Cessnock City Council v Suvaal [2001] NSWCA 428

New South Wales Court of Appeal

CITATION : Cessnock City Council v Suvaal [2001] NSWCA 428 FILE NUMBER(S) : CA 40945/00 HEARING DATE(S) : 22 October 2001 JUDGMENT DATE : 5 December 2001

PARTIES : Cessnock City Council - Appellant Anthony Peter Suvaal - Respondent JUDGMENT OF : Powell JA at 1; Giles JA at 2; Rolfe AJA at 23

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT 20668/94 FILE NUMBER(S) : LOWER COURT Master Harrison JUDICIAL OFFICER :

COUNSEL : D F Rofe QC & M J Lawler - Appellant T F Bathurst QC, D R Conti, C Mirales - Respondent SOLICITORS : Moray & Agnew - Appellant McClellands - Respondent CATCHWORDS : NEGLIGENCE - bicycle accident - claim against council because of potholes in road - whether loss of steering control because hit potholes or hit potholes because of loss of steering control - on facts, the former not established - claim fails. ND. CASES CITED: Holloway v McFeeters (1956) 94 CLR 470. DECISION : (1) Appeal allowed. (2) Set aside the verdict and judgment for the plaintiff against the second defendant and in lieu thereof verdict and judgment for the second defendant. (3) Set aside order 3 made by the Master on 10 November 2000, order 1 made by the Master on 20 November 2000 so far as it was ordered that the second defendant pay half the first defendant's costs and order 8 made by the Master on 20 November 2000 and in lieu thereof order that the plaintiff pay the second defendant's costs. (4) Respondent pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if qualified.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL