Botany Bay City Council v Latham [2013] NSWCA 363

Botany Bay City Council v Latham [2013] NSWCA 363

The primary judge failed to make necessary findings as to where Ms Latham fell, what caused her to trip, and the extent of any unevenness, and therefore failed to determine under s 5B(1)(c) whether a reasonable person in the Council's position would have taken the alleged precautions. On the evidence, there was no apparent irregularity beyond what might be expected on an unexceptional suburban footpath, so nothing was reasonably required to be done and the Council was not negligent. Further, for s 45 the relevant particular risk was the unevenness or irregularity of the very paver that caused the fall, and there was no evidence that the Council had actual knowledge of that particular risk.

Jurisdiction
Australia
Judgment Date
31 October 2013
Procedural Posture
Application for Leave to Appeal and Appeal From District Court Negligence Judgment / Court of Appeal; Leave to Appeal Granted and Appeal Allowed
Outcome
Leave to appeal granted; appeal allowed; District Court judgment set aside; judgment entered for the appellant with costs.
Legal Topics
['precautions Against Risk of Harm Under S 5 B of the Civil Liability Act 2002' 'special Non Feasance Protection for Roads Authorities Under S 45 of the Civil Liability Act 2002' 'uneven Footpath Trip and Fall' 'adequacy of Reasons' 'actual Knowledge of Particular Risk']
['torts' 'negligence' 'civil Liability' 'local Government Liability'] ['precautions Against Risk of Harm Under S 5 B of the Civil Liability Act 2002' 'special Non Feasance Protection for Roads Authorities Under S 45 of the Civil Liability Act 2002' 'uneven Footpath Trip and Fall' 'adequacy of Reasons' 'actual Knowledge of Particular Risk']

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Procedural Posture

Application for Leave to Appeal and Appeal From District Court Negligence Judgment / Court of Appeal; Leave to Appeal Granted and Appeal Allowed

Legal Issues

  1. 1 ['Whether the primary judge failed to give adequate reasons by not finding where and on what the respondent tripped and what caused the fall.' "Whether the primary judge failed to apply s 5B(1)(c) of the Civil Liability Act 2002 by not determining whether a reasonable person in the Council's position would have taken the alleged precautions." 'Whether s 45 of the Civil Liability Act 2002 was displaced by proof that the Council had actual knowledge of the particular risk the materialisation of which caused the harm.']

Ratio Decidendi

The primary judge failed to make necessary findings as to where Ms Latham fell, what caused her to trip, and the extent of any unevenness, and therefore failed to determine under s 5B(1)(c) whether a reasonable person in the Council's position would have taken the alleged precautions. On the evidence, there was no apparent irregularity beyond what might be expected on an unexceptional suburban footpath, so nothing was reasonably required to be done and the Council was not negligent. Further, for s 45 the relevant particular risk was the unevenness or irregularity of the very paver that caused the fall, and there was no evidence that the Council had actual knowledge of that particular risk.

Court Disposition

Leave to appeal granted; appeal allowed; District Court judgment set aside; judgment entered for the appellant with costs.

Orders

  • ['Leave to appeal granted.' 'The draft notice of appeal stand as the notice of appeal in the proceedings, and the further requirements of the rules with respect to its filing and service be waived.' 'Appeal allowed.' 'Set aside the judgment of Olsson DCJ.' 'In lieu thereof, order that there be judgment in favour of...