Council of the City of Sydney v Hunter [2014] NSWCA 449

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Council of the City of Sydney v Hunter [2014] NSWCA 449 Hearing dates: 24/11/2014 Decision date: 19 December 2014 Before: Ward JA at [1]; Emmett JA at [2]; Simpson J at [62] Decision: (1) Leave be granted to the applicant to appeal from the orders of the District Court made on 10 March 2014. (2) No later than 7 days after the date of these orders, the applicant file and serve a notice of appeal in the form contained in the application book. (3) The appeal be allowed. (4) The orders of the District Court made on 10 March 2014 be set aside and, in lieu thereof, it be ordered that there be a verdict for the defendant, the proceedings be dismissed and the plaintiff pay the defendant's costs. (5) The respondent pay the applicant's costs of the application for leave and of the appeal. (6) The respondent, if otherwise qualified, be granted a certificate under the Suitors' Fund Act 1951 (NSW). [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 - local council's duty of care to pedestrian using footpath - whether the council breached its duty of care by failing to repair tree root damage - whether the pedestrian was taking reasonable care for his safety - whether it was open to the pedestrian to pass by the footpath without treading on the tree roots