Greater Shepparton City Council v Clarke

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0146

GREATER SHEPPARTON CITY COUNCIL	Applicant
V
STEVEN GRAHAM CLARKE	Respondent

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JUDGES:	SANTAMARIA, BEACH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 April 2017
DATE OF JUDGMENT:	9 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 107
JUDGMENT APPEALED FROM:	[2016] VSC 542 (Keogh J)

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NEGLIGENCE – Duty of care – Statutory construction – Whether responsible authority owed duty of care as ‘road authority’ – Whether exclusionary provision applied defeating liability – Whether reserve in which injury sustained properly characterised as ‘pathway’ or ‘roadside’ – Consideration of statutory text – Ordinary and natural meaning – Provision in context of Act as a whole – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited – Restricted role of ejusdem generis rule – Use of legislative examples – Road Management Act 2004 ss 3, 40, 48, 107, cl 6 pt 1 sch 7 – Interpretation of Legislation Act 1984 ss 35(a), 36A.
NEGLIGENCE – Breach – Duty of care – Whether reasonable care taken by responsible authority – Proper identification of risk of harm – Assessment of foreseeability and magnitude of risk to be considered prospectively, not retrospectively – Shirt factors to be applied in a manner that is not formulaic – Wyong Shire Council v Shirt (1980) 146 CLR 40 cited – Court entitled to rely on common sense and common knowledge in assessing existence of risk – Wrongs Act 1958 s 48.
WORDS AND PHRASES – Meaning of ‘pathway’ – Meaning of ‘roadside’ – Road Management Act 2004 s 3.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S A O’Meara QC with Mr D C Oldfield	Moray & Agnew
For the Respondent	Mr M F Wheelahan QC with Mr M J Hooper	Nevin Lenne Gross

SANTAMARIA JA
BEACH JA
KAYE JA:

On the evening of 14 September 2008, the respondent suffered serious injuries when he tripped on a stormwater pit while traversing a reserve in Shepparton. He commenced proceedings in this Court claiming damages, on the basis that his injuries were caused by the negligence and/or breach of statutory duty by the applicant. The case was heard before a judge sitting alone in Wangaratta. In a reserved decision[1], the judge gave judgment for the respondent, upholding the claim by the respondent that the applicant was negligent at common law as the road authority and as infrastructure manager, and further that it had breached its statutory duty to the respondent under s 40(1) and cl 6 of schedule 7 of the Road Management Act 2004 (‘the Act’). The judge ordered that judgment be entered in favour of the respondent for a total of $405,112 plus costs.
[1]Clarke v Greater Shepparton City Council [2016] VSC 542 (‘Reasons’).

The applicant seeks leave to appeal. The two principal issues raised by the application for leave to appeal concern, first, whether the judge erred in holding that the applicant could not rely on s 107 of the Act as a defence to the respondent’s claim, and, secondly, whether the judge erred in concluding that the applicant had breached any duty of care or statutory duty that it owed to the respondent.

The evidence

The reserve, in which the respondent’s accident occurred, was one of a series of open public spaces within the boundaries of Balaclava Road, east of Packham Street, which collectively were referred to as ‘Sherbourne Reserve’. The reserve itself was bordered by Balaclava Road to the south, Balaclava Service Road to the north, Fahey Street to the east and Packham Street to the west. It was approximately 300 metres long and 30 metres wide, with a grass surface and irregularly positioned trees. The only concrete paths on the reserve were on the southern and western sides of the reserve. There was no footpath on the northern side of Balaclava Service Road opposite the reserve. There was a footpath on the southern side of Balaclava Road.

The stormwater pit, on which the respondent fell, was located approximately nine metres south of the edge of the reserve bounded by Balaclava Service Road. The nearest street light was located to the north of the service road and was about 33 metres from the stormwater pit. The stormwater pit was a concrete structure standing approximately 115 to 140 millimetres above the surrounding ground level. The applicant admitted that it was the authority responsible for the maintenance of the stormwater pit, and that it was the relevant infrastructure manager under the Act. The stormwater pit was one of 8,000 pits that serviced a stormwater drainage system for the Goulburn River. It was set at a level above the flood level for the Goulburn River, and was estimated to be 50 to 55 years old.

At the trial, the respondent’s evidence, as to how the accident occurred, was very much in issue. However, the judge accepted the account given by the respondent of the circumstances in which the accident occurred. The respondent’s evidence was that at approximately 8.00 pm on 14 September 2008 he left his residence in O’Connell Court, Shepparton, intending to walk to a fish and chip shop in King Street. He walked along footpaths until he reached Chas Johnson Reserve, which was a short distance northwest of the reserve in question. At that point, he turned in an easterly direction until he reached the Balaclava Service Road. He then walked east along that road. As he was doing so he noticed the headlights of a car coming toward him, and he decided to half jog/half walk onto the reserve. Although at the trial the respondent stated that he was walking at the time he fell, the judge, based on the ambulance report and on a letter sent by the respondent to the applicant, concluded that, at the time of his fall, was proceeding at a pace that was ‘something more than a walk and something like a slow jog’.[2]
[2]Reasons [48].

In his evidence, the respondent stated that when he got to the reserve he was looking straight ahead. He could not see the ground in front of him because it was dark. He noticed the trees to the right, left and to the front of him. He visualised a path between the trees towards Balaclava Road and took that path. He said that the lighting at the time was poor, that it was ‘very dark’. As he proceeded across the reserve, he tripped on the concrete manhole cover to the stormwater pit and fell.

The respondent said that although he had not previously walked over the reserve, he had driven past it nearly every day. He said that he had seen people walking across the reserve, and children playing sport on the reserve. He said that it was ‘… just like a park, like a playground, so to speak’.

The respondent called his former wife, Donna Clarke, to give evidence. She said that over the years she had had reason to observe people on the reserve. She said that she had ‘seen people just crossing’. She had seen people walking their dogs, and children playing sport and generally playing. She said ‘… but mostly a lot of people just walking … traffic, like, they would walk their dogs along in that area on the grassed area and definitely crossing, especially for the schools’. She said that she would drive past the reserve five days each week for many years, and she would always observe children crossing over it to attend the high school that was located north of the reserve. Ms Clarke also gave evidence that she had observed maintenance activities performed by the applicant in the reserve, particularly lawn mowing and watering. Photographs of the reserve, and a video of a ride-on mower being used by a council worker in about 2014 or 2015, were tendered in evidence.

Both the respondent and Ms Clarke stated that the artificial lighting in 2013 and 2014 (when it was tested by the experts) was brighter when compared to the time of the respondent’s fall in 2008. Ms Clarke also said that since the respondent’s injury, there had been a severe storm, and a number of the trees on the reserve had been blown over and removed.

The respondent also called Mr Richard Lightfoot, a consulting engineer, to give evidence relating to the visibility of the stormwater pit in conditions of darkness. For that purpose, Mr Lightfoot had attended the reserve in September 2013. He gave evidence that contrast between the colours of different surfaces make a significant difference to the capacity of a person, approaching an object, to perceive that object and to perceive changes in height from its surroundings. He explained that grey on grey is very difficult to discern, but, for example, red on orange provides a significant difference in contrast. He explained that contrast would enable a person to perceive the pit at a different height to the ground, and recognise that there was something there.

Mr Lightfoot stated that measurements, that he took of the top face of the stormwater pit, the vertical face of the pit, and the surrounding earth, demonstrated that there was not sufficient contrast for those purposes. He also gave evidence that he had measured the light intensity on the top of the pit to be 0.1 lux, and the light intensity on the vertical face of the pit to be 0.4 lux. He stated that 0.1 lux is an absolute minimum of light, and that it is the reading that would be obtained if a person walked along a footpath at night with no lighting.

In response, the applicant called Mr John Culvenor, an independent consultant engineer, to give evidence as to his measurements of light intensity. For that purpose, Mr Culvenor first attended the reserve in or about November 2012. Mr Culvenor’s subjective assessment was that the shape of the pit was identifiable at about 15 metres distance at night. He measured the light intensity to be 0.18 lux on the top of the pit. Mr Culvenor stated that a measurement of 0.07 lux would be the minimum requirement for a footpath.

