City of Ballarat v Perovic
[2001] VSCA 222
•13 December 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 5671 of 2000
| CITY OF BALLARAT | Appellant |
| v. | |
| ANNA PEROVIC | Respondent |
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JUDGES: | ORMISTON and CALLAWAY, JJ.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 November 2001 | |
DATE OF JUDGMENT: | 13 December 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 222 | |
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Negligence – Injury to user of a highway – Liability of highway authority – Construction of s.205(2)(c) of Local Government Act 1989 - Ordinary principles of negligence applicable – Whether duty of care owed and breached.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S.W. Kaye, Q.C. | Hunt & Hunt |
| For the Respondent | Mr R.J. Stanley, Q.C. and Mr P.G. Misso | Harwood Andrews |
ORMISTON, J.A.:
In this appeal I have had the advantage of reading the judgments of Callaway, J.A. and O’Bryan, A.J.A. and I agree with them that a new trial should be directed on the issue of the appellant’s liability for negligence. Subject to what appears below, I agree with the reasons they have expressed for this conclusion, save that, insofar as there is any difference of opinion between the two judgments, I would, with respect, and with the same qualification, prefer the reasoning of Callaway, J.A.
The difficulties raised by this litigation appear from the judgments of the other members of the Court and the proper disposition of the appeal has been rendered the more difficult because the original trial in this matter took place before the High Court restated the law as to the liability of highway authorities in Brodie v. Singleton Shire Council; Ghantous v. Hawkesbury City Council[1] decided earlier this year. The originally successful attempt made at the trial to establish a case based on misfeasance, so as to avoid the then understood rule preventing recovery for non-feasance, has now failed, in that we have held that the respondent was not entitled to succeed on the case she then made, as was ably demonstrated by counsel for the appellant and which is discussed further in the other judgments. That might technically have brought the respondent’s claims to an end, in so far as no claim based on non-feasance was pleaded or sought to be made out, but the appellant City of Ballarat and their legal advisers have very properly and fairly conceded that, subject to one matter, the case should be remitted for a new trial and that that new trial should not be confined to the bases relied upon at the original trial. That particular procedural difficulty has been overcome.
[1](2001) 75 A.L.J.R. 992.
However, the appellant Council’s concession was limited inasmuch as it contended that in any event the non-feasance rule was preserved in Victoria by reason of the provisions in sub-s.(2)(c) of s.205 of the Local Government Act 1989. In particular it was said that the non-feasance rule was preserved because paragraph (c) stated, in terms set out in full in the other judgments, that a council “is not obliged to do any particular work” on any road, so that therefore the appellant was under no obligation to take steps to put right any known defects in the highway, in this case such defects as were evident in the bluestone guttering in Sturt Street, Ballarat.
I cannot accept that the section, and in particular the paragraph, has the effect, or was intended to have the effect, which counsel for the appellant placed on it, although it may have been intended to reflect an understanding as to the responsibility of councils as to the performance of road-works which was thought to lie behind the non-feasance rule. The provision was, as acknowledged in the Second Reading Speech made on the introduction of the amending bill in 1993, novel to a degree. It formed part of a series of provisions intended to restate in clear and more comprehensive language the responsibilities of councils in relation to highways and roads. That had apparently posed difficulties when what are now the provisions of Division 2 of Part 9 of the Act were reformulated in 1989, in that, for reasons which need not be here examined, the whole of Division 6 (relating to the “Making Maintenance and Management of Streets Roads Bridges” etc.) of Part XIX of the then Local Government Act 1958 was not repealed.[2] The relevant provisions, ss.535 and following, had been in operation in substantially the same form for many years. For example, s.205 of the 1989 Act as amended in 1993 merely repeated in almost identical language the provisions of s.535(1) of the 1958 Act, to the effect that “the council of every municipality shall have the care and management of all public highways streets roads bridges … within the municipal district …”. Likewise the provision now appearing in sub-s.(2)(a) of s.205 imposing a duty on councils to ensure that roads are kept open for public use can be traced directly to s.203(4)(a) of the 1989 Act (before its amendment in 1993), which in turn was derived from s.553 of the Local Government Act 1958 and likewise can be traced back for many years. Even sub-s.(2)(c) of s.205 of the present Act is not entirely novel, although it is presently expressed in much more general and succinct terms. The former s.538 of the Local Government Act 1958, again with the same long history,[3] provided:
“No person shall be entitled to recover damages against any municipality in respect of any loss or injury sustained either to himself or any other person or any property by reason of any accident upon or while using any portion of a highway street or road in the municipal district … which portion has not been interfered with by the council merely because some other portion of such highway street or road … has been taken over or improved by the council.”
[2]The Act in its truncated form remained in operation (until 1993) as the Local Government (Miscellaneous) Act 1958 after the passing of the 1989 Act. Division 1 of Part XIX relating to the dedication of public highways and Division 2 relating to the opening of new streets and roads also remained unrepealed at that time.
[3]See e.g. the discussion of it in Clarkbarry v. South Melbourne (1895) 21 V.L.R. 426 at 436.
In short I do not believe that the legislature in 1993 was in this respect making such radical changes to the responsibilities of councils as highway authorities as might at first be thought, save only that it sought to and did achieve a considerable simplification of otherwise obscurely expressed provisions relating to the same subject. It might, however, be thought that the intention of Parliament was not to impose liability on councils for failure to carry out road-works and in substance that is what this Court held in Frankston City Council v. Eyles[4], especially in the passage in the judgment of Brooking, J.A.[5] quoted by the other members of the Court.[6] There Brooking, J.A. suggested that para.(2)(c) might “indirectly affect [a council’s] private law obligations” and, in the light of the law as it was then understood, one might respectfully say that the paragraph could have had that effect. Subsequent events, however, appear to have put paid to that possibility.
[4][2000] 1 V.R. 579.
[5]At 589. The judgment was concurred in by Phillips and Chernov, JJ.A.
[6]Certain aspects of s.205(2), particularly that obliging councils to keep open highways, together with the history of those provisions, were considered by Winneke, P. (in whose informative and detailed judgment Hayne and Charles, JJ.A. concurred) in Bass Coast Shire Council v. King [1997] 2 V.R. 5. However, I believe the reference, at 21, to the “Local Government Act (Miscellaneous) 1992” should be a reference to the provisions of the Local Government (Miscellaneous) Act 1958, which remained unrepealed until 1993: see s.25 of Act No. 125 of 1993.
At the time of its enactment and until this year, one may have thought that any determination of the extent of a council’s or other highway authority’s obligations and liabilities would depend primarily upon an examination of the statute which gave the council or other authority power to carry out road-works. That approach was endorsed, in one way or another, by Gleeson, C.J., Hayne and Callinan, JJ. in their analysis of the liability of the defendant municipality councils in Brodie. Certainly such an approach has been adopted in relation to the liabilities of other public authorities as indeed it has been in relation to the liabilities of municipal councils in respect of other powers and duties. One need look no further than recent decisions of the High Court in cases such as Pyrenees Shire Council v. Day[7], Crimmins v. Stevedoring Industry Finance Committee[8], Romeo v. Conservation Commission (NT)[9] and Sutherland Shire Council v. Heyman[10]. Those cases were well to the forefront of the reasoning of the majority in Brodie[11], but the conclusion was not so obvious.
