Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson

[2012] NSWCA 340

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Occupier's liability
4. › Visitor slipping on steps of rotunda in public park
5. › Whether defect in steps reasonably foreseeable
6. › Whether reasonable response required
7. › Application of s 5B Civil Liability Act 2002 (NSW)
1. Tort
2. › Negligence
3. › Public or other authority
4. › Whether s 42 Civil Liability Act 2002 (NSW) applied to council acting as trustee of reserve trust
5. › Whether authority could rely on s 42 principles without adducing evidence of resources and activities
6. › Civil Liability Act 2002 (NSW), ss 41, 42
1. Damages
2. › Personal injury
3. › Future loss of earning capacity
4. › Whether evidentiary basis for award
5. › Requirement to identify lost capacity and probable economic consequences
6. › Civil Liability Act 2002 (NSW), s 13
1. Evidence
2. › Inferences
3. › Absence of evidence of prior accidents or complaints
4. › Whether absence of evidence permits inference that no accidents occurred
5. › Jones v Dunkel inference
6. › Whether inference adverse to party failing to call evidence

Quick Take

A public authority or trustee seeking to rely on s 42 of the Civil Liability Act 2002 (NSW) must adduce evidence of its financial and other resources, the general allocation of those resources, and the broad range of its activities; the section has no practical application in the absence of such evidence. The absence of evidence of prior accidents or complaints is neutral and does not support an inference that no accidents occurred; if any inference is to be drawn, it is adverse to the party best placed to provide the evidence. An award for future loss of earning capacity requires evidence that the lost capacity would be productive of economic loss, not merely evidence of physical incapacity.