TURNBULL v. ALM & ANOR [2004] NSWCA 173

TURNBULL v. ALM & ANOR [2004] NSWCA 173

Both the occupier/landlord (Mrs Turnbull) and the City Council owed Mrs Alm a duty of care. Mrs Turnbull breached her duty by taking no action in face of a recurring hazard, despite her entitlement and ability to control and repair the footpath, and her interest in its safety. The City Council, while under no positive statutory duty to act, assumed responsibility by carrying out repairs and was obliged to do so with reasonable skill and persistence, which it failed to do. The liability should be apportioned equally (50/50) between the occupier and the Council. There was no contributory negligence by the plaintiff as her failure to see the defect was not unreasonable given the circumstances.

Jurisdiction
Australia
Judgment Date
26 August 2004
Procedural Posture
Civil Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed as against respondent, allowed so as to award contribution against Council; cross-appeal allowed; damages of $222,818.90 awarded to plaintiff against both defendants jointly with costs.
Legal Topics
["occupier's Liability" 'duty of Care' 'causation' 'standard of Care' 'contributory Negligence' 'apportionment of Liability']
['tort Law' 'negligence'] ["occupier's Liability" 'duty of Care' 'causation' 'standard of Care' 'contributory Negligence' 'apportionment of Liability']

Case Brief

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Procedural Posture

Civil Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether the occupier/landlord (Mrs Turnbull) and/or the City Council owed a duty of care to the plaintiff for injuries suffered due to a defect in the footpath.' "Whether each breached their duty and was causally responsible for the plaintiff's injury." 'Whether the plaintiff was contributorily negligent.' 'How liability should be apportioned between the land occupier and the City Council.']

Ratio Decidendi

Both the occupier/landlord (Mrs Turnbull) and the City Council owed Mrs Alm a duty of care. Mrs Turnbull breached her duty by taking no action in face of a recurring hazard, despite her entitlement and ability to control and repair the footpath, and her interest in its safety. The City Council, while under no positive statutory duty to act, assumed responsibility by carrying out repairs and was obliged to do so with reasonable skill and persistence, which it failed to do. The liability should be apportioned equally (50/50) between the occupier and the Council. There was no contributory negligence by the plaintiff as her failure to see the defect was not unreasonable given the circumstances.

Court Disposition

Appeal dismissed as against respondent, allowed so as to award contribution against Council; cross-appeal allowed; damages of $222,818.90 awarded to plaintiff against both defendants jointly with costs.

Orders

  • ['Dismiss the appeal by Gai Lynette Turnbull as against Gillian Therese Alm with costs.' 'Allow appeal to award Gai Lynette Turnbull a 50% contribution from The Council of the City of Dubbo for liability to Gillian Therese Alm.' "Order The Council of the City of Dubbo to pay the appellant's appeal costs relevant to...