Hawkesbury City Council v Ryan [2001] NSWCA 212

Reported Decision : 130 LGERA 99

New South Wales Court of Appeal

CITATION : Hawkesbury City Council v Ryan [2001] NSWCA 212 FILE NUMBER(S) : CA 40907/00 HEARING DATE(S) : 25 June 2001 JUDGMENT DATE : 5 July 2001

PARTIES : Hawkesbury City Council v Sharyn Mary Ryan JUDGMENT OF : Meagher JA at 1; Heydon JA at 2; Rolfe AJA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT DC 48/99 FILE NUMBER(S) : LOWER COURT Williams DCJ JUDICIAL OFFICER :

COUNSEL : Appellant - P. Deakin QC / P. Nolan Respondent - L. King SC / J.T. Kearney SOLICITORS : Appellant - McCabe Terrill Respondent - McPhillamy & Co CATCHWORDS : Negligence - liability of local Council - plaintiff tripped on uneven kerb - whether an issue of nonfeasance arises\whether Council not liable by reason of a delegation of duty to an independent contractor - appropriate award of damages Brodie v Singleton Shire Council [2001] HCA 29 Buckle v Bayswater Road Board (1936) 57 CLR 259 Ghantous v Hawkesbury City Council [2001] HCA 29 CASES CITED: Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357 Jones v Dunkel (1959) 101 CLR 298 Lake Macquarie City Council v Bottomley (CA 40098/98 3 March 1999, unreported) Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 DECISION : Appeal allowed in part - see par 91

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40907/00 DC 48/99 (Bathurst)

MEAGHER JA HEYDON JA ROLFE AJA

Thursday, 5 July 2001

HAWKESBURY CITY COUNCIL v RYAN

NEGLIGENCE - liability of local council - plaintiff tripped on uneven kerb - whether an issue of nonfeasance arises - whether Council not liable by reason of a delegation of duty to an independent contractor - appropriate award of damages. The respondent had commenced proceedings in negligence against the appellant Council following an incident in which she tripped on the edge of a footpath while getting into her car. An "Engineering Export Report" prepared on behalf of the plaintiff showed that the edge of the kerb was 22 millimetres higher than the footpath. The respondent suffered serious soft tissue injuries to her ankle, which aggravated a pre-existing back condition. The appellant argued that it had fulfilled its duty by employing an independent contractor to repair the footpath. The trial judge found for the respondent, awarding her $189,168. The appellant appealed against the finding that it owed a duty of care to the respondent, that it had breached that duty. The appellant claimed that the trial judge erred in failing to find it not liable to the respondent by reason of nonfeasance. The appellant also challenged the award of damages. HELD (per Rolfe AJA, Meagher JA and Heydon JA agreeing): (1) Whether the uneven level of the kerb existed when the pavement was installed, or was caused by a subsequent subsidence on an inadequate base, there was misfeasance on the part of the Council. (2) Once the respondent had established that the appellant was negligent in one of these two ways, an evidentiary onus fell on the appellant to rebut this case, and it made no attempt to do so. (3) In particular, the appellant did not establish that it had delegated this work to a person who it reasonably believed was competent to perform it. This was a matter which was peculiarly within the knowledge of the appellant, and a failure to provide evidence on this matter may give rise to a Jones v Dunkel (1959) 101 CLR 298 submission. (4) An argument based on nonfeasance could not be made out since it was agreed by the parties that the pavement had been laid only four or five years before the respondent's accident. For this reason, this case is unaffected by the decision in Brodie v Singleton Shire Council [2001] HCA 29. (5) This case was distinguishable from Ghantous v Hawkesbury City Council. In Ghantous, there was no evidence that the concrete footpath was not constructed properly, the height differential was much less, and the disparity between the concrete footpath and the earthen verge was not concealed. Further, the respondent in this case was keeping a proper lookout. (6) The award of $65,000 for general damages was so high as to be beyond the proper exercise of judicial discretion, and a sum of $45,000 should be substituted. (7) Given the respondent's work history and obvious desire to continue working, the appellant has not demonstrated a miscarriage of discretion in relation to the award for loss of earning capacity. (8) Nor was the award for domestic help inappropriate given the respondent's life expectancy. ORDERS