The applicant also called evidence from Shane Harford, its former Parks and Gardens Coordinator. Mr Harford gave evidence of the maintenance work that was performed by the applicant in the reserve, including mowing, whipper snipping, weeding, clearing drains, edging and the removal of litter and graffiti. He said that the applicant used four classes for the purpose of prioritising its maintenance works, namely, ‘significant’, ‘general’, ‘open native’, and ‘undeveloped’. The reserve was classed as ‘open native’ by the applicant. Mr Harford’s team was not responsible for the maintenance of the manholes in the reserves, but that was the responsibility of the asset team, the manager of which was Mr Greg Sidebottom. Mr Harford stated that he had not received any complaint from any of his officers about the stormwater drainage and manholes in the reserve. However, if a complaint was made by a member of the public, that person would telephone the council offices and talk to a customer service officer, which would be logged on the council’s computer system.

In cross-examination, Mr Harford stated that he would not know what complaints had been received by Mr Sidebottom in relation to stormwater drains. He agreed that the council employees had attended the reserve every year, including 2008, on a very regular basis for the purpose of maintaining it. Mr Harford said that he was aware of the stormwater pit, which, he estimated, to be about 120 to 130 millimetres above the ground level. He agreed that pedestrians, walking over the reserve at night, would have very little, if any, opportunity of observing the existence of the raised pit, and that it would constitute a tripping hazard at night.

The applicant tendered a statement from its former manager of operations, Greg Sidebottom, who had since deceased. Mr Sidebottom stated that the stormwater pit was one of 8,000 pits that serviced a stormwater drainage system for the Goulburn River. His department aimed to inspect every pit once each year, but it was not possible to achieve that goal because of the number of pits in the area. The stormwater pit was estimated to be 50 to 55 years old. It was set above the flood level of the Goulburn River. He said that, to the best of his knowledge, none of the pits, set above ground level, had ever subsided or been moved, repaired or modified. He said that council would not proactively or routinely check whether junction pits were level with the ground surface of the reserve, nor would it raise or lower the ground surface or the stormwater pits if there was a height differential. He said that there were no works to or in the reserve in the years before September 2008, other than regularly mowing the reserve and keeping it tidy. Mr Sidebottom stated that to the best of his knowledge no-one, in the last ten years, had lodged a complaint to him personally, or to the council, regarding the condition of the junction pits. He also said that he would regularly jog through the reserve, or along the footpath of Balaclava Street, when travelling to and from Chas Johnson Reserve, where he had trained for many years.

Finally, the applicant also tendered a report from a surveyor, Mr Jeff Clarke. Mr Clarke stated that the reserve is situated within a government road, commonly referred to as Balaclava Road.

Summary of trial judge’s reasons

As already mentioned, the judge accepted that the respondent had discharged the onus of proving the circumstances in which he suffered injury. He considered that the evidence of Mr Lightfoot and Mr Culvenor was of limited value, because of the evidence of Ms Clarke (and the respondent) that the current street lighting was brighter when they inspected the reserve than the lighting at the time of the respondent’s fall, and because of the evidence that the light intensity at the pit would vary from time to time. The judge accepted that the light intensity at the stormwater pit, when the respondent fell in 2008, was as described by the respondent in his evidence. His Honour accepted that, although the respondent was looking forward as he proceeded across the reserve, he could not see or perceive the existence of the pit, because of the relatively poor lighting, and because of the lack of contrast between the surfaces of the pit and the surrounding earth.[3]
[3]Reasons [53].

The judge further concluded that the stormwater pit represented a significant hazard, to a pedestrian crossing the reserve at night, both in terms of the likelihood of tripping and the seriousness of injury that might be sustained as a consequence. He found that that risk was not obvious. His Honour also considered that it was ‘improbable that pedestrians did not, from time to time, cross the reserve at night’, and he did not consider that, by choosing to cross the reserve on foot at night, the respondent thereby failed to take reasonable care for his own safety.[4]
[4]Ibid [55].

The judge then gave consideration to the common law duty of care owed by the applicant to the respondent. He noted that an authority, such as the applicant, with responsibility for an area such as the reserve, and for non-road infrastructure in the reserve, owed a duty to pedestrians to take reasonable care to eliminate or reduce hazards which a pedestrian, taking reasonable care for his or her own safety, would not see and avoid.[5] He found that the risk, relevant to the duty of care in this case, was that a pedestrian, crossing the reserve at night, would encounter the pit and come to grief on it. His Honour considered that neither the probability, nor magnitude, of that risk would be obvious to pedestrians, who cross the reserve at night.[6] The judge noted the concession by the applicant that it was the responsible road authority in relation to Balaclava Road and the reserve, and that it was the responsible infrastructure manager in relation to the stormwater pit. As such, the applicant owed a duty to take reasonable care to keep safe pedestrians using the reserve, including the respondent.[7]
[5]Ibid [57].
[6]Ibid [61].
[7]Ibid [62].

The judge then turned to the statutory duty of road authorities in respect to public roads, specified in s 40 and s 41, and sch 7 cl 6 of the Act.

The judge noted that both parties had pleaded that the reserve was part of a public road. In any event, based on the evidence of the licensed surveyor, Mr Jeff Clarke, he had no hesitation in concluding that the reserve was part of Balaclava Road.[8]
[8]Ibid [68].

The judge then turned to the question of whether s 107 of the Act applied to the reserve, with the consequence that no duty was owed by the applicant to the respondent in respect of it. That issue depended on whether the reserve should be characterised as a ‘roadside’ as defined in s 3 of the Act (in which case it would come within the terms of s 107) or whether, on the other hand, it should be characterised as a ‘pathway’ (in which case it would not come within s 107). In a passage in his Honour’s judgment, to which we will shortly refer, the judge concluded that the reserve came within the definition of ‘pathway’ in the Act, and could not properly be characterised as a ‘roadside’. Accordingly, he held that the applicant could not rely on s 107 of the Act as a defence to the respondent’s claim.[9]
[9]Ibid [69]–[75].

Further, the judge noted that it was common ground between the parties that the stormwater pit was ‘non-road infrastructure’, and that the applicant was the ‘infrastructure manager’ within the meaning of the Act. His Honour held that the exclusion of liability, contained in s 107, was limited to road authority duties, and that it did not speak to any duty imposed on the applicant while carrying out any of its other statutory functions.[10] Thus, the judge held that if, contrary to his conclusion, the reserve was not a pathway, but was a roadside, in any event s 107 did not operate to exclude liability of the applicant in respect of its statutory and common law duties which it owed as the infrastructure manager of non-road infrastructure.[11] In particular, the judge held that the applicant owed to the respondent a common law duty, as infrastructure manager, to take reasonable steps to ensure that the stormwater pit, located in the reserve, did not constitute a hazard to pedestrians.[12]
[10]Ibid [80].
[11]Ibid [81].
[12]Ibid [93].

The judge then considered the question whether the respondent had established that his injuries had been caused by a breach by the applicant of its duties to him. He found that the relevant risk of harm, for the purposes of s 48 of the Wrongs Act 1958, was that a pedestrian crossing the reserve at night would encounter

the stormwater pit and come to grief upon it.[13] The judge concluded that cl 6 of sch 7 of the Act applied in the present case. The judge rejected an argument by the applicant that any action taken by it to reduce the hazard would have been an action taken as a road authority, and not as an infrastructure manager. His Honour held that the hazard, created by the pit, clearly fell within the responsibilities of the applicant as infrastructure manager.[14]
[13]Ibid [89], [92].
[14]Ibid [94].

The judge found, on the evidence, that it was not possible to conclude that no complaint in relation to the pit had been made to the applicant in the years before the plaintiff’s fall. His Honour stated that, in any event, lack of complaint was only one circumstance to be taken into account in assessing the degree and magnitude of risk and the reasonable response to it.[15]
[15]Ibid [95].

The judge did not accept the submission, made on behalf of the applicant, that the respondent’s case failed because he had not called any evidence as to the cost or practicality of raising the ground surface surrounding the pit to remove the hazard. The judge noted that the reserve was a relatively flat and open area, and there was no feature of it which would lead to a conclusion that the task of raising the earth surface, in a graded fashion around the pit, would have been burdensome. The judge concluded that such a task could have been easily and cheaply performed by the applicant before the respondent’s fall.[16] The judge further accepted Mr Lightfoot’s evidence, that the difficulty that a pedestrian would have in seeing or perceiving the existence of the pit, was caused by a combination of poor light and lack of contrast between the surfaces of the pit and the surrounding earth. He concluded, from Mr Lightfoot’s evidence, that even in conditions of low light intensity, an appropriate contrast, produced by painting the pit lid, would have acted as a warning to pedestrians of the hazard. In addition, simple warning signs would have been likely to have achieved the same result, and those precautions were steps that a reasonable authority in the position of the applicant could have taken in response to the foreseeable risk of injury represented by the pit.[17]
[16]Ibid [98].
[17]Ibid [100].

