Sutherland Shire Council v Kukovec & 1 Or; Elouera Surf Lifesaving Club Inc v Kukovec [2001] NSWCA 165

New South Wales Court of Appeal

CITATION : Sutherland Shire Council v Kukovec & 1 Or; Elouera Surf Lifesaving Club Inc v Kukovec [2001] NSWCA 165 FILE NUMBER(S) : CA 40610/00; 40654/00 HEARING DATE(S) : 05/06/01 JUDGMENT DATE : 5 June 2001

PARTIES : Sutherland Shire Council v Joseph Kukovec & Elouera Surf Lifesaving Club Inc; Elouera Surf Lifesaving Club Inc v Joseph Kukovec JUDGMENT OF : Meagher JA at 31,33 & 34; Hodgson JA at 32; Ipp AJA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT 4756/97 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :

M T McCulloch (Appellant CA 40610/00) COUNSEL : J D Hislop QC/M O'Brien (1st Respondent CA 40610/00 & Respondent CA 40654/00)) A Hewitt SC/E Cox (2nd Respondent CA 40610/00 & Appellant CA 40654/00) Phillips Fox (Appellant CA 40601/00) SOLICITORS : Di Lizio & Associates (1st Respondent CA 40610/00/Respondent CA 40654/00) Curwood & Partners (2nd Respondent CA 40610/00/Appellant CA 40654/00) CATCHWORDS : NEGLIGENCE - Action against council and lifesaving club for injury caused by surfboard rider - Vicarious liability of council and club for actions of lifeguards - Whether the facts show there was a breach of duty - Whether a reasonable person in the position of a lifeguard would have taken steps to guard against a foreseeable risk of injury - Facts did not disclose a foreseeable risk of injury - Negligence not proved on balance of probabilities - No negligence of lifeguards or vicarious liability of council or club. - APPEAL - Interference with trial judge's findings of fact - Findings and inferences not based on evidence. ND CASES CITED: Nagle v Rottnest Island Authority (1993) 177 CLR 423 DECISION : Ordered in CA No 40610/00: (1) Appeal allowed. (2) Judgment against appellant set aside. (3) Verdict and judgment be entered against 1st respondent in favour of the appellant. (4) Order that the 1st respondent pay the appellant's costs of the appeal and of the hearing at first instance, but to have a certificate under the Suitors Fund Act; Ordered in CA 40654/00: (1) Appeal allowed. (2) Orders below set aside. (3) Order that there be judgment for the appellant against the respondent. (4) That the respondent pay the costs of the appellant both in this appeal and at first instance, but to have a certificate under the Suitors Fund Act.