Herbert v Tamworth City Council (No.3) [2004] NSWSC 207

Herbert v Tamworth City Council (No.3) [2004] NSWSC 207

The Council breached its duty of care because the unfenced pit was a hidden and extremely dangerous hazard in a public park, the risk of a child falling into it and suffering serious injury was substantial and foreseeable, and fencing or planting around the pit was physically practicable and inexpensive. The plaintiff's injuries were caused by that negligence. Mr Keam was not negligent because he was entitled to expect the park was safe for a six year old child to ride in and nothing visible before the accident displaced that expectation.

Jurisdiction
Australia
Judgment Date
25 March 2004
Procedural Posture
Torts Negligence Occupier's Liability / Trial Limited to Liability; Assessment of Damages Postponed
Outcome
Judgment for the plaintiff against the defendant with costs for damages to be assessed; judgment for the cross-defendant against the defendant with costs on the cross-claim.
Legal Topics
['breach of Duty of Care' 'foreseeability of Risk' 'public Park Drainage Hazard' 'cross Claim for Contribution or Liability']
['torts' 'negligence' "occupier's Liability"] ['breach of Duty of Care' 'foreseeability of Risk' 'public Park Drainage Hazard' 'cross Claim for Contribution or Liability']

Case Brief

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Procedural Posture

Torts Negligence Occupier's Liability / Trial Limited to Liability; Assessment of Damages Postponed

Legal Issues

  1. 1 ['Whether Tamworth City Council breached its conceded duty of care by failing to fence or otherwise guard the pit at the end of the drainage channel in Powerhouse Park.' 'Whether the risk of a child falling into the unfenced pit and suffering serious injury was foreseeable and required a reasonable response.' "Whether Matthew William Keam failed to take reasonable care for the plaintiff's safety."]

Ratio Decidendi

The Council breached its duty of care because the unfenced pit was a hidden and extremely dangerous hazard in a public park, the risk of a child falling into it and suffering serious injury was substantial and foreseeable, and fencing or planting around the pit was physically practicable and inexpensive. The plaintiff's injuries were caused by that negligence. Mr Keam was not negligent because he was entitled to expect the park was safe for a six year old child to ride in and nothing visible before the accident displaced that expectation.

Court Disposition

Judgment for the plaintiff against the defendant with costs for damages to be assessed; judgment for the cross-defendant against the defendant with costs on the cross-claim.

Orders

  • ['Judgment for the plaintiff for damages to be assessed with costs.' 'Judgment for the cross-defendant with costs on the cross-claim.']