Accordingly, the judge concluded that the applicant had breached its common law and statutory duties as road authority and infrastructure manager by failing to take precautions in relation to the hazard constituted by the pit.[18] The judge found that by jogging across the reserve at night, the plaintiff did not take reasonable care for his own safety and therefore he was guilty of contributory negligence. However, the fact that he was jogging made no difference to his capacity to observe and avoid the hazard. The judge therefore apportioned responsibility 85 percent to the applicant and to 15 percent to the respondent.[19]
[18]Ibid [103].
[19]Ibid [104]–[108].

Grounds of appeal

In its original application for leave, the applicant relied on five grounds of appeal. Subsequently, by amendment, it deleted grounds 2 and 3, and recast ground 4. Those amended grounds of appeal are as follows:

Ground 1: nature of statutory duty
1.1 The learned trial judge erred in:
(a)determining that the reserve was a pathway within the meaning of the Road Management Act 2004 (RMA);
(b)holding that the applicant could not rely on s 107 of the RMA as a complete defence.

(Reasons at [74], [75])
1.2 The learned trial judge erred in failing to hold that:
(a)the reserve was roadside within the meaning of the RMA; and
(b)by reason of s 107 of the RMA, the applicant owed no common law or statutory duty to perform road management functions in respect of the reserve.

Ground 4: breach of common law and statutory duty
4.1The learned trial judge erred in addressing and determining the question of breach of duty:
(a)by noting at [88], but thereafter failing to address and make any finding concerning the probability that harm would occur;
(b)particularly, at [92], by finding that the stormwater pit represented a ‘hazard at night’, without having addressed and made any finding concerning the probability of any harm occurring as a consequence of such ‘hazard’;
(c)in finding, at [95], that it was not possible to conclude that no complaint had been made to the applicant in the years prior to the incident complained of, when that was the evidence of Mr Harford and Mr Sidebottom and there was no evidence to the contrary;
(d)in holding, at [98], that the task of raising the ground around the stormwater pit to make it level could have been easily and cheaply performed by the defendant prior to the respondent’s incident, when such evidence was not before the Court;
(e)at [100], by relying upon the evidence of Mr Lightfoot in determining that the applicant had breached its duty of care by failing to paint the stormwater pit or erect signage above the stormwater pit, when such evidence was not before the Court; and
(f)at [102(d)] (and earlier, at [83]), in determining that the applicant, prior to the incident, had actual knowledge of the ‘hazard’, which was not the evidence of Mr Harford or any other witness at trial.

(Reasons at [85]-[103])
Ground 5: causation
5.1The learned trial judge erred in finding causation by reference to erroneous findings as to duty and breach, namely that reasonable care required the applicant in the circumstances:
(a)to raise the earth surface around the stormwater pit to make it level with the surrounding surface of the reserve; and/or
(b)to paint the stormwater pit, or erect signs above the storm water pit;
(c)which precautions if taken would have avoided the incident.

Road Management Act 2004

The resolution of the first ground of appeal involves questions of construction of a number of provisions contained in the Act. Before outlining the judge’s reasons for decision in relation to s 107, and the parties’ competing submissions in respect of them, it is convenient, first, to set out the relevant provisions of the Act.

Section 1(2) of the Act specifies a number of purposes of the Act, including to establish a new statutory framework for the management of the road network, to provide for the role, functions, and powers of a road authority, and to provide for issues relating to civil liability arising out of road management.

It was common ground that the reserve was a ‘public road’ pursuant to s 17(1)(e) of the Act. Section 37(1) defines the entities that are a responsible road authority under the Act. It is common ground that the applicant was the responsible road authority pursuant to s 37(1)(b)(ii) of the Act, which provides that the responsible road authority, for any part of the roadway not used by through traffic, is the municipal council of the municipal district in which that part is located.

Section 40(1) provides that subject to pt 6 of the Act, a road authority has a statutory duty to inspect, maintain and repair a public road. The subsection specifies the nature and content of that duty.

Part 6 of the Act is entitled ‘civil liability’. Section 101(1) specifies matters which a court is to consider in determining whether a road authority, an ‘infrastructure manager’ or a ‘works manager’ has a duty of care, or has breached that duty of care, in respect of the performance by it of a road management function.

Section 107, which is in issue in this case, provides:

A road authority does not have a statutory duty or a common law duty to perform road management functions in respect of a public highway which is not a public road or to maintain, inspect or repair the roadside of any public highway (whether or not a public road).

One of the issues, raised by ground 1, is whether the reserve, in which the respondent fell, came within the second limb of s 107. That question itself involves the issue whether the reserve was ‘the roadside of any public highway’.

Section 3 of the Act defines ‘roadside’ as follows:

roadside means any land that is within the boundaries of a road (other than the shoulders of the road) which is not a roadway or a pathway and includes the land on which any vehicle crossing or pathway which connects from a roadway or pathway on a road to other land has been constructed;
Example
Any nature strip, forest, bushland, grassland or landscaped area within the road reserve would be roadside.

The question whether that definition applied to the reserve raises the issue whether the reserve constituted a ‘pathway’. Section 3 defines ‘pathway’ as follows:

pathway means a footpath, bicycle path or other area constructed or developed by a responsible road authority for use by members of the public other than with a motor vehicle but does not include any path—
(a) which has not been constructed by a responsible road authority; or
(b) which connects to other land;
Examples
A footpath or bicycle path constructed on a road reserve by a responsible road authority for use by the general public would be a pathway.
A foot trodden track over roadside land or a path that connects from a roadway or footpath to privately owned land would not be a pathway.

Section 3 defines ‘road reserve’ to mean ‘all of the area of land that is within the boundaries of a road’. It defines ‘roadway’ as follows:

roadway means—
(a)in the case of a public road, the area of the public road that is open to or used by members of the public and is developed by a road authority for the driving or riding of motor vehicles;
(b)in the case of any other road, the area of the road within the meaning of road in section 3(1) of the Road Safety Act 1986—

but does not include a driveway providing access to the public road or other road from adjoining land;

A second issue, raised by ground 1, is whether the function of the applicant, of maintaining and inspecting the stormwater pit, constituted a ‘road management function’ performed by the applicant as a road authority, or whether any obligation of the applicant in respect of the stormwater pit arose from its other statutory function, as the non-road infrastructure manager.

Section 48(1) provides that an ‘infrastructure manager or works manager’ has the duties set out in part 1 of schedule 7 of the Act. Clause 6 of schedule 7 provides as follows:

6Duty to maintain non-road infrastructure or related works to a satisfactory standard

An infrastructure manager must take reasonable measures to—
(a)maintain the non-road infrastructure or related works to a satisfactory state of repair;
(b)avoid causing damage to the roadway, road infrastructure or non-road infrastructure;
(c)repair any damage caused to the roadway, road infrastructure or non-road infrastructure by a failure of infrastructure for which the infrastructure manager is responsible;
(d)take reasonable precautions to ensure that anything placed on a roadway or pathway does not cause an obstruction or inconvenience;
(e)take reasonable precautions to ensure that anything placed on a roadway or pathway does not cause an obstruction or danger to any person with a disability;
(f)in the case of any part of a road used for rail infrastructure, ensure that the condition of the surface is maintained to a standard which is equivalent to the standard of the adjacent road surface.

Example
A road authority, a utility or a provider of public transport which has infrastructure in a road must take care that its pit lids, access hole covers, gratings and similar things are kept flush with the surrounding surface of the roadway or pathway so that they do not cause a hazard or adversely affect the smooth passage of traffic.

Section 3 defines ‘infrastructure’ to mean ‘road infrastructure’ and ‘non-road infrastructure’. In turn, ‘road infrastructure’ is defined to mean infrastructure that ‘forms part of the roadway, pathway or shoulder’, including structures forming part of the roadway, pathway or shoulder, and materials from which a roadway, pathway or shoulder is made, but excluding certain structures that constitute ‘works’ within the meaning of the Water Act 1989.

By contrast, ‘non-road’ infrastructure is defined as follows:

non-road infrastructure means infrastructure in, on, under or over a road which is not road infrastructure;
…
Examples
Non-road infrastructure would include gas pipes, water and sewerage pipes, cables, electricity poles and cables, tram wires, rail infrastructure (including boom gates, level crossings and tram safety zones), bus shelters, public telephones, mail boxes, roadside furniture and fences erected by utilities or providers of public transport.