[7] ` (1998) 192 C.L.R. 330.
[8](1999) 200 C.L.R. 1.
[9](1998) 192 C.L.R. 431.
[10](1985) 157 C.L.R. 424.
[11]See e.g. at 1013 [102] per Gaudron, McHugh and Gummow, JJ.
In substance I believe that the majority in Brodie, consisting of Gaudron, McHugh and Gummow, JJ., in their joint judgment, and Kirby, J. in his largely concurring judgment, saw the issue of liability for nonfeasance as resting on wider requirements than could be spelt out necessarily from a consideration of the various statutes around Australia imposing duties on and giving powers of control to highway authorities. Without examining every stage of their reasoning, it may be asserted that the majority saw a risk in confining their considerations to the specific legislative provisions giving the relevant powers to the defendant municipal corporations, more particularly because those provisions differ from State to State and, as I would understand it, differ within each State inasmuch as not all such responsibilities rest on councils but are given, to a greater or lesser extent, to other bodies. In Victoria, for example, although this was not noted in the judgments of the High Court, considerable responsibilities for designated roads are vested in the Roads Corporation pursuant to the Transport Act 1986. That risk was that liability might vary from road to road depending on the manner in which the relevant powers were granted.
More particularly when dealing with “Negligence and Statutory powers”, the judges responsible for the joint judgment said this[12]:
“Whatever may be the general significance today in tort law of the distinction between misfeasance and non-feasance, it has become more clearly understood that, on occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard the factor of control is of fundamental importance.
It is often the case that statutory bodies which are alleged to have been negligent because they failed to exercise statutory powers have no control over the source of the risk of harm to those who suffer injury. Authorities having the control of highways are in a different position. They have physical control over the object or structure which is the source of the risk of harm. This places highway authorities in a category apart from other recipients of statutory powers.” (Emphasis added.)
It would seem therefore that, so long as it could be said that a defendant highway authority is in “control” of the relevant highway or road, then it will be liable for both misfeasance and nonfeasance regardless of the precise provisions which invest and accompany that control. This would seem subject to only one potential exception, that, if there were a provision which explicitly and unequivocally denies liability in respect of claims of the relevant kind, here claims arising out of personal injury, then they must be given effect, but not otherwise. Brief reference was made to this also in the joint judgment where it was said that statutory provisions which permit public authorities “to engage in what otherwise would be tortious or otherwise legally wrongful conduct are disfavoured; they are ‘strictly’, even ‘jealously’, construed”.[13] An almost identical view was expressed by Kirby, J., citing Puntoriero v. Water Administration Ministerial Corporation[14], “because immunity represents a departure from the ordinary rule of civil liability and accountability upheld by the law”.[15] I would add that it appears that Kirby, J. endorsed the reasoning in the joint judgment as to the approach to be made to the statutory provisions empowering highway authorities, inasmuch as he gave his general approval to the relevant paragraphs in the joint judgment.[16] Although his Honour still thought it appropriate to refer, amongst other matters, to a highway authority’s statutory charter, he nevertheless considered that there was “no incompatability between the recognition of a private right of action” in the applicants and the legislation which set out the relevant powers and duties of the respondents.[17]
[12]At 1013 para . [102]-[103].
[13]At 1012 para. [97].
[14](1999) 199 C.L.R. 575.
[15]At 1031 para. [197].
[16]See in particular fn. 407 at 1037 para. [227].
[17]At 1039-1040 paras. [241]-[242].
It seems, therefore, that, as there can be no doubt that the relevant control was vested in the appellant council for present purposes, it is unnecessary, save for one matter, to examine the terms of the Local Government Act further before concluding that the appropriate duty resting on the appellant council in favour of the respondent was, as the majority in Brodie expressed it, as follows: [18]
“Authorities having statutory powers of the nature of those conferred by the [Local Government] Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff.”
Particular applications of this principle are then set out further in the joint judgment.[19] This view was endorsed in similar terms by Kirby, J.[20]
[18]At 1024 para. [150]. The reference in the quotation was, of course, to the N.S.W. Local Government Act 1919.
[19]At 1024 ff, paras. [150] ff.
[20]At 1049 para. [243].
The one exception to that principle must occur if the statute vesting control in and stating the authority’s relevant powers and duties contains an explicit and unequivocal denial of liability in postulated circumstances. It is unnecessary to repeat what I have already said to indicate that, according to Brodie, such denial of liability cannot be by mere inference and must be certain in its terms, directed to liability arising out of the suffering of personal injury by reason of the authority’s activities, howsoever stated. The provisions of para. (2)(c) of s.205 of the Local Government Act of this State cannot, on any view of the matter consistent with the majority’s views in Brodie, be taken to satisfy such a stringent criterion. There is no unequivocal denial of liability to a person such as the respondent in relation to any kind of injury which he or she may have suffered, so that the section cannot be treated as providing a defence to the appellant council.
In the circumstances it is inappropriate to say anything further as to the precise manner in which the respondent might make out her case, for it is clear that it will be reformulated in a manner not yet fully known. In the joint judgment in Brodie[21] some attempt was made in general terms to postulate possible cases of liability for non-feasance. For example, it is there said[22] that, if “the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist”.[23] Some caution is then expressed[24] as to the need to consider the magnitude of particular risks and the comparative expense, difficulty or inconvenience in taking steps to alleviate such dangers.
[21]At 1024-1027 paras. [150]-[165].
[22]At 1024 para.[150].
[23]Having regard to the majority’s views as to the necessity only to show “control” in a general sense, the reference to an authority’s “power to inspect” is intended to refer to that power as an incident of control, rather than to any need to examine in detail the authority’s statutory powers in order to ascertain whether there is such a power to inspect.
[24]At 1024 para.[151].
I confess, with respect, that I am not so confident that, in place of the existing distinctions, there will not come into existence an equally elaborate body of case law, albeit that it will be generally more favourable to plaintiffs. For all the much denounced deficiencies of the earlier English case law, provoked by the “ruinous” and “almost impassable” roads of the late eighteenth and early nineteenth century[25], I am not so sure that in that practical respect the principle was not easily transferable to the colonies, inasmuch as I would doubt that the condition of Punt Road Hill in the mid-nineteenth century was any better, whatever might be said of roads built on the rocky outcrops of Sydney Harbour. Nor have I great confidence that, even at the start of the twenty-first century, the condition of outback roads, especially in Queensland and Western Australia, in the wet season is much better. The new rule will doubtless have to make due allowance for the frequency of “wash aways” and the ease or otherwise of swiftly remedying them. At least in England, as characterised in the majority judgments, the rule was amended by simple statute[26] 40 years ago, at a time when, to my own observation, almost 100 per cent of all major and minor roads were by then fully surfaced, thereby obviating the problems arising from unmade roads and almost entirely avoiding the need to inspect them for natural potholes and worse. Perhaps the case law will develop time scales for inspection broadly similar in frequency to those already suggested for inspecting supermarket floors for pools of detergent and the like. One may hope such a temptation will be firmly resisted. As to the need to inspect bluestone guttering in Ballarat for gaps, holes or other unusual indentations, it is preferable that I should say nothing.
