Leichhardt Council v Serratore [2005] NSWCA 406

New South Wales Court of Appeal

CITATION: Leichhardt Council v Serratore [2005] NSWCA 406

HEARING DATE(S): 17 November 2005

JUDGMENT DATE: 24 November 2005

JUDGMENT OF: Giles JA at 1; Hodgson JA at 49; Ipp JA at 50

DECISION: Refer para 48.

CATCHWORDS: Negligence - trip hazard - whether Council had actual knowledge of risk - whether reasonable response was to do nothing - back and elbow injury - whether percentage of a most extreme case excessive - whether adequate reasons for findings of economic loss - turns on facts - ND.

LEGISLATION CITED: Civil Liability Act 2002

Dell v Dalton (1991) 23 NSWLR 528; Giorginis v Kastrali (1988) 48 SASR 371 CASES CITED: Trajkovski v Ken's Painting & Decorating Services Pty Ltd [2002] NSWSC 568; Wyong Shire Council v Shirt (1980) 146 CLR 40;

Leichhardt Council - Appellant PARTIES: Rosy Serratore - Respondent

FILE NUMBER(S): CA 41172/04

R Sheldon - Appellant COUNSEL: L King SC & P Regattieri - Respondent

Phillips Fox - Appellant SOLICITORS: Doherty Partners - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 24/03

LOWER COURT JUDICIAL OFFICER: Balla DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41172/04 DC 24/03

GILES JA HODGSON JA IPP JA THURSDAY, 24 NOVEMBER 2005 LEICHHARDT COUNCIL v SERRATORE Judgment 1 GILES JA: The respondent was injured when she fell on the footpath in Norton Street, Leichhardt, adjacent to the Italian Forum shopping complex. The appellant had the care and control of the footpath. 2 The Italian Forum had been recently completed, the work including marble paving of the footpath out to the kerb and blocks of sandstone forming the kerb. It was found that the respondent fell when her right foot caught on the end of the new sandstone block abutting the existing footpath, the sandstone standing proud of the old and sunken sandstone kerb of the existing footpath. It was held that the appellant was liable in negligence to the respondent, and her damages were assessed at $140,996.22. The respondent had served an offer of compromise, which was not accepted and which this bettered, and the appellant was ordered to pay her costs on a solicitor/client basis. 3 The appellant appealed on liability, quantum and costs.