Wollongong City Council v Williams [2021] NSWCA 140 (09 July 2021) (McCallum JA at [1]; Simpson AJA at [19]; Adamson J at [34])


Catchwords:


TORTS — Negligence — Appellant injured as a result of falling on the first step on a stepped path in a park — Whether the primary judge erred in finding that the appellant had breached the duty of care which it owed to the respondent — Primary judge found the respondent to be a witness of credit who maintained that he was taking care and was not distracted —Experts agreed that single steps presented a hazard — Primary judge was not in error in finding that the appellant failed to take reasonable precautions against the risk of harm and was negligent — Appeal dismissed

NEGLIGENCE — Cross Appeal — Damages — Challenged findings of contributory negligence and discount of damages for past economic loss — Primary judge concluded that contributory negligence was established — Finding of contributory negligence not contradicted by the finding of liability — No want of reasonable care on the part of the respondent that might have contributed to his failure to perceive the steps — Primary judge reduced the appellant’s damages for past economic loss by 10% to allow for circumstances in the respondent’s circumstances that would have caused him to retire earlier — Where primary judge made no express finding on the degree of probability that the respondent would have retired before 66 — Evidence accepted by the primary judge contradicted the prospect of early retirement — The discount of 10% was inconsistent with the positive findings of the primary judge — Cross-appeal allowed