[25]At 1012 para.[99].
[26]Highways (Miscellaneous Provisions) Act 1961 (U.K.) s.1.
It would follow that the appellant’s primary submission as to the effect of the section and its own liability in respect of nonfeasance cannot be accepted. Having regard to the appellant’s concession, the question as to the liability of the appellant council to the respondent must be remitted to the County Court for trial according to the principles now to be taken as applicable to the circumstances of this case.
CALLAWAY, J.A.:
I gratefully adopt the statement of facts in the reasons for judgment prepared by O’Bryan, A.J.A. On the view of the case that I take, it is necessary to decide only three questions: first, whether, apart from s.205(2)(c) of the Local Government Act 1989, it was open to the learned trial judge to find that the appellant had committed a breach of duty to the respondent; secondly, the effect of s.205(2)(c), after the decision of the High Court in Brodie v. Singleton Shire Council; Ghantous v. Hawkesbury City Council[27], in the circumstances of this case; and, thirdly, if the first question is answered adversely to the respondent, whether there should be judgment for the appellant or a direction for a new trial. It was conceded by Mr Kaye that, even if he succeeded on the first question, fairness to the respondent might require a new trial unless s.205(2)(c) effectively preserved the distinction between misfeasance and nonfeasance that obtained prior to Brodie’s case.
Breach of Duty
[27](2001) 75 A.L.J.R. 992 (hereinafter “Brodie’s case”).
The learned trial judge took the view that, by the provision of parking meters and designated parking spaces, the appellant created or increased the risk of accidents of the type that befell the respondent. Accordingly, his Honour concluded, the appellant was liable to her for a negligent act of misfeasance.
What should the appellant have done in response to the increased risk?[28] Warning signs on the meters would have been inefficacious and warning signs along the median strip would have been inappropriate. The only real options were filling in holes of the size of that in which the respondent caught her foot or building more cross-overs. In his opening at the trial, counsel for the respondent confined the allegation of breach to the failure to provide cross-overs.
[28]Compare Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40 at 47-48.
His Honour said that the appellant did nothing to alleviate the danger it had increased by way of filling in holes or providing more cross-overs. It is clear, however, that the basis on which he found breach of duty was the omission to provide cross-overs. It could not be otherwise, for that was the only measure for which the respondent contended at the trial. The observation to which I have just referred was but preliminary to his conclusion, which was expressed as follows:
“The evidence of Mr Kern was to the effect that subject only to planning approval, there was no reason why additional [cross-overs] could not be provided and that planning approval had been obtained for [cross-overs] over similar gutters in other streets in Ballarat. He also conceded that by putting the meters in the position described, it was foreseeable that people would proceed to and from them as the plaintiff, her son and others, including Mr Kern, had done. Accordingly I find there was negligence on the part of the defendant, which was a cause of injury to the plaintiff.”
With respect, that passage overstates the effect of Mr Kern’s evidence.[29] He did not say that there was no reason why additional cross-overs could not be provided but only that they could be provided subject to planning approval. The reasons against their provision appeared in the evidence of other witnesses, who referred to the large number of cross-overs that could be required and the effect on parking and on the heritage value of the blue-stone gutter. I interpolate that this Court sits on circuit in Ballarat and we are well able to appreciate an argument against large numbers of metal cross-overs, possibly one for every parking space,[30] in Sturt Street.[31]
[29]The witness was a council employee who had lived in Ballarat practically all his life. In response to a question, “Do you know Craig’s Hotel?” he said, “Which one’s that?” At first I thought that detracted from the value of his testimony, Craig’s Hotel being one of the most famous hotels in Victoria and a landmark in Ballarat since the 19th century, but, in view of his background, I think the fairer view is simply that the witness was rattled.
[30]The judge accepted that it would have been dangerous for the respondent to walk behind the cars that were parked along the median strip in order to use the existing cross-overs provided at approximately every 30 metres.
[31]Compare Geelong Harbour Trust Commissioners v. Gibbs Bright & Co. (1974) 129 C.L.R. 576 at 582.
In my opinion, it was not open to his Honour, on the evidence led at the trial, to conclude that the appellant should have provided numerous cross-overs to guard against the increased danger. The appropriate precaution was probably to fill in, not every crack between the blue-stone pitchers, but dangerous holes of the kind that occasioned the respondent’s accident. That conclusion must, however, be provisional, because it was not explored at trial. The respondent’s case was limited to failure to provide additional cross-overs because of a perception of the way in which the distinction between misfeasance and nonfeasance operated under the common law as understood prior to Brodie’s case. That is the reason for Mr Kaye’s concession.
Section 205(2)(c)
Division 2 of Part 9 of the Local Government Act[32] contains provisions relating to roads and public highways and traffic regulation. Section 202 provides that the Crown has absolute property in all land reserved as a road under the Crown Land (Reserves) Act 1978 or proclaimed as a road under the Land Act 1958. Section 203 provides that a public highway vests in fee simple in the council of the municipal district in which it is located. There are certain exceptions set out in sub-s.(3), but it was common ground that they do not apply to this case. Section 205(1) provides, among other things, that a council has the care and management of all public highways vested in it.
[32]Like Brooking, J.A. in Frankston City Council v. Eyles (2000) 1 V.R. 587 at [6], I assume that there is no difficulty about the dates on which that provision came into force, the duty was allegedly breached or the injury was suffered. No submissions were directed to that issue by either party.
Section 205(2) reads:
“(2) A Council that has the care and management of a road -
(a)must ensure that if the road is required for public traffic, it is kept open for public use (subject to the exercise of any powers that it has to the contrary under Schedules 10 and 11); and
(b) may carry out work on the road; and
(c)is not obliged to do any particular work on the road, and in particular, is not obliged to carry out any surface or drainage work on an unmade road.”
Section 206 provides that the powers of a council in relation to roads in its municipal district include the powers set out in Schedule 10. One of those powers is to make, maintain and repair roads. Another is to fill any hole in or near a road and to remove any cause of danger to anyone using a road.[33]
[33]Clauses 1(a), 11(a) and (b).
There is a wide spectrum of views that might conceivably be taken of s.205(2)(c) in the light of Brodie’s case. At one extreme there is the possibility that it reflected, but that it did not declare or enact, the common law about nonfeasance and that it is now inoperative. At the other extreme is the view that a council that has the care and management of a road is not liable in tort, in any circumstances, for not doing work on the road. In my opinion, both the extremes should be rejected. There is no warrant for this Court to hold that s.205(2)(c) is now a dead letter or that it applies even in relation to cases of misfeasance, to which it did not apply prior to Brodie’s case.[34]
[34]It was so decided in Frankston City Council v. Eyles but, more fundamentally, Parliament would have used much clearer language if it had intended such a far-reaching change to the civil liability of municipal councils.
