Sutherland Shire Council v Stamatakakos [2002] NSWCA 406

New South Wales Court of Appeal

CITATION : Sutherland Shire Council v Stamatakakos [2002] NSWCA 406 FILE NUMBER(S) : CA 40306/02 HEARING DATE(S) : 21 August 2002 JUDGMENT DATE : 21 August 2002

PARTIES : Sutherland Shire Council Kerry Ann Stamatakakos JUDGMENT OF : Beazley JA at 1; Heydon JA at 12; Santow JA at 17

LOWER COURT JURISDICTION : District Court LOWER COURT 5726/99 FILE NUMBER(S) : LOWER COURT Downes ADCJ JUDICIAL OFFICER :

COUNSEL : R Sheldon (A) M R Aldridge (R) SOLICITORS : Phillips Fox (A) Leitch Hasson Dent (R) CATCHWORDS : Personal injury - Trip on crack in pathway - Evidence - Sufficient probative value - Contributory negligence - Arguable error below monetary limit so as not to attract a grant of leave LEGISLATION CITED : District Court Act 1973 (NSW) CASES CITED: Brodie v Singleton Shire Council (2001) 180 ALR 145 DECISION : Leave to appeal refused with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40306/02

BEAZLEY JA HEYDON JA SANTOW JA

Wednesday, 21 August 2002 SUTHERLAND SHIRE COUNCIL v KERRY ANN STAMATAKAKOS JUDGMENT 1 BEAZLEY JA: There is before the Court an application for leave to appeal to be heard concurrently with the appeal. The proceedings in question were heard by Downes ADCJ in August 2001 and his Honour delivered judgment on 12 October 2001. The case is what is often described in the courts as a "tripping case". The opponent fell and sustained injuries when she tripped over a lipping or discontinuity in the footpath leading to a set of steps on a concrete pathway adjacent to Cronulla Beach. She sustained a significant injury to her right arm. 2 The discontinuity in the footpath was measured at 19mm and there was some grass growing in this crack at the time of the accident. His Honour found that the crack in the step had been caused by subsidence over a number of years. His Honour also found that it was at least party hidden by grass which had grown into it and that it would have involved a cost of only a few hundred dollars to have repaired the pathway. Additionally, his Honour found that the grass could have been easily and cheaply removed. 3 His Honour found that in the circumstances the claimant had failed to take reasonable care for the safety of users of the pathway because it failed to repair a dangerous condition which had existed for years. His Honour had further observed during the course of his judgment that the area in question was one which was subject to frequent maintenance by the appellant. His Honour awarded damages to the opponent in a sum just in excess of $60,000. It is for that reason that leave to appeal is required. 4 In seeking to attack his Honour's judgment, counsel for the claimant raised three essential issues. First, he said that the trial judge erred in rejecting the financial reports of the claimant and in particular the financial reports in the year in which the accident occurred. In rejecting that material, his Honour stated: "Just to put figures before me having regard to the current state of the evidence is meaningless, so irrelevant." 5 The "current state of the evidence", of course, included the evidence that it would only have cost a few hundred dollars to have repaired the pathway. If his Honour was saying that financial material is irrelevant in a case such as this he would of course be in error. I do not think, however, that that was the true basis of his Honour's ruling. The effect of his ruling was that, given the state of the evidence, given the nature of the material which was sought to be adduced by way of the general financial reports of council, that material was not sufficiently specific to meet the case at hand and, therefore, was not of sufficient probative value to require it to be admitted. Accordingly, I do not consider that this challenge has disclosed any error. 6 The second challenge to his Honour's judgment might be put briefly by saying that this case was really one covered by the decision of the High Court in Brodie v Singleton Shire Council (2001) 180 ALR 145, especially at para 160 in the joint judgment of the Court, in relation to a local authority's obligations in relation to repair, maintenance and works. In that paragraph their Honours said: "In dealing with questions of breach of duty, while there is to be taken into account as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness', a proper starting point may be the proposition that the persons using the road will themselves take ordinary care." 7 It was submitted that in this case the opponent's evidence was that had she looked, she would have been able to see the discontinuity in the pathway. The evidence of her companion supports this submission. 8 The matter was also argued on the basis that it would have been an unreasonable financial burden to inspect all the pathways in the council's area and it also would have been outside the council's financial ability to be able to repair all such cracks that it might have found if it had such a system. 9 For my part, I do not consider that on the facts of this case his Honour misapplied the principles which have been enunciated in Brodie, nor was there appropriate evidence put before his Honour which would have enabled him to make the finding which is now urged upon this Court. Accordingly, I do not think that this judgment is tainted with error of the type which would cause the Court to grant leave to appeal. 10 The third challenge which was made to the judgment was in respect of his Honour's finding of contributory negligence. His Honour found that the opponent was 10% contributorily negligent. The claimant submitted that, if there had been a breach of duty, the appropriate finding would have been 50%, given the principles enunciated in Brodie. 11 The Court is generally disinclined to interfere with a trial judge's assessment of contributory negligence. There is nothing in his Honour's finding here which would make this case appropriate for the grant of leave, and accordingly, in my opinion, the appropriate order in this case is that leave to appeal is refused. 12 HEYDON JA: Counsel for the claimant, Mr Sheldon, advanced with considerable ability numerous arguments in support of the contention that there were appellable errors in the reasons for judgment of Downes ADCJ. In my opinion, there was considerable force in the several of those arguments. However, like Beazley JA, I would refuse leave to appeal. 13 The amount in question was well below the $100,000 limit imposed by the District Court Act 1973 (NSW) on appeals as of right. There is no point in having that limit if every case involving arguable error is to attract a grant of leave, no matter how far below that level of $100,000 the amount in issue falls. The function of the limit in preserving the time and energy of the Court is to deal with appeals involving higher financial sums would not be assisted by ignoring the limit in that way. That is particularly so in cases like this where the claimant is a frequent litigant. 14 The application of the approach just referred to would be injurious to the claimant in some cases but favourable in others. In time, the effect would be neutral. The errors of the trial judge are either highly specific to the facts of the present case or are so egregious that they are unlikely to mislead any other court in the future. 15 Although the Court granted leave to file the summons out of time, the delay of which the claimant has indicated the body frequently involved in litigation, including litigation in this Court, was guilty, was a further factor pointing against the grant of leave. In addition, while it is important for this Court to consider the impact, case by case, on the High Court's abolition of the nonfeasance rule in Brodie v Singleton Shire Council, with particular reference to pedestrians, there are numerous cases which either have been heard or soon will be heard in which that function can be fulfilled. It is not necessary for leave to be granted in this particular case for it to be fulfilled. 16 For those reasons I agree with the order proposed by Beazley JA. 17 SANTOW JA: I agree with the order proposed by Beazley JA and I would concur in the observations made by Heydon JA. 18 BEAZLEY JA: The order of the Court is that leave to appeal is refused. The claimant is to pay the opponent's costs of the application for leave and any cost associated with the appeal being heard concurrently. **********