Lake Macquarie City Council v McKellar

[2002] NSWCA 90

NSW Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Occupier's liability
4. › Public authority
5. › Care, control and management of public recreational facility
6. › Duty to inspect premises before making available for public use
7. › Whether failure to detect protruding nail in basketball court surface constituted breach of duty
8. › Whether nail inserted during construction or by vandal
1. Tort
2. › Negligence
3. › Causation
4. › Circumstantial evidence
5. › Inference versus conjecture
6. › Whether plaintiff proved on balance of probabilities that nail caused fall
7. › Whether positive evidence of sensation of tripping over object sufficient to support inference
1. Tort
2. › Negligence
3. › Standard of care
4. › Public authority maintaining sporting facility
5. › Wyong Shire Council v Shirt test
6. › Reasonable response to foreseeable risk of injury
7. › Whether standard of care for commercial premises applied to public recreational facility
1. Practice and Procedure
2. › Written submissions
3. › Oral argument
4. › Disparity between written and oral submissions
5. › Necessity of compliance with filing requirements for efficient functioning of courts

Quick Take

A public authority with care, control and management of a recreational facility must conduct a proper inspection before making the facility available for public use, and the failure to detect a hazard during such inspection constitutes a breach of duty. The Wyong Shire Council v Shirt calculus applies to determine the standard of care for public sporting facilities. Positive evidence from a plaintiff of a sensation of tripping over an object, combined with the exclusion of other possible causes and the proximity of a known hazard, is sufficient to support an inference of causation and is not mere conjecture.