Before proceeding to consider views nearer the middle of the spectrum, something must be said of the construction of s.205(2). In Frankston City Council v. Eyles[35], Brooking, J.A., with whom Phillips and Chernov, JJ.A. agreed, said:
“Paragraph (c) is intended to make it clear that the duty and power imposed and conferred by paras (a) and (b) respectively impose no duty to do any of the things mentioned in para (c). Thus the paragraph is concerned to assist in delimiting the public law obligations of councils (and so it may indirectly affect their private law obligations).”
Two propositions emerge from that passage. The first is that s.205(2) is concerned with the public law obligations of councils, although it may indirectly affect their private law obligations. If that is correct, and I respectfully think that it is, it puts paid to the notion that para. (c) declares or enacts the common law about nonfeasance. The second proposition is that para. (c) is to be read with, and is a qualification on, paras (a) and (b) and, it may be added, the obligation of care and management referred to in the opening words of s.205(2). The natural meaning of para. (c) is that a council is not obliged to do any particular work on the road by reason only of the fact that it has the care and management of the road, the duty imposed by para.(a) or the power conferred by para. (b).
[35]At [7].
The critical question then becomes the way in which, if at all, s.205(2)(c) indirectly affects a council’s private law obligations. The ordinary principles of negligence now apply to highway authorities, but the question whether a highway authority owes a duty of care to a plaintiff and the scope of that duty still have to be determined. As Gummow, J. emphasized in Pyrenees Shire Council v. Day[36], the primary requirement is “analysis of any legislation which is in point and of the positions occupied by the parties on the facts as found at trial”. If the appellant had no control of roads in Ballarat, it would owe no relevant duty to the respondent. One of the reasons, perhaps the most important reason, why it does owe such a duty is its statutory position as defined by Division 2 of Part 9 of the Local Government Act.
[36](1998) 192 C.L.R. 330 at [126]; see also State of Victoria v. Richards [1998] VSCA 103 at [10].
That brings me to the two possible views of s.205(2)(c) that I think require serious consideration. The first is that, from a plaintiff’s point of view, there is both good and bad in s.205. Pointing in favour of a duty of care are the facts that a council has the care and management of roads and power to carry out work on them; pointing in the direction of a delimitation of that duty is the fact that the council is not obliged, by reason of those facts alone, to do any particular work on a road. The important point to notice, on this view, is that there is a delimitation of the duty as a matter of law; but a council may voluntarily put itself in a position where it is obliged to do work it would not otherwise have to undertake. It may, for example, erect an artificial structure or increase a danger and thereby become obliged to do work on a road in order to protect persons whom the structure puts at risk or whose peril is increased.
That view would produce a result very similar to the common law as understood prior to Brodie’s case. The present respondent might still have succeeded on the footing that the provision of parking meters and designated parking spaces increased a danger of falling on the blue-stone pitchers and the council thereby became obliged to do work that, by reason of s.205(2)(c), it would not otherwise have had to do. That duty may have been breached by not filling in holes of the kind that occasioned the respondent’s fall. A plaintiff in different circumstances would, however, fail if his or her case depended solely on nonfeasance.
The other view is that para. (c) does not delimit a council’s duty of care but at most is to be taken into account in determining the appropriate response to a risk. That view draws support from two considerations. The first is that para. (c) states expressly what is often the case in any event. There may be public law powers without concomitant public law obligations, but liability in negligence is not congruently limited. The second consideration is that, whilst para. (b) has an obvious bearing on the existence and scope of a council’s duty, the same cannot be said of para. (c). The duty of care in a case like this is to take reasonable care to avoid a risk of injury. Breach of duty, including the appropriate response to the risk, is a question of fact. This branch of the law does not lay down obligations to do specific things. It elides a question of law and a question of fact to say, for example, that the council did, or did not, have a duty to fill large holes or to provide additional cross-overs.
There is much to be said, as a matter of common sense, for the first view, to the effect that a plaintiff must take the bad with the good and that it is artificial to take para. (b) into account without giving full effect to para. (c), in the same way that the latter would have to be given full effect in determining a council’s public law obligations. Moreover it may be doubted whether a jury could or would give appropriate effect to para. (c) in determining, as a question of fact, the appropriate response to a risk of injury.
I have nevertheless concluded that the better view is the second of the two that I have been considering, namely that para. (c) delimits a council’s public law
obligations but does not affect the existence or scope at law of a duty of care in tort arising from all the circumstances, including the provisions of Division 2 of Part 9. To allow para. (c) to do so would be to give it an unwarranted effect. It would be as if a defendant could say, in answer to an action for damages for negligence, “I was under no public law obligation to take the precautions for which the plaintiff contends (so that, for example, mandamus does not lie) and accordingly I am not liable in damages.”
Order
It follows that I would allow the appeal but, as the law is now significantly different from the law prior to Brodie’s case, I would direct a new trial limited to the issue of liability. Any conclusion as to breach will depend on the evidence at that trial.[37] Ordinarily the costs of the first trial would be reserved for decision by the judge at the second, but I would give counsel an opportunity to address us on that issue. The respondent should have failed at the first trial. The new trial is being directed only because the law has changed in circumstances in which it would be unfair to substitute a judgment for the appellant.
O'BRYAN, A.J.A.:
[37]My observations at [18]-[19] are to be understood accordingly.
This is an appeal from a decision and orders of a judge of the County Court of Victoria sitting in Ballarat made on 24 May 2000. Mrs. Perovic, the plaintiff in the court below and now the respondent, commenced a proceeding against the City of Ballarat, the defendant in the court below and now the appellant, as the occupier of a gutter adjacent to Sturt Street, Ballarat in negligence. Mrs. Perovic, whilst walking on or in the gutter tripped and fell in a hole in the bluestone surface of the gutter on 21 November 1996 as a result of which she suffered injury. Mrs. Perovic alleged that the fall was caused by the negligence of the appellant.
In the statement of claim the particulars of negligence included:
(a) failing to provide a safe mode of foot passage for the plaintiff;
(b) failing to provide a safe system of foot passage over the gutter;(l)failing to replace the damaged bluestone block in the gutter which created the hole.
In its defence the appellant denied negligence and said it was a highway authority and immune at law for acts of non-feasance. When the hearing began the defendant was given leave to rely upon s.205(2)(c) of the Local Government Act 1989. Section 205 was one of several sections substituted for ss.203 to 207 in the 1989 Act by s.22 in Act No. 125 of 1993. The substituted s.205 commenced on 7 December 1993. Sub-section (2) reads:
“(2) A Council that has the care and management of a road -
(a)must ensure that if the road is required for public traffic, it is kept open for public use (subject to the exercise of any powers that it has to the contrary under Schedules 10 and 11); and
(b)may carry out work on the road; and
(c)is not obliged to do any particular work on the road, and in particular, is not obliged to carry out any surface or drainage work on an unmade road.”
