Greater Bendigo City Council v Miles

[2000] VSCA 10

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 4821 of 1999

GREATER BENDIGO CITY COUNCIL

Appellant (Defendant)

v

LISA-JANE PEARL MILES

Respondent (Plaintiff)

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JUDGES:	WINNEKE, P., BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 February 2000
DATE OF JUDGMENT:	8 February 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 10

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Negligence – Highway authority – Misfeasance – Relevant factors to be taken into account.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. J. Ruskin Q.C.  and Mr. P. Rose	Hunt & Hunt
For the Respondent	Mr. D.C. Munro	Beck Sheahan Quinn & Kirkham

WINNEKE, P.: 

1. I will invite Buchanan, J.A. to give the first judgment.

BUCHANAN, J.A.: 

1. Early in the morning of 18 November 1996 the respondent, a girl then aged 17 years, walked down Brook Street, Lockwood South, where she lived.  She was walking her dogs to the creek at the end of Brook Street.  Between the sealed surface of Brook Street and a drain that ran parallel to it was a grassed area.  The respondent was walking on the grass.  A few weeks earlier the appellant had been carrying out work on the drain, digging out clay and dirt to make the drain deeper.  The bulk of the material excavated from the drain was carried away in trucks, but some remained.  The trial judge accepted the plaintiff's evidence that she slipped on a lump of wet clay and fell into the ditch, breaking her ankle.

1. The trial judge awarded damages against the appellant in the sum of $108,000 together with damages by way of interest in the sum of $3,100.  He reduced the award of damages by 10% on account of the contributory negligence of the respondent.

1. The appellant has appealed against the determination that it was guilty of negligence on two grounds.  The first is as follows:

"His Honour erred in law in holding that in all the circumstances the appellant, through the actions of its servants or agents, had been negligent in the execution of clean-up works following drainage clearance works in the vicinity of the gutter and shoulder area on or adjacent to Brook Street, Lockwood South in the State of Victoria."

1. As a highway authority the appellant was only liable for misfeasance and could not be liable for mere failure to act:  Buckle v. Bayswater Roads Board (1936) 57 C.L.R. 259. In this case the trial judge found that the appellant actively created a danger by dumping debris from the cleared drain on the verge of the road, constituting a hazard for pedestrians, and causing the injury sustained by the respondent. His Honour regarded that state of affairs as disclosing negligence on the part of the appellant. He said:

"I regard it as being an abrogation of authority by the authority if they approached their work on the basis that it would be acceptable performance to dig out a drain and leave hazardous quantities, at the very least of the spoil, in a place which would be used by pedestrian traffic and in which it could be readily foreseen would constitute a hazard, particularly if it got wet, laying as it did right at the edge of the road and adjacent to a drain which had been made deep with a sharp incline down into it.

It is a fact which I find to have taken place that in the performance of the operation of the works, whether on the first of two occasions which I find the authority did dig that drain out, shortly before Miss Miles' accident, they did dig it out and they did deposit material on the side of the road and they failed to eliminate the hazard thus created effectively.  Whether they took any measures at all it appears to me to be open to question but when considering that there must have been more spoil than is evident in the photographs taken by Miss Miles' father in the time closely approximate to the time when the accident happened, it appears to me that most of it must have been taken away but a hazardous quantity remained.  That, it seems to me is quite plainly misfeasance and in my view, for that reason, the plaintiff must succeed in her claim against the first defendant."

1. The appellant contends that the trial judge erred in failing to accord sufficient weight to the appellant's standard practice of running the front bucket of the backhoe used to clear the drain along the edge of the road and the gutter to flatten lumps of clay and any other debris, and then running over the area with a truck to roll it down, and failing to take into account the location of the fateful lump of clay, the magnitude of the risk and the degree of likelihood of the presence of pedestrians.

1. The appellant states, and it is not really in question, that it is necessary to have regard to all the relevant circumstances to conclude that the appellant was negligent, including the magnitude of the risk, the probability of its occurrence, the expense and difficulty of preventative action, and the action a reasonable council in the position of the appellant would have taken.  See Australian Safeway Stores v.Zaluzna (1987) 162 C.L.R. 479, Romeo v. Conservation Commission of the Northern Territory (1998) 192 C.L.R. 431 at 454; and Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40 at 47-8.

1. While the trial judge did not in terms deal with each of those matters, in my opinion the findings he made which I have quoted are consistent with a decision that accords with the proper approach to the question of negligence.  It has not been demonstrated that the magnitude of the risk or the probability of its occurrence was so slight that the appellant could reasonably ignore it, nor that the expense or difficulty of removing debris from the grass verge was so great that the work need not be done nor that a reasonable council would have acted as the appellant did.

1. The only other ground of appeal which is now maintained states:

"The learned judge erred in refusing to adjourn before the luncheon break 30 minutes early in order to allow the firstnamed defendant's expert witness, who had been delayed by a chemical spill on the roadway to give evidence on behalf of the firstnamed defendant in the proceeding."

1. In support of this ground the appellant has introduced an affidavit by a consulting engineer, the expert witness referred to in the Notice of Appeal.  The deponent states that on the morning of 3 March 1999 he was contacted by the appellant's solicitors and told he was required in court in Bendigo.  He left Melbourne at 10.30 a.m. for a meeting with the appellant's legal advisers at 1.45 p.m.  He was delayed for 15 minutes by an oil spill.  At 12.30 he was telephoned in his car when he was 10 minutes from Bendigo and told that the trial judge had refused to hear his evidence, so he turned round and drove home.

1. It appears from the transcript that counsel for the appellant asked the trial judge to adjourn early for lunch so that the witness could arrive and give his evidence after lunch.  The appellant had no further witnesses.  The application was refused.  His Honour said:

"I told you this morning that if you thought that I was going to wait for him because I am simply told blandly he is not coming until 1.45, then the answer to that is, I run this court and not whoever the witness is, who decides when he is going to come.  This case ran all day yesterday.  You were clearly on notice yesterday at the end of the afternoon that there was only one lay witness left, that was all."

1. A statement by the witness had been filed pursuant to the provisions of Order 44.  The evidence the witness proposed to give was that the use of an open drain to carry off storm water was appropriate in this area and the drain was adequate for its purpose.  In a semi-rural area the established practice was to use above-ground, not underground drains.

1. The affidavit does not carry the appellant very far.  At best it establishes only that had there been an adjournment for lunch when counsel requested it, the witness would have arrived to give evidence when the court resumed.  However, the trial judge did not know that.  He was not told the witness was 10 minutes from Bendigo.  Nor is there any explanation for the arrangement that the witness arrive at 1.45 p.m. when there appears to have been at least a real chance that his evidence would be required during the morning. 

1. It is not clear that the expert was qualified and able to comment on the proper way to maintain the drain once it had been constructed.  His statement does not go so far, and it does not appear that the trial judge was told of any extra evidence the expert could give.  In fact we were not even told that.  In any event I do not consider that an engineer could throw any light on the question whether the appellant should have cleaned up the material dredged from the drain.  It is not a matter for expert evidence.  I cannot see how the witness's evidence could possibly have altered the result of the trial.

1. In my opinion this ground too must fail.  I would dismiss the appeal.

WINNEKE, P.: 

1. I agree.

CHERNOV, J.A.: 

1. I also agree.

WINNEKE, P.: 

1. The formal order of the Court is that the appeal is dismissed with costs.