Lake Macquarie City Council v Day [1999] NSWCA 26

New South Wales Court of Appeal CITATION : Lake Macquarie City Council v Day [1999] NSWCA 26 FILE NUMBER(S) : CA 40735 of 1997 HEARING DATE(S) : 19 February 1999 JUDGMENT DATE : 19 February 1999

PARTIES : Lake Macquarie City Council Ivy May Day JUDGMENT OF : Handley JA at 10; Powell JA at 11; Giles JA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 301 of 1996 LOWER COURT JUDICIAL OFFICER : Taylor DCJ

COUNSEL : Appellant - S G Campbell Respondent - B A Batchelor SOLICITORS : Appellant - Hunt & Hunt respondent - Armstrongs, Toronto CATCHWORDS : Negligence; highway case; degraded original road surface with different level ("step") from road surface of a trench for drainage piping; whether on probabilities step due to negligence in installing piping; on facts, just as possible that due to degradation of original road surface since piping installed; misfeasance not established. DECISION : Appeal allowed; Orders re costs and restitution made.

7 THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40735 of 1997 DC 301 of 1996

HANDLEY JA POWELL JA GILES JA

Friday 19 February 1999

LAKE MACQUARIE CITY COUNCIL v DAY

JUDGMENT

1 GILES JA: Mrs Ivy Day claimed damages from Lake Macquarie City Council in respect of injuries suffered on 12 March 1996 when she fell while crossing Pemmell Street, Toronto, within the Council's local government area. It was not in dispute that she tripped in what was called a "pothole", and the issue was whether the Council was in breach of a duty of care owed to Mrs Day. On 22 October 1997 Judge Taylor found in Mrs Day's favour, and judgment in her favour was given for $15,151.15.