Judgment was delivered one year before the High Court published its judgment in Brodie v. Singleton Shire Council and Ghantous v. Hawkesbury City Council[38], cases which were concerned with liability of a highway authority, immunity from liability in situations of non-feasance and distinctions between non-feasance and misfeasance. Brodie’s case was concerned with a claim for damages suffered when Brodie drove a loaded truck over a bridge which collapsed. Ghantous’ case was concerned with a claim for damages suffered when Ghantous tripped and fell when she was walking on an uneven concrete footpath.
[38](2001) 75 A.L.J.R. 992.
The trial judge found there was negligent misfeasance on the part of the appellant which was a cause of injury to Mrs. Perovic and rejected the defence based upon s.205 (2)(c). He found there was no contributory negligence on the part of Mrs. Perovic and awarded her $126,555.60 total damages together with $7,500 damages in the nature of interest.
The appellant gave notice of appeal relying upon nine grounds, which did not include challenge to the finding that there was no contributory negligence or to the assessment of total damages.
The nine grounds were argued by Mr. Kaye Q.C. for the appellant who appeared with Mr. Rose of counsel as three main grounds:
The learned trial judge was in error in finding that:
(a)the appellant owed and breached a duty of care in the circumstances;
(b)the breach of the duty of care was misfeasance and not non-feasance; and
(c)the provisions of s.205(2)(c) of the Local Government Act 1989 afforded a defence to the appellant.
The appeal is confined, therefore, to the decision on liability.
The circumstances of the fall
The circumstances of the fall may be stated quite briefly relying for the most part upon the summary prepared by the trial judge in his judgment.
Sturt Street in the City of Ballarat is the main thoroughfare with four lanes for west bound traffic, a wide median strip and several lanes for east bound traffic. The place where the fall occurred was adjacent to the main shopping centre located on the south side of Sturt Street.
The gutter area on the south side of the median strip is comprised by five rows of bluestone blocks laid about a century ago. Its width was between 1.2 and 1.3 metres. The nature of the material made the surface of the gutter uneven.
About 25 years before the fall the appellant installed parking meters on the footpath of the median strip and caused vehicle parking spaces to be painted on the roadway at an angle to the footpath. A meter was provided for each parking space on the footpath adjacent to the parking space. Each parking meter was about 30 to 38mm from the gutter. A cross-over was provided approximately every 30 metres, or every 11 vehicle spaces, to allow persons to reach the footpath on the median strip without stepping into the gutter.
Mrs. Perovic angle-parked her car in a designated parking space on the south side of the centre plantation in Sturt Street, Ballarat between Bridge Street Mall and Lydiard Street. A parking meter was located in front of that parking space on an asphalt footpath on the south side of the centre plantation. As appears from Exhibit A (a photograph) the outer two rows slope from either side towards the centre row, with the slope nearest the kerb being steeper than the slope from the road surface. The depth of the gutter at its deepest part from the level of the footpath was variously estimated by the defendant’s witnesses at 300 to 400 mm.
After parking her car in a space delineated by white lines on the road Mrs. Perovic alighted and proceeded via the gutter to the parking meter on the footpath in front of her car and stood on the footpath to insert the requisite coins. She then stepped from the footpath into the gutter on the passenger side of her car in order to collect her grandson, who was in the car. From the car she intended to cross the west bound carriageway to the shops on the south side. Her right foot landed in a hole between two bluestone blocks and became lodged in it, causing her to fall and injure her right ankle. The hole in the bluestone is visible in the photographs.
The cross-overs spanning the gutter provided access to additional footpaths which went diagonally through the centre plantation. Where Mrs. Perovic parked, her car was approximately midway between two of those cross-overs. An engineer called for the appellant estimated Mrs. Perovic would need to walk a distance of 15 metres west or east to reach one of them. Such a route would require her to walk on the trafficable surface of Sturt Street. Mrs. Perovic said in evidence that she regarded it as dangerous to walk on the road behind the parked cars in order to use a culvert to reach the footpath. Her most direct route to the meter obliged her to cross the gutter. To return to her car from the meter also required her to cross the gutter.
The parties agreed that Sturt Street was a public highway which vested in the appellant pursuant to s.203 of the Local Government Act 1989 as amended in1993 and pursuant to s.205(1) of the Act the appellant Council had the care and management of it. A public highway is a road which, by definition, includes a footpath and any culvert or kerbing or other works forming part of the road.[39]
[39]Section 3(1), Local Government Act 1989 – “public highway” and “road”.
Findings
In his judgment the trial judge held that s.205(2)(c) did not provide immunity from suit where the claim was based upon negligence in carrying out work on the road (misfeasance). His Honour accepted, of course, that a rule of immunity for non-feasance (the “highway rule”) applied and liability against the appellant could only be found for an act of misfeasance in carrying out work on the road.
In Brodie Gleeson, C.J. said[40]: “The essence of the [highway] rule is that a highway authority may owe to an individual road user a duty of care, breach of which will give rise to liability in damages, when it exercises its powers, but it cannot be made so liable in respect of a mere failure to act.” The distinction between misfeasance and non-feasance has given rise to creative legal reasoning to turn omissions to carry out work on a road into misfeasance. An example is the “artificial structure” rule which applied in Frankston City Council v. Eyles[41], a case to be referred to later.
[40]Brodie (2001) 75 A.L.J.R. at 995.
[41]Frankston City Council v. Eyles [2000] 1 V.R. 579.
His Honour found the appellant was liable to Mrs. Perovic for a negligent act of misfeasance upon the ground that by installing parking meters and designated parking spaces the appellant was an active agent in creating and adding to an unnecessary danger in the highway by requiring a motorist in the position of Mrs. Perovic to cross the gutter to access the meter and return to the vehicle. He said the appellant “did nothing to alleviate the danger by way of filling in the holes or gaps between the bluestone blocks, and in particular what from Exhibit A appears to be the larger hole into which the plaintiff stepped. Nor did it do anything to provide more culverts [scil. cross-overs]”.
It will be necessary to consider more closely later these findings and what his Honour meant.
Section 205(2)(c) L.G.A.
It is convenient to deal first with the argument that s.205(2)(c) is a defence to the claim.. Section 205(2)(c) of the Act came into force on 7 December 1993 and was applicable when Mrs. Perovic was injured in November 1996. The Local Government Act 1958 was replaced by the Local Government Act 1989 (Act No.11 of 1989). By s.203 the duty of councils over roads and public highways was stated. By s.204 the powers of councils over roads and public highways was stated. Relevantly, in sub-s.(1), Schedule 10 had effect in respect of s.203 and the powers of a council over roads and public highways in its municipal district. Schedule 10 provided: “Without limiting the powers of a council over roads and public highways, those powers include the following:”. The powers included, inter alia, power to improve, maintain, care for and manage roads and public highways (clause 1). Schedule 10 did not oblige a council to do any particular work on a road; it simply empowered a council to do the works specified.
