, 11, 12, 26, 27 and 30 November 2009

JUDGMENT DATE: 10 February 2010

JURISDICTION: Civil

JUDGMENT OF: Levy SC DCJ

1. Verdict for the plaintiff in the sum of $836,317; DECISION: 2. Judgment for the plaintiff in the sum of $750,000; 3. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered.

CATCHWORDS: TORTS – negligence – road authority – liability of council for unsafe condition of road – stationary vehicle with ignition off, handbrake on and in gear, slid down a roadside embankment – whether death of owner of vehicle who was standing beside it was due to negligence of council – road surface incorporated a 12 per cent sloping cross-fall – failure of council to adequately respond to repeated concerns of residents regarding safety of road – whether a guardrail should have been installed before the accident – whether any fault on the part of the deceased contributed to his death – whether defendant has established defences pursuant to ss 5F, 5H, 5I, 42, 43, 43A and 45 of the Civil Liability Act 2002 – consideration of whether another council would have acted as defendant council did in the circumstances - EVIDENCE – expert evidence – need for expert reports to comply with Sch 7 cl 5(c) of Uniform Civil Procedure Rules 2005 - DAMAGES – assessment of damages for pure mental harm under the Civil Liability Act 2002 – assessment of damages under Compensation to Relatives Act 1897

Civil Liability Act 2002, ss 5B, 5C, 5D, 5F, 5H, 5I, 16, 30, 31, 32, 42, 43, 43A, 44 and 45 Compensation to Relatives Act 1897, ss 3(1) and 4 LEGISLATION CITED: District Court Act 1973, s 51 Roads Act 1993, ss 7(4), 7(5), 71, 87 and 146(d) Road Design Guidelines, s 6