Howarth v Tweed Shire Council [2008] NSWSC 901

New South Wales Supreme Court

CITATION : Howarth v Tweed Shire Council [2008] NSWSC 901

HEARING DATE(S) : 26 August 2008

JUDGMENT DATE : 26 August 2008

JUDGMENT OF : Smart AJ

DECISION : See paragraphs 18-20

CATCHWORDS : Child 2 years 4 months sues Council for damages for negligence - unfenced subdivisional area in which there was a pool of water at back of residential lots - child in the care of and in the charge of the father - child slips away and nearly drowns - no arguable duty of care on father in circumstances - duty depends on circumstances not blood relationship - leave to Council to add father as a cross-defendant out of time refused. Separate trial of issues of liability and causation and damages.

LEGISLATION CITED : Local Government Act 1993 Civil Liability Act 2002

St. Marks Orthodox Coptic College v Abraham 2007 NSWCA 185 CASES CITED : Hahn v Conley 126CLR 276 McCallion v Dodd 1966 NZLR 710

PARTIES : Carly Eden Howarth by her tutor Trent Howarth Tweed Shire Council

FILE NUMBER(S) : SC 20231/2007

COUNSEL : Mr D Baran (P) Mr S Glascott (D)

SOLICITORS : Attwood Marshall (P) DLA Phillips Fox (D)

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SMART AJ

TUESDAY 26 AUGUST 2008

20231/07

CARLY EDEN HOWARTH BY HER TUTOR TRENT HOWARTH v TWEED SHIRE COUNCIL

PROGRESSIVE LIST

JUDGMENT

1. Carly Eden Howarth by her tutor has sued Tweed Shire Council for damages for negligence arising out of an accident on 30 March 1998 in which she suffered injuries. On that day she was taken by her father to premises which were under construction at Cabarita. Her grandfather was also with them. Her father and grandfather were laying turf. She was two years, four months old. 2. The statement of claim alleges that a subdivision was approved and then registered. It continues: "5. A pond was created in the subdivision of works as a drainage reserve, being lot 155 of deposited plan 836305, and the subdivision development was completed during late 1993."