Hornsby Shire Council v Catling & 2 Ors [2001] NSWCA 325

Reported Decision : (2001) 117 LGERA 145

New South Wales Court of Appeal

CITATION : Hornsby Shire Council v Catling & 2 Ors [2001] NSWCA 325 FILE NUMBER(S) : CA 40794/00 HEARING DATE(S) : 6 September 2001 JUDGMENT DATE : 18 September 2001

Hornsby Shire Council - Appellant PARTIES : Darin Catling - 1st Respondent Glen Anthony Johnson - 2nd Respondent Dirkje Hendrika Carr - 3rd Respondent JUDGMENT OF : Meagher JA at 1; Stein JA at 2; Heydon JA at 47

LOWER COURT JURISDICTION : District Court LOWER COURT DC 9273/98 FILE NUMBER(S) : LOWER COURT Hogan ADCJ JUDICIAL OFFICER :

C Bridge SC/R Gamberi - Appellant COUNSEL : M Joseph SC/G Gemmell - 1st Respondent R Stitt QC/R C Tonner - 2nd/3rd Respondents Phillips Fox - Appellant SOLICITORS : White Barnes - 1st Respondent Moray & Agnew - 2nd/3rd Respondents CATCHWORDS : TORTS - negligence - duty of care - breach of duty - causation - contributory negligence - apportionment - discount for contingencies - TORTS - negligence - whether duty of care owed by approval authority - reasonable forseeability - whether pedestrian access as well as vehicular access required to be considered - s 333 Local Government Act 1919 - D LEGISLATION CITED : Local Government Act 1919 CASES CITED: D.E.K. Investments Pty Ltd v Sutherland Shire Council (1955) LGR (NSW) 283 DECISION : 1. Appeal allowed in part. 2. Verdict and Judgment for the first respondent set aside and, in lieu thereof, enter Verdict and Judgment for the first respondent against the appellant and second and third respondents in the sum of $526,298.40 to be paid in the proportion of 80% by the appellant and 20% by the second and third respondents. His Honour's costs order of the trial is confirmed. 3. The appellant to pay the costs of the respondents of the appeal. 4. Cross-Appeal allowed in part. No order as to costs.