Ground 1: the statutory duty

As we have mentioned, the judge concluded that the exclusion of liability, contained in s 107 of the Act, did not apply in the present case, for two reasons. First, his Honour found that the reserve was a pathway, and not a roadside, so that s 107 did not apply to it. Secondly, and in any event, the judge held that the exclusion of liability, provided in s 107, was limited to road authority duties, and it did not affect or exclude the statutory or common law duties of the applicant in carrying out any of its other statutory function, including its functions as the infrastructure manager of non-road infrastructure.

The first question, whether the reserve was a pathway, as defined in s 3 of the Act, was the focus of substantial discussion and argument on this application. If the question were concluded in favour of the applicant, it would have the effect that the applicant as a road authority did not have a statutory or common law duty to perform ‘road management functions’ in respect of the reserve, for breach of which it would otherwise have been liable in damages to the respondent. Such a conclusion would also have the effect that the obligation of the applicant, as an infrastructure manager, under cl 6(d) of sch 7, did not apply to the reserve. However, during the application, senior counsel for the applicant correctly conceded that as infrastructure manager responsible for the pit, it nevertheless owed a common law duty of care to members of the public, including the respondent, in respect of the pit. Neither the applicant nor the respondent were able to demonstrate how the outcome of the application on ground 4 would or might be different, if the issue, whether the reserve was a pathway, was decided in its favour. In other words, neither party considered that it would be at an advantage or disadvantage on the issue of breach of duty (which is the subject of ground 4) if ground 1 were decided in its favour. Nevertheless, we feel obliged to determine the questions raised by ground 1, first, in deference to the nature and quality of the arguments presented by both sides in relation to it, and, secondly, because at least in theory the question whether a public authority has breached its common law duty of care might involve a different approach, if only by way of emphasis, than the question whether the authority breached a statutory duty binding on it.

In concluding that the reserve was a pathway, and not a roadside, the judge referred to the evidence as to the maintenance activities undertaken by the applicant on the reserve, including mowing, weeding, spraying and litter removal, as well as the construction and use of the irrigation and stormwater systems. He noted that the applicant did not place the reserve in the category of ‘undeveloped’ reserves described by Mr Harford. He also noted the evidence that the reserve is located in suburban Shepparton, and that it is regularly used by members of the public.[20]
[20]Reasons [72].

The judge referred to the words ‘… or other area … developed by a responsible authority for use by members of the public other than with a motor vehicle …‘ in the definition of pathway. The judge concluded as follows:

Here the text to be construed is:
... or other area ... developed by a responsible authority for use by members of the public other than with a motor vehicle ...

The text of the definition incorporates the reserve. I accept the submission by counsel for the plaintiff that the reserve has been developed, by the defendant, for use by members of the public. The context in which those words appear in the legislation relates to an imposition of a duty on the authority in respect of those parts of a public road developed by the authority for use by members of the public. There is a clear contrast between the reserve and the examples of ‘roadside’ included with the s 3 definition and with s 40, which make clear that the authority’s duty does not extend to ‘a foot trodden track over roadside’ or to ‘roadside bush land’. It would be an irrational result in my view if an area such as the reserve, located in suburban Shepparton close to schools, shops and residences, regularly used by members of the public and which had been developed and maintained by the defendant in the manner described was not an area in respect of which the defendant as the road authority had a duty to inspect, maintain and repair. I conclude therefore that the reserve comes within the definition of pathway in the RMA.[21]

[21]Ibid [74].

On behalf of the applicant, it was submitted that the judge’s conclusion, that the reserve was a pathway and not a roadside, was erroneous, for three reasons, first, because the finding that the reserve was a ‘pathway’ was contrary to the ordinary and natural meaning of that term when considered in its context, secondly, because there was no evidence on which the judge could find that the reserve was ‘developed’ by the applicant for use by members of the public as a ‘pathway’, and, thirdly, because the finding, that the reserve was not ‘roadside’, was contrary to the natural and ordinary meaning of that term when considered in its context.

Senior counsel for the applicant submitted that the judge considered the meaning of ‘pathway’ without reference to its context. In particular, the judge gave it a meaning that was contrary to its ordinary meaning, and contrary to the mischief that the provision had been intended to address, namely, to ensure that road authorities devote their limited resources to roadways and pathways that actually form part of the integrated public transport system. In that respect, the applicant referred to an extract of the Second Reading Speech of the Minister, in which it was stated:

It is not feasible for road authorities to be required to maintain every parcel of land over which the public might have a right of way. For one thing, it is often not clear whether a parcel of land is a public highway. Secondly, road authorities simply do not have the resources. There needs to be a way of identifying those roads that form part of the network of roads reasonably required for general public use and that should be maintained at public expense.

It was submitted that the construction adopted by the judge would extend the word ‘pathway’ to include any area within a road reserve other than the roadway itself, and that such a meaning strained the term ‘pathway’ well beyond its natural and ordinary meaning. Counsel contended that the judge ought to have construed the term ‘or other area’ by reference to the specific categories identified in the definition of ‘pathway’ that immediately preceded it, namely, ‘footpath’ and ‘bicycle path’. Thus, it was submitted that the term ‘or other area’ should be construed as limited to ‘or other area that is in the nature of a path’. Such a construction, it was contended, is not only consistent with the ordinary meaning of the term ‘pathway’, but is also consistent with the examples contained in the definition of ‘pathway’, and with the statements of legislative intention contained in the extrinsic materials to the Act, including the Explanatory Memorandum.

The second argument on behalf of the applicant was that the judge erroneously held that the reserve was ‘developed’ by the applicant for use by members of the public. It was submitted that the term ‘developed’ should be construed by reference to the specific category immediately preceding it, namely, paths that had been ‘constructed’ for public passage. Counsel contended that the maintenance activities performed by the applicant, about which Shane Harford gave evidence, did not constitute any ‘development’ of the reserve by the applicant as a path.

Counsel contended that the term ‘developed’ should be interpreted to mean ‘built’ as distinguished from ‘maintained’. He also submitted that that part of the definition should be construed, in context, to refer to areas developed (‘built’) by a responsible authority ‘as a pathway’. Counsel further submitted that a construction of the word ‘developed’ to include ‘maintained’ would contradict the examples provided under the definition of ‘roadside’, and, in particular, the examples of a nature strip, grassland or landscaped area. He further contended that, although the evidence established that the applicant had regularly maintained the reserve, there was no evidence that it did so to enable people to use it for the purpose of walking from one point to another. He submitted that if in fact such a question were resolved by reference to the manner in which the reserve was used, the application of the definition would depend, not on the purpose of the activities carried out by the applicant in respect of it, but, rather, by an analysis of how regularly and in what manner the reserve was used. Finally, counsel submitted that an interpretation of the term ‘pathway’, to include the reserve, would produce the incongruous effect that, by the terms of the example provided under the definition of ‘pathway’, a foot trodden track within the pathway would not be considered to be a pathway.

In support of their third argument, counsel for the applicant contended that the basis, upon which the judge concluded that it would be ‘irrational’ for the reserve to be characterised as ‘roadside’ — because it was located in a suburban area and used by the public — is in fact specifically contemplated by the provisions of the Act and the extrinsic materials. In that respect, counsel referred to an extract from the Second Reading Speech to the Act, in which the Minister observed that ‘… roadsides provide valuable public open space in many urban communities … ‘. Counsel further contended that the judge’s conclusion failed to have regard to the definition of ‘roadside’, which contemplates any land that is within the boundaries of a road, but which is not a roadway or a pathway.

Finally, it was contended that if the judge had found that the reserve was not a ‘pathway’ but was a ‘roadside’, then, by s 107 of the Act, the applicant would not have had any statutory or common law duty to the respondent, and, further, it would not have owed any duty as infrastructure manager to the respondent under cl 6(d) of sch 7 of the Act.

In response, it was submitted on behalf of the respondent that the judge did not err in his conclusion that the reserve was a ‘pathway’ as defined in s 3 of the Act. By its specific terms, the definition did not confine ‘pathway’ to include any other area ‘in the nature of a path’, but, rather, it chose the broader term ‘area’ to give flexibility to the definition in order to cater for the various different scenarios that may exist throughout Victoria. It was submitted that there was no justification for narrowing the definition of pathway to confine it to a ‘path’, and that the phrase ‘other area’ was deliberately broad in order to encompass any kind of area, such as grassed areas, boardwalks or other surfaces. In particular, it was contended that the maxim of statutory construction ‘ejusdem generis’ does not assist the applicant, as the role of that maxim has been reduced in modern times. Further, resort to that maxim, to limit the general words ‘other area’ to mean areas ‘in the nature of a path’, would re-write the definition, and render the general words, chosen by Parliament, to be unnecessary.

