Nambucca Shire Council v Connor [2004] NSWCA 13

New South Wales Court of Appeal

CITATION : Nambucca Shire Council v Connor [2004] NSWCA 13 revised - 12/02/2004 HEARING DATE(S) : 3 February 2004 JUDGMENT DATE : 4 February 2004

JUDGMENT OF : Handley JA at 1; Beazley JA at 2; Tobias JA at 3 DECISION : a) Appeal allowed; b) Verdict, judgment and orders made by Coolahan DCJ on 14 February 2003 set aside and in lieu thereof enter judgment for the appellant with costs; c) Order that the respondent pay the appellant's costs of the appeal but to have in respect thereof a certificate under the Suitors' Fund Act 1951

CATCHWORDS : NEGLIGENCE - respondent tripped on nail protruding from boardwalk while walking - Primary judge found appellant negligent for failing to warn - Insufficient evidence of causal connection between breach of duty and damage suffered - Findings of breach set aside due to lack of consideration of causation - PROCEDURAL FAIRNESS - particularised grounds of liability not raised during proceedings - Ability of trial judge to find for party regarding assertion of negligence which did not form part of conducted case - Need to look at proceedings to determine if it was open to decide case on particular basis of liablity - Denial of procedural fairness to decide case upon basis of liability which was foreign to manner in which proceedings were conducted - Primary judge erred by deciding case solely upon issue not pursued by the respondent LEGISLATION CITED : Suitors' Fund Act 1951 Chappel v Hart (1998) 195 CLR 232 CASES CITED : Commonwealth Securities Ltd v South Pacific Securities Pty Ltd [2003] NSWCA 199 Whisprun Pty Ltd v Dickson (2003) 200 ALR 447 PARTIES : Nambucca Shire Council Thora Sue Connor FILE NUMBER(S) : CA 40170/03 COUNSEL : A: D Campbell SC / T Meakes R: Not applicable SOLICITORS : A: Phillips Fox R: Finlaysons (Nambucca Heads)