The amendments made in 1993, particularly by the inclusion of s.205(2)(c) had no equivalent in the 1989 Act or earlier local government legislation. For Schedules 10 and 11 in the 1989 Act new Schedules 10 and 11 were substituted by s.24 of the 1993 Act. Schedule 10 specified in eleven clauses powers of councils over roads, including, in clause 1: “A council may (a) make, maintain and repair roads; and (b) fix and alter the levels of roads.”
Paragraph (c) was considered in this Court in Eyles[42]. There, the plaintiff had been injured when she tripped in a small depression in a concrete slab footpath constructed by the defendant council. A slab had been pushed up by the roots of a tree planted by the council, which the trial judge found was an artificial structure and the council had negligently failed to safeguard pedestrians against the dangers created by the tree. The “artificial structure” rule allowed the judge to find the council liable on the basis of misfeasance and the “highway rule“ did not apply.
[42](2000) 1 V.R. 579.
Brooking, J.A. delivered the principal judgment of the court with which Phillips and Chernov, JJ.A. agreed. Referring to paragraph (c) his Honour said[43]:
“[The paragraph] is intended, not to enlarge the common law immunity of highway authorities, but, if anything, to preserve it against any suggestion that paras (a) and (b) of the subsection trench upon that immunity. Paragraph (c) is intended to make it clear that the duty and power imposed and conferred by paras (a) and (b) respectively impose no duty to do any of the things mentioned in para (c). Thus the paragraph is concerned to assist in delimiting the public law obligations of councils (and so it may indirectly affect their private law obligations). It has nothing to say about the scope and effect of the ‘artificial structures’ rule, nor does it otherwise enlarge the immunity of highway authorities in relation to things done by them as such.”
[43](2000) 1 V.R. 579 at 589.
Eyles is the only authority in which s.205(2)(c) has been considered before the present case.
Mr. Kaye for the appellant submitted that where the proven common law negligence amounts to a failure “to do any particular work on the road”, whether or not such failure is characterised as misfeasance or non-feasance, the statute now provides a defence. Thus a failure to fill in a hole or a failure to provide a cross-over is “work on the road” which the appellant is “not obliged to do.”
The breadth of this proposition is startling, for s.205(2)(c) is said to be applicable to all common law negligence claims post 7 December 1993 and is not limited to claims based upon misfeasance. The “highway rule” was first stated in Australia in Buckle[44]. There the road board was found not to be liable for damage from an omission to exercise its statutory powers to repair a defective condition of a road (non-feasance), but it had a duty to prevent artificial work which it had created from becoming a source of danger on the highway and, having failed to observe that duty, it was guilty of misfeasance.
[44]Buckle v. Bayswater Road Board (1936) 57 C.L.R. 259.
I do not understand from my reading of the judgment in Eyles[45] that counsel for the appellant had contended that s.205(2)(c) afforded the appellant a defence against misfeasance, if so found. He simply contended that paragraph (c) preserved the “highway rule”.
[45][2000] 1 V.R. 587.
Prior to the 1993 amendment local government legislation in Victoria provided only limited immunity of councils for acts of non-feasance. The common law “highway rule” applied. The law stated in Buckle[46] was that in relation to highway authorities statutes conferring a power, but not imposing a duty, to repair roads are interpreted as not creating any liability for non-feasance.
[46](1936) 50 C.L.R. 259 at 281.
When the Local Government (Miscellaneous Amendment) Bill was read for a second time in the Assembly the Minister for Planning said the Bill had several purposes and the second was to make amendments to clarify “the road provisions”. The Minister said:
“The new section 205 clearly sets out those roads for which councils will have care and management and most importantly the legislation points out the nature of the care and management role. A council may choose to exercise its considerable power to undertake or direct works on roads within its municipal district. However, section 205 makes it clear that the care and management role does not impose a positive duty on a council to construct or repair a road. The legislation also spells out that while a council must ensure that a road required for public traffic is kept open for public use a council is not required to undertake any road works to the surface or drainage of an unconstructed road.”
No indication was given by the Minister that an important change was about to be made to the common law of negligence to bar claims for damages by private citizens against councils which had care and management duties in relation to roads based on misfeasance and non-feasance. The “highway rule” was not under threat in1993 and afforded protection to councils in negligence cases for non-feasance based upon Buckle and Gorringe v. Transport Commission (Tas)[47].
[47]Gorringe v. Transport Commission (Tas) (1950) 80 C.L.R. 357.
Eyles was decided before the decision of the High Court in Brodie[48]. The Court was not asked to decide whether s.205(2)(c) provides a defence by statute to a negligence claim against a highway authority based on misfeasance. Brooking, J.A. concluded that paragraph (c) simply made it clear that the duty and power imposed and conferred by paragraphs (a) and (b) respectively impose no duty to do any of the things mentioned in paragraph (c). His Honour’s view was that paragraph (c) is concerned to assist in delineating the public law obligations of councils and may indirectly affect their private law obligations.
[48](2001) 75 A.L.J.R. 992.
The facts in Eyles did not raise an issue about the public law obligation of the council. The “artificial structures” rule was held to apply to a tree planted by the council on a footpath and created an exception to the “highway rule” of immunity for non-feasance. Liability was imposed because the council did not take reasonable care to safeguard the plaintiff against the dangerous conditions on the footpath to which the tree had given rise. It was a case of misfeasance.
When Brodie was argued before the Full High Court in August 2000 the provisions of the Local Government Act No.125 of 1993 were in force. The States of Victoria, Western Australia and New South Wales intervened to oppose judicial abolition of the non-feasance rule. The court considered as the main issue whether the common law “highway rule” of immunity from liability in negligence and nuisance for non-feasance of highway authorities should be judicially re-expressed. By a majority the “highway rule” as enshrined in Buckle[49] and Gorringe[50] was held to be no longer good law and was to be replaced by ordinary principles of negligence governing all other statutory bodies.
[49]Buckle v. Bayswater Road Board (1936) 57 C.L.R. 259.
[50]Gorringe v. Transport Commission (Tas.) (1950) 80 C.L.R. 357.
A minority of the court (Gleeson, C.J., Hayne and Callinan, JJ.) considered the court should leave common law damages with respect to the immunity in the “highway rule” to Parliament.
The “highway rule” with respect to non-feasance was established as a rule of statutory construction after consideration of statutes in New South Wales and Tasmania conferring a power, or imposing a duty, to maintain or repair public roads. Dixon, J., in Gorringe[51], said that statutes empowering or directing authorities to maintain and repair roads are not to be understood as conferring private rights of action in the case of non-feasance unless the legislature has used language indicating an intention that liability shall be imposed. It was never decided that legislation of the kind now expressed in s.205 conferred a statutory immunity from a civil proceeding.
[51](1950) 80 C.L.R. 357 at 369.