Senior counsel for the respondent further noted that the phrase ‘constructed or developed by a responsible authority for use by members of the public’ contextually qualifies the preceding words ‘or other area’, and not the words ‘footpath, bicycle path’ in the definition of pathway. Instead, (he submitted) the first two terms in the definition (footpath, bicycle path) are qualified by the two express exclusions at the conclusion of the definition, namely, a path which has not been constructed by a responsible authority, and a path which connects to other land. Thus, he submitted, it is evident that the Parliament had a specific intent that the term ‘or other area’ be given its full, and not restricted, construction.

Counsel submitted that the recourse by the applicant to extrinsic materials, including the Second Reading Speech and the Explanatory Memorandum, could not be permitted to alter the plain meaning of the words chosen by Parliament to define ‘pathway’ in s 3 of the Act. In that context, it was submitted, to construe the word ‘pathway’ broadly is consistent with a legislative intention that the duty of an authority to inspect, maintain and repair a public road is not unduly restricted.

Counsel further submitted that even if the term ‘pathway’ is confined to constitute something that served as a path, nevertheless the reserve would respond to that definition. It was pointed out that the reserve was opposite a primary school, and various residences, and near to shops. It was entirely surrounded or bordered by four roads, and it was between two reserves, the balance of Sherbourne Reserve to the east, and Chas Johnson Reserve to the west. Thus, the reserve constituted a path between those areas.

It was further submitted that the judge did not err in concluding that the applicant had ‘developed’ the reserve for use by members of the public. The applicant had placed rubbish bins and park seats in the reserve, and had undertaken maintenance, including mowing, so that the reserve could be walked upon by pedestrians. The council continued to manage the reserve knowing that it was used as a path. Other features of the reserve confirm that the applicant had developed the land in that way. In particular, there was a road sign indicating that children would be crossing onto the reserve. There was no footpath on the northern edge of the reserve and no concrete path for pedestrians on the southern edge of the reserve, so that the grassed and earth area of the reserve constituted a pathway along both Balaclava Service Road and Balaclava Road.

Counsel for the respondent submitted that, even if the reserve was not a pathway, the judge was correct to hold that s 107 did not apply to the applicant’s duty as infrastructure manager, as distinct from its duty as road authority in respect of a roadside. Counsel contended that s 107 did not affect any other statutory or common law duties of the applicant in respect of the stormwater pit which did not constitute a duty to maintain, inspect and repair the roadside. Clause 6 of sch 7 imposes a statutory duty to take reasonable measures to maintain non-road infrastructure, which is a distinct concept from the ‘land’ constituting the roadside. The applicant had responsibility for inspecting the stormwater pits as part of the non-road infrastructure of the reserve, and it had actual knowledge of the nature of the raised stormwater pit through its regular inspection and maintenance activities. In addition, the applicant had a common law duty of care arising from its responsibility for that structure. Thus, it was submitted, the judge was correct to hold that if the reserve was not a pathway, the applicant nevertheless had a common law duty of care in respect of the stormwater pit that was located in it.

In that respect, counsel noted that s 107 speaks of a ‘road authority’, and not of an ‘infrastructure manager’. He submitted that that construction of s 107 is supported by the statutory context. Section 107 responds to the duty of a road authority specified in s 40. In contrast, s 48 of the Act deals specifically with the duties of an authority in respect of infrastructure and works on roads. Section 48(5) has the effect that sch 7 applies to the role of the infrastructure manager. Thus, it was submitted, the context of the statute reveals that s 107 only relates to the duty of a public authority as a road authority, and that it does not speak to the duty of an infrastructure manager in respect of non-road infrastructure on a road. Thus, s 107 does not absolve the applicant of the statutory duty it owed in its capacity as infrastructure manager.

Further, counsel submitted that the judge was correct to hold that the applicant owed a common law duty of care, in respect of the reserve and the pit, to members of the public who used the reserve, that was not precluded by s 107. The applicant was a public authority that assumed the care and management of the stormwater pits on land within its municipality, and, as such, it owed a duty of care to avoid foreseeable risks of injury to members of the public. Alternatively, it was submitted, the applicant was in the position analogous to an occupier of the reserve by its management of the pits and general maintenance of the reserve. It was submitted that the Act does not affect the applicant’s obligations at common law with respect to non-road infrastructure under its management. On the contrary, it was submitted, s 5(6) makes it clear that a duty of care could be reposed in an authority in its capacity other than as a road authority.

Ground 1: Analysis

The submissions by the parties on ground 1 raise two issues. The first and principal issue is whether the reserve, in which the respondent fell and suffered injury, was a ‘pathway’, as defined in s 3 of the Act, and therefore outside the terms of the preclusion of liability specified in s 107, or, whether it was a roadside, so that it falls within the preclusion of liability contained in that section. The second issue is whether, if the reserve is not a pathway, s 107 affects any duty of care that the applicant had to members of the public, including the respondent, in respect of the condition of the reserve, and of the stormwater pit, other than its statutory and common law duties as a road authority. As will be seen, that issue was of lesser significance in the appeal in light of a concession, properly made by counsel for the applicant, that s 107 did not exclude or affect the duty of care owed to members of the public by the respondent as infrastructure manager in respect of the stormwater pit.

Those issues involve questions of statutory construction. In resolving such a question, the starting point is the text of the particular provision, and, in particular, the language selected by Parliament to express its intention.[22] However, the statutory provision, that is in issue, is not to be construed in isolation. Rather, it is to be interpreted in the context of the statutory provisions of which it forms part. In that way, the legislative intention, expressed in the particular provision, is understood by reference to its function in the statutory scheme of which it is part.[23]
[22]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46-7 [47]; Thiess v Collector of Customs (2014) 250 CLR 664, 671 [22]; DPP v Walters [2015] VSCA 303 [2].
[23]Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39].

The statutory context of a provision includes the legislative purpose intended to be served by it, and by the legislation of which it forms a part. Section 35(a) of the Interpretation of Legislation Act 1984 provides that a construction that would promote the purpose or object underlying the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to a construction that would not promote that particular purpose or object. In that way, the court is directed, specifically, to identify, and give effect to, the intended statutory purpose, objectively ascertained. However, such an approach does not provide a warrant to ignore the plain language of the statutory provision, or to redraft it so that it conforms with the presumed statutory intention.[24]
[24]Mills v Meeking (1990) 169 CLR 214, 235 (Dawson J); Alinta Asset Management Pty Ltd v Essential Services Commission (2008) 22 VR 275, 293 [81]–[83] (Dodds-Streeton JA); R v L (1994) 49 FCR 534, 538.

The applicable principles have been stated by members of the High Court on a number of occasions. In Project Blue Sky Inc v Australian Broadcasting Authority,[25] the plurality[26] stated:

… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[27]

[25](1998) 194 CLR 355.

[26]McHugh, Gummow, Kirby and Hayne JJ.

[27]Op cit 384.

Similarly, in Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd,[28] the Court stated:

‘This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.[29]

[28](2012) 250 CLR 503.

[29]Ibid 519 [39] (citations omitted); see also Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 304 (Gibbs J), 320–321 (Mason and Wilson JJ).

In the present case, an issue arises concerning the meaning of the phrase ‘… or other area’ in the definition of ‘pathway’ in s 3 of the Act. In support of its submissions, the applicant has referred to the canon of construction ejusdem generis. The authorities make it plain that the role of that rule is somewhat restricted, and, in particular, that it must not displace the ordinary principles of statutory construction, to which we have referred. In Cody v JH Nelson Pty Ltd,[30] Dixon J referred to the dictum of Asquith LJ, in Allen v Emmerson,[31] that the tendency of more modern authorities had been to ‘attenuate the application of the ejusdem generis rule’. His Honour stated:

In the modern search for a real intention covering each particular situation litigated, however much help and guidance may be obtained from the principles and rules of construction, their controlling force in determining the conclusion is likely to be confined to cases where the real meaning is undiscoverable or where the court of construction, sceptical of the foresight of the draftsman or of his appreciation of the situation presented, is better content to supply the meaning by a legal presumption than subjectively.[32]

[30](1947) 74 CLR 629.

[31](1944) 1 KB 362, 367.

[32]Cody v JH Nelson Pty Ltd (1947) 74 CLR 629, 647.

