Sutherland Shire Council v Pallister [2002] NSWCA 66

New South Wales Court of Appeal

CITATION : Sutherland Shire Council v Pallister [2002] NSWCA 66 FILE NUMBER(S) : CA 40550/2001 HEARING DATE(S) : 25 February 2002 JUDGMENT DATE : 19 March 2002

PARTIES : Sutherland Shire Council - Appellant Marie Patricia Pallister - Respondent JUDGMENT OF : Stein JA at 1; Ipp AJA at 2; Mathews AJA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT 400/98 FILE NUMBER(S) : LOWER COURT J B Phelan DCJ JUDICIAL OFFICER :

COUNSEL : P R Garling SC with R Gambi - Appellant I Wales SC - Respondent SOLICITORS : Phillips Fox - Appellant J R Lough & Associates - Respondent CATCHWORDS : NEGLIGENCE - Breach of duty - failure to repair footpath although alerted to potential danger - relevance of Council's footpath policy that only certain defects will be rectified. CASES CITED: Crimmins v Stevedoring Industry Finance Committee (1999) 67 ALR 1 at 9-10 Associated Provincial Picture Houses, Limited v Wednesbury Corporation (1948) 1 KB 223 DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40550/01

STEIN JA IPP AJA MATHEWS AJA

19 March 2002 SUTHERLAND SHIRE COUNCIL v Marie Patricia PALLISTER JUDGMENT - 1 STEIN JA: I agree with Mathews AJA 2 IPP AJA: I agree with Mathews AJA 3 MATHEWS AJA: On 7 January 1997 the respondent, Mrs Marie Pallister, sustained injuries when she fell on the appellant's footpath at Gymea. She commenced proceedings in the District Court claiming damages for her injuries which she said were sustained as a result of the Council's negligence. The Council denied negligence and asserted contributory negligence. On 30 January 2001 Judge JB Phelan of the District Court found in favour of Mrs Pallister on all issues and ordered the Council to pay damages of $144,472.95. The Council has appealed against this decision. The appeal is restricted to issues of liability and does not seek to challenge the trial judge's findings as to damages. 4 Mrs Pallister's fall took place on the western side of Gymea Road on a paved area of footpath immediately adjacent to a pedestrian crossing. It was an area of busy pedestrian traffic in the Gymea shopping centre. The footpath was paved with concrete masonry rectangular pavers which were bedded in sand. A mature London plane tree was planted about a metre inside the kerb on each side of the pedestrian traffic route adjacent to the pedestrian crossing. It was Mrs Pallister's case that the root system from these trees had caused some of the pavers to lift, with the result that the walkway area was dangerously uneven. Moreover the shadows thrown by the plane trees made it difficult for pedestrians to discern the unevenness of the pavement 5 There was clear evidence that the Council had been alerted to the potential danger of the footpath in the general area where Mrs Pallister's accident occurred. On 6 March 1996 a local resident, Mrs Purkis, wrote a letter to the Council which contained the following comments: "The other matter concerns the paving in the area between the arcade mentioned above and the crossing near Trimboli Pharmacy which is the area of another disabled parking space. The pavers are uneven and I have tripped myself let alone walking with my elderly mother who requires a walking stick and my help … I feel that anyone able or not is at risk of falling over." 6 The footpath where Mrs Pallister fell was directly outside Trimboli Pharmacy. The arcade referred to in Mrs Purkis's letter was approximately 100 metres to the south of the pharmacy. 7 Not long afterwards a Council officer inspected the area and reported it to be in good condition. On 25 March 1996 the Council wrote to Mrs Purkis in the following terms: "The paved footpath area in the Gymea Shopping Centre has been inspected and found to be in good condition. At this stage there is no work planned on this paved footpath area. Should you have any queries regarding this matter please contact the above mentioned."