Dungog Shire Council v Babbage [2004] NSWCA 160

Reported Decision : 134 LGERA 349

New South Wales Court of Appeal

CITATION : Dungog Shire Council v Babbage [2004] NSWCA 160 HEARING DATE(S) : 12, 13 February 2004 JUDGMENT DATE : 20 May 2004

JUDGMENT OF : Handley JA at 1; Santow JA at 2; Stein AJA at 88 DECISION : 1. The appeal be allowed. The cross-appeal be dismissed with costs; 2. The verdict and judgment below be set aside and verdict and judgment be entered for the defendant in the proceedings below; 3. The respondent to pay the costs of the appeal; 4. If eligible, the respondent to have a certificate under the Suitor's Fund Act.

CATCHWORDS : LIABILITY - Motorist injured when the car she was driving collided with a fallen tree on the road which was said to be in sickly condition and collapsed in a storm - Evidence that tree's stability compromised - contest as to this and as to whether obviously so - Whether vehicle which passed fallen tree and failing to stop was Council driven vehicle - Duty of care owed by the appellant to the respondent - specific or ad hoc breach by reason of failure to remove tree - no system breach in failing to have pro-active system to inspect and remove diseased trees - practicality and feasibility of such a system in the country road setting of local shire - Held Council not negligent. Brodie & Anor v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 198 ALR 100 CASES CITED : Graham Barclay Oysters Pty Ltd v Ryan (2002) 71 ALJR 183 Schiller v Mulgrave Shire Council (1972) 129 CLR 166 Timbs v Shoalhaven City Council [2004] NSWCA 81 PARTIES : DUNGOG SHIRE COUNCIL (Appellant/Cross Respondent) Erin BABBAGE (Respondent/Cross-Appellant) FILE NUMBER(S) : CA 40562/03 J D Hislop, QC/ M J McCulloch (Appellant/Cross-Respondent) COUNSEL : J P Gormly, SC/ A Scotting (Respondent/Cross-Appellant)