Accordingly, Dixon J concluded:

But the truth is that it is wrong to use the rule for an ejusdem generis construction as a piece of abstract or mechanical reasoning. It must be applied not simpliciter but secundum quid. It should be used as a guide in a process of interpretation which takes into account the whole instrument and the subject matter.[33]

[33]Ibid 649.

Similarly, in Deputy Commissioner of Taxation v Clark,[34] Spigelman CJ (with whom Handley and Hodgson JJA agreed) stated:

The process of reading down general words in a statute is a frequently recurring issue in statutory interpretation. … Application of the ejusdem generis rule is a specific example of this process. The application of this rule, in substance, gives the immediate verbal context determinative weight in the process of construing general words. In my opinion, this is rarely justified. Whether or not general words ought to be read down is to be determined by the whole of the relevant context, including other provisions of the statute and the scope and purpose of the statute.[35]

[34](2003) 57 NSWLR 113.

[35]Ibid 143 [127]; see also Vella v Minister for Immigration & Border Protection (2015) 230 FCR 61, 77 [63]; Boyton v Nominal Defendant [1980] 2 NSWLR 509, 511 (Glass JA); Foley & Ors v Tectran Corporation Pty Ltd & Ors [1984] 3 NSWLR 156, 166 (Priestley JA); Mayne Nickless Ltd v Federal Commissioner of Taxation (1991) 22 ATR 198, 211 (Ashley J).

The definitions of ‘pathway’ and ‘roadside’ in s 3 of the Act, each contain examples. Section 36A of the Interpretation of Legislation Act 1984 provides that, while such examples form part of the definition contained in the Act, they are not exhaustive, and that they may extend, but not limit, the meaning of the provision. They are relevant to clarify, and illustrate, the meaning of the terms used in the particular statutory provision. However, they cannot be used to fill a gap in the substantive content of the legislative provision.[36]
[36]DPP v Walters [2015] VSCA 303 [7]; Brooks v Commissioner of Taxation (2000) 173 ALR 235, 252 [66].

The resolution of the question, raised by ground 1, is not entirely clear cut. In particular, there is some force in the proposition, advanced by the respondent, that the phrase ‘or other area constructed or developed by a responsible authority for use by members of the public’ should be given its full, and unqualified, meaning. If Parliament had intended that such an area be confined to a path, that part of the definition could have been expressed quite differently, as confining the definition to ‘or other path’, or to ‘or other area constructed or developed … for use by members of the public as a path’.

On the other hand, as we have noted, it is important that the definition be construed in its context. As pointed out by senior counsel for the applicant, the legislation divides the concept of a ‘public road’ into five components, namely: roadside; shoulder; roadway; pathway; and ancillary areas. We need not concern ourselves with the last component, ancillary areas. As we have mentioned, a roadway, in effect, is defined to mean the area of the public road open to or used by members of the public for driving or riding vehicles. The term ‘roadside’ excludes, not only land which is either a roadway or pathway, but also a ‘shoulder’, which is defined to mean the cleared area (whether constructed or sealed) next to a roadway that provides clearance between the roadway and the roadside, but does not include any area that is not in the road reserve. Thus, it is evident that the ‘roadside’ is the area beyond the roadway, and beyond the shoulder, but which does not include a pathway.

The examples under the definition of ‘roadside’ are instructive in this context. They are each instances of land, beside a roadway, which are not ordinarily intended to be used for foot or other traffic. They include undeveloped areas (forest and grassland) and developed areas (nature strip and landscaped area) within the road reserve.

It is in that context that the definition of ‘pathway’, in s 3 of the Act, must be construed. It is of course trite that the ordinary or dictionary meaning of a defined term in a statute is notionally displaced or altered by any statutory definition of that term.[37] Nevertheless, the ordinary or dictionary meaning of a particular term may influence, or colour, the court’s view of the defined meaning of the term.[38]
[37]Office of the Premier v Herald & Weekly Times Pty Ltd [2013] VSCA 79 [61] (Tate JA); Gibb v Federal Commissioner of Taxation (Cth) (1966) 118 CLR 628, 635.
[38]Manly Council v Malouft/as Fusion Point (2004) 61 NSWLR 394, 396–7 [8]–[10] (Handley JA); Hastings Cooperative Limited v Port Macquarie Hastings Council [2009] NSWCA 400 [17] (Baston JA); Heffernan v Comcare (2014) 218 FCR 1,9 [46] (Allsop CJ); British Amusement Catering Trades Association v Westminster City Council [1989] AC 147, 157 (Lord Griffiths, with whom Lord Bridge, Lord Fraser, Lord Lowry and Lord Ackner agreed).

In its ordinary, dictionary meaning, a ‘pathway’ denotes a path, or like area, intended and used for passage, ordinarily by foot, or a simple form of conveyance, but not including a vehicle or the like. The two specific instances specified in the definition in s 3 of the Act — footpath and bicycle path — conform readily with the ordinary dictionary meaning of ‘pathway’. Equally, the examples, provided under the definition, focus on the same concept.

On the other hand, if the phrase ‘or other area constructed or developed by a responsible authority for use by members of the public’ were given its full, and unqualified, meaning, it would encompass areas which could not, on any sensible view, be commonly considered to be a pathway. Such a construction would have the effect, for example, that if the reserve in this case had contained recreational equipment for children, such as slides, swings and the like, it would still come within the definition of ‘pathway’. Further, such a construction would be inconsistent with the examples, provided under the definition of ‘roadside’, of a ‘landscaped area within the road reserve’.

For those reasons, we do not consider that the phrase ‘or other area constructed or developed … for use by members of the public’ should be construed in the manner contended for by the respondent. Rather, we consider that that phrase should take its colour, both from the ordinary meaning of ‘pathway’, and from the statutory context, so as to denote an area of land developed and used for the purpose of passage (other than by a motor vehicle).

In the present case, senior counsel for the respondent accurately described the area of reserve in question as akin to a ‘village green’. The evidence indicated that it was used by children to play sport on it, for people to walk their dogs, and for other such purposes. The evidence also establishes that the area was not uncommonly used by people to walk between Balaclava Road and Balaclava Service Road. However the fact that it was put to that use does not, of itself, alter its essential character. As senior counsel for the applicant pointed out, the denotation of the area in question, as a pathway or as a roadside, could not from time to time vary according to the use to which that area was put.

Further, we do not consider that the evidence establishes that the reserve was ‘developed’ for use by members of the public for the purpose of passage by pedestrians from one side of the reserve to the other. Rather, the evidence of the maintenance activities undertaken by the respondent falls well short of satisfying the term ‘developed’. In essence, to develop a piece of land is to alter its character in a material respect. The maintenance activities, about which the parties gave evidence, could not, in ordinary parlance, be fairly described to be activities that ‘developed’ the land. Nor do we consider that they could be properly characterised as being intended to ‘develop’ the land for the purpose of enabling people to pass across it. In our view, the evidence as to the maintenance activities undertaken by the authority would not permit the drawing of that inference on the balance of probabilities.

For those reasons, we uphold the submissions made on behalf of the applicant that the reserve did not constitute a pathway as defined in s 3 of the Act.

It follows that, under s 107 of the Act, the applicant did not have a statutory or common law duty to perform road management functions in respect of the reserve. It was common ground that the stormwater pit constituted non-road infrastructure. It was not in issue that the applicant was at all material times the infrastructure manager in respect of the pit. However, the only statutory duty, attaching to the applicant in its capacity as infrastructure manager, and relied on by the respondent, was that specified in cl 6(d) of pt 1 of sch 7 of the Act. By its terms, that duty only applied to infrastructure placed on a ‘roadway or pathway’. The conclusion that the reserve was not a pathway (nor was it a roadway) means that cl 6(d) did not apply to the pit.

On the other hand, as we have already noted, senior counsel for the applicant has properly conceded that s 107 did not affect, or displace, the common law duty of care owed by the authority to members of the public, including the respondent, in respect of the stormwater pit on which the respondent sustained his injury. Accordingly, we turn to ground 4 of the proposed grounds of appeal, which is directed to the conclusion by the judge that the applicant breached the duty of care it owed to the respondent.

