Evans Shire Council v Richardson

[2005] NSWCA 416

CITATION:	Evans Shire Council v Richardson [2005] NSWCA 416
HEARING DATE(S):	9 November 2005
JUDGMENT DATE:	30 November 2005
JUDGMENT OF:	Giles JA at 1; Ipp JA at 2; Tobias JA at 3
DECISION:	(a) Extend the time for the filing of the Ordinary Summons for Leave to Appeal to 30 May 2005; (b) Grant the claimant leave to appeal subject to it filing and serving its Notice of Appeal within seven days of the date of these orders; (c) Appeal allowed; (d) Set aside the verdict and judgment in favour of the opponent of Acting Judge Murray made on 19 November 2004 and in lieu thereof order that there be a verdict and judgment for the claimant; (e) The opponent to pay the costs of the proceedings before Acting Judge Murray and of the summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified

CATCHWORDS:	TORTS – Negligence – Duty of care – Where plaintiff tripped over mound of dirt – Where mound located on non-dedicated Crown road – Whether Council owed duty of care to plaintiff – Whether Council exercised de facto control over road – Whether evidence that Council had maintained road
LEGISLATION CITED:	Evidence Act 1995 Suitors' Fund Act 1951 Supreme Court Rules 1970
CASES CITED:	Thompson v Woolworths (Q'land) Pty Ltd (2005) 79 ALJR 904
PARTIES:	Evans Shire Council Norman Boyd Richardson (deceased)
FILE NUMBER(S):	CA 40445/05
COUNSEL:	A: J E Marshall SC / J Thornton R: H N Kelly SC / T McKenzie
SOLICITORS:	A: Phillips Fox, Sydney R: King Cain Solicitors, Bathurst

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 21/02
LOWER COURT JUDICIAL OFFICER:	Murray A-DCJ

CA 40445/05
DC 21/02

GILES JA
IPP JA
TOBIAS JA

Wednesday 30 November 2005

EVANS SHIRE COUNCIL v NORMAN BOYD RICHARDSON (deceased)

Judgment

1 GILES JA: I agree with Tobias JA.

2 IPP JA: I agree with Tobias JA.

3 TOBIAS JA: The substantive issue confronting the Court in this appeal is whether, at the time that Norman Boyd Richardson (the opponent) tripped on a mound of dirt thereby falling and sustaining two fractured ribs, the claimant, Evans Shire Council (the Council), was exercising at least de facto control over the area where the mound was located such as to impose upon it a duty to exercise reasonable care for the opponent's safety.

4 The primary judge, Acting Judge Murray, held that the Council was exercising such control and had breached of that duty by failing to remove the mound which he described as “an unacceptable hazard". His Honour assessed the opponent's damages at $10,100 and entered a verdict and judgment in his favour in that sum.

5 The Council seeks this Court's leave to appeal against the primary judge's decision. Its draft Notice of Appeal contained 12 grounds of which grounds 1 to 3 (inclusive) related to the issue of liability and grounds 4 to 12 related to the issue of damages. However, at the hearing before this Court, the Council abandoned its application for leave to appeal against the primary judge's assessment of damages and confined its submissions to the issue of liability. In this respect, the substantive appeal was heard concurrently with the application for leave.

An extension of time is required

6 The proceedings were heard by the primary judge on 15, 16 and 17 November 2004 and decided by his Honour on 19 November 2004. On 10 December 2004 a Holding Summons for Leave to Appeal was filed on behalf of the Council pursuant to Pt 51 r 4(1)(b) of the Supreme Court Rules 1970 (SCR). By SCR Pt 51 r 4(3)(a) the Council was required to file and serve an Ordinary Summons for Leave to Appeal on or before 10 March 2005 together with a white folder in accordance with SCR Pt 51 r 4B(1). However, on that day it filed a Notice of Motion seeking an extension of time for the filing of such a summons and the white folder.

