Angel v Hawkesbury City Council [2008] NSWCA 130

New South Wales Court of Appeal

CITATION: Angel v Hawkesbury City Council [2008] NSWCA 130

HEARING DATE(S): 29 February 2008

JUDGMENT DATE: 25 June 2008

JUDGMENT OF: Spigelman CJ at 1; Beazley JA at 2; Giles JA at 145; Tobias JA at 2; Campbell JA at 146

(a) Dismiss the Ordinary Summons for Leave to Appeal filed on behalf of the appellant on 30 May 2007. (b) The respondent to pay the costs of that Summons except those costs relating to the preparation of the Summons itself including any affidavits filed and relating to the application for an extension of time, which costs are to be paid by the appellant. (c) Extend the time within which the appellant may file a Notice of Appeal with Appointment up to and including 25 September 2007. DECISION: (d) The appellant to pay the costs of the Notice of Motion for an extension of time filed on 24 September 2007. (e) Appeal allowed and Cross-Appeal dismissed. (f) Set aside the orders made by his Honour Judge Sorby on 28 November 2006 and in lieu thereof there be a verdict and judgment for the appellant in the sum of $165,178.20 to date from 28 November 2006. (g) The respondent to pay the appellant's costs of the trial before Judge Sorby, the appeal and the Cross-Appeal. (h) Liberty to the appellant to apply within 7 days of the date of these orders to vary the amount of the verdict referred to in order (f) above in the event that it does not accurately reflect the amount of damages determined by the primary judge.

CATCHWORDS: NEGLIGENCE – Civil Liability Act 2002 – Duty of care – Pedestrian – Footpath under management of Council defective – Actual knowledge of risk of harm – Whether defect constituted an 'obvious risk' to reasonable person in position of appellant – Defect obscured by shadows – Relation between obviousness of risk and breach of duty – Whether appellant took reasonable care for own safety - EVIDENCE – Interpretation of photographs – Lay opinion - DAMAGES – Future gratuitous attendant care services – Whether need for care arose solely because of injury – Construction of 'solely' in s 15(2).