Australia: Council fails in reliance on s 42 defence – accident on steps of rotunda in park

Curwoods Case Note
Last Updated: 3 November 2012
Article by Emma Sheehan

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.


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 on the inside of the rotunda. The concrete had encroached onto the top step reducing its width. The cost of erecting a warning sign, repairing the nosings, applying anti-slip strips or removing the concrete which had flowed onto the top step were all fairly insignificant.

Neither the plaintiff nor the Council adduced any evidence that there had been prior accidents or that there had been no prior accidents on the rotunda.

District Court Decision

The plaintiff brought proceedings in the District Court of New South Wales alleging the Council, as trustee of the Trust, was negligent.

The primary judge, Nicholson SC DCJ, dealt with the issue of whether the Council was entitled to plead reliance on s 42 of the CLA, which provides councils and public or local authorities a defence in respect of whether they owed a party a duty of care, or breached any such duty, because their resources were limited by "financial and other resources". The primary judge found that there was no evidence the Trust, whom he found was "in truth the defendant", was a public or other authority entitled to the benefit of s 42. Even if the Trust were entitled to rely on s 42, the primary judge found there was no evidence adduced in respect of the Trust's financial or other resources. The absence of evidence led the primary judge to conclude that if any evidence of the Trust's resources had been adduced it would not have been to the advantage of the Trust. He noted that the photographs of the park revealed the rotunda and its surrounds, including the gardens, were maintained to a high standard. He inferred there were resources available to maintain the high standard.

The primary judge found that the Trust would have had knowledge that the top step was narrow and that there was an irregular geometry to the other steps. He rejected the argument that the discovery of the size and geometry of the stairs required the Council to physically inspect and measure all stairs in its local government area. This was especially so given he was concerned with the Trust and not the Council's knowledge and there was no evidence as to the extent of the Trust's overall responsibilities. The fact the park was a pre-eminent park in the area and the rotunda was a pivotal feature of the park were significant in determining there was a foreseeable risk of harm to users of the rotunda.

The primary judge rejected the Trust's admission that because the rotunda was heritage listed no remedial action or other steps could be taken to alter the stairs or erect a warning sign. He did accept that erecting a railing would adversely affect the symmetry of the stairs.

In finding the Trust negligent, the primary judge determined that: the absence of a warning sign; the narrowness of the top step; and the poor condition of that step, were key factors in the plaintiff's accident. The failure to provide a slip resistant edge was one, albeit minor, reason for finding negligence on the part of the Trust. The risk of falling was not insignificant and there were measures available to the Trust to improve the safety of the stairs which would not have impeded or diminished "the social utility of the stair".

The primary judge assessed the plaintiff's damages at $223,381.58 pursuant to the CLA.

Court of Appeal

The Council appealed the findings of the primary judge. There were 11 grounds of appeal.

The Council appealed the primary judge's findings that the occupier of the park was the Trust, arguing that the primary judge should have found that the occupier of the park was the Council or Bathurst City Council as Trustee for the Bathurst City Council Reserve Trust. Consequent to this finding, the Council also argued that the primary judge erred in failing to apply the provisions of s 42 of the CLA.

In the Court of Appeal, Hoeben JA delivered the unanimous judgment of the court. He pointed out that in the Defence filed on behalf of the Council it had admitted that it was the trustee of the Trust and that the Trust occupied the park. He also noted there had been no evidence or information provided to the primary judge concerning the relationship between the Council and the Trust. It was also noted that in the primary proceedings, counsel for the Council had a brief exchange with the primary judge in respect of: whether the Trust was entitled to the benefit of s 42 of the CLA; and, the relationship between the Council and the Trust, but the issue was left largely unresolved. The issues were not clarified or explored by the Council in the primary proceedings.

Hoeben JA noted that the primary proceedings were conducted on the basis that the Council owned and occupied the park in its capacity as a trustee. He found this was not the correct position and that the Trust was responsible for the care, control and management of the park. The Council was the trustee of the Trust. He found that the Council had not adduced any evidence to entitle it to the benefit of s 42 of the CLA. Hoeben JA confirmed the earlier decision of the court in Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited 2 that evidence must be adduced about the council or public or local authorities' resources and activities if it seeks to rely on s 42. If the party seeking reliance on the section does not adduce any evidence in this regard, the court cannot determine whether the principles enunciated in s 42 ought be applied.

The Council also appealed on the basis that the primary judge had erred in failing to properly apply s 5B of the CLA and in finding negligence on behalf of the Council.

A central component of the Council's appeal was that the primary judge should have drawn an inference that there were no prior complaints or injuries in respect of the rotunda on the basis that there was no evidence of any such complaints or injuries. Hoeben JA found the primary judge had correctly concluded that a lack of evidence about previous complaints or injuries assisted neither party and that the inference the Council sought to be drawn was not available to him. Hoeben JA agreed with this conclusion, citing reliance on the decision of Kuhl v Zurich Financial Services Australia Ltd 3 where it was stated:

"The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn ...".

Hoeben JA did not consider there was any error in the primary judge's findings of fact and that all of the findings were available to the primary judge on the evidence available. Hoeben JA found that the plaintiff had established all the requisite elements of s 5B(1) of the CLA and that the primary judge had not erred in finding negligence on the part of the Council as Trustee of the Trust.

Another ground of appeal was that the primary judge had impermissibly interpreted the meaning of photographs tendered in the proceedings and based his decision on his interpretation of those photographs: Short v Barrett 4 Hoeben JA was satisfied that the primary judge had used the photographs to merely satisfy his findings of fact rather than to use them to actually reach findings of fact.

Finally, the Council appealed the primary judge's award of $10,000 in respect of the plaintiff's future loss of earning capacity. The Council submitted there was no evidence available to the primary judge to find that the plaintiff's incapacity would have been productive of economic oss in his occupation as a school teacher. Hoeben JA agreed with the Council's submission and allowed this aspect of the appeal thereby reducing the plaintiff's damages by $10,000.

The court held that the Council had failed to challenge the primary judge's findings in respect of liability. The Council had succeeded in having the plaintiff's damages reduced but this was a small aspect of the appeal. Accordingly, the court allowed the appeal in part, reducing damages by $10,000. The Council was ordered to pay the plaintiff's costs of the appeal.


The case demonstrates the importance of ensuring that pleadings are drafted carefully and that proper consideration is given to any admissions or denials made in any such pleadings.

Further, the case confirms the earlier decisions of the court that a party seeking to rely on s 42 of the CLA must adduce evidence about the financial and other resources together with the activities of the authority if it is to be entitled to the benefit of that section.

The case also supports the proposition that a court is entitled to draw inferences on the evidence which is led and the failure of a party/parties to lead any evidence on particular issues. The absence of evidence can be equally as persuasive as evidence which is led or tendered in proceedings.

Finally, the case is a reminder that a plaintiff must establish all the elements of s 5B(1) of the CLA in establishing liability against a defendant. In determining liability the court will carefully consider each limb of that section before reaching a concluded opinion.


1 Meagher and Hoeben JJA and Tobias AJA
2 [2009] NSWCA 263
3 [2011] HCA 11 per Heydon, Crennan and Bell JJ
4 [1990] NSWCA 164

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