Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserve Trust v Thompson [2013] HCATrans 82 (12 April 2013)

Published 02 Oct 2014

This matter concerned an application for special leave to appeal from the decision of the New South Wales Court of Appeal in the matter of Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserve Trust v Thompson [2012] NSWCA 340 (26 October 2012).

The application for special leave to appeal was heard by Chief Justice French and Justice Kiefel in the High Court of Australia.

Facts of the Principle Proceedings

Our client, Mr Gregory Thompson, visited Machettie Park in Bathurst with a friend of his. The pair entered a rotunda in the park by going up a staircase, and exited down a different staircase. As Mr Thompson was exiting he placed his left foot on the top step, but as he brought his right foot up in order to move forward, his left foot slipped on the step. As a result Mr Thompson fell and sustained serious injuries to his left leg.

Mr Thompson was taken to hospital by ambulance where he underwent surgery. Unfortunately, he suffered an infection following the surgery. Mr Thompson was employed as a teacher with physical education duties, and he was forced to take approximately five months off work before returning on a part time basis. At the time of the hearing Mr Thompson had returned to work but continued to suffer restrictions in his left leg. This had a major effect on our client who, prior to the accident, had enjoyed being active.

David Cossalter was the solicitor with carriage of this matter at Gerard Malouf and Partners. David organised expert reports in this matter, which proved that the step, which Mr Thompson slipped on was too narrow to have supported his movements. Furthermore, our expert evidence proved that there were many simple precautions that could have been taken to prevent visitors from being injured on the rotunda steps. For example, installing handrails, putting non-slip strips on the steps, or putting up warning signs at the exits to the rotunda.

Trial Judge’s Findings:

This matter was initially heard in the District Court before Nicholson DCJ. In his judgment, Nicholson DCJ found that the Defendant must have known of the dimensions of the steps. His Honour also found that the fact that the rotunda was a major feature in a major park, should have played a part in determining whether or not action was taken to remedy the faulty steps. His Honour was satisfied that the Trust could have remedied the faulty steps without effecting its utility. His Honour found that by failing to do so the Trust had been negligent and that its negligence had caused Mr Thompson’s injury.

David Cossalter had maintained ongoing negotiations with the Defendant over the course of the matter up to the hearing. Mr Cossalter had made attempts to settle the matter out of Court pursuant to Mr Thompson’s instructions. Mr Cossalter served an Offer of Compromise in this matter, which was bettered by the orders made by Nicholson DCJ. As a result His Honour made an order for the Defendant to pay Mr Thompson’s costs on an indemnity basis from the date of the Offer of Compromise.

Court of Appeal Hearing:

The Defendant appealed the trial judge’s decision to the Court of Appeal, where the matter was heard by Meagher JA, Hoeben JA and Tobias JA.

On appeal the Defendant raised a number of arguments relating to the findings of Nicholson DCJ. One of the major arguments raised by the Defendant, was that Nicholson DCJ drew inappropriate assumptions with regards to the knowledge of the Trust in relation to the faulty step, primarily because there had not been any previous complaints.

The Court of Appeal rejected this argument, as Nicholson DCJ had specifically explained that the lack of evidence of previous injuries did not mean that there had not been any. The Court of Appeal went on to say that any inferences drawn from the lack of evidence on this matter would go against the Defendant. This was because the Defendant was in the best position to bring forward such evidence and had failed to do so.

The only ground of appeal on which the Defendant was successful was in relation to section 13 of the Civil Liability Act 2002. This argument related to a finding made by Nicholson DCJ that Mr Thompson would not be able to continue working after the retirement age due to his injuries. The Court of Appeal agreed that these facts had not been established on the evidence before the court.

The Court of Appeal rejected all but one of the Defendant’s grounds of appeal. The Court of Appeal reduced the judgment for Mr Thompson by $10,000 to account for the successful ground of appeal. However, given the small nature of the successful ground of appeal, the Court of Appeal ordered the Defendant to pay Mr Thompson’s costs of the appeal.

Once again David Cossalter attempted to settle the matter out of court. Mr Cossalter’s efforts to were taken into account by the Court of Appeal, which made an order for the Defendant to pay Mr Thompson’s costs on an indemnity basis.

High Court Application for Special Leave to Appeal:

The Defendant was determined to take this matter all the way to the High Court and as such made an application for special leave to appeal. This application was heard by Chief Justice French and Justice Kiefel.

The Defendant raised two points as a part of its application. The first point related to section 5B(2) of the Civil Liability Act 2002. The Defendant argued that this section required the court to take into account evidence of the probability of harm occurring as a result of the faulty rotunda step.

In response to this argument, Mr Neil QC, who represented Mr Thompson before the High Court, stated that the Plaintiff had led sufficient evidence on this point at trial, and the onus of proof had switched to the Defendant.

The second point raised by the Defendant was in relation to section 42 of the Civil Liability Act 2002, which creates a presumption that public authorities have limited resources. The Defendant argued that the previous Courts had wrongly found that a public authority needs to produce evidence of its limited resources.

In response to the Defendant’s second point, Mr Neil stated that section 42 applies to arguments as to the general application of resources by public authorities. On the other hand, the Plaintiff had led a case relating to the application of specific resources of the Trust. Furthermore, Mr Neil argued that it is up to the Defendant to plead section 42 and to bring evidence in this regard, which it failed to do at trial.


In relation to the Defendant’s first argument the High Court found that the trial judge had correctly determined that the Defendant had created the risk of harm. Moreover, it emphasised that if the Defendant believed that the risk of harm was too small to warrant the faulty step being remedied, it should have led evidence to that effect, which it did not do and thus this argument was rejected.

In relation to the Defendant’s second argument the High Court found that the Defendant had not lead any evidence with regards to its resources pursuant to section 42, and again rejected this argument.

As a result of these conclusions the High Court refused the Defendant’s application for special leave to appeal and made an order for the Defendant to pay the Plaintiff’s costs.

David Cossalter and the experienced team at Gerard Malouf and Partners fought for Mr Thompson from start to finish to ensure he received the best outcome possible. Mr Cossalter and his team stuck by Mr Thompson when his matter became complicated and even in the face of an application to the High Court.

Mr Cossalter was able to use the law to Mr Thompson’s advantage making strategic offers throughout the course of the trial and appeals, these strategic steps enabled Gerard Malouf and Partners to recover maximum costs from the defendant ensuring that Mr Thompson achieved maximum compensation from the proceedings.

Mr Thompson was very happy with the outcome of his matter. Mr Thompson expressed his gratitude to David and his team for helping him overcome adversity and realise a great outcome.