Shortly before 7am on 8 July 2002, the plaintiff, Mr Jackson,
was found unconscious lying in a concrete drain in a park in
Lithgow. He had suffered serious head injuries, probable fractured
vertebra, a fractured wrist and cuts and abrasions. Mr Jackson had
taken his dogs for a walk at about 3.30am that morning whilst
intoxicated and had no memory of the accident. Nobody had seen the
accident and there was no direct evidence as to how Mr Jackson came
to be in the drain.
Mr Jackson sued Lithgow City Council (the Council) alleging that
it was the local council having the care and management of the
park, and alleging further that, as a result of the Council's
negligence, he had fallen over a low unfenced retaining wall and
had fallen down approximately 1.5 metres onto the concrete drain
where he was found.
At first instance, the District Court gave judgment for the
Council with costs. The trial judge found that the Council owed Mr
Jackson a duty to exercise reasonable care for his safety and that
such duty was breached by the Council not taking steps to avoid the
risk of foreseeable injury to someone falling over the wall at
night. However, the trial judge was not satisfied that the
negligence of the Council was a cause of the injuries that Mr
Jackson had sustained and this was determinative on the issue of
On appeal, the Court of Appeal set aside the judgment entered at
trial and gave judgment for Mr Jackson in an amount of $203,475
together with interest and costs.
The focus of Mr Jackson's appeal was the trial judge's
conclusions that the evidence as a whole did not prove causation.
The Council did not seek to challenge the trial judge's
findings on duty of care and breach on appeal.
In allowing Mr Jackson's appeal, the Court of Appeal had
particular regard to an ambulance retrieval record that had been
tendered in evidence at trial. That document recorded a number of
matters relevant to the question of causation, including the
ambulance officers' observations of the scene, their opinion as
to what happened and the position of Mr Jackson's body, which
was consistent with the view that he had fallen from the wall.
President Allsop described the document as 'crucial in the
resolution of this appeal' as it allowed an inference to be
drawn from the evidence that Mr Jackson suffered a significant fall
while walking down the hill towards the wall in the dark. The Court
of Appeal accepted the trial judge's finding that Mr Jackson
was 'clearly intoxicated at the time of the accident' and,
while the accident was likely to have occurred even had he not been
intoxicated, it was not possible to conclude that his intoxication
made no contribution. Accordingly, the statutory presumption (in s
50 of the Civil Liability Act 2002) that there was
operative contributory negligence was engaged and a mandatory 25
per cent allowance for contributory negligence was imposed on Mr
Jackson's overall damages award.
The Council sought special leave to appeal to the High Court. It
was agreed by the parties that the version of the ambulance
retrieval record that was before the Court of Appeal on the first
appeal was not an accurate reproduction of the document (a question
mark had been cut off on the photocopy in the original appeal
papers). Accordingly, the High Court set aside the orders of the
Court of Appeal and remitted the matter to that Court for further
hearing. The second appeal was heard before the same bench as had
heard the first appeal (Allsop P, Basten JA and Grove J).
In his reasons for judgment on the second appeal, Allsop P
(Basten JA and Grove J concurring) reached the same conclusions on
the issue of causation as his Honour had in the first appeal,
namely, that the ambulance retrieval record, when added to the
totality of the evidence, made it more likely than not that Mr
Jackson had suffered his injuries as a result of a serious fall
over the wall in the dark.
The critical issue at trial and on both appeals was causation.
None of the judges expressed any doubt that a council would owe
someone in the position of Mr Jackson, walking in the park at
night, a duty to exercise reasonable care for his or her safety
notwithstanding their intoxication and that such duty was breached
by the Council failing to take steps to avoid the risk of
foreseeable injury to someone falling over the wall at night.
Ultimately, Mr Jackson's intoxication was taken into account in
the assessment of damages and a discount of 25 per cent of the
overall award was imposed to reflect contributory negligence, even
though the accident was likely to have occurred had he not been
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Peter Sise explores how your contractual clause for recovery of legal costs might not do what you think it does.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).