Hornsby Shire Council v King [2005] NSWCA 67

Hornsby Shire Council v King [2005] NSWCA 67

The Shire's proposed appeal had no prospects because the evidence supported the finding that the box drain was a non-obvious danger, that reasonable inspections should have discovered it, and that the Shire's breach caused Ms King's fall. The trial judge erred on future economic loss because, given the accepted evidence of Ms King, Dr O'Sullivan and Mr Taylor about brain injury and difficulties with memory, concentration and problem solving, findings under s 13 could have been made and a buffer was open. The Court could assess the amount itself, allowing $15,705 for continuing loss over two years and a $25,000 buffer, while rejecting the challenges to non-economic loss and past economic...

Jurisdiction
Australia
Judgment Date
21 March 2005
Procedural Posture
Personal Injury Negligence Claim Concerning Damages for Injuries From a Fall on a Road/footpath Area / Application for Leave to Appeal and Application for Leave to Cross Appeal From District Court Judgment
Outcome
The Shire's application for leave to appeal was dismissed; Ms King's application for leave to cross-appeal was granted and the cross-appeal was upheld; damages were increased subject to further submissions on superannuation loss.
Legal Topics
['future Economic Loss' 'buffer Award' 'civil Liability Act 2002 (nsw), S 13(1)' 'road Authority Duty of Care' 'non Economic Loss' 'past Economic Loss' 'superannuation Loss']
['torts' 'personal Injury' 'damages'] ['future Economic Loss' 'buffer Award' 'civil Liability Act 2002 (nsw), S 13(1)' 'road Authority Duty of Care' 'non Economic Loss' 'past Economic Loss' 'superannuation Loss']

Case Brief

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Procedural Posture

Personal Injury Negligence Claim Concerning Damages for Injuries From a Fall on a Road/footpath Area / Application for Leave to Appeal and Application for Leave to Cross Appeal From District Court Judgment

Legal Issues

  1. 1 ["Whether the Shire had prospects of success in appealing the finding that its breach of duty caused Ms King's injuries." 'Whether the trial judge erred in concluding that no award could be made for future loss of earning capacity under s 13 of the Civil Liability Act 2002 (NSW).' 'Whether a buffer should be awarded for future economic loss.' 'Whether the awards for non-economic loss, past economic loss, future out-of-pocket expenses and superannuation loss should be varied.']

Ratio Decidendi

The Shire's proposed appeal had no prospects because the evidence supported the finding that the box drain was a non-obvious danger, that reasonable inspections should have discovered it, and that the Shire's breach caused Ms King's fall. The trial judge erred on future economic loss because, given the accepted evidence of Ms King, Dr O'Sullivan and Mr Taylor about brain injury and difficulties with memory, concentration and problem solving, findings under s 13 could have been made and a buffer was open. The Court could assess the amount itself, allowing $15,705 for continuing loss over two years and a $25,000 buffer, while rejecting the challenges to non-economic loss and past economic...

Court Disposition

The Shire's application for leave to appeal was dismissed; Ms King's application for leave to cross-appeal was granted and the cross-appeal was upheld; damages were increased subject to further submissions on superannuation loss.

Orders

  • ["The Shire's application for leave to appeal is dismissed with costs." "Ms King's application for leave to cross-appeal is granted." 'The cross-appeal is upheld with costs.' 'The award of $29,738 in respect of damages is increased to the sum of $70,443, being $29,738 plus $15,705 plus $25,000.' 'Ms King be given 14...