TORT – Council’s liability to pedestrian slipping on temporary footpath – Whether Council acting as a highway authority – Immunity conferred by s 37A Transport Act 1983 – Artificial structure not on highway.
OCCUPIER’S LIABILITY – Whether Council acting as highway authority or discharging Building or Planning functions – Council not occupier of temporary footpath – Whether duty formulated in Brodie v Singleton Shire Council (2001) 206 CLR 512 applied – Jury directions – s 14B Wrongs Act – Obviousness of risk – Obligation of plaintiff to take reasonable care for her safety – Duty of Council to pedestrian if occupier.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr D E Curtain QC with Mr S A O’Meara
Ligeti Partners
For the 1st Respondent
Mr R P Gorton QC with Mr D Purcell
Saines Lucas Solicitors
For the 2nd – 4th Respondents
Mr W R Middleton QC
DLA Phillips Fox
NEAVE JA:
I agree with Redlich JA that the appeal should be allowed.
For the reasons given by his Honour, I consider that:
(a)the appellant council was exercising its functions as a highway authority when it inspected the temporary footpath and associated structures;
(b)section 37A(1) of the Transport Act 1983 did not confer immunity from civil liability on the appellant, because the props and mesh netting erected to create the temporary footpath formed a structure which was excluded from the definition of a ‘highway’ under s 37A (2);
(c) under the principle in Brodie v Singleton Shire Council,[1] the duty of care which the appellant owed pedestrians was a duty to ensure that the roadway or footpath was safe for pedestrians exercising reasonable care for their own safety;
(d)the Brodie principle defined the nature of the duty owed by the appellant to a pedestrian on a footpath or roadway, regardless of whether the council issued the temporary footpath permit and inspected the structure in its capacity as a highway authority, or in the exercise of its planning and building functions; and
(e)the appellant was not an occupier of the temporary footpath. Accordingly, the trial judge erred in directing the jury on the basis that s 14B(3) applied.
In the passage from Roads and Traffic Authority of NSW v Dederer[2] which is cited by Redlich JA at [50], Gummow J seems to have considered that the specialised duty in Brodie applies to public bodies, whether they are acting in their capacity as occupiers or road authorities.[3] Dederer was an appeal from a decision of the New South Wales Court of Appeal. Accordingly, it did not require consideration of the effect of s 14B of the
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Central Goldfields Shire v Haley & Ors [2009] VSCA 101
Case
[2009] VSCA 101
Decision Date
CaseChat Overview and Summary
In the case of Central Goldfields Shire v Haley & Ors, the plaintiff, Haley, claimed damages for injuries sustained after slipping on a temporary footpath constructed by the defendant, Central Goldfields Shire. The dispute involved the determination of the council's liability for the accident and whether the council was acting as a highway authority, which could confer immunity under section 37A of the Transport Act 1983. Additionally, the case examined whether the council was the occupier of the temporary footpath and, if so, whether the duty owed to a pedestrian was consistent with the principles established in Brodie v Singleton Shire Council.
The legal issues before the court included whether the council was acting as a highway authority and thus immune from liability under section 37A of the Transport Act 1983, or if it was discharging building or planning functions, which would not confer such immunity. Furthermore, the court needed to determine if the council was the occupier of the temporary footpath and, if so, whether the duty of care owed to pedestrians was as articulated in Brodie v Singleton Shire Council. This involved assessing the applicability of section 14B of the Wrongs Act, which deals with obvious risks and the plaintiff's obligation to take reasonable care for her own safety.
The court found that the council was not acting as a highway authority but was discharging building or planning functions. Consequently, immunity under section 37A of the Transport Act 1983 did not apply. The court further held that the council was not the occupier of the temporary footpath, and therefore, the duty of care formulated in Brodie v Singleton Shire Council did not apply. The jury directions concerning the obviousness of the risk and the plaintiff's obligation to take reasonable care for her safety were found to be correctly aligned with statutory provisions. The court ultimately ruled in favour of the council, absolving it of liability for the injuries sustained by the plaintiff.