Frankston City Council v Eyles - [2000] VSCA 97

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 7137 of 1999

FRANKSTON CITY COUNCIL Appellant

v

FRANCES EYLES Respondent

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JUDGES:

BROOKING, PHILLIPS and CHERNOV, JJ.A.

WHERE HELD:

MELBOURNE

DATE OF HEARING:

29 May 2000

DATE OF JUDGMENT:

29 May 2000

MEDIUM NEUTRAL CITATION:

[2000] VSCA 97

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TORTS - Negligence - Highway authorities - Misfeasance - Nonfeasance - Injury to pedestrian - Depression in footpath caused by tree roots - Tree planted by Council an "artificial structure" - Immunity of highway authorities not enlarged by statutory provision - Tree planted by Council as factotum of all the town, not as highway authority.
Local Government Act 1989, s.205(2)(c).
Local Government Act 1958, s.555.
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APPEARANCES:
Counsel Solicitors

For the Appellant

Dr. C.L. Pannam, Q.C.
with Mr. J. O'Bryan
Herbert Geer & Rundle

For the Respondent Mr. R.J. Stanley, Q.C.
with Mr. C. Grainger Richmond & Bennison
BROOKING, J.A.:
1 On 18 February 1995 Mrs Eyles tripped and broke her wrist when she stepped into a depression in the pavement in Ross Smith Avenue, Frankston, which is close to the main shopping centre of that city. In an action in the County Court, tried by a judge sitting alone, she recovered judgment for about $150,000 in all as damages for negligence against Frankston City Council. Her action failed as regards an added defendant, South East Water. The Council has appealed against the judgment. Until recently South East Water was also a respondent, but the appeal has been discontinued as against that body and the appellant no longer complains of the outcome of the proceedings in so far as they concerned that body and now attacks only the judgment given against the appellant.

2 Originally that judgment was assailed on a number of grounds and the decision on both liability and damages was called in question. Now the appeal is confined to the decision on liability and raises only two points - the correctness of what the judge decided in relation to the "artificial structures" rule and the correctness of his rejection of a statutory defence.

3 Since the judge's findings of fact are no longer called in question, the circumstances of the accident may be stated very briefly. The depression in the footpath was caused by the action of tree roots in thrusting up one of the concrete slabs of which the footpath was constructed. The slab itself was pushed up but a metal water valve cover which was surrounded by the slab was not thrust up with it, so that the cover became recessed, forming the base of a small depression about 25 millimetres deep and 150 millimetres long and wide. The footpath had been constructed by the appellant some 15 or 20 years before the accident. The thrusting roots belonged to a plane tree nearby which the appellant had planted a short distance in from the kerb. How long ago the tree had been planted does not appear. It was accepted by the appellant at the trial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Frankston City Council v Eyles

Details

AGLC: Frankston City Council v Eyles [2000] VSCA 97
Case: [2000] VSCA 97
Decision Date: 29 May 2000

CaseChat Overview and Summary

Frankston City Council was sued by Eyles for negligence after she suffered an injury when her foot slipped into a depression in the footpath caused by the roots of a tree planted by the Council. The case was heard by the Supreme Court of Victoria. The primary legal issue was whether the Council's immunity from liability for misfeasance and nonfeasance applied in this case. Eyles argued that the Council's planting of the tree constituted a misfeasance, while the Council claimed immunity as a highway authority under statutory provisions.

The Court found that the Council's planting of the tree was an act done as the factotum of the town, rather than as a highway authority. Consequently, the immunity afforded to highway authorities did not extend to this situation. The Court held that the tree, being an artificial structure, fell within the scope of potential liability for negligence. The Council's actions in planting the tree were considered a misfeasance, and therefore, the immunity did not apply. The Court ruled in favour of Eyles, finding that the Council was liable for her injuries.

The final orders of the Court included a declaration that the Council was liable for Eyles' injuries and damages to be assessed at a later date. The Court emphasised the importance of distinguishing between acts performed as a highway authority and those done as the factotum of the town, particularly in the context of statutory immunity provisions.

Orders