Ground 4: breach of common law and statutory duty

At trial, and on appeal, the applicant conceded that it was the responsible road authority in relation to the reserve, and that it was the responsible infrastructure manager in relation to the pit. The judge concluded that, accordingly, the applicant owed a duty to take reasonable care to keep safe pedestrians using the reserve, including the respondent.[39] It is not necessary for us to consider the question whether s 107 is effective to exclude the common law duty of care otherwise owed by the applicant to the respondent arising from its control and management of the reserve.[40] That issue involves the question whether, in performing those functions, the applicant acted as the ‘road authority’ in respect of the reserve. However, that question is academic in this case, in light of the concession, properly made by the applicant, that it owed a common law duty of care to the respondent in respect of the pit that was situated on the reserve, and on which the respondent suffered his injury. It was not suggested in argument that the determination of the questions of breach or causation involved any different consideration depending on whether the applicant also owed a duty of care to the respondent in respect of the condition of the reserve in which the pit was located.
[39]Reasons [62].
[40]Compare Vairy v Wyong Shire Council (2005) 223 CLR 422 (‘Vairy’); Roads and Traffic Authority of New South Wales v Dederer & Anor (2007) 234 CLR 330, 345–355 (Gummow J) (‘Dederer’).

Ground 4 of the proposed grounds of appeal is directed to the judge’s conclusion that the applicant had breached its common law and statutory duties to the respondent. The judge adopted the same path of reasoning in finding that the applicant had breached both of those duties, which he considered the applicant owed to the respondent. In light of our conclusions in respect of ground 1, our consideration of ground 4 is therefore addressed to the conclusion by the judge that the applicant breached its common law duty of care that it owed to the respondent in respect of the stormwater pit.

In his reasons, the judge, referring to Boroondara City Council v Cattanach[41] and Gosling v Lorne Foreshore Committee of Management Inc & Anor,[42] characterised the duty of care, owed by the applicant to the respondent, as a duty to pedestrians to take care to eliminate or reduce hazards which a pedestrian, having reasonable care for his or her own safety, would not see and avoid.[43] His Honour considered that the risk, in the present case, was that a pedestrian crossing the reserve at night would encounter the stormwater pit and come to grief on it, as neither the probability nor the magnitude of that risk were obvious to pedestrians crossing the reserve at night.[44] The applicant does not take issue with the judge’s characterisation of the relevant duty of care, nor with his Honour’s description of the relevant risk.
[41](2004) 10 VR 109.
[42][2009] VSCA 228 [39]–[40].
[43]Reasons [57].
[44]Ibid [61].

Each of the six points, specified in ground 4 of the notice, are directed to findings by the judge relating to breach, which can be briefly summarised as follows:

(1)The judge first addressed the nature of the risk, posed by the stormwater pit, in the following terms:
To a pedestrian crossing the reserve at night in the sort of dark conditions experienced by the plaintiff, the stormwater pit represented a significant hazard, both in terms of the likelihood of tripping and the seriousness of injury that might be sustained as a result. That risk was not obvious in terms of the likelihood of occurrence or the magnitude of the danger it represented. Counsel for the defendant submit that there was no evidence that the reserve was used by pedestrians at night time. The reserve is located in suburban Shepparton. It is located immediately across the road from a primary school, close to a secondary school, close to the King Street shops, and across the road from various residences. I consider it improbable that pedestrians did not, from time to time, cross the reserve at night. Mr Harford acknowledged that possibility. I do not consider that by choosing to cross the reserve on foot at night the plaintiff failed to take reasonable care for his own safety.[45]

(2)As noted, the judge, having considered the evidence of Mr Harford and Mr Sidebottom (constituted by his statement), determined that, in the absence of the applicant’s complaint systems records, it was not possible to conclude that no complaint, in relation to the stormwater pit, had been made to the applicant preceding the respondent’s fall.[46]
(3)The judge found that the applicant had actual knowledge of the particular risk which the stormwater pit posed to pedestrians crossing the reserve at night.[47]
(4)The judge concluded that the risk, posed by the pit to the respondent, could have been simply averted by painting the pit lid, raising the ground surface surrounding the pit to remove the hazard, or placing an appropriate warning sign in proximity to the pit.[48]
(5)Accordingly, the judge held that the applicant breached its duty of care to the respondent by failing to implement any of those measures before the respondent’s accident.[49]

[45]Ibid [55].

[46]Ibid [95].

[47]Ibid [83].

[48]Ibid [98]–[100].

[49]Ibid [103].

In support of ground 4, senior counsel for the applicant contended that the judge erred by failing to assess and determine the degree of probability of the risk of harm posed by the stormwater pit to pedestrians crossing the reserve at night. He contended that the only evidence, of any use of the reserve at night, was that of the respondent, who had not previously crossed the reserve, notwithstanding that he had lived in Shepparton for more than 20 years before the accident. Further, there were nearby and adjacent footpaths that could be used at night, and there was no evidence of any previous complaint to the applicant concerning the presence of the stormwater pit, which had been in situ for more than 50 years. Thus, it was submitted, in the circumstances the judge should have concluded that the probability of any harm, posed by the pit at night, was exceedingly low.

In those circumstances, it was submitted, on behalf of the applicant, the judge impermissibly applied the ‘Shirt calculus’[50] retrospectively and with the wisdom of hindsight. That is, it was contended, that by failing to properly assess the degree of probability of the risk of harm posed by the pit at night, the judge wrongly considered the question of breach by focusing on the circumstances in which the accident occurred, and the steps which could have been taken to avoid that accident. That assessment, it was contended, failed to take into account a consideration of the prospective (and not retrospective) evaluation of the probability of the risk of a pedestrian falling over the pit while crossing the reserve at night.
[50]The Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 40, 47–48 (Mason J) (‘Shirt’).

It was further contended that the judge erred in not acting on the evidence, of Mr Harford and Mr Sidebottom, that there was no knowledge by the applicant of any previous complaint relating to the location or condition of the pit. In the course of the evidence, the judge had dismissed an application by the respondent to cross-examine the deponent of the applicant’s affidavit of documents in relation to that issue. It was contended that the fact that no complaints have been discovered was consistent with the evidence given by Mr Harford and Mr Sidebottom as to that fact.

It was further submitted, on behalf of the applicant, that the judge erred in finding that the applicant had actual knowledge of the particular risk to pedestrians crossing the reserve at night. It was contended that the evidence of Mr Harford did not support that finding by the judge. Further, counsel submitted that it was not open to the judge to conclude that the measures of raising the ground around the stormwater pit, painting the cover of the pit, and placing warning signs on it, were reasonable responses which the applicant should have implemented before the happening of the accident. In particular, the respondent had led no evidence as to the cost difficulty or utility of such measures, so that the finding by the judge to that effect was unsupported by any evidence.

In response, counsel for the respondent noted that ordinarily a finding by a trial judge, as to breach of duty, would not be lightly interfered with on appeal.[51] Further, a number of the findings by the judge, that formed the basis of his conclusion that the applicant had breached its duty of care to the respondent, were findings of fact, which should only be set aside if the Court were to conclude that there was a relevant error by the judge in reaching those findings.
[51]Referring to Branir Pty Ltd & Ors v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, 435–6 (Allsop J).

Counsel further contended that the judge did properly consider the question of the probability of harm resulting from the risk of injury to a pedestrian crossing the reserve at night. Counsel further referred to the admonition, expressed in a number of decided cases, that a court should not adopt a formulaic or mathematical approach to its assessment of the factors, relating to breach of duty, identified by Mason J in Shirt[52] and enumerated in s 48 of the Wrongs Act 1958. In the present case, the judge expressly identified the risk of harm as being that of a pedestrian crossing the reserve at night who would encounter the pit and come to grief on it. The judge specifically referred to the hazard presented by the pit to such a pedestrian as ‘… both in terms of the probability of coming to grief and magnitude of the harm which may result’.[53]
[52](1980) 146 CLR 40, 47–48.
[53]Reasons [92].

Counsel further submitted that the judge’s finding, that he was not satisfied that no complaint had previously been made about the pit, was open on the evidence. Further, the judge correctly noted that, in any event, the absence of complaint was but one circumstance that should be taken into account in determining the issue of breach of duty of care. Counsel contended that the evidence of Mr Harford was sufficient to support a finding by the judge that the respondent had knowledge of sufficient facts to alert it to the risk posed by the pit to pedestrians at night. Mr Harford did not take issue with the proposition that people did walk on the reserve at night. It was submitted that, in light of the location and nature of the reserve, the judge was entitled to conclude that, in light of the council’s knowledge of the nature and shape of the pit, the council was aware that the pit would pose a serious hazard to persons crossing the reserve at night.

