Newcastle City Council v. Mason [2004] NSWCA 108

New South Wales Court of Appeal

CITATION : Newcastle City Council v. Mason [2004] NSWCA 108 HEARING DATE(S) : 29 March 2004 JUDGMENT DATE : 29 March 2004

JUDGMENT OF : Giles JA at 25; Hodgson JA at 2; McColl JA at 28 DECISION : Appeal dismissed with costs

CATCHWORDS : TORT - Negligence - Hole in footpath - Whether a hazard - Whether council knew or ought to have known of it. CASES CITED : Brodie v. Singleton Shire Council (2001) 206 CLR 512 Graham Barclay Oysters Pty. Ltd. v. Ryan (2002) 211 CLR 540 PARTIES : Newcastle City Council - appellant Craig Mason - respondent FILE NUMBER(S) : CA 40317/03 COUNSEL : Mr. P. Garling SC with Mr. J. Sheller for appellant Mr. P. Biggins for respondent SOLICITORS : Phillips Fox, Sydney for appellant Whitelaw McDonald, Kotara for respondent

LOWER COURT District Court JURISDICTION : LOWER COURT DC57/00 FILE NUMBER(S) : LOWER COURT Sidis DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40317/03 DC 57/00

GILES JA HODGSON JA McCOLL JA

Monday 29 March 2003 NEWCASTLE CITY COUNCIL V. MASON Judgment 1 HODGSON JA: On 3 April 2003 her Honour Judge Sidis ordered that there be a verdict and judgment for the respondent Craig Mason in the sum of $149,417.76 in proceedings brought by him against the appellant, the Newcastle City Council. Her Honour also made a costs order in favour of the respondent. The appellant appeals from those orders. 2 The proceedings arose out of an accident which occurred on 15 October 1997, when the respondent fell on a footpath in Union Street, The Junction. The accident was caused by the respondent's right foot going into a hole in the footpath. 3 The footpath in the area consisted of pavers located from the gutter right up to the brick wall of a building and adjoining shops, creating a paved area that appears from photographs to be about three metres wide. At a point next to the building, near where it adjoined the shops, several pavers were missing, creating a hole about forty millimetres deep and appearing from photographs to be about 400 millimetres long and to extend about 500 millimetres out from the wall. The hole was adjacent to a Telstra pit. 4 The fall occurred at between 7 and 7.30 at night, when it was just on dark and there was drizzling rain. The respondent had been walking along the front of the shops close to the building because this gave some shelter from the rain. He looked in the window of the shop close to the hole, and in fact stepped up a step at the entrance to the shop. Then he turned and walked three or four steps and fell when his foot went into the hole. He said he did not see the hole before falling into it. 5 There was evidence the hole had been in that condition since 1995, and the primary judge accepted that the defect was one of long standing. There was also evidence that the appellant had a street sweeper in the area about once a week sweeping the footpath. 6 The appellant called no evidence as to any system of inspection or program of maintenance, or as to the financial resources it had for maintenance. 7 The primary judge held that the hole was a hazard in an area heavily trafficked by pedestrians; that the respondent was taking care at a time when it was dark and raining; that there was no direct lighting over the hazard; and that the accident occurred when the respondent was moving from one position to another. She said there was evidence that the hazard was not obvious to the respondent in the circumstances where he fell. The primary judge found that the appellant was in breach of its duty of care to the respondent in failing to identify and rectify this defect. 8 In relation to damages, the primary judge noted that the respondent was in receipt of an invalid pension before the accident, then being not employed because of health problems. Further, she found the accident caused significant injury to his right knee and shoulder, the latter injury causing significant restriction of movement in his dominant arm. 9 The primary judge awarded $70,000.00 for non-economic loss, $3992.10 for out-of-pocket expenses past and future, and damages in respect of the need for domestic assistance calculated at two hours per week at $25 per hour plus twenty-four hours per year at $35 per hour, discounted by twenty per cent reflecting the possibility or probability that he would have needed some assistance in any event. 10 The appellant relies on errors alleged in the following grounds of appeal: 1. Finding that the depression in the public footpath (caused by missing pavers) was not an obvious risk to pedestrians exercising reasonable care for their safety.