7 Because the Council's solicitors were unable to obtain a copy of the transcript of the primary judge's reasons for judgment prior to 10 March 2005, they maintained that they were unable to comply with the time limit for the filing of the white folder at the same time as the ordinary summons. In this regard his Honour had delivered his judgment orally and, although a timely application had been made for a copy of the transcript of both the evidence and judgment, the former was not received until 23 February 2005 and the latter until 5 April 2005. The transcript of the judgment was, of course, required so as to assist in the preparation of a summary of the Council's argument for the purpose of inclusion in the white folder as required by SCR Pt 51 r 4B(1)(d) and for the reasons for judgment to be included as required by SCR Pt 51 r 4B(1)(e).

8 For the reasons set forth in the affidavit of Nichola Leigh Cassar sworn 19 August 2005, it was not until 24 May 2005 that the Council's Ordinary Summons for Leave to Appeal and the white folder were filed in the Court of Appeal Registry. Hence there was the need for the application for an extension of time within which to file the Ordinary Summons for Leave to Appeal up to and including 30 May 2005, being the day upon which the Registry accepted the documents originally filed with it on 24 May 2005.

9 Notwithstanding that the opponent had no objection to any part of Ms Cassar's affidavit and did not require her for cross-examination, leave to extend time was still opposed. Ultimately, the opponent's submission was limited to an allegation that there was an unacceptable delay between 5 April 2005, when the transcript of judgment became available to the Council's solicitors, and 24 May 2005 when an attempt was made to file the ordinary summons for leave to appeal and the white folder with the Registry. It was conceded that this delay had not caused the opponent any prejudice.

10 In my opinion, the explanation for the delay deposed to by Ms Cassar in her affidavit should be accepted. In my view, and contrary to the submissions of the opponent, it adequately explains the delay between 5 April 2005 and 24 May 2005. The resistance of the opponent to the application for extension of time was wholly without merit and the extension sought should be granted.

The relevant facts

11 Generally speaking the relevant facts were not in dispute. Furthermore, the opponent did not file a Notice of Contention challenging those findings of fact made by the primary judge which favoured the Council. Accordingly, the relevant facts as I recite them will be as found by the primary judge.

12 The Village of Rockley (the village) is within the Council's area. Its northern boundary is delineated by Peppers Creek (the creek). There are a number of roads within the village of which some are public roads vested in the Council. Others are Crown roads which at all material times were vested in the Crown and in relation to which the Council did not have any statutory power or duties with respect to their care, control and maintenance. One of those roads was that section of Hill Street located to the north of its intersection with Church and Budden Streets and extending to the creek (Hill Street north). This part of Hill Street was unmade although, according to the photographs in evidence taken a day or two after the opponent's accident, it comprised an area of dirt or gravel which from time to time was used for the parking of motor vehicles and for access to the residences which had a frontage to Hill Street north on its western side. On either side of the gravel section of this part of Hill Street were grass verges.

13 Located in the triangle bounded by Budden Street on the south, Hill Street north on the west and the creek on the north was Stephens Park (the park) which was Crown land under the trusteeship of the Council. Within the park was a War Memorial to the local servicemen who had lived in the area and who had lost their lives in World Wars I and II. For some 30 years it had been the location of the Anzac Day ceremony held on 25 April.

14 The park was a grassed area, the physical western boundary of which was delineated by a low copper log fence which had been erected in or about 1990 by the Rockley Lions Club (the Club) and to which the Council, at the Club's request, had contributed fencing material to the value of $400 to assist in its construction. In fact this fence had been erected some distance to the west of the actual common boundary between Hill Street north and the park.

15 The primary judge also found that in 1990 the Club had assumed the care, maintenance and occupation of the park and that it had erected various facilities within it including seats, barbeques, shrubs and gardens. It also maintained the grassed area within the park and which extended past the copper log fence into Hill Street north up to the edge of the grass verge where it met the unmade dirt or gravel section of that street.

