Wagga Wagga City Council v Mark Sutton [2000] NSWCA 34

New South Wales Court of Appeal

CITATION : Wagga Wagga City Council v Mark Sutton [2000] NSWCA 34 FILE NUMBER(S) : CA 40555/98 HEARING DATE(S) : 25th February 2000 JUDGMENT DATE : 10 March 2000

PARTIES : Appellant- Wagga Wagga City Council Repondent-Mark anthony Sutton JUDGMENT OF : Meagher JA at 1; Handley JA at 12; Sheller JA at 13

LOWER COURT JURISDICTION : District Court LOWER COURT 100/97 Wagga Wagga FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

COUNSEL : Appellant- L King SC Repondent- BMJ Toomey QC, D O'Dowd SOLICITORS : Appellant- Phillips Fox respondent- Walsh & Blair CATCHWORDS : Negligence - Council in maintaing public playing field - personal injury - whether evidence as to injury true or fabricated - whether quantum of damages awarded excessive DECISION : Dismissed with costs

WAGGA WAGGA CITY COUNCIL V Mark Anthony SUTTON

NEGLIGENCE-COUNCIL IN MAINTAINING PUBLIC PLAYING FIELD-PERSONAL INJURY-WHETHER EVIDENCE AS TO INJURY TRUE OR FABRICATED-WHETHER QUANTUM OF DAMAGES AWARDED EXCESSIVE

Facts: Mr Sutton was injured on a public playing field. During a football match his right foot landed in a hole in the ground, causing a fracture dislocation to his right ankle. At the trial Mr Sutton was awarded $158, 232.60 damages, which included $70,000 in general damages and $80,000 for reduced earning capacity. The Council appeals.

Held: per Meagher JA (Handley JA and Sheller JA agreeing) It was in dispute whether the injury sustained was true or fabricated, and whether there were in fact any holes in the playing field. There was evidence to support the plaintiff's claims on both issues, and the trial judge was entitled to find the claims had been made out. Hence, His Honour's findings were unassailable. The quantum of damages awarded was within the range of sound discretionary judgment and should not be disturbed. ORDERS 1. Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL