Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson [2012] NSWCA 340

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson [2012] NSWCA 340 Hearing dates: 16 October 2012 Decision date: 26 October 2012 Before: Meagher JA at [1] Hoeben JA at [2] Tobias AJA at [90] Decision: (1)The appeal is allowed in part. (2)His Honour's judgment in favour of the respondent in the sum of $223,381.58 is set aside. (3)In lieu thereof, judgment is entered in favour of the respondent in the sum of $213,381.58. (4)Otherwise, the orders made by his Honour on 19 January 2012 are confirmed. (5)The appellant is to pay the respondent's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORT - negligence - visitor slipping on steps of rotunda in park - park including rotunda property of a trust - Council trustee of trust - relationship between Council and trust not explored at trial - whether s 42 Civil Liability Act 2002 applied to Council as trustee - whether Council could rely upon "principles" in s 42 without calling any evidence - application of s 5B Civil Liability Act 2002 - whether defect in steps reasonably foreseeable by Council - if so what if any was a reasonable response - admissions made by injured plaintiff - what inferences could properly be drawn from those admissions - what inferences could be properly drawn when neither party called evidence as to previous accidents or complaints - whether trial judge impermissibly used photographic evidence - whether causation established - DAMAGES - s 13 Civil Liability Act 2002 - future loss of earning capacity - whether any evidentiary basis for finding of trial judge. Legislation Cited: Civil Liability Act 2002 - ss 5B, 13, 41, 42 Crown Lands Act 1989 - s 92 Local Government Act 1993 Cases Cited: C Van der Lely NV v Bamfords Limited (1962) IA IPR 86 [1963] RPC 61 Husher v Husher [1999] HCA 47; 197 CLR 138 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009] NSWCA 263 Short v Barrett [1990] NSWCA 164 St George Bank Ltd v Commissioner of Taxation [2009] 176 FCR 242; 256 ALR 391; FCAFC 62 Category: Principal judgment Parties: Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust - Appellant Gregory Thompson - Respondent Representation: Counsel: Mr R Sheldon SC - Appellant Mr M Neil QC/Mr M Thompson - Respondent Solicitors: DLA Piper Australia - Appellant Gerard Malouf & Partners - Respondent File Number(s): 2012/43333 Decision under appeal Date of Decision: 2011-11-07 00:00:00 Before: Nicholson SC DCJ File Number(s): 2010/212559