Evans Shire Council v Richardson [2005] NSWCA 416

New South Wales Court of Appeal

CITATION: Evans Shire Council v Richardson [2005] NSWCA 416

HEARING DATE(S): 9 November 2005

JUDGMENT DATE: 30 November 2005

JUDGMENT OF: Giles JA at 1; Ipp JA at 2; Tobias JA at 3

DECISION: (a) Extend the time for the filing of the Ordinary Summons for Leave to Appeal to 30 May 2005; (b) Grant the claimant leave to appeal subject to it filing and serving its Notice of Appeal within seven days of the date of these orders; (c) Appeal allowed; (d) Set aside the verdict and judgment in favour of the opponent of Acting Judge Murray made on 19 November 2004 and in lieu thereof order that there be a verdict and judgment for the claimant; (e) The opponent to pay the costs of the proceedings before Acting Judge Murray and of the summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified

CATCHWORDS: TORTS – Negligence – Duty of care – Where plaintiff tripped over mound of dirt – Where mound located on non-dedicated Crown road – Whether Council owed duty of care to plaintiff – Whether Council exercised de facto control over road – Whether evidence that Council had maintained road

Evidence Act 1995 LEGISLATION CITED: Suitors' Fund Act 1951 Supreme Court Rules 1970

CASES CITED: Thompson v Woolworths (Q'land) Pty Ltd (2005) 79 ALJR 904

Evans Shire Council PARTIES: Norman Boyd Richardson (deceased)

FILE NUMBER(S): CA 40445/05

A: J E Marshall SC / J Thornton COUNSEL: R: H N Kelly SC / T McKenzie

A: Phillips Fox, Sydney SOLICITORS: R: King Cain Solicitors, Bathurst

LOWER COURT JURISDICTION: District Court