Shortly before 7am on 8 July 2002, the plaintiff, Mr Jackson, was found unconscious lying in a concrete drain in a park in Lithgow. He had suffered serious head injuries, probable fractured vertebra, a fractured wrist and cuts and abrasions. Mr Jackson had taken his dogs for a walk at about 3.30am that morning whilst intoxicated and had no memory of the accident. Nobody had seen the accident and there was no direct evidence as to how Mr Jackson came to be in the drain.

Mr Jackson sued Lithgow City Council (Council) alleging that it was the local council having the care and management of the park and, as a result of the Council’s negligence, he had fallen over a low unfenced retaining wall and had fallen down approximately 1.5 metres onto the concrete drain where he was found.

Trial proceedings

At first instance, the District Court gave judgment for the Council with costs. The trial judge found that the Council owed Mr Jackson a duty to exercise reasonable care for his safety and that such duty was breached by the Council not taking steps to avoid the risk of foreseeable injury to someone falling over the wall at night. However, the trial judge was not satisfied that the negligence of the Council was a cause of the injuries that Mr Jackson had sustained and this was determinative on the issue of liability.

First appeal

On appeal (Jackson v Lithgow City Council [2010] NSWCA 136), the Court of Appeal set aside the judgment entered at trial and gave judgment for Mr Jackson in an amount of $203,475 together with interest and costs.

The focus of Mr Jackson’s appeal was the trial judge’s conclusions that the evidence as a whole did not prove causation. The Council did not seek to challenge the trial judge’s findings on duty of care and breach on appeal.  

In allowing Mr Jackson’s appeal, the Court of Appeal had particular regard to an ambulance retrieval record that had been tendered in evidence at trial. That document recorded a number of matters relevant to the question of causation, including the ambulance officers’ observations of the scene, their opinion as to what happened and the position of Mr Jackson’s body, which was consistent with the view that he had fallen from the wall. President Allsop described the document as “crucial in the resolution of this appeal” as it allowed an inference to be drawn from the evidence that Mr Jackson suffered a significant fall while walking down the hill towards the wall in the dark. The Court of Appeal accepted the trial judge’s finding that Mr Jackson was “clearly intoxicated at the time of the accident” and, while the accident was likely to have occurred even had he not been intoxicated, it was not possible to conclude that his intoxication made no contribution. Accordingly, the statutory presumption (in s 50 of the Civil Liability Act 2002 (NSW)) that there was operative contributory negligence was engaged and a mandatory 25% allowance for contributory negligence was imposed on Mr Jackson’s overall damages award.

Second appeal

The Council sought special leave to appeal to the High Court. It was agreed by the parties that the version of the ambulance retrieval record that was before the Court of Appeal on the first appeal was not an accurate reproduction of the document (a question mark had been cut off on the photocopy in the original appeal papers). Accordingly, the High Court set aside the orders of the Court of Appeal and remitted the matter to that court for further hearing. The second appeal was heard before the same bench as had heard the first appeal (Allsop P, Basten JA and Grove J).In his reasons for judgment on the second appeal, Allsop P (Basten JA and Grove J concurring) reached the same conclusions on the issue of causation as his Honour had in the first appeal, namely, that the ambulance retrieval record, when added to the totality of the evidence, made it more likely than not that Mr Jackson had suffered his injuries as a result of a serious fall over the wall in the dark.

Implications

The critical issue at trial and on both appeals was causation. None of the judges expressed any doubt that a council would owe someone in the position of Mr Jackson, walking in the park at night, a duty to exercise reasonable care for his or her safety (notwithstanding their intoxication) and that such duty was breached by the Council failing to take steps to avoid the risk of foreseeable injury to someone falling over the wall at night. Ultimately, Mr Jackson’s intoxication was taken into account in the assessment of damages and a discount of 25% of the overall award was imposed to reflect contributory negligence, even though the accident was likely to have occurred had he not been intoxicated.