Finally, counsel for the respondent submitted that the judge was entitled to take a common sense approach to the simple measures which could have been adopted, but were not undertaken, by the applicant, to address the risk posed by the pit to users of the reserve at night. None of the measures, considered by the judge, involved questions of technical expertise calling for expert evidence. The applicant did not adduce any evidence that simple, common sense measures, such as those discussed by the judge, would have been impractical or expensive, or otherwise difficult to implement. Accordingly, it was submitted, the judge was entitled to conclude that the measures, such as raising the level of the ground, painting the lid, and placing warning signs, were precautions which were reasonably available to the applicant to avert the accident in which the respondent suffered his injury.

Ground 4: analysis

The complaints made by the applicant, in ground 4.1(c), (d), (e) and (f), essentially allege errors by the judge in findings of fact made by him in determining whether the applicant had breached its duty of care to the respondent.

The principles, relating to such a ground of appeal, are well established. Although the appeal to this Court is by way of re-hearing, the Court should not interfere with findings of fact by the primary judge, unless they are demonstrated to be wrong by incontrovertible facts or uncontested evidence, or unless they are glaringly improbable or contrary to compelling inferences.[54] In reviewing factual findings by a primary judge, it has been emphasised that the appellate court should not overlook, or underestimate, the considerable advantages in fact finding which a primary judge enjoys. Those advantages include not only the ability of the judge to weigh and assess the credibility and reliability of the evidence of witnesses, but also the opportunity possessed by the judge to consider and review the evidence as it is produced at trial over a period of days or more.[55] Those advantages are well understood by, and readily apparent to, judges and lawyers who have long experience with both the trial and appellate processes.
[54]Fox v Percy (2003) 214 CLR 118, 127–128 [27]–[28] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter Inc v McDermott & Ors (2016) 331 ALR 550, 558–9 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); Marriner & Ors v Australian Super Developments Pty Ltd [2016] VSCA 141 [141].
[55]State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(in liq) & Ors (1999) 160 ALR 588, 619 [89]–[90] (Gaudron, Gummow and Hayne JJ); Box Hill Institute of TAFE v Johnson [2015] VSCA 245, [36]–[38]; Williams v The Minister Aboriginal Land Rights 1983 & Anor [2000] NSWCA 255 [138].

The determination whether, in a particular case, a duty of care has been breached, is essentially a finding of fact. In Shirt,[56] Mason J outlined the matters to be considered, and the approach to be taken, in determining that issue, in terms that have been adopted and applied in a number of subsequent cases.[57] Those principles have been fundamentally codified, and restated, in s 48 of the Wrongs Act 1958, albeit in slightly different terms. In applying those principles, it is important to bear in mind that the factors, outlined by Mason J in Shirt, and specified in s 48, are not to be applied in mechanical or formulaic manner.[58] For that reason, the High Court has cautioned against characterising the various factors, referred to by Mason J in Shirt, as elements of a ‘calculus’.[59]
[56](1980) 146 CLR 40, 47–48.
[57]See e.g. Vairy (2005) 223 CLR 422, 464 [134] (Hayne J), 480–481 [213]–[214] (Callinan and Heydon JJ); Dederer (2007) 234 CLR 330, 337-8 [18], 353–4 [68] (Gummow J), 371–2 [134]–[137] (Kirby J), 406 [271] (Callinan J); New South Wales v Fahy (2007) 232 CLR 486, 511 [78] (Gummow and Hayne JJ).
[58]Erickson v Bagley [2015] VSCA 220, [37] (Kyrou and Kaye JJA).
[59]Mullighan v Coffs Harbour City Council (2005) 223 CLR 486, 490–491 [2] (Gleeson CJ, Kirby J); New South Wales v Fahy (2007) 232 CLR 486, 490-1 [6] (Gleeson CJ).

The High Court has, on a number of occasions, emphasised that the question of how an alleged tortfeasor should have responded, to a reasonably foreseeable risk of injury, should be considered prospectively and not retrospectively. As Hayne J stated in Vairy v Wyong Shire Council:[60]

If, instead of looking forward, the so-called Shirt calculus is undertaken looking back on what is known to have happened, the tort of negligence becomes separated from standards of reasonableness. It becomes separated because, in every case where the cost of taking alleviating action at the particular place where the plaintiff was injured is markedly less than the consequences of a risk coming to pass, it is well-nigh inevitable that the defendant would be found to have acted without reasonable care if alleviating action was not taken.[61]

[60](2005) 223 CLR 422.

[61]Ibid 462 [128]. See also Dederer (2007) 234 CLR 330, 353 [65]–[67] (Gummow J).

It is convenient to deal, first, with the issues raised by paragraphs (c) to (f) of ground 4.1, as each of them allege errors by the judge in making particular fact findings based on the evidence.

By ground 4.1(c), the applicant contends that the judge erred in finding that it was not possible to conclude that no complaint had been made to the applicant, in the years prior to the respondent’s accident, when ‘that was the evidence of Mr Harford and Mr Sidebottom and there was no evidence to the contrary’.

In our view, there is no substance to that contention. The evidence, sought to be adduced by the applicant, did not oblige the judge to conclude that no complaint had been made to the applicant in the years previous to the respondent’s accident.

Mr Harford did say that he had not received any complaint from any of his officers about the stormwater drainage and manholes in Sherbourne Reserve. However, he qualified that answer by stating that if such a complaint was made by a member of the public, that person would ring the council offices and talk to customer service, and the complaint would be logged on the applicant’s computer system (referred to as the ‘Merit System’). Clearly, Mr Harford’s evidence was not sufficient to warrant, let alone compel, a finding of fact by the judge that no complaint had been made by a member of the public concerning the pit in the reserve.

The evidence of Mr Sidebottom, contained in his statement, on this issue, was limited. Mr Sidebottom, at the material time, was the manager operations of the applicant. In that role, he was responsible for a large staff of 150 people who worked in the areas of parks and gardens and assets (or infrastructure). His evidence on the issue of complaint was as follows:

To the best of my knowledge no-one has in the last ten years or so ever lodged a complaint to me personally (or to Council) regarding the condition of the junction pits.

Mr Sidebottom’s evidence was hearsay. If the case had been heard before a jury, the judge would have been obliged (if requested) to have given the jury a direction, pursuant to s 165(1)(a) of the Evidence Act 2008, that that evidence might be unreliable, and that it should exercise caution in determining whether to accept it and in determining the weight to be given to it. A fortiori, it would be expected that the judge would have applied the same caution in determining whether to accept Mr Sidebottom’s evidence, and in determining the weight that he should give to it. Further, and significantly, the applicant did not call evidence, from a person responsible for its computer system, as to the absence (or otherwise) of any recording, on that system, of a complaint or complaints by members of the public concerning the pit. That evidence was essentially in the possession and control of the applicant. No explanation was given to the judge as to why that evidence was not called at the trial. In the absence of such an explanation, the judge was entitled to infer that the computer records, referred to by Mr Harford in his evidence, would not have assisted the case of the applicant on this point.[62]
[62]Jones v Dunkel (1959) 101 CLR 298, 308 (Kitto J), 312 (Menzies J), 320–321 (Windeyer J); O’Donnell v Reichard [1975] VR 916, 929; Earle v Castlemaine District Community Hospital [1974] VR 722, 733.

In short, the applicant, without explanation, did not introduce the evidence which it had in its possession, and from which it could have established the absence (or otherwise) of any complaint to it relating to the pit. Mr Harford’s evidence did not assist on the point. Mr Sidebottom’s evidence was limited, and as it was given in hearsay form, the judge was entitled (if not obliged) to exercise caution in determining whether it was sufficient to justify a conclusion that no complaint had been made to the applicant. In those circumstances, there is no basis to conclude that the judge erred in finding that it was not possible to conclude that no complaint had been made to the applicant, before the respondent’s accident, in respect of the pit. Further, and in any event, as the judge correctly noted the lack of complaint (if that be the case) was only one circumstance to take into account in assessing the degree and magnitude of the risk, constituted by the pit, and the reasonable response to it.[63]
[63]Reasons [95].

Grounds 4.1(d) and (e) are directed to the conclusion by the judge that there were a number of steps which were reasonably open to the applicant to avert the happening of the respondent’s accident, including raising the surface area of the ground surrounding the pit, painting the lid of the pit, and erecting appropriate warning signs. The basic contention of the applicant is that there was no evidence before the Court to demonstrate that it would have been practicable and reasonable to have expected the applicant to have taken any of those steps.

The short answer to that proposition is that none of the three steps, which the judge found the applicant should have taken, were matters involving any particular expertise about which an appropriate expert witness, or properly qualified witness, should have given evidence. Rather, it may be fairly concluded that, as a matter of common knowledge, and indeed common sense, it would have been practicable and inexpensