LEGAL UPDATE

 

THE PAST 12 MONTHS

  • Continues to be ‘steady’
  • Seeing an increase in nuisance claims
Campbelltown City Council ats Brandon Bourke
  • 2004/2005 year.
  • Reserve $4.5M.
  • Liability admitted.
  • Contribution agreed 85% Council/15% Playfix.
  • Settled after mediation and just prior to hearing (10 day estimate) for $4.1M plus costs.
  • Now negotiating costs.
Campbelltown City Council ats Gavan Martyn
  • 2011/2012 year.
  • Reserve $1.585M.
  • No proceedings commenced.
  • Liability admitted.
  • Claimants unrepresented.
  • Settled for $1.06M.

CURRENT CLAIMS

Update from 2018

Coffs Harbour City Council ats Polglaise
  • 2011/2012.
  • Reserve $2M.
  • Fall onto sand 6m below jetty.
  • Claimant has sued Council, State of NSW and grandparents.
  • Brain injury and vision issues.
  • Unsuccessful mediation.
  • Listed for hearing on liability issues only commencing 16 September 2019 for 8 days.
Greater Taree City Council & Ors ats Cox & Ors
  • 2011/2012.
  • Reserve $1.66M.
  • Hearing ran before Justice Rothman between 4 – 22 March 2019.
  • Judgment reserved.
  • Unlikely to be delivered for several months.

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Great Hume Shire Council ats Sharon Weber
  • 2009/2010.
  • Reserve $5.6M.
  • Hearing completed 21 April 2017.
  • Judgment delivered on 14 May 2018 in favour of Council.
  • Claimant appealed.
  • Court of Appeal hearing heard between 26-28 February 2019.
  • Decision reserved.
Tamworth Regional Council ats Emma Halloran
  • 2010/2011.
  • Reserve $3.1M.
  • Brain injuries resulting in cognitive impairment.
  • Claimant is currently 10 years old.
  • Damages cannot be assessed until she is at least 18.
  • Causation remains in issue.
  • Awaiting expert report on causation which is due to be served by 7 May 2019.
  • Matter listed for directions hearing on 14 May 2019.

CURRENT CLAIMS

Cost recoveries

Ku-ring-gai Municipal Council ats Chan
  • 2013/2014.
  • Reserved reduced to $480,000 for cost reserve only.
  • Defence costs of $390,000.
  • Offer of $239,000 from Claimants.
  • Counter-offer of $360,000 from Council.
  • Claimants yet to make a counter-offer.
  • Will proceed to assessment shortly.

DEVELOPMENTS

Kempsey Shire Council v Five Star Medical Centre Pty Ltd
[2018] NSWCA 308

  • Aircraft collided with a kangaroo on landing at aerodrome. Council lost at first instance. Council appealed.
  • Two issues addressed on appeal:
    • Whether the risk of colliding with a kangaroo was an obvious risk (ss5F and 5H Civil Liability Act);
    • Whether Council had a duty to ensure a fence was erected to prevent kangaroos gaining access to the runway (s42 Civil Liability Act).
  • Council’s position at trial and on appeal was that a fence was not a foolproof solution. There was no evidence the financial burden of installing a fence would have prevented the on-call checks of the runway it performed. In that regard Council relied on s42 of the CLA.
  • The trial judge found Council’s operation of the Aerodrome fell within its general power pursuant to s24 of the Local Government Act 1993 (LGA). S24 of the LGA provides power to a Council to deliver “goods, services and facilities, and carry out activities appropriate to the current and future needs within its community and of the wider public”. The trial judge held s42 was only triggered in relation to those functions Council was required to perform such as roads, water drainage and sewage and not its s24 LGA powers.
  • The Court of Appeal disagreed. It held there was no distinction between a Council’s power pursuant to s42 of the CLA and its powers pursuant to s24 of the LGA.
  • In this instance, the evidence was the Aerodrome operated at a loss and overall, Council had a consolidated net operating loss. For Council to have funded the cost of the fence would have impacted present and future expenditure in other areas. Section 42(b) precluded the Court finding a breach of duty by failure to take a precaution, in circumstances where any decision to take the precaution required an assessment of conflicting demands on Council’s budget.

RESULTS

Since March 2018

  • Mediations: 10 with 5 settling at or after mediation (but prior to hearing).
  • Informal settlement conferences: 43 with 30 settling at or after ISC (but prior to hearing).
  • 11 verdicts for Council.
  • Hearings:
    • Nambucca Shire Council ats Bowman – part heard
    • Canterbury Bankstown Council ats Khalil – proceeded to hearing. Judgment for the plaintiff.
    • Snowy River Shire Council ats Ford – proceeded to hearing. Judgment for the plaintiff.
    • Greater Taree City Council ats Cox & Ors – proceeded to hearing. Judgment reserved.
    • Lismore Council ats Brydges NCAT hearing concluded. Judgment for Council.
  • Court of Appeal:
    • Kempsey Shire Council ats Five Star Medical Centre – Council’s Appeal allowed and judgment entered in favour of Council. Special Leave to Appeal to High Court filed by Claimants. Waiting for a hearing date.
    • Greater Hume Shire Council ats Sharon Weber – Judgment reserved.

Disclaimer

This PowerPoint presentation is intended to provide only a limited analysis of the subject matter covered.  It does not purport to be comprehensive, or to provide legal advice. Any views or opinions expressed are the views or opinions of the presenter, and not those of Mills Oakley as a Firm. Readers should satisfy themselves as to the correctness, relevance and applicability of any of its content, and should not act on any of it in respect of any specific problem or generally without first obtaining their own independent professional legal advice.

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