In 1993 the New South Wales Parliament conferred certain powers of road maintenance upon the Roads and Traffic Authority (RTA). Section 65 in the Roads Act 1993 (NSW) provided that while exercising the powers of a road authority “the RTA has the immunities of a roads authority with respect to that road”. This provision was construed by Gleeson, C.J. a judge in the minority to mean that the non-feasance rule was extended to the RTA and did not mean that the rule ceased to apply to councils and other road authorities[52].
[52]Brodie (2001) 75 A.L.J.R. 992 at 999.
Senior counsel for the State of Victoria as an intervener brought to the attention of the High Court in Brodie relevant Victorian statutory provisions authorising the construction, repair, maintenance and upgrading of roads in the State, but not compelling the exercise of any such power. He did not contend that s.205 of the Local Government Act conferred a statutory immunity from common law liability to a person injured on a road caused by misfeasance or non-feasance.
The proposition of Mr. Kaye goes well beyond the argument presented by the State of Victoria to the High Court in Brodie. The only significance is that the State of Victoria, as distinct from the appellant, took a more conservative view of the purpose and effect of s.205 of the Local Government Act.
Prior to 1993, local government legislation in Victoria was understood as not conferring a private right of action against highway authorities for acts of non-feasance. Principles of common law allowed a right of action for acts of misfeasance. This view was expressed in Gorringe[53].
[53](1950) 80 C.L.R. 357.
What change was made to the law in 1993 with the enactment of s.205? It is a canon of statutory interpretation that in interpreting an amending act the Court will consider the pre-existing law and will not construe it as altering the common law unless the intention of the legislature to make such a change in the law is shown by clear words[54]. Legislation is presumed not to alter common law doctrines and is presumed not to invade common law rights[55].
[54]Nolan v. Clifford (1904) 1 C.L.R. 429 at 444.
[55]Statutory Interpretation in Australia, 4th Edition; D.C. Pearce and R.S. Geddes at 5.16; Potter v. Minahan (1908) 7 C.L.R. 277.
Recently, in Puntoriero v. Water Administration Ministerial Corporation[56] the High Court considered a provision in the Water Administration Act 1986 (NSW) which provided that an action for damages did not lie against the Water Corporation with respect to loss or damage suffered as a consequence of the exercise of a statutory function of the Corporation, including the exercise of a power to use works to impound or control water or to release water from any such works, and held (by a majority) the provision did not confer immunity from action by a farmer whose potato crop failed due to contaminated water.
[56](1999) 199 C.L.R. 575.
McHugh, J. referred to a number of cases in which the High Court “has read limitation provisions such as s.19 of the Water Administration Act 1986 (NSW) as not covering a governmental function ‘of an ordinary character involving no invasion of private rights and requiring no special authority’.”[57] He added: “provisions taking away a right of action for damages of the citizen are construed ‘strictly’ even jealously.”[58]
[57]Puntoriero (1999) 199 C.L.R. 575 at 587 and the cases cited in footnotes (41) and (42).
[58]Puntoriero (supra) at 588 and the cases cited in footnotes (44) and (45).
Kirby, J. dissented from the majority but stated a number of general propositions applicable when a statutory immunity such as s.19 is invoked by a statutory body[59]. His Honour found the immunity provided a defence after applying the “jealous” and strict construction required by the authorities, Arduin[60], Hudson[61] and Newman[62].
[59]Puntoriero (supra) at 593-598.
[60](1961) 109 C.L.R. 105.
[61](1968) 118 C.L.R. 171.
[62](1987) 162 C.L.R. 466.
It follows that, prior to Brodie, whenever Parliament conferred power on a road authority to carry out work, the legislation was construed so as not to impose any liability at common law should the power not be exercised. This is the essence of the “highway rule”. When the Parliament in Victoria conferred a discretion on road authorities not to do any particular work in 1993, an immunity from liability for misfeasance could not be construed without clear words of intendment, in my opinion.
I do not find in s.205(2)(c) clear words of intendment which abrogate or change the common law duty of care owed to persons for non-feasance or misfeasance by highway authorities. The “highway rule” existing in 1993 was unaffected by s.205(2)(c) in my view. The common law liability for non-feasance or misfeasance was not changed because paragraph (c) does not contain “clear words” of alteration of private rights. Nor does the Minister’s speech indicate change was intended by Parliament. It does no more than confirm the basis for the “highway rule” namely, a council not obliged to do any particular work on a road is not liable for non-feasance.
In my opinion, s.205(2)(c) of the Local Government Act does not provide a statutory defence to the appellant for negligent non-feasance or misfeasance. The “highway rule” applied because Buckle and Gorringe were good law at the time, and the appellant was found guilty of negligent misfeasance.
I uphold the argument of senior counsel for Mrs. Perovic that s.205(2)(c) does not afford a statutory defence to the claim. The abolition of the immunity given by the “highway rule” by the decision in Brodie has retrospective operation.
Misfeasance or non-feasance
When Brodie and Ghantous were decided the common law distinction between liability for non-feasance and misfeasance in the case of highway authorities as enshrined in Buckle v. Bayswater Road Board[63] and Gorringe v. Transport Commission (Tas)[64] was replaced by ordinary principles of negligence governing all other statutory bodies. The “highway rule” is no longer good law.
[63](1936) 57 C.L.R. 259.
[64](1950) 80 C.L.R. 357.
The trial judge, being aware of the immunity in the “highway rule”, found negligence in the appellant for misfeasance. He had been informed by counsel for Mrs. Perovic at the commencement of the trial that the negligence relied upon was in failing to provide Mrs. Perovic with a safe means of traversing the culvert gutter by a footbridge or cross-over placed near to the parking meter she was required to use than the cross-overs already provided. Counsel said that in placing the meters on the footpath the appellant should reasonably have foreseen that harm of the kind suffered by Mrs. Perovic might result from a person proceeding by the most direct route to the meter. No reliance was directly placed upon the failure of the council to fill in the hole into which Mrs. Perovic stepped.
Evidence was adduced at the trial on behalf of the appellant of the possible difficulty in making changes to the gutter involving the bluestone kerbing because of a “heritage overlay”. No documents were exhibited to show the nature of the difficulty and whether it was insurmountable. A witness, Smith, said in evidence that the cross-overs are generally aligned with footways across the median to the upper level carriageway of Sturt Street. Mr. Smith considered it would be unreasonable to install more cross-overs on account of cost and the existence of a heritage gutter. Mr. Kern, the manager of the works road maintenance for the appellant acknowledged that the bluestone gutter was of its nature uneven and had gaps between the blocks. He agreed that the hole in which Mrs. Perovic’s foot was caught had not been fixed. He agreed that, if someone wanted a cross-over, an application for a planning approval could be made. Mr. O’Brien, an engineer, inspected the site of the accident and expressed an opinion that cross-overs are necessary and that 11 metre spacing is reasonable. He considered it would be impractical to have more cross-overs because it would impact upon the amount of parking which would be available.
The trial judge considered that the appellant created a danger in installing the meters: “the defendant was an active agent in creating and adding to an unnecessary danger in the highway, and that what was done by the defendant by the provision of parking meters and designated parking spaces created or increased the danger or risk of accidents of the type that befell the plaintiff. Accordingly, the defendant is liable to the plaintiff for a negligent act of misfeasance.”
