Randwick City Council v Muzic [2006] NSWCA 66

New South Wales Court of Appeal

CITATION: Randwick City Council v Muzic [2006] NSWCA 66

HEARING DATE(S): 28 September 2005

JUDGMENT DATE: 6 April 2006

JUDGMENT OF: Handley JA at [1]; Ipp JA at [2]; Hunt AJA at [3]

DECISION: (1) The appeal against liability is dismissed. ; (2) Leave is granted to the respondent to file her cross-appeal against the judge's finding that she was guilty of contributory negligence.; (3) The cross-appeal is allowed.; (4) The appeal against the damages awarded is allowed. ; (5) The appellant is to pay the respondent the sum of $164,187.; (6) This judgment, as to the sum of $124,187, is to take effect as from the date of the judgment in the District Court and, as to the balance of $40,000, it is to take effect as from the date of this judgment.; (7) The appellant is to pay the respondent's costs of the trial.; (8) The appellant is to pay 60% of the respondent's costs of the appeal.

CATCHWORDS: Algae on concrete promenades giving access to council pool over many years because of council's inability to remove it — notice of frequent accidents, some serious — advice given to undertake remedial work — council decides to do nothing. - Presence of algae obvious — risk of serious injury from slipping on it not necessarily obvious — discharge of duty of care to persons invited to use promenades as access to pool required closure of promenades until remedial work completed — appeal against finding of liability dismissed — volenti not fit injuria defence fails — judge finds that plaintiff had not failed to take reasonable care for her own safety, but finds 15% contributory negligence — cross-appeal against contribution allowed. - Plaintiff had relevant pre-existing ailments — judge finds post-accident condition caused solely by accident — appeal against non-economic loss allowed — judge awards future gratuitous attendant care services on the same basis — appeal against award allowed.