Shellharbour City Council v Rhiannon Rigby & Anor [2006] NSWCA 308

Reported Decision : 150 LGERA 11 (2006) Aust Torts Reports 81-864

New South Wales Court of Appeal

CITATION: Shellharbour City Council v Rhiannon Rigby & Anor [2006] NSWCA 308

HEARING DATE(S): 10, 11 & 12 May 2006

JUDGMENT DATE: 27 November 2006

JUDGMENT OF: Beazley JA at 1; Ipp JA at 293; Basten JA at 294

DECISION: 1. Appeal and cross-appeal allowed in part; 2. Vary the award of damages by deducting the amount of $101,684; 3. Verdict for the first respondent/plaintiff in the sum of $1,745,852.70 and judgment accordingly; 4. The appellant and second respondent/cross-appellant are to pay the first respondent/plaintiff's costs of the appeal and cross-appeal; 5. The appellant and second respondent/cross-appellant are to pay their own costs of the appeal and cross-appeal insofar as it relates to the issue of contribution.

CATCHWORDS: DUTY OF CARE – occupier's liability – statutory authority as occupier – control over land an important factor in determining duty – liability dependent on content of duty in particular case – duty not extinguished or restricted by obviousness of risk - BREACH OF DUTY – duty to avoid injury to inexperienced riders – whether breach of duty by failing to fence off an area of the BMX track particularly likely to cause injury - OBVIOUS RISK – relevant to breach of duty of care – not determinative of breach – whether obvious risks of BMX riding undertaken by inexperienced riders – whether occupier entitled to expect reasonable care of young entrants - CAUSATION – common sense reasoning – inferential reasoning sufficient in absence of precise evidence - CONTRIBUTORY NEGLIGENCE – comparison of culpability required - JUDGMENT – adequacy of reasons – whether basic requirements of a statement of reasons were met by the trial judge - JUDGMENT – acceptance and weight of evidence, and findings of credit, are matters for the trial judge unless error established – preference of trial judge for particular witness – whether any error established - DAMAGES – whether award outside discretionary range – whether Griffiths v Kerkemeyer damages can be awarded for care of plaintiff's child – whether award for costs of fund management to be reduced by contributory negligence