City of Melbourne v Barnett

[1999] VSCA 171

SUPREME COURT OF VICTORIA

COURT OF APPEAL	Not Restricted
No. 6534 of 1998

CITY OF MELBOURNE	Appellant/Defendant
v
DOROTHY MAY BARNETT	Respondent/Plaintiff

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JUDGES:	BROOKING, CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 October 1999
DATE OF JUDGMENT:	21 October 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 171

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Torts – Negligence – Highway authorities – Misfeasance – Nonfeasance – In respect of what matters – Injury to user of footpath – Whether repair by defendant authority of hole in pavement constituting misfeasance – Whether evidence of repair.

Judge's conduct of trial – Judge's comments concerning witnesses.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. B.D. Bongiorno, Q.C.	Ligeti Partners
Mr. C.M. O'Neill
For the Respondent	Mr. T.J. Casey, Q.C.	Holding Redlich
Mr. J.F. Carmody

BROOKING, J.A.:
CHARLES, J.A.:
CHERNOV, J.A.:

1. There are poker machines at the Welcome Stranger Hotel at 128 Bourke Street, Melbourne. On 27 June 1996, Mrs. Dorothy Barnett travelled by bus from her home at Garden City in order to spend the evening playing them. At about 7 p.m. the bus in which she was travelling pulled up in front of the Welcome Stranger. There is a footpath between the building line of the hotel in Bourke Street and the roadway, and the kerb of the footpath is made of bluestone. As Mrs. Barnett put her left foot to the ground, her shoe went into a hole some 2 inches deep in the bluestone kerbing (she said in evidence her foot "fitted into it") and she fell forward onto her hands, twisting her ankle as she fell. Mrs. Barnett had not seen the hole before she stepped into it. Photographs of the bluestone kerb and the hole show that a jagged piece of bluestone roughly fitting a human foot in size, had broken away from the bluestone kerbing.

2. Unfortunately Mrs. Barnett broke her left ankle and suffered other injuries in this fall. She then sued the City of Melbourne in negligence as being the authority in which was vested care and control of the footpath and as an occupier pursuant to Part IIA of the Wrongs Act 1958. In particular she alleged that the City had constructed or maintained the footpath in such a way that the pavement had a hole in it, failed to give adequate warning of the presence of the hole, and failed to repair the footpath. The action came on for hearing in the County Court at Melbourne before a judge alone on 2 June 1998. The plaintiff's counsel argued that the defendant had been negligent in failing to repair or properly repair the hole. For its part, the defendant argued that it had no obligation to repair the hole as the hole came into existence in consequence of non-feasance rather than misfeasance, and accordingly submitted that it was not liable to the plaintiff. After hearing evidence on 2, 3, 4 and 5 June 1998, the judge on 3 July 1998 gave judgment for the plaintiff. His Honour awarded the plaintiff damages in the sum of $20,000 plus interest agreed in the sum of $300, together with special damages fixed at $1,822, and costs fixed at County Court Scale C.

3. In his reasons for judgment, the judge said –

   "While I cannot be entirely sure that the hole was ever attended to, I have formed the belief that, given all the evidence with respect to the street's maintenance, at some point the hole was the subject of attention, albeit desultory and not long-lasting. The bus stop was moved to the particular location because of development at the intersection. That move must have entailed placing of a new stop sign for the bus. Workers engaged in that may have been myopic, but I do not believe that the particular hole could have escaped their attention, even if they, in the habit of some workers, simply shifted some scoria into it hoping to conceal the problem rather than addressing it. ...

   I am satisfied that there was work on the footpath and that includes the bluestone kerbing."

4. The defendant now appeals to this Court, challenging the judge's conclusions on the basis that there was no adequate evidence to establish that the appellant or its servants or agents carried out any work to the hole in the bluestone kerbing at any time prior to the happening of the incident, or shifted any scoria into the hole hoping to conceal the problem, or indeed had ever done any work on the footpath such as to constitute work done on the hole. Both the appellant and the respondent-plaintiff in their submissions to this Court accepted that the judge's decision was founded on the assumption that in order for the plaintiff to succeed she was obliged to prove that a cause of her injuries was the appellant's misfeasance in relation to the hole, that is, that it had undertaken some work to the hole which had been negligently carried out. The appellant did not challenge the assessment of damages.

