New South Wales Court of Appeal CITATION : Woollahra Municipal Council v Juric [2004] NSWCA 101 revised - 1/04/2004 HEARING DATE(S) : 22 March 2004 JUDGMENT DATE : 22 March 2004 JUDGMENT OF : Sheller JA at 1; Giles JA at 15; McColl JA at 2 DECISION : Application for leave to appeal refused with costs. CATCHWORDS : NEGLIGENCE - PRACTICE AND PROCEDURE - personal injury - leave to appeal refused - trial judge examined the facts surrounding the opponent's fall and correctly applied the law to conclude that the claimant had owed a duty to the opponent in the circumstances. (D) CASES CITED : Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512 PARTIES : Woollahra Municipal Council (Claimant) Emma Juric (Opponent) FILE NUMBER(S) : CA 40791/03 COUNSEL : J. E. Maconachie QC/S.P.W. Glascott (Claimant) C.A. Evatt/J.C. Henness (Opponent) SOLICITORS : Phillips Fox (Claimant) Andrew Fegent & Co (Opponent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 7608/02 FILE NUMBER(S) : LOWER COURT Gamble ADCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40791/03 DC 7608/02 SHELLER JA GILES JA McCOLL JA Monday, 22 March 2004 WOOLLAHRA MUNICIPAL COUNCIL v Emma JURIC Judgment 1 SHELLER JA: I will ask McColl JA to give the first judgment. 2 McCOLL JA: This is an application for leave to appeal from the judgment of Gamble ADCJ of August 2003 in which her Honour found in favour of the opponent in a claim for damages in respect of injury she sustained when she fell in Bathurst Street, Woollahra on 2 March 2000. 3 Mr Maconachie QC, who appeared on behalf of the claimant, submits that leave should be granted because her Honour applied the wrong principle and alternatively, because her Honour's judgment was clearly erroneous. 4 In respect of the first proposition, Mr Maconachie argued that her Honour had reasoned incorrectly by approaching the case on the basis that if the opponent had been taking reasonable care for her own safety and fell in Bathurst Street, Woollahra then the Council had failed to discharge its duty. 5 In my opinion, her Honour in a carefully reasoned judgment, examined both the facts surrounding the opponent's fall and the law relating it to the circumstances in which a duty of care might be imposed upon the claimant in the circumstances of her fall and correctly concluded that the claimant had owed a duty to the opponent in the circumstances where, to use the words of the joint judgment of Gaudron J, McHugh J and Gummow J in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512 at 581 [163]: "Danger may not readily be perceived because of inadequate lighting or the nature of the danger or the surrounding area and in the circumstances there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a 'trap'." 6 In my view, her Honour's judgment reveals that she approached the first issue of law she had to determine correctly by looking at all the circumstances and finding a duty imposed upon the claimant in those circumstances. 7 Mr Maconachie next submitted that her Honour had erred because she had not considered the question of whether the Council should have done nothing. Her Honour had found (at p 22) that, "The risk to pedestrians such as the opponent could have been avoided by the adoption of a reasonably cheap and convenient system of inspection and repair". 8 Her Honour considered the evidence which counsel had put forward from a Mr Gray concerning his responsibility in relation to trees and the like and also in the passage in her judgment to which I have referred, referred to the way in which the Council had presented its evidence. 9 Before reaching the conclusion to which I have just referred, she concluded that it was not unreasonable in all the circumstances to expect the Council to provide for such occasions. 10 Mr Maconachie conceded, in exchanges with the Bench, that if those passages of her Honour's judgment could be interpreted as indicating that she had addressed her mind to whether the Council should do something and concluded adversely to the plaintiff, he must fail on that second point. In my opinion, those passages in her Honour's judgment can be read in that way. 11 I would refuse the application for leave to appeal with costs. 12 SHELLER JA: I agree. In my opinion the suggestion that her Honour simply went from a finding that the plaintiff had taken care for her own safety to a finding that the Council was negligent is not a fair reading of the reasons for judgment. 13 Similarly, the suggestion that her Honour had not addressed the question of the nature of the duty of the Council and whether there had been a breach of it involves a misunderstanding of the reasons for judgment. 14 So, for the reasons that have been given, I would agree that the application for leave should be refused, with costs. 15 GILES JA: I agree with those proposed orders, for both sets of reasons previously given. 16 SHELLER JA: The order of the Court is, the application is refused with costs. ********** Last Modified: 04/05/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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