Temora Shire Council v Stein [2004] NSWCA 236

Temora Shire Council v Stein [2004] NSWCA 236

The council was not shown to have failed to take reasonable care as the respondent did not provide sufficient evidence that the hazard (raised driveway) was not obvious or avoidable to a pedestrian exercising reasonable care at night. There was no evidence of inadequate lighting or lack of visibility, and the burden...

Source-derived case information.

Parties
Appellant: Temora Shire Council; Respondent: Yvonne Stein
Jurisdiction
Australia
Judgment Date
21 July 2004
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed
Legal Topics
Negligence, Duty of Care, Public Liability, Footpath Hazards, Obvious Risks
Tort Law Local Government Law Negligence Duty of Care Public Liability Footpath Hazards Obvious Risks

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Parties

Temora Shire Council

Appellant

Yvonne Stein

Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Did the council breach its duty of care owed to the respondent regarding the condition of the footpath?
  2. 2 Was the raised driveway an obvious hazard to pedestrians taking reasonable care for their own safety?
  3. 3 Did the respondent discharge the burden of proof that the hazard was not visible or avoidable by a pedestrian exercising reasonable care at night?

Ratio Decidendi

The council was not shown to have failed to take reasonable care as the respondent did not provide sufficient evidence that the hazard (raised driveway) was not obvious or avoidable to a pedestrian exercising reasonable care at night. There was no evidence of inadequate lighting or lack of visibility, and the burden of proof was not satisfied. The council's inaction was not unreasonable given the lack of demonstrated non-obvious risk.

Court Disposition

Appeal allowed

Orders

  • Appeal allowed.
  • Set aside the verdict and judgment for the respondent and the order for costs made on 14 November 2003.