5. There is no question but that the appellant, as an authority responsible for the care and management of a highway (in this case Bourke Street) was liable to the appellant only in respect of a negligent act of misfeasance, rather than non-feasance. The law in this respect is established by a long line of authorities, beginning in Australia with Buckle v. Bayswater Road Board (1936) 57 C.L.R. 259 and applied in Gorringe v. Transport Commission (Tas.) (1950) 80 C.L.R. 357. The principle has been given repeated application in the Court of Appeal in New South Wales in very recent times: see Campbelltown City Council v. Crain, unreported, decided on 23 October 1998, per Powell, J.A. at pp.3-5 (with whom Meagher, J.A. and Sheppard, A.J.A. agreed); Threadgate v. Tamworth City Council [1999] NSWCA 32 per Handley, J.A. , with whom Powell and Giles, JJ.A. agreed, at pars.[4]-[8]; Lake Macquarie City Council v. Bottomley [1999] NSWCA 28 per Powell, J.A., with whom Handley and Giles, JJ.A. agreed, at pars. [35]-[37]; Ghantous v. Hawksbury City Council [1999] NSWCA 51 per Powell, J.A., , with whom Handley and Giles, JJ.A. agreed, at par. [65]. The principle has from time to time been subjected to considerable criticism (see for example Hughes v. Hunters Hill Municipal Council (1992) 29 N.S.W.L.R. 232 per Mahoney, A.P. at 235-236) and its application is often unsatisfactory in that, as in the present case, a determination of whether a road maintenance authority such as the present appellant has been responsible for an act of misfeasance as opposed to non-feasance requires the most detailed investigation of the authority's past records, in order to determine what, if any, positive work the authority has carried out on the defective roadway. Be that as it may, it is perfectly clear that any change in the relevant law could only be effected by Parliament, or by a decision of the High Court (cf. for New South Wales, Ghantous v. Hawksbury City Council at par. [65]). It is also well- established, notwithstanding some doubt expressed by Mahoney, A.P. in Hughes v. Hunters Hill Municipal Council at 236, that a footpath such as that fronting the Welcome Stranger Hotel is, for the purposes of the rule, part of the highway which is Bourke Street: see Buckle v. Bayswater Road Board per Dixon, J. at 281-282; City of Keilor v. O'Donohue (1971) 126 C.L.R. 353, at 363; Hellyer v. The Commonwealth [1964] 5 F.L.R. 459; Campbelltown City Council v. Crain; Lake Macquarie City Council v. Bottomley; Grafton City Council v. Riley Dodd (1955) 56 S.R.(N.S.W.) 53; and Ghantous v. Hawkesbury City Council, in particular at par. [64] where the doubts of Mahoney, A.P. in Hughes v. Hunters Hill Municipal Council were rejected. See also Fleming, The Law of Torts, 9th ed. (1998) at 486-487.

6. In the present case the judge appears to have assumed that once he had found the servants or agents of the appellant to have taken any step towards the repair of the hole, the appellant became liable to the plaintiff for an act of misfeasance, regardless of whether negligence had been established. Putting to one side for the moment the issue of negligence, there is first a question to be considered as to when an authority which embarks upon repairing a highway becomes liable for damage. In Fleming (op. cit, at 485-486) the principle is put in the following way –

   "In the first place, the immunity can be claimed only for non-feasance, not for accidents caused by misfeasance. The inherent ambiguity of this distinction has introduced a large measure of unpredictability and become a foil for eviscerating the principal rule. True, merely because the local authority has done something to the road does not necessarily make the case one of misfeasance. The execution of superficial repairs, for example, does not attract liability, unless it increased the risk of accidents. To be charged with misfeasance, the authority must have been an active agent in creating or adding to an unnecessary danger in the highway, as by making an excavation without filling it in, creating an obstruction, raising the surface so as to weaken a retaining wall, constructing a road that ends abruptly in an unguarded ravine, repairing a road so as to give a false appearance of safety, or removing all but one of a line of trees so as to convert into a trap what was once a self-evident margin of the road. The improper nature of the original act or intervention of the road authority must always be the foundation of the complaint against it."

   See also Trindade and Cane, The Law of Torts in Australia, 3rd ed. (1999) at 712-713, esp. at footnote 111.

