Leichhardt Council v Serratore [2005] NSWCA 406

Leichhardt Council v Serratore [2005] NSWCA 406

The appeal failed on liability because the trial judge's finding that the respondent tripped on the proud sandstone block was open on the evidence, the danger required rectification in light of crowded pedestrian conditions, and actual knowledge under s 45 could be inferred from the Council's inspection and acceptance of responsibility for the footpath. The appeal succeeded on damages because non-economic loss at 25 per cent of a most extreme case was excessive and the reasons for past and future economic loss did not adequately explain the $454 pre-injury earnings figure, residual earning capacity, or the use of $150 net per week for 10 years. The challenge to the offer of compromise...

Jurisdiction
Australia
Judgment Date
24 November 2005
Procedural Posture
Civil Appeal in Negligence Personal Injury Proceedings From the District Court / Court of Appeal; Final Dispositive Orders Deferred Pending Possible Agreement on Damages
Outcome
Appeal succeeded as to damages and failed as to liability and costs, but final orders disposing of the appeal were not made at this time.
Legal Topics
['trip Hazard on Footpath' 'road Authority Actual Knowledge' 'civil Liability Act 2002 S 45' 'non Economic Loss Assessment' 'past and Future Economic Loss' 'adequacy of Reasons' 'offer of Compromise Costs']
['negligence' 'personal Injury Damages' 'civil Procedure' 'costs'] ['trip Hazard on Footpath' 'road Authority Actual Knowledge' 'civil Liability Act 2002 S 45' 'non Economic Loss Assessment' 'past and Future Economic Loss' 'adequacy of Reasons' 'offer of Compromise Costs']

Case Brief

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Procedural Posture

Civil Appeal in Negligence Personal Injury Proceedings From the District Court / Court of Appeal; Final Dispositive Orders Deferred Pending Possible Agreement on Damages

Legal Issues

  1. 1 ['Whether the respondent fell because her foot caught on the end of the sandstone block at the kerb.' 'Whether the appellant breached its duty of care by failing to rectify the difference in level at the kerb.' 'Whether the appellant was protected by s 45 of the Civil Liability Act 2002 because it lacked actual knowledge of the particular risk.' 'Whether the assessment of non-economic loss at 25 per cent of a most extreme case was excessive.' 'Whether adequate reasons were given for findings of past and future economic loss and whether s 13 of the Civil Liability Act 2002 was complied with.' "Whether the ordinary costs consequences of the respondent's offer of compromise should be displaced."]

Ratio Decidendi

The appeal failed on liability because the trial judge's finding that the respondent tripped on the proud sandstone block was open on the evidence, the danger required rectification in light of crowded pedestrian conditions, and actual knowledge under s 45 could be inferred from the Council's inspection and acceptance of responsibility for the footpath. The appeal succeeded on damages because non-economic loss at 25 per cent of a most extreme case was excessive and the reasons for past and future economic loss did not adequately explain the $454 pre-injury earnings figure, residual earning capacity, or the use of $150 net per week for 10 years. The challenge to the offer of compromise...

Court Disposition

Appeal succeeded as to damages and failed as to liability and costs, but final orders disposing of the appeal were not made at this time.

Orders

  • ['The appeal be listed before the Registrar on 15 December 2005 for the Court to be informed in relation to agreement upon damages.' 'If there is agreement, or if a question of an order for mediation arises, the appeal can be listed before Giles JA at short notice by arrangement through his associate.']