16 The primary judge also found that there was an underground drain within Hill Street north which had been constructed by the Council and which provided drainage to the creek from that section of Hill Street to the south of its intersection with Church Street which had been vested in the Council as a public road (Hill Street south). Further, an electric light pole had been erected on the eastern side of Hill Street north by Advance Energy, a metre or so to the west of the copper log fence. The evidence appeared to establish that that power pole was erected some time between April 1998 and April 1999.

17 Approximately one metre to the west of the light pole was the mound upon which the opponent tripped and which his Honour found to be approximately two foot six inches in length and about one foot to 18 inches in height. The pictorial evidence depicted the mound as being partially covered in grass and weeds indicating to his Honour that it had been there for some time. In this respect he found that the mound tended to blend in with the surrounding grassy landscape making it difficult to discern its presence. Accordingly, he was satisfied that it represented an

"unacceptable hazard having regard to its location and the surrounding circumstances of the case."

18 This finding by the primary judge is challenged by the Council on the basis that the presence of the mound was obvious to a person who was looking where he was going but, as will appear, it is unnecessary to resolve that issue.

19 The opponent was an ex-serviceman and a veteran of World War II. It had been his custom on Anzac Day every year to join with other ex-servicemen in the locality in commemorating his fellow comrades at a ceremony at the War Memorial located in the park. On Anzac Day 1999, the ceremony took place at 8.30am. It was preceded by the ex-servicemen marching down Budden Street, turning right into Hill Street north and then into the park through that part of the copper log fence where the horizontal bar had been removed to enable the marchers to gain access to the Memorial.

20 Although his Honour found that the opponent did not march that day but was transported to the ceremony by car, it would appear common ground that that was not so. Nevertheless, the accident occurred after the ceremony when the opponent was returning to the car of a colleague which was parked in Hill Street north across the section where the gravel and grassed verge met. The opponent's evidence accepted by the primary judge was that as he was exiting the park he failed to notice the mound, struck it with one foot and fell forward. He was looking towards the car and failed to notice the mound. As I have observed, the primary judge found that the mound was not an obvious hazard to the opponent as it blended in with the landscape because of the grass growing over it. According to his Honour, it was, as it were, "camouflaged".

21 Accordingly, his Honour found that elderly, infirm, non-observant persons such as the opponent could be reasonably expected to resort to the park on the day in question and to seek to exit the park by various means. His Honour thus concluded:

"In my opinion the hazard was such that it ought to have been perceived by a Council and removed but was not so obvious to a person such as the [opponent] as to negative the duty which the council owed to him."

The primary judge's reasoning

22 The primary judge found that the gravel section of Hill Street north, as distinct from the tarred area of Hill Street south which the Council did control, was a non-dedicated Crown road which had been left in its natural state, a factor which supported the proposition that the Council had not exercised control over it. Furthermore, his Honour had also found that in 1990 the Club had assumed the care, maintenance and occupation of the park. The grassy verge which straddled the de facto boundary between the park and Hill Street north appeared, according to the primary judge, to have been maintained but there was no evidence that it was the Council who was either responsible for maintaining it or had in fact maintained it. Rather, as his Honour stated,

"[it] could well have been maintained by the Lions Club as part of its general maintenance of the park. The evidence does not allow me to decide."

23 To this point, the primary judge's findings may be summarised as follows:

(a) Although the park was Crown Land under the trusteeship of the Council, in 1990 the Club assumed the care, maintenance and occupation of it. In particular, the Club had erected various facilities and appeared to have maintained the gardens and grass;

(b) In any event, the area where the opponent fell was in that part of Hill Street north which was a non-dedicated Crown road in respect of which the Council had neither statutory powers nor duties;

(c) Hill Street north had been left in its natural state thus supporting the proposition that the Council had not exercised control over it. The grassy verge within which the mound was located had also been maintained but there was no evidence that it was the Council who had maintained it or was responsible for doing so. Rather, it could well have been maintained by the Club as part of its general maintenance of the park, although the evidence did not permit his Honour to decide the matter one way or another;

(d) Although in the area of Hill Street north near the offending mound there was a depression running the length of that part of the street which formed a natural drain, there was no indication that it was maintained by the Council. Furthermore, the power pole which had been erected approximately one metre to the east of the mound by Advance Energy had probably been erected with the consent of the Crown so that there was nothing to displace the fact that the whole of Hill Street north remained in the ownership and control of the Crown;

(e) Although the source of the creation of the mound was never established, because of its proximity to the power pole it may have been left by the contractors who erected the pole. Alternatively, it could have resulted from the Club digging the post holes for the copper log fence.