7. The rationale behind this aspect of the major principle was stated by Latham, C.J. in Gorringe at 364-365. After referring to what had been said by Lush, J. in McClelland v. Manchester Corporation [1912] 1 K.B. 118 at 127, his Honour said of that case at 364 that –

   "The evidence showed that a road authority had made and lighted two streets in such a way as to lead anyone to suppose that there was a continuous thoroughfare, whereas in fact there was an unfenced ravine running across the end of one of the streets. The apparent continuity of the lighting constituted a grave danger and was created by the corporation itself. Accordingly there was more than mere non- feasance. There was the negligent exercise of a power. The words 'Once establish that the local authority did something to the road and the case is removed from the category of non-feasance' ought not to be read as purporting to state a general principle that if a highway authority once does anything at all to a road, then the authority becomes liable for damage arising from a non-repair of the road, whether or not that which the authority did had any relation to the resulting damage."

8. That an authority must have been an active agent in creating or adding to an unnecessary danger in the highway, as suggested by Fleming in the passage cited above, represents an approach that has been repeatedly taken in the New South Wales Court of Appeal. For example, in Hill v. Commissioner for Main Roads (1989) Aust.Torts Reports §80-260, a motorcycle rider crashed when he lost control of his motorcycle after hitting a rough patch of road. The road had been repeatedly patched, but it had defective drainage which led inevitably to the recurrence of the problem. Samuels, J.A., with whom Kirby, P. and Priestley, J.A. agreed, held that the repairs undertaken by the Council amounted to more than mere non-feasance, because they had made an impassable road passable. His Honour said at 68,788 –

   "What faced the respondent here was not merely some roughness in the surface of the carriageway but a danger in the highway. It certainly could have refrained entirely from acting in any way. However, once committed to intervention, its duty was to perform the task it had undertaken with proper care and skill. That task was to repair the highway in order to remove the danger. In order to achieve that purpose it was necessary to identify and rectify the fundamental cause of the manifest condition. That cause was identified; the respondent knew all about it. It could have been rectified by taking the steps which were taken in March 1981, two months after the accident. This is, in my view, what ought to have been done during 1980 when time and money was devoted on more than one occasion, according to the evidence, to the superficial patching of the roadway. That, however, was not undertaken and the respondent, having acted but without grappling with or remedying the essential problem, is guilty of an actionable misfeasance."

   See also Kirk v. Culcairn Shire Council (1964) 64 S.R.(N.S.W.) 281, at 288-289; Lake Macquarie City Council v. Bottomley at pars. [37]–[38]; Singleton Shire Council v. Brodie [1999] NSWCA 37 at pars. [43]-[45]. In Campbelltown City Council v. Crain, the plaintiff injured herself when her foot became stuck in a cracked piece of footpath which had been repaired in an unsafe manner. Powell, J.A. said at p.5 –

   "It should, however, be noted that the mere fact that a road authority has done something to a road does not convert a case, which would otherwise be one of non-feasance, into one of misfeasance, for the execution of superficial repairs, for example, does not attract liability unless it has in fact increased the risk of accidents."

   His Honour then referred for support to the passage from the judgment of Latham, C.J. in Gorringe to which reference has already been made. Later, at p.8, Powell, J.A. said –

   "Even if it is open to treat the respondent's evidence as indicating that her fall was brought about by the deteriorated condition of the footpath rather than that her fall was caused when she placed her foot on the edge of the footpath and turned her ankle, there is, in my view, nothing in the respondent's evidence to indicate that any repair work had been carried out to the footpath; that, even if there had been repair work carried out to the footpath, it had been carried out by the appellant's employees; that, even if there had been repair work to the footpath carried out by the appellant's employees, that repair work had created a danger or had increased a danger which already existed; or that the condition of the footpath had been the cause of the plaintiff's accident."

9. In the present case, the evidence of the plaintiff herself was that when she put her foot to the ground, it went into the hole in the bluestone kerbing and she fell forward. She said she did not see the hole before she stepped into it, observing the hole only after she had fallen. She described the hole as being in the bluestone paving and said as to its size that her foot "fitted into it". She described the hole as being "All rough. There were like jagged bits in the hole you know where it had broken. It wasn't exactly level the hole, it was jaggedy" and later she said that there was "a fair bit of gravel or something" in it. She said no piece of the flagstone had come off when she stepped in the hole, the missing piece was already off.