Mr. Kaye conceded that a parking meter is an “artificial structure” for the purpose of the “highway rule”, but argued it was not open to find meters created a danger to motorists in the situation in which Mrs. Perovic found herself placed, having to cross the gutter to reach the meter. The appellant was not required to build a cross-over to reduce the danger.
I am attracted to the finding made by the trial judge that the appellant created or increased the danger for motorists in placing meters on the footpath, thus requiring them to cross the gutter twice to access the meter and return to the car, but I shall make no final conclusion.
Did the Council owe a duty of care in the circumstances?
The “highway rule” has been replaced by ordinary principles of negligence governing all other statutory bodies. Gaudron, McHugh and Gummow, JJ. expressed the following conclusions in Brodie and Ghantous[65].
“In cases such as those giving rise to the present applications, the liability of the respondents does not turn upon the application of an ‘immunity’ provided by the ‘highway rule’. In so far as Buckle and Ghantous require the contrary and exclude what otherwise would be the operation of the tort of negligence, they should no longer be followed. Further, it is the law of negligence which supplies the criterion of liability in such cases; the tort of public nuisance in highway has been subsumed by the law of negligence.”
[65]Brodie and Ghantous (supra) at para.55, p.1002.
Kirby, J. also reached the conclusion that the immunity given by the “highway rule” should be removed leaving the liability of the two respondent councils to be determined by the ordinary principles of negligence law[66].
[66]Brodie and Ghantous (supra) at para.238, p.1039.
In Ghantous, the plaintiff tripped and fell while walking along a concrete footpath. Erosion had resulted in subsidence of the earth in some places since the footpath was built. The plaintiff’s foot was placed partly on the concrete and partly on the lower verge 50mm below the surface. Four members of the court found that the defendant council owed her a duty of care. All the members of the court found that the council did not breach its duty of care applying ordinary principles of negligence.
The replacement of the “highway rule” by ordinary principles of negligence is simply a further development of the common law of negligence consistent with an extension of the rule in Donoghue v. Stevenson[67] and the duties owed by occupiers of premises or land and by statutory authorities[68] to lawful visitors.
[67](1932) A.C. 562.
[68]Cf. Hackshaw v. Shaw (1984) 155 C.L.R. 614 at 662-3; Australian Safeway Stores Pty. Ltd. v. Zaluzna (1987) 162 C.L.R. 479 at 488; Nagle v. Rottnest Island Authority (1992-1993) 177 C.LR. 423.
In Hackshaw the law of negligence was simplified in the area of an occupier’s liability towards entrants on land with the statement of Deane, J.:
“All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A pre-requisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.”[69]
[69]As to proximity, see Sullivan v. Moody [2001] HCA 59.
In Nagle five justices of the court found a statutory authority was under a general duty to take reasonable care to avoid foreseeable risks of injury to visitors lawfully visiting the reserve.
In my view it is open to find that, when the appellant delineated parking spaces in Sturt Street at and in the vicinity of the place where Mrs. Perovic was injured and installed on the footpath adjacent to the parking space a parking meter for motorists to use, it was reasonably foreseeable to the Council that an omission on its part to inspect the roadway, the bluestone gutter and the footpath and to remove potential hazards would be likely to cause harm to motorists using parking spaces and meters.
It follows that since Brodie it cannot be gainsaid that the appellant owed a duty of care to Mrs. Perovic in the circumstances. Indeed, it would be anomalous not to find that a duty of care was owed her since all the judges found a duty of care was owed to Mrs. Ghantous in circumstances where she was simply a pedestrian lawfully using the footpath when she slipped.
Was the duty of care breached?
Mr. Kaye contended that the surface of the gutter was inherently uneven with numerous crevices and apertures, due to the nature of bluestone and its construction. He relied upon the circumstance that the accident occurred in daylight when the hole or gap in the gutter was not obstructed or difficult to see. Further, he said, the plaintiff was familiar with the locality.
It is necessary to refer again to his Honour’s findings in the court below that the appellant did nothing to alleviate the danger by way of filling in the holes or gaps between the bluestone blocks and in particular the larger hole into which Mrs. Perovic stepped; nor did it do anything to provide more culverts (scil. cross-overs). His Honour appears to have made two findings of negligence against the appellant.
In finding that the appellant was negligent in not filling in the holes or gaps between the bluestone blocks, and in particular the hole into which Mrs. Perovic stepped, it would appear that his Honour overlooked the abandonment by counsel for Mrs. Perovic of this particular of negligence. Further, counsel for the appellant may be assumed to have conducted the defence upon the basis that this aspect of negligence was abandoned and was not required to adduce evidence to refute the allegation.
I have considerable doubt whether the failure to fill in the holes or gaps between the bluestone blocks was misfeasance. Further, the second basis for finding negligence is, arguably, against the weight of the evidence. I shall not further address the second basis for finding negligence because I am of the opinion there must be a new trial and the evidence may be different and capable of supporting a finding of negligence.
Mr. Kaye argued that the findings of negligence were not open to the trial judge on the evidence and, at least in relation to the failure to fill in the hole, because of the concession made at the commencement of the trial. Mr. Stanley does rely on the failure to fill the hole but acknowledged, I believe, the strength of the argument that the appellant may have omitted to call evidence in view of the concession made at the trial.
For a number of reasons I am of the opinion that a new trial of the liability issue is required.
1.The decision in Brodie has removed the “highway rule” retrospectively and replaced it by ordinary principles of negligence.
2.The trial was conducted upon the basis that the appellant was negligent only for acts of misfeasance. This limited the scope of the acts and omissions which could be relied upon by the respondent on the negligence issue.
For example, counsel was constrained from relying upon particular of negligence (l) - failing to replace the damaged bluestone block in the gutter which created the hole – because he considered the plaintiff would have difficulty in persuading the court that there was misfeasance in failing to replace the damaged bluestone. The case in negligence was particularised in paragraph [32](a) and (b) and lay in failing to provide the plaintiff with a safe means of traversing the culvert gutter, such as a foot bridge or cross-over.[70]
Should a re-trial be ordered the plaintiff may pursue particular (1) and lead evidence about filling in holes or gaps between the bluestone blocks of the size confronted by the plaintiff. The appellant may also lead evidence on the issue.
3.Section 205(2)(c) does not provide a defence to the appellant in a suit for negligence.
4.The findings referred to in paragraph [49] were made when the “highway rule” applied and one of the findings was contrary to the abandonment by counsel of such a claim when the trial commenced.
[70]The transcript of the opening, at pages 4 to 6, explains the difficulty counsel considered he faced with the “highway rule”.
I am of the view that the appeal should be allowed to the extent that the judgment for the plaintiff in the sum of $134,055.60 and costs should be set aside and a re-trial ordered limited to whether the appellant was in breach of the duty of care it owed to Mrs. Perovic.
The court will need to hear counsel on the question of costs of the appeal and costs of the first trial.
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