24 Notwithstanding the above findings, the opponent submitted to the primary judge that, although the Council was not the legal owner of the relevant part of Hill Street north, nevertheless it had exercised "effective control over the area". His Honour's immediate response to this submission was that the evidence called in aid by the opponent to support it was "somewhat equivocal".

25 The primary judge seems to have based his finding that the Council owed the opponent a duty of care, which it had breached by failing to remove the mound prior to the Anzac Day ceremony, on the following factors. Firstly, he referred to the Shire Map dated 28 August 1978 which identified, by means of heavy black broken lines, those streets or parts of streets within the village which were dedicated public roads under the control of the Council. On the other hand, his Honour recognised that there were clearly other roads within the village shown on the map, such as Hill Street north, which were not so dedicated or under the de jure control of the Council. This was a matter to which his Honour said he would return later in his reasons.

26 The primary judge did return to this subject after referring to the natural drain in Hill Street north and to the power pole erected by Advance Energy, both of which had indicated to him that, as far as ownership was concerned, there was nothing to displace the fact that Hill Street north was at the material time in the ownership and control of the Crown. However, his Honour then said that he had considered the Shire Map in respect of which it seemed to him

"that there are vast areas of Crown public road within the village of Rockley similar to that part of Hill Street south of Peppers creek which is in question, that fell within the area of responsibility for maintenance by the [Council]."

27 It is not clear what significance this last observation had on his Honour's decision. As he had indicated, when referring to the Shire Map earlier in his reasons, there were Crown roads within the village identified by a heavy dotted broken line which had become dedicated public roads vested in the Council and which, therefore, fell within the Council's area of responsibility for their maintenance. But there were other Crown roads that had not been so dedicated and whose ownership and control remained with the Crown. Hill Street north was one such road. Accordingly, his Honour's observations with respect to what was revealed by the Shire Map did not seem to advance the issue.

28 Secondly, earlier in his reasons, after referring to the fact that in 1990 the Club had assumed the care, maintenance and occupation of the park and had erected facilities therein, his Honour had observed that the

"…council has however maintained control of the park as evidenced by signs erected within the park warning against various activities such as 'horse riding', 'the water being unfit for human consumption', 'no alcohol to be consumed after 10pm' and the like."

29 Although there is a sign depicted in the photographs in evidence which states "Water unfit for drinking" and a further pictorial sign prohibiting horseriding, there was no evidence of any other sign or as to who had erected the two signs to which I have referred. What appears to have happened was that, without objection from either party, his Honour had in their absence visited the park on his own and observed the signs to which he has referred in his judgment. This visit to the village was not, by common consent, intended to constitute a formal inspection by his Honour under the provisions of the Evidence Act 1995. However, notwithstanding that the sign immediately above the pictorial sign prohibiting horseriding in the photographic exhibits is illegible, during the course of addresses his Honour referred to his visit to the village and remarked that there were at least three signs erected in the park all under the authority of the Council warning people of all sorts of things such as not to drink the water, not to bring their dogs into the park and not to drink alcohol in the park – all of which, his Honour said in argument, were "issued presumably with the authority of" the Council so that it was "certainly exercising control over the park".