10. The other three witnesses called for the plaintiff on the question of liability were Peter Athanassadiadis, a risk management officer employed by the appellant, James Justin Favalore, a civil engineer employed by Connell Wagner, a firm of engineers to whom engineering works within the City of Melbourne had been "outsourced" by the appellant, and Kenneth Raymond Milne, who in 1995 was a neighbourhood officer employed by the appellant. It is relevant to note that Mr. Athanassadiadis was served with a subpoena duces on the day on which he gave evidence (the second day of the trial) to bring to court certain of the appellant's files; and Mr. Favalore who gave evidence on 4 June 1998 had been served with a subpoena only on the previous day. The task of the plaintiff in establishing liability on the part of the City was made harder by virtue of the fact that no discovery appears to have been sought on behalf of the plaintiff against the appellant, nor had interrogatories been served enquiring as to any repair works that might have been carried out by the appellant in relation to the footpath in front of the Welcome Stranger in the years preceding the happening of the accident.

11. The evidence established that some of the engineering services of the defendant were "outsourced" in or around 1995 or early 1996 and the evidence of Mr. Favalore in particular was that before the happening of the accident there was a system in place for the scanning of faults in the streets which involved a yearly inspection performed by officers driving around the streets. The streets and footpaths were graded from 1 to 5 according to their condition. Since before the accident inspection procedures had been carried out by a contractor, the footpaths being inspected by foot patrol. There was no detailed reporting back of specific footpath problems. Mr. Favalore's evidence was that there would have been no record of works undertaken to the footpath other than major works to large bits of pavement and not minor work. He said that a hole in the pavement would have been regarded as minor work.

12. According to the evidence the roadway of Bourke Street and the footpath in front of the Welcome Stranger Hotel were originally constructed in 1939. There was no available record of when the bluestone kerb was put in. There was in evidence a letter of 26 April 1984 from a Mr. Pike on behalf of the appellant to the manager of Barbarino's at 130 Bourke Street (next door to the Welcome Stranger), informing the manager that instructions had been issued for the reconstruction of the footpath adjacent to 130 Bourke Street and that works would be undertaken in the near future. Mr. Favalore said in evidence that the letter did not indicate what area of footpath was being paved and further did not indicate whether in fact any such works had been carried out. There was also in evidence a document dated 11 August 1994 in relation to "Bourke Street outside No. 128" which stated that a complaint had been received "Stop tap box to be raised to street level". No oral evidence was given in relation to this document. There was evidence from the daily complaints register of the appellant that on 20 February 1995, a complaint had been received in relation to "Bourke Street N/S B/W Russell Street and Market Lane", the nature of the complaint being the "footpath near kerb to be patched with asphalt half a metre". Evidence was given in relation to this entry by Mr. Milne, whose name was shown on the complaint record as the "contact name". A second document in evidence was a Service Request Form also dated 20 February 1995 issued by Mr. Milne to Anthony Monaghan, stating that a complaint had been received and continuing –

    "LOCATION: BOURKE STREET (OUTSIDE TATTS POKIES, NORTH

    SIDE BETWEEN RUSSELL STREET AND MARKET LANE).

    COMPLAINT: FOOTPATH NEEDS TO BE PATCHED (AREA
    APPROX. ½ METRE). COULD IT BE ASSESSED PLEASE.

    Mr. Milne said these entries related to half a metre of repair work to the footpath which was to be patched up. Mr. Milne could not recall the event but said that as he had used the word "footpath" the repair would have been to the footpath. Mr. Milne further said that if the repair had been to the kerb he would have put "bluestone kerb needs to be repaired". He further said that if there had been a problem with the kerb, he would have logged it in as "kerb and channel" as there was a requirement that the report be specific. Mr. Milne also said that because there had been no complaint recorded as to the hole, apparently no one from the Council had seen it. Mr. Favalore also said in relation to the complaints register of 20 February 1995 that the area between Russell and Exhibition Streets was approximately 200 metres long and that the area between Market Lane and Russell Street was approximately 100 metres long. He further said that the reference in the document to "half metre" meant an area of half a metre by half a metre. He was unable to say where that half-metre area was within the 100 metre strip of footpath and whether any such work had in fact been carried out.

