Burwood Council v Byrnes [2002] NSWCA 343

New South Wales Court of Appeal

CITATION : Burwood Council v Byrnes [2002] NSWCA 343 FILE NUMBER(S) : CA 40944/01 HEARING DATE(S) : 5 August 2002 JUDGMENT DATE : 4 November 2002

PARTIES : Burwood Council v Lorraine Byrnes JUDGMENT OF : Handley JA at 1; Beazley JA at 41; Hodgson JA at 42

LOWER COURT JURISDICTION : District Court LOWER COURT DC 132/00 FILE NUMBER(S) : LOWER COURT Dent DCJ JUDICIAL OFFICER :

COUNSEL : Appellant - M J Joseph QC/R Gambi Respondent - M Perry SOLICITORS : Appellant - Phillips Fox Sydney Respondent - Voros Lawyers Burwood CATCHWORDS : NEGLIGENCE - HIGHWAY RULE - DUTY OF CARE TO PEDESTRIAN Ghantous v Hawkesbury City Council (2001) 206 CLR 512 CASES CITED: Hawkesbury City Council v Ryan [2001] NSW CA 212 Parramatta City Council v Watkins [2001] NSW CA 364 Lombardi v Holroyd City Council [2002] NSW CA 252 DECISION : Leave to appeal granted on terms. Appeal allowed. Orders made

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40944/01 DC 132/00 HANDLEY JA BEAZLEY JA HODGSON JA

4 November 2002 BURWOOD COUNCIL v LORRAINE BYRNES

NEGLIGENCE - HighWAY RULE - duty of care TO PEDESTRIAN

The plaintiff tripped over a concrete paver on a Council footpath and fell heavily. One paver had sunk more than others, resulting in a height difference of 20 mm. The trial Judge found that the condition was discoverable on reasonable inspection and that the defendant Council had been negligent but also found contributory negligence and reduced the plaintiff's damages.