New South Wales Court of Appeal CITATION : Ken Tagg Family Restaurant v Peter Gilroy [1999] NSWCA 434 FILE NUMBER(S) : CA 40127/99 HEARING DATE(S) : Monday 22 November 1999 JUDGMENT DATE : 22 November 1999 PARTIES : Appellant: Ken Tagg Family Restaurants Respondent: Peter Gilroy JUDGMENT OF : Meagher JA at 1; Handley JA at 7; Hodgson CJinEq at 8 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 4723/97 LOWER COURT JUDICIAL OFFICER : Phelan J COUNSEL : Appellant: I Harrison SC Respondent: F McAlary QC / P Mansfield SOLICITORS : Appellant: Riley Gray- Spencer, Sydney. Respondent:Marsdens, Sydney. CATCHWORDS : Personal Injury; Extent of duty of care; Failure to maintain safe environment; Causation DECISION : 1. Leave to appeal granted; 2. Appeal allowed; 3.Judgment below set aside; 4.In lieu thereof enter judgment for the defendant appellant THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40127/99 MEAGHER JA HANDLEY JA HODGSON CJ in Eq MONDAY 22 NOVEMBER 1999 KEN TAGG ESTAURANT PTY LTD v PETER GILROY JUDGMENT 1 MEAGHER JA: The Court is now in a position to give judgment. The plaintiff, Mr Gilroy, was injured when he fell off a seat in a bus shelter at Campbelltown on 7 April 1996. That date, it is important to note, was a Sunday. He received a verdict against the defendant appellant at the hands of Phelan J in the District Court in the sum of $3,834. The defendant now appeals. The liability of the defendant arose from the fact that it had a contractual duty with Campbelltown County Council to maintain and clean the bus shelters. Pursuant to that duty it sent an employee to clean and repair the bus shelters once a week. His Honour held and has not been challenged, that once a week was a sufficient amount of time. 2 In the present case it is clear that the seat on the bus shelter which collapsed had been vandalised. That is not contested by any party. His Honour also held that the system adopted by the employer was inadequate in that the employee spent most of his time cleaning the bus shelters and very little time repairing them. His last visit to this particular bus shelter seems to have been on Tuesday or Wednesday 2 or 3 April, some days before the accident. It was difficult to quantify the damages suffered by the plaintiff. This is because of the plaintiff's other disabilities existing at the time of the accident. However his Honour did say and I can see no reason why his Honour's judgment in this respect could be challenged. 3 That leaves the main problem which is posed by the appeal and that is a question of causation. Even if a perfect system of cleaning and repair were in operation when the employee made his weekly visit, would that have made a difference. It seems to me there is no reason supposed that the vandalism of the seat took place before the employee's last visitation. Equally there is no reason supposed that took place after that visitation. One simply does not know and cannot infer when it took place and to endeavour to fix a date would be to indulge in conjecture. In this case I cannot see how one can conclude that the inefficient mode of inspection found by his Honour caused the plaintiff's injuries and if this be true, I cannot see how the plaintiff is entitled to a verdict. 4 Mr McAlary, senior counsel for the plaintiff respondent, submitted to us that this was really a res ipsa loquitur case. In my view it is not. If one knows nothing more than that the plaintiff fell off a seat in a bus shelter, that does not bespeak negligence necessarily. It would be either negligence or the intervention of some third party by way of vandalism. In my view therefore the initial submission of Mr McAlary that the onus shifted from the plaintiff to the defendant really lacks foundation. 5 In these circumstances I would propose that the following orders be made. 1. Leave to appeal granted. 2. Appeal allowed. 3. Judgment below set aside. 4. In lieu thereof enter judgment for the defendant appellant. 5. As to costs, the respondent plaintiff should pay the appellant's costs in the action below and also in this appeal but to have a certificate under the Suitors Fund Act. 6 My brother Handley reminds me Mr Harrison you will have to give us an undertaking to file a notice of appeal and pay whatever penalties you have to pay to the registry. 7 HANDLEY JA: I agree. 8 HODGSON CJ IN EQ: I also agree. 9 MEAGHER JA: The orders of the Court therefore are the orders which I have announced. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.