1. There was also evidence that in 1995 a bus stop was moved to a position outside the "Tatts Pokies venue" in Bourke Street from a position further east near Exhibition Street.

2. Mr. Casey for the plaintiff relied on various aspects of the evidence as justifying the judge's conclusions. Mr. Favalore had said in evidence that if the hole had been observed by a Council officer it would have been patched with asphalt as a temporary filler. He agreed that such temporary filling would chip away and that the only way to fix the hole properly would have been to replace the piece of bluestone kerbing. Next Mr. Casey relied on the description of the area for repair "near the kerb" in the complaints register for 20 February 1995 and the evidence of Mr. Milne as to the events relating to this entry in the complaints register. Mr. Milne had said that the computer records indicated that the work then requested had been completed in March 1995. Next Mr. Casey referred to the evidence that the appellant had repaired the hole in the bluestone kerb after 27 July 1996. Mr. Casey relied on the plaintiff's evidence of the hole and her statement that there was a "fair bit of gravel in it" as being consistent with the method of filling the hole described by Mr. Favalore. Then Mr. Casey relied on the evidence that both Mr. Milne and Mr. Athanassadiadis went to the site of the accident on the third day of the trial (4 June 1998) and Mr. Milne said that he would have referred to the defect in the kerb as "the kerb and channel or near the kerb or whatever". Mr. Casey emphasized that the description in the complaint was of "footpath near kerb to be patched with asphalt half metre".

3. Mr. Casey submitted that the evidence, particularly of Mr. Favalore and Mr. Milne, permitted the judge (and this Court) to draw the inference, on the balance of probabilities, that repair work had been done by Council staff in 1995 in the vicinity of the hole in the bluestone kerbing by placement of half a metre of asphalt, with the result that some of that asphalt may have squeezed into the hole, thus creating a danger to the plaintiff. There are a number of difficulties with this argument. In our view there was no evidence to justify the conclusion that any work which might have been done in 1995 had resulted in asphalt being squeezed into the hole. That was, of course, not found by the judge to have happened Next, the plaintiff's evidence did not justify the view that there was at the time of the accident any asphalt in the hole. Since the plaintiff said she had not seen the hole before putting her foot into it, it cannot be said that the hole was concealed from her by its contents. The plaintiff did not suggest in her evidence that the gravel in the hole concealed it. Mr. Casey conceded in argument before us that there was no evidence that the plaintiff had looked down at the footpath before the accident or that anything in the hole obscured its visibility. The plaintiff's sister was with her when the accident occurred, but was not called to give any evidence as to the hole, or its contents, or suggesting that the existence of the hole was obscured by asphalt.

4. Mr. Casey placed reliance on the decision on Hill v. Commissioner for Main Roads, to which we have already referred. But the essence of that decision is, we think, to be found in an earlier passage in the judgment, also at p.68,788, where Samuels, J.A. said of the patching there in question that –

   "Thus the patching did no more than, to borrow the words of Dixon, J., throw open an unsafe road to traffic afresh. The patching was therefore negligent because it failed to remedy a foreseeable risk which was, as the respondent knew, certain to reappear at some stage in the future with predictable and hazardous consequences to the users of the highway.

   It seems to me that this amounts to a misfeasance. The essence of the active intervention, negligent in character, was the conversion of an unsafe carriageway into an apparently safe carriageway – one which would remain safely negotiable for a period but which would inevitably deteriorate into danger."

   See also Singleton Shire Council v. Brodie, per Powell, J.A. at pars. [45]-[46].

5. In the appeal, the plaintiff's case was therefore principally based on the events recorded in the daily complaints register for 20 February 1995. The judge's reasons, however, suggest that his Honour may have placed greater weight on the fact established through Mr. Milne that in 1995 there was a bus stop moved to a position outside the "Tatts Pokies" venue from a position further towards Exhibition Street. Mr. Milne had said that about six or eight months before the date of trial, the bus stop had been moved again.