30 His Honour was then reminded that his remarks with respect to the erection of the signs by or with the authority of the Council were not the subject of evidence and that, therefore, his personal impressions from his visit to the village some 5½ years after the subject accident could not support a finding with respect to either who erected the signs or, more importantly, when they were erected. His Honour accepted that there was no evidence as to when the signs were erected and that, apart from those in the pictorial evidence, they may well have been erected since 1999. The only official looking sign depicted in the photographs (which were taken one or two days after the opponent was injured) was the pictorial sign prohibiting horseriding which was topped by a larger illegible sign and in respect of which there was no description in the oral evidence. In any event, his Honour seems to have overlooked the fact that the accident did not occur in the park but within the Crown road, Hill Street north.

31 Thirdly, the opponent had submitted to the primary judge that the ceremony at the park was conducted with the approval of the Council. Local dignitaries including the Mayor and other council representatives apparently attended. It was submitted that the Council would have been aware that veterans and other members of the community would be participating in the ceremony and that, irrespective of the strict legal title to the area where the accident occurred, the Council was under an obligation to remove any foreseeable risk of injury to those persons which included the mound.

32 With respect to this submission, after referring to his conclusion that the mound represented an unacceptable hazard, his Honour posed for himself the question

"Was [that hazard] one of which the [council] was aware or ought to have been aware and if so was it one which the [council] was under a duty to remove."

33 Ultimately, his Honour answered the question so posed in the affirmative. In doing so, he appears to have relied upon the evidence of Mr Graham Taylor, who had worked for the Council since 1981 and was, in 1999, its Director of Environmental and Planning Services. From 1999 to 2004 he was the Council's General Manager.

34 The primary judge considered that Mr Taylor was an impressive and objective witness. He observed that Mr Taylor had agreed in cross-examination that the Anzac Day ceremony was a significant event in the Rockley social calendar and that in the village itself there were a number of Crown roads which were maintained by the Council as "a political" decision of the Council, although it had no obligation to do so. However, there was no evidence from Mr Taylor that Hill Street north was one of the Crown roads which, for "political" reasons, the Council had ever maintained.

35 In fact, the evidence of Mr Taylor was to the contrary, as revealed by the following exchanges in cross-examination at pages 13-14 of the transcript:

"Q. Well is it possible the Council do some work from time to time on Hill Street at that point even though it has no obligation to do so?

A. I’m informed by the former works manager for Evans Shire Council that road maintenance work in that area has not been undertaken in his memory.
…

Q. In any event the Council certainly to your knowledge did no work on the road at Hill Street and had no authority or statutory power to do such work in the years before 1999?
A. That’s my understanding, although as I’ve said before, Council, a Council has taken work on Crown roads, that is a fact.
Q. Yes but you’ve no knowledge and there’s no record of any such work being done at Hill Street below Budden Street is that right?
A. That is correct."

36 Nevertheless, the following exchanges between counsel for the opponent and Mr Taylor were recorded by his Honour (including his own interpolations), the first being from page 10 of the transcript of 17 November 2004:

" ‘Q. If the council directly managed the park prior to the ceremony in Stephens park would it be reasonable to inspect the park before the ceremony to see if it was in good order?
A. I believe that is the case and in fact today assessments are made in areas that the council does manage.
Q. So normally you would have an inspection to see if the area was clean and the rubbish was removed, that sort of thing?
A. Yes. It is an important public event as we've already acknowledged and that would be necessary yes I believe.
Q. You'd want to see if the grass was in good order and the lawn mown?
A. That's correct.
Q. And you'd want to see that there are no--'

It reads 'objections' but it should read 'obstructions'

