Coffs Harbour City Council v Backman & Ors [2001] NSWCA 202

Reported Decision : [2001] Aust Torts Reports 81-614 [2001] ACL Rep 265 NSW 64

New South Wales Court of Appeal

CITATION : Coffs Harbour City Council v Backman & Ors [2001] NSWCA 202 FILE NUMBER(S) : CA 40463/99 HEARING DATE(S) : 5 June 2001 JUDGMENT DATE : 29 June 2001

Coffs Harbour City Council (Appellant) PARTIES : Theodore Backman (1st Respondent) William David Featherstone and Margaret Featherstone (2nd Respondents) JUDGMENT OF : Handley JA at 1; Stein JA at 2; Grove AJA at 45

LOWER COURT JURISDICTION : District Court LOWER COURT DC 8/97 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

Appellant - C R C Newlinds/S P W Glascott COUNSEL : 1st Respondent - L King SC/J Neal 2nd Respondents/Cross-Appellant - A P Coleman Appellant - Phillips Fox SOLICITORS : 1st Respondent - Henry Davis York 2nd Respondents - B L Abbott & Co, Coffs Harbour CATCHWORDS : TORT - negligence - Order under s 124 of the Local Government Act 1993 to slash vegetation - liability of Council in absence of further complaint - whether danger was one the Council could have reasonably suspected to exist or known to arise - TORT - negligence - liability - duty of care owed to a trespasser - whether it was reasonably forseeable that a person would enter the land in question - D LEGISLATION CITED : Local Government Act 1993 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 CASES CITED: Brodie v Singleton Shire Council [2000] HCA 29, 31 May 2001 Hackshaw v Shaw (1984) 155 CLR 614 Phillis v Daly (1988) 15 NSWLR 65 DECISION : 1. Appeal allowed. 2. Pursuant to the undertaking given to the Court on the granting of leave to appeal, the appellant to pay the costs of the first respondent. 3. Verdict and judgment entered in the Court below against the appellant be set aside and a verdict for the appellant entered. 4. In substitution therefor, a verdict and judgment be entered for the first respondent against the second respondents in the sum of $24,000. 5. The second respondents pay the costs of the first respondent and appellant in the Court below. 6. The cross-appeal be dismissed with costs.