Holroyd City Council v Zaiter [2014] NSWCA 109

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Holroyd City Council v Zaiter [2014] NSWCA 109 Hearing dates: 07.03.2014 Decision date: 08 April 2014 Before: Hoeben JA at [1] Emmett JA at [102] Gleeson JA at [117] Decision: Appeal dismissed. Appellant to pay the 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: TORTS - negligence - 9 year old child injured when rode bicycle into an unfenced concrete drainage channel - drainage channel and surrounding grassed slope under care and control of appellant - presence of drainage channel not obvious from adjacent cycleway - appellant aware of risk of injury to children from unfenced drainage channel - expert report of engineer admitted without objection - whether trial judge bound to accept expert opinion - extent to which precise sequence of events leading to accident needed to be foreseen - application of sections 5B and 5C of Civil Liability Act 2002 - whether child engaged in a "dangerous recreational activity" at time of injury - s5L Civil Liability Act 2002 - application of s42 Civil Liability Act 2002 - whether resources of appellant sufficient to construct fence - ambiguity of evidence - defence not made out. Legislation Cited: Civil Liability Act 2002 Cases Cited: Chapman v Hearse [1961] HCA 46;106 CLR 112 Edwards v Consolidated Broken Hill Ltd [2005] NSWSC 301 Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360 Romeo v Conservation Commission (NT) [1998] HCA 5; 192 CLR 431 Shaw v Thomas [2010] NSWCA 169 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 Category: Principal judgment Parties: Holroyd City Council - Appellant Joey Zaiter bht Michael Zaiter - Respondent Representation: Counsel: Mr RS Sheldon SC - Appellant Mr LT Grey/Ms CM Spain - Respondent Solicitors: DLA Piper Australia - Appellant Carroll & O'Dea - Respondent File Number(s): 2013/111066 Decision under appeal Date of Decision: 2013-03-14 00:00:00 Before: Kearns DCJ File Number(s): 2011/077475