Council fails in reliance on s 42 defence - accident on steps of rotunda in park

Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson [2012] NSWCA 340

Judgment date: 16 October 2012

Jurisdiction: New South Wales Court of Appeal 1 In Brief

In order to establish, negligence a plaintiff must fulfil each of the criteria set out in s 5B(1) of the Civil Liability Act 2002 (CLA). This necessitates proving that the risk was foreseeable, not insignificant, and that the defendant's response to the risk was not reasonable. A defendant relying on s 42 of the CLA must lead or tender evidence in support of the argument that its functions are "limited by the financial and other resources" available to it. Inferences can be drawn by the court on the evidence which is adduced and the evidence which the parties do not adduce. Background

Mr Gregory Thompson (plaintiff), visited Machattie Park (the park) in Bathurst with 2 other people on 10 November 2007. The park was the property of the Bathurst City Council Crown Reserves Reserve Trust (the Trust). Bathurst Regional Council (the Council) was the trustee of the Trust.

Situated within the park was a Victorian style rotunda which was heritage listed. The parties agreed the rotunda was a pivotal feature of the park and was used by many people. There were 4 entrances to the rotunda, each comprising a set of stairs. The plaintiff entered the rotunda via one set of stairs and departed via a different set of stairs. As he left the rotunda he placed his left foot on the top step. This step was narrow and his foot overhung the edge of the step. As he moved his right foot to place it on the second step his left foot moved causing him to fall sustaining injury.

Ms Gray, one of the plaintiff's friends, gave evidence that she had attended Machattie Park the day after the plaintiff's fall and observed the top step to be narrower than the other steps. The plaintiff attended the park shortly before returning to work, several months after the accident, at which time he observed the top step to be narrower than the length of his shoe. The step was so narrow that the ball of his foot and toes were not on nor supported by the step.

The plaintiff qualified Mr Ian Burn, Engineer, to provide a report. Mr Burn described the steps as: being constructed of concrete; the nosings of the steps were rounded and worn; having cracks, with some pieces missing; having no anti-slip strips on the nosings. Further, there was no hand rail or signs warning of the narrowness of the top step. Mr Burn opined there had been some modifications to the rotunda, which he estimated had been performed 10 to 15 years prior to his inspection of the rotunda, which had involved the pouring of concrete...