6. The judge's reasons make it a very difficult matter for this Court to determine on what basis his Honour decided that there was repair carried out to the hole in the bluestone kerbing, or misfeasance by the Council, or, for that matter, negligence on the part of the Council as a cause of the plaintiff's injuries. In this context it is well- established that the extent of a judge's duty to give reasons will depend upon the circumstances of the case, but that reasons given will be inadequate if an appeal court is unable to ascertain the reasoning upon which the decision is based: Sun Alliance Insurance Ltd. v. Massoud [1989] V.R. 8 per Gray, J. (with whom Fullagar and Tadgell, JJ. agreed) at 18; Pettit v. Dunkley [1971] 1 N.S.W.L.R. 376 per Moffatt, J.A. at 387-388; Soulemezis v. Dudley (Holdings) Pty. Ltd. (1987) 10 N.S.W.L.R. 247 per McHugh, J.A. at 279-280; Cropp v. Transport Accident Commission [1998] 3 V.R. 357 at 376. In our view, the reasons given by his Honour, with respect, were wholly inadequate in the areas already mentioned.

7. The judge's conduct of the trial calls for comment in other respects. During the plaintiff's evidence, she stated that after her accident no one other than her sister came to her assistance, and the bus drove away without the driver stopping or giving any acknowledgment of what had happened. This provoked the following exchange between his Honour and counsel for the appellant –

   "HIS HONOUR: That can't surprise you can it?
   MR. O'NEILL: Yes, it does, Your Honour.
   HIS HONOUR: What, a bus driver?
   MR. O'NEILL: Yes, for a minute.
   HIS HONOUR: Privatized lines."

8. On the second day of the hearing Mr. Athanassadiadis was called by the plaintiff. As we have said, he was subpoenaed that day to bring to court the appellant's files in relation to repairs of the area in question. Mr. Athanassadiadis said that the Council's files had been "outsourced" and transferred to the new contractors, but he produced correspondence in relation to the area of the footpath near the Welcome Stranger Hotel. During examination-in-chief the following exchange took place –

   "HIS HONOUR: There's no admitting by the Council, is there, that they've done work here at that date, is there [a letter had been tendered dated 26 April 1984]?

   MR. CARMODY: In this letter? I think that's what he's just said but

   yes, it would have been.

   HIS HONOUR: No, but the Council through their solicitors or

   whatever ...

   MR. CARMODY: No, no, no. That's why we're going through this.

   HIS HONOUR: Were they aware of it?

   MR. CARMODY: I can't speak for them sir.

   HIS HONOUR: No, are you aware of it?

   MR. O'NEILL: Aware of what, Your Honour?

   HIS HONOUR: Works being done there?

   MR. O'NEILL: No. No, Your Honour.

   HIS HONOUR: No. Your instructor is not instructed on that? It really

   is a central point, isn't it?

   MR.O'NEILL: I don't know whether they were instructed, Your Honour. I don't know what works were carried out in this area and if any were, when and what was the extent or nature of them. I simply can't speak for my instructor because I don't know ...

   HIS HONOUR: It sounds as though to get to this you're going to have

   to go on an incredible fishing expedition into outsourced people.

   MR. CARMODY: Yes, well – yes, that may be, Your Honour.

   HIS HONOUR: And they'll come to court, if this witness is believed,

   saying they can't find files."

9. When Mr. O'Neill came to cross-examine Mr. Athanassadiadis, the following exchange took place –

   "HIS HONOUR: (Indistinct.) Why has this witness answered the

   subpoena, do you know?

   MR. CARMODY: It was directed to him. My instruction about the subpoena itself was directed to this person as he was the identity known to us out of the Bar table as in a specific person. Also hopefully we can get the documents we needed which I don't think we have.

   HIS HONOUR: No, obviously not although there is a bit of an

   inference one can draw (indistinct).

   MR. O'NEILL: Your Honour, in that regard the subpoena is directed

   to this man.

   HIS HONOUR: I understand that, I just asked why it was directed to this man. I mean I wouldn't know what your direct link to (indistinct) your file."

10. At the end of this witness's evidence, Mr. O'Neill raised the following matter

    with the judge –

    "MR. O'NEILL: Just one matter ... Your Honour. Just in relation to what my learned friend said. As I understand it I am told that this subpoena was served at 11 o'clock this morning for this witness to be here at 12 and there seems to be something implied from what he said that there's some conscious cover up of documents. It should be remembered in my respectful submission, this person has been subpoenaed in person ...

    HIS HONOUR: I don't think they're intelligent enough to cover up

    documents, Mr. O'Neill.

    MR. O'NEILL: That may well be, Your Honour, but I simply say that this was served at 11 o'clock this morning seeking documents which this man doesn't have."

11. When this witness stood down, the judge, in excusing him, said dismissively "Go back and do some more risk management."

12. After the witness's evidence finished, Mr. Carmody for the plaintiff said that was the end of the evidence available at that time. There followed this exchange between his Honour and Mr. O'Neill (the transcript describes the counsel in question as Mr. Carmody, but the context makes it plain that the counsel being questioned was Mr. O'Neill) –

    "MR. O'NEILL: It seems, I say this without instructions ...

    HIS HONOUR: Do you want to take instructions?

    MR. O'NEILL: In what regard, Your Honour?

    HIS HONOUR: To find out whether anything – I mean you might get

the instructions much quicker than the (indistinct).

MR. O'NEILL: Yes. All I say is that it seems clear from the documents that the repairs have been carried out afterwards and probably by us, Your Honour. I don't take any issue with that.

HIS HONOUR: (Indistinct) might be five days.

MR. O'NEILL: February '95.

HIS HONOUR: Yes.

MR. O'NEILL: Well, in my submission it's drawing a long bow to say there's been a repair carried out to this immediate area from that document, a very long bow.

HIS HONOUR: It may be a case where a long bow is needed, Mr.

O'Neill.

MR. O'NEILL: It's a burden the plaintiff's got to ...

HIS HONOUR: I understand the plaintiff's to ...

MR. O'NEILL: This is, Your Honour, discovery is available,

interrogation is available, subpoenas before trial are ..."

The appeal book does not indicate whether any further comment was made in relation to this issue at this point.

1. Mr. O'Neill's submissions in closing produced the following exchange with

   his Honour –

   "My learned friend says, and rightly so in my respectful submission, that his case hinges upon whether repair, well I won't quote him verbatim, but he seems to be saying his case hinges upon repairs being undertaken to this hole, that is the chip of the bluestone. In my submission there is simply no evidence of that. There is no evidence that the repairs alleged of June, alleged of February '96 indicate a repair of this.

   HIS HONOUR: I'm going to get there – I've said that. I think you've

   just got to leave that to me."

2. A careful examination of such of the transcript as was made available in the appeal book (we were of course not supplied with the whole transcript of the hearing) suggests that his Honour was, with respect, concerned not so much to conduct a judicial hearing of the plaintiff's action and the appellant's defence; rather his Honour appears to have regarded the process as permitting a roving investigation into the activities of the appellant, and an opportunity to direct complaint and criticism against its officers. His Honour also placed pressure on the appellant's counsel to admit matters which were not formalities, but which were critical to the success of the plaintiff's action and required to be established by the plaintiff. There was in our view no justification whatever for his Honour's implied criticisms that the appellant's witnesses were not being frank with the Court, or were hiding documents. They had been given virtually no warning of their requirement to give evidence and produce documents. There was no justification for his Honour's reflection on the intelligence of these witnesses. We are compelled to the comment that the remarks of the judge to which we have drawn attention were unjudicial and quite unacceptable, and should not have been made. Indeed they might well have drawn from the appellant the complaint that they demonstrated actual bias.

3. In our view there was no evidence to support the conclusion of the judge that the hole was the subject of attention, or that workers for whom the appellant was responsible had their attention drawn to the hole, or that any such worker "simply shifted scoria into it hoping to conceal the problem rather than addressing it", as his Honour put it. These conclusions were in each case no more than speculation. Even if there had been any evidence to justify any such conclusion, that would in itself have been insufficient in our view to amount to relevant misfeasance. The plaintiff had not seen the hole before she placed her foot in it. There was no suggestion that any gravel in the hole concealed its existence or made it more dangerous. On the evidence, any "gravel or something in the hole" would merely have reduced its depth, or possibly have provided an uncertain foundation at the bottom of the hole. In the circumstances we can see no basis for concluding that any repair work carried out in the vicinity of the hole in any way increased the risk of accident or rendered the appellant an active agent in creating or adding to an unnecessary danger in the highway.

4. In our view there was in all these circumstances no basis for his Honour's conclusion that the appellant was responsible for work in the footpath, or that it was guilty of misfeasance resulting in liability to the plaintiff, or indeed for a conclusion that the appellant was guilty of negligence in either of these respects.

5. The appeal must be allowed, judgment for the plaintiff set aside and, in lieu thereof there should be judgment for the appellant.

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