Edition 11/2002

Perhaps the Liability Tide is Turning

Recent Court Appeals

Is the fact that two recent court appeals went in favour of the defendants an indication that the courts are responding to the liability crisis with a more reasonable view of duty of care?

In Richmond Valley Council v Ethyl Lynda Standing [2002] NSWCA 359 (4^th November 2002) the Plaintiff, Ethyl Standing, was injured when she tripped and fell on an irregular paved concrete surface in the vicinity of Casino High School that she had just visited.  The relevant surface was a junction between a footpath and a driveway.  The concrete surface contained cracks and holes of various sizes, and some differences in height between various portions.  The Plaintiff alleged that she tripped when her foot caught in a hole in a crack between portions of the concrete.  The Trial Judge found that the Council owed the plaintiff a duty of care to ensure that the pavement was in a safe condition, that that duty had been breached and judgment was entered for the Plaintiff in the sum of $68,376.50.  The Defendant Council sought leave to appeal against the finding of liability.

Held for the Defendant Council.

Whether the Defendant owed a duty of care to the Plaintiff depended on whether there was a reasonably foreseeable risk of harm to a pedestrian exercising reasonable care for her own safety.  The Court found that although there was a foreseeable risk of injury, it was not foreseeable risk of injury to a pedestrian using reasonable care for their own safety.  The conditions of the site were obvious and so typical of those commonly to be encountered in daily life that the Defendant was not under any duty to undertake inspections to identify them.  Even if the Defendant had become aware of the particular conditions of the site, it had no duty to alter them in view of their obviousness.

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In the case of Roads & Traffic Authority of NSW  v Ronald John McGuinness (for the estate of  Marion Amelia McGuinness) [2002] NSWCA 210  (4^th November 2002) the late Marion Amelia McGuinness tripped on a manhole cover that had been installed by the Defendant, Roads & Traffic Authority of NSW (‘RTA’) in the footpath of  Botany Road, Waterloo and fell heavily.  The Trial Judge found in favour of the Plaintiff and awarded damages of $599,752.07.  The RTA appealed on liability and damages but the Plaintiff died on 14^th June 2001 while the appeal was pending.  Mr  Ronald McGuinness, her husband and administrator of her estate was substituted in her  place.  The manhole cover had  been installed in connection with traffic lights at the intersection of Botany Road and Reglan Street.  The cover was about a metre from the  wall of the Abbot’s Hotel which was on the corner.  Mrs McGuinness caught her right foot on the left hand corner of the manhole cover which stood about 13mm above the surrounding pavement.  Mrs McGuinness suffered from multiple sclerosis which was in remission.  As a  result her legs were weak and she could not lift them normally.

Held for the RTA

The RTA’s only obligation was to exercise reasonable care.  Proof that the state of the footpath ‘could possibly be an occasion of harm’ was not sufficient.  The upstanding corner was obvious and the modest height difference did not make the footpath unsafe for a  person taking ordinary care.  There was no evidence that the RTA knew or ought to have known of the upstanding corner.

Information extracted with permission from McCullough Robertson Lawyers -  www.mccullough.com.au -  Insurance e-News 8^th November 2002

                                                   Continued ....