Davey v Gold Coast City Council

[2001] QCA 495

[2001] QCA 495

COURT OF APPEAL

de JERSEY CJ
DAVIES JA
MACKENZIE J

Appeal No 5147 of 2001

RICHARD DAVEY  Respondent/Plaintiff

and

THE COUNCIL OF THE CITY
OF GOLD COAST  Appellant/Defendant

BRISBANE

..DATE 08/11/2001

JUDGMENT

THE CHIEF JUSTICE:  This is an appeal against a Judgment of the District Court given on 15 May 2001 which involved a finding that the appellant had been negligent.

At about 1 o'clock in the morning on 20 May 1996 the respondent left his house in order to retrieve a dog.  He negotiated a concrete pathway which led from the end of a cul de sac towards an easement which itself led into a park.  As the respondent came to the end of that concrete path he stepped into a hole in the ground.

It was common ground that there was no guard around the hole into which the respondent fell.  A number of matters may be drawn from the learned Judge's reasons for Judgment convenient of expression now.  The hole was two feet deep and approximately two feet wide.  At the time of the incident the hole was not lit and had not at any stage been lit.  Neither, at that time, was it protected by any barricade.

The park was within the purview of an honorary ranger, a Mr Noble who filled the role of caretaker.  One Lines, on behalf of the appellant, had erected an unlit barricade around the hole on 16 May.  The area was not subsequently inspected to ensure that the barricade remained in position.

The barricade consisted of orange tape held up by star pickets.  It was re-erected the day after the incident.  The learned Judge dealt with the matter in these terms:

"There is no doubt that the plaintiff fell into whatever hole was there and that it was not protected by a barricade at that time...the hole in question was never lighted.  No illumination at all was placed in the area.  Battery operated lamps are frequently seen around excavations and road works and one would expect would readily be available to the defendant counsel.  It would also have been a simple matter to erect some barricade or warning at the entrance to the concrete walkway in the cul de sac.  Further, nothing was done at all between 16 May, on the defence case, and 20 May to ensure that the barricade Mr Lines claims to have erected remained in place.  It was not just the possibility of theft that the council employees had to have in mind.  The hole was situated in the vicinity of a public easement leading to a park, an area likely to be frequented by children and children being children a person erecting a barricade over a hole ought surely to recognise the possibility that it might be rendered less effective even if not removed by the interference of passers by or mischievous or curious children.  Mr Lines explained that he erected the barricade on 16 May to render the hole safe and reported it back to Mr Larson at the Beenleigh depot.  Mr Larson explained why the hole was not filled in.  He said that it was because of the sewerage line.  `The person that went out to do it would have done it that day except that it was sewerage and it had to go to a different department.'  He explained further that he was not permitted to fill over the top of a sewerage rising main unless somebody checks it out.  That seems to be the reason why the hole was left unfilled for, at least, four days before the plaintiff fell into it. 

Consequently, the allegation of negligence contained in paragraph 6B of the amended plaint and those particulars in paragraph 7C and E are established."

Paragraph 6B alleges:

"That despite notice of the existence of the hole as early as 15 May 1996 the defendant took no steps to repair or barricade the said hole or to illuminate it at night-time or to take any other steps to notify the public of the existence of the hole at night-time or alternately took inadequate steps to provide a proper and robust barricade."

Paragraph 7(c) alleges the defendant failed to provide warnings or adequate warnings of the nature of the hazard to pedestrians and (e) that the defendant failed to provide adequate lighting in the area of the hole.

As to the question of illumination, counsel for the appellant submitted it was a red herring in that, and I read from the outline of argument:

"If the barricade had remained it would have prevented the accident. It was one and a half metres high with orange mesh.  Even on a dark night and without illumination it would have prevented a person stepping into the hole."

The answer is obvious enough, that the illumination, if there, would itself have drawn attention to the presence of the hole. The question was raised, however, whether if, for example, vandals were responsible for the removal of the barricade, they might have been expected also to misappropriate any lighting.

The answer to that is that it fell to the council to provide secure lighting such as would not be vulnerable to such removal. 

The appellant asserted that the question of a system of inspection, to ensure that the barricading and any lighting remain in position, was not open on the pleadings.  I consider, however, that paragraph 6B does sufficiently raise that matter where it refers to the taking of inadequate steps to "provide", involving also I would suggest maintain, a proper and robust barricade.

If one looks at the way the learned Judge dealt with the matter, he may be taken to have raised a number of possibilities which, if met, would have avoided this incident. The first is the filling of the hole at an earlier stage:  I appreciate that that has not been spelt out in an especially clear way in terms of findings, but I do believe nevertheless it may be drawn from the reference to the leaving of the hole unfilled for, at least, four days, immediately followed by the finding that "consequently" paragraph 6B was made out.

Then, in addition, his Honour has found, in terms of paragraph 6B, that the appellant was negligent in having taken inadequate steps to provide a proper and robust barricade - in other words, one which might be expected to withstand the depredation of vandals and others.  The third matter quite clearly raised by his Honour's reasons concerns the absence of a sufficient system of inspection to ensure that an appropriate barricade remained in position, the point being that should something flimsy be erected, then the obligation to ensure it remained there would be heightened.  There was no evidence of any inspection of this location between 16 May when the barricade was first erected, and the time of the incident on 20 May.

Mr Keane relied substantially, in terms of authority, on Griffin v. Coles Myer Limited 1992 2 Queensland Reports 478, in relation to issues, first, of what could reasonably be required and second, causation.  The situation which confronted the Full Court in that case concerned what might reasonably be expected of the operator of a bustling supermarket.  The static situation confronting the present appellant fell into a quite different category.

I consider that the judgment is sustainable on the basis of the findings made by the learned Judge, which themselves found sufficient reasonable justification in the evidence he apparently accepted.  I would dismiss the appeal.

DAVIES JA:  I agree

MACKENZIE J:  I agree.

THE CHIEF JUSTICE:  The appeal is dismissed with costs to be assessed.

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