‘--that might be dangerous to the public lying about the park?
A. Within the physical constraints and the geography of the area, yes.
Q. You certainly accept that it would be reasonable to ensure that the entrance to the park – the entrances to the park are as safe as reasonably could be done?
A. Having a regard as I say to the conditions at the – in Hill Street and also the park itself given the informal nature of the park, as you know there's no kerb and gutter, there are no pedestrian accesses as such so yes I agree that it should be as safe as possible but within having regard to the particular circumstances of the area.’ "
Later in evidence he said this at page 12,
" ‘Q. Now if you were the council officer inspecting a park under the control of the council that was going to be used for the Anzac day service, that's the sort of thing that you'd make a note of isn't it?
A. It would be necessary to identify perceived hazards yes.
Q. And if you made a note of it it'd be a fairly easy thing to get a couple of council labourers to simply remove it and level it?
A. The council was responsible for that yes it would be an easy matter to remove the mound.
Q. Perhaps two hours work it'd cost no more than $100?
A. Well you've probably got to get plant there but it'd be a modest amount.
Q. And that sort of mound for people who are elderly, who are entering the park on the day there's obviously a risk of injury isn't it?
A. The thing that I would say in relation to that mount, it is a very obvious construction--'

I think it should read 'obstruction'. "

37 It was after the above passages were recorded in his judgment that his Honour observed that the source of the creation of the mound was never established. Nonetheless, whatever its source, his Honour considered that it represented an unacceptable hazard

"which ought to have been seen by council inspecting the area prior to this ceremony and removed."

38 After referring to a number of authorities, his Honour concluded that the mound should have been identified by the Council and removed in advance of the Anzac Day ceremony. It represented a foreseeable risk of injury and in all the circumstances the Council was negligent in failing to remove it. It would thus appear that the basis of his Honour's finding of liability against the Council was as follows. Firstly, notwithstanding that the mound was not an obvious hazard (at least to the opponent) as it blended into the landscape because of its grassy covering, nonetheless it ought, prior to the Anzac Day ceremony, to have been discovered by the Council who ought to have inspected the area of which it was the trustee and over which it exercised some control, as indicated by the erection of signs. Secondly, having perceived that the mound constituted a foreseeable risk of injury, it was a breach of the Council's duty to the opponent not to have removed it prior to the ceremony.

Did the primary judge err in finding that the Council owed the opponent a duty of care?

39 The Council submitted that that part of Hill Street north where the mound was located was a non-dedicated public road owned by the Crown over which the Council had neither statutory powers nor duties in respect of its maintenance and in respect of which it had not at any time exercised de facto control so as to have implicitly undertaken responsibility for its maintenance. Furthermore, it was submitted that there was no admissible evidence that the Council had even exercised de facto control over the park as the evidence relied on by the primary judge to support a finding to the contrary, namely, the erection of signs, was not part of the evidence before the Court. Not only was there no evidence that the Council had erected the relevant signs but, even if there was, that did not provide a basis for a finding that the Council owed a duty of care to the opponent to render safe the relevant area of Hill Street north by inspecting that area for the purpose of ascertaining whether there were any hazards which might give rise to a foreseeable risk of injury to those attending the Anzac Day ceremony in the park.

40 Furthermore, it was submitted that although the Council was obviously aware of the ceremony, the evidence established that it was organised by the Club who since 1990 had exercised the care, control and management of the park within which the War Memorial was located. It was the Club who was responsible for the safety of those who attended its ceremony, not the Council. This was particularly so as there was no evidence that the Council had created the mound: in fact, the probabilities were clearly that it had not and that, as the primary judge himself surmised, the mound was created when Advance Energy erected the power pole or when the Club erected the copper log fence. Furthermore, the Council could not be held accountable for permitting the mound to remain in an area which was never under its care, control or management either de jure or de facto.

41 The opponent submitted that, upon the basis of the evidence of Mr Taylor, the Council had accepted responsibility for the maintenance of that part of Hill Street north where the accident occurred. Particular reliance was placed upon that part of Mr Taylor's evidence from page 12 of the transcript which his Honour reproduced in his judgment: see [36] above. The opponent further submitted that his Honour was correct in finding that the mound represented an unacceptable hazard which ought to have been seen by the Council inspecting the area prior to the ceremony, it being implicit in this submission, and his Honour's finding, that the Council had a duty of care to the opponent which required it to inspect the area and to remove hazards such as the mound. This was because the Anzac Day service, although an annual community activity, was carried out with the knowledge and approval of the Council and attended by the Mayor and other councillors.

42 In my opinion, there was no evidentiary basis upon which the primary judge could have found that the Council was under any relevant duty of care to the opponent. I am of this view for the following reasons. Firstly, as I have already indicated, there was no acceptable evidence that the Council maintained de facto control of the park let alone that part of Hill Street north immediately to the west of the park. Certainly, his Honour was in error in finding to the contrary on the sole basis of the signs erected within the park warning against various activities. As was correctly submitted to his Honour during argument, there was no evidence that the Council had erected the signs depicted in the photographs and the other signs to which he referred were not the subject of any admissible evidence. In any event, even if the Council had erected the signs in question, that could not legitimately lead to a finding that the Council was exercising de facto control over the maintenance of the park, let alone the maintenance of the grass verge of Hill Street north where the mound was located.

43 Secondly, the primary judge himself recognised that the evidence did not permit him to decide that the Council was responsible for maintaining the grass verge of Hill Street north and he made an express finding that the natural state of that Crown road was such as to support the proposition that the Council had not exercised control over it. It is true that his Honour did find, as recorded in [26] above, that there were "vast areas" of Crown public roads “similar to [the relevant] part of Hill Street” that fell within the area of responsibility for maintenance by the Council. It is unclear whether this finding formed a basis for a conclusion by his Honour that Hill Street north also fell with the Council’s area of de facto responsibility for its maintenance. However, to the extent that it did, his Honour erred. As I have noted above, the Shire Map to which his Honour referred when making the above finding revealed no more than that within the village there were some dedicated Crown roads vested in the Council and some non-dedicated Crown roads whose ownership and control remained with the Crown. The Map itself provided no support for the proposition that there were vast areas of Crown road that fell within the Council’s area of responsibility. The only evidence to that effect was the evidence of Mr Taylor referred to in [34] above, that for “political” reasons there were many Crown roads which were maintained by the Council. However, there was no evidentiary basis for a finding that Hill Street north was one such road. In fact, as Mr Taylor's evidence referred to in [35] above established, the position was to the contrary.

44 Thirdly, the fact that the Anzac Day ceremony at the park was conducted with the knowledge of the Council takes the matter no further. In fact, his Honour found that the ceremony was conducted with the approval of the Council on the sole basis that local dignitaries including the Mayor and other representatives of the Council attended it. However, the fact that the ceremony took place in the park of which the Council was the trustee and that some members of Council attended the ceremony is a thin reed, to say the least, upon which to support a finding that the ceremony was conducted with the Council's approval in the sense that it had accepted responsibility for the safety of those who were attending the ceremony which, clearly, was organised and conducted by the Club.

45 Fourthly, whether or not the Council was aware or ought to have been aware of the existence of the mound and that it represented an unacceptable hazard which it was under a duty to remove, depended upon whether the Council owed the opponent a relevant duty of care in the first place. If there was a duty, the failure to inspect may have constituted a breach. But the mere fact that an inspection of the area prior to the ceremony would have revealed the mound as an unacceptable hazard could not create such a duty. That would be to put the proverbial cart before the horse. In any event there was no suggestion in the evidence either that any Council employee was actually aware of the mound or that it had caused any problem in the past.

46 At the end of the day his Honour seems to have based his finding of liability upon those parts of the evidence of Mr Taylor which he extracted in his judgment and which I have recorded in [36] above.

47 So far as the evidence from page 10 of the transcript is concerned, the concessions made by Mr Taylor were clearly made upon the assumption that the Council directly managed the park prior to the ceremony. The first question in the exchange was expressly so predicated. Mr Taylor's response to the question was that such assessments or inspections were made by the Council in areas "that the council does manage". At no time did Mr Taylor concede that the Council managed the area in question.

48 Nevertheless, reliance was placed upon the following questions and answers which I repeat for the sake of convenience:

"Q. So normally you would have an inspection to see if the area was clean and the rubbish was removed, that sort of thing?
A. Yes. It is an important public event as we've already acknowledged and that would be necessary yes I believe.
Q. You'd want to see if the grass was in good order and the lawn mown?
A. That's correct.
Q. And you'd want to see that there are no [obstructions] that might be dangerous to the public lying about the park.
A. Within the physical constraints and the geography of the area, yes."

49 The opponent submitted that these questions and answers were general in their form and were not predicated upon the assumption that the area referred to in the exchange was, at the relevant time, under the direct management of the Council. I am not prepared to accept this submission. The three questions and answers relied upon immediately follow the question and answer which was expressly based upon the assumption that the area to be inspected was directly managed by the Council. That assumption clearly carried over into the subsequent questions as appears from the use of the conjunction "So" at the commencement of the first question of the exchange.

50 Of greater significance are the first two questions and answers from the passage in the cross-examination on page 12 of the transcript relied upon by the primary judge (and also recorded in [36] above). As far as the first question is concerned, there is no doubt that it was also predicated upon an inspection of the park which was under the control of the Council. However, the same also applies to the second question and answer. Further, his Honour has misstated the answer to that question by omitting the word "If" before the words "The council". It is also clear that Mr Taylor's evidence that it would be an easy matter to remove the mound was again based upon the assumption that the Council was responsible for so doing. It was not a concession that, notwithstanding that the park, let alone Hill Street north, was not under the control of the Council, it was nevertheless responsible for removing the mound.

Conclusion

51 It follows from the foregoing that in my opinion, to the extent to which the primary judge based his decision upon the Council exercising de facto control over the park and/or Hill Street north, he was in error in so finding. There was no evidence upon which such a finding could be sustained. Furthermore, whether or not the Council on inspection would have become aware of the mound and that it constituted an unacceptable hazard which ought to have been removed, depended upon whether the Council had a duty of care to the opponent which was to be discharged by such an inspection. Such a duty could only exist if the Council was exercising some form of control over the area in question. His Honour accepted that it had no statutory powers or duties in this regard and, insofar as he found that the Council was exercising some form of de facto control, he was in error.

52 As the Council was neither the owner nor occupier of the relevant part of Hill Street north, it was neither empowered to exercise a measure of control over that area nor did it in fact exercise such control, factors which otherwise would have been regarded by the law as important in identifying the existence and nature of any duty of care: cf Thompson v Woolworths (Q'land) Pty Ltd (2005) 79 ALJR 904 at 908-909 [24].

53 As the opponent did not sustain his accident on land over which the Council exercised any measure of control, the mere circumstance that the Council was aware of the Anzac Day ceremony being conducted by the Club on the one hand and its knowledge that ex-servicemen of the age and health of the opponent would be attending such a ceremony on the other, was not of itself sufficient to create a relationship between the Council and the opponent capable of giving rise to a duty of care of the former to the latter.

54 For these reasons I am of the opinion that the primary judge erred in finding not only that the Council owed a duty of care to the opponent but also that it was in breach of that duty in failing to ascertain and remove the mound prior to the ceremony.

55 Finally, it should be acknowledged that the amount in issue in this matter is only $10,100. Normally, leave to appeal would not be granted where such a small amount is involved especially if the facts on liability could have been found either way. However, I have concluded that there was no basis on which the Council could have been found liable because it had no responsibility for the removal of the mound on which the opponent tripped. In those circumstances, justice requires that that finding be accorded appropriate recognition by the granting of leave to appeal.

56 I would therefore propose the following orders:

(a) Extend the time for the filing of the Ordinary Summons for Leave to Appeal to 30 May 2005;

(b) Grant the claimant leave to appeal subject to it filing and serving its Notice of Appeal within seven days of the date of these orders;

(c) Appeal allowed;

(d) Set aside the verdict and judgment in favour of the opponent of Acting Judge Murray made on 19 November 2004 and in lieu thereof order that there be a verdict and judgment for the claimant;

(e) The opponent to pay the costs of the proceedings before Acting Judge Murray and of the summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified.

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