Kempsey Shire Council vs. Glenice Baguley

This claim relates to an injury suffered by a person as a result of falling into a pit that was not fenced at a tip. The local council appealed a decision in favour of the Plaintiff by his Honour Judge Garling in the District Court of NSW. The case involved an analysis of whether or not the primary Judge finding that a reasonable man placed in the shoes of the local council would have built a fence along the edge of the dangerous pit as a precaution to prevent persons such as the Plaintiff sustaining injuries such as those sustained by the Plaintiff in the incident subject of the claim. The Court of Appeal found that the primary Judge was in error in reaching this conclusion as the evidence did not allow him to reach the conclusion that the construction of a fence would lessen the risk of injury to the persons using the pit.

The Court noted that the Plaintiff had to prove the burden of proof because; no evidence was given in the Plaintiff’s case to demonstrate that the construction of a fence would have reduced the risk of the Plaintiff or other persons sustaining injury.

The Plaintiff was accordingly unsuccessful in her claim, the importance of the Plaintiff’s leading positive evidence in relation to the preventative measures that should have been put in place as part of the allegations of negligence would have reduced the risk of injury of persons sustaining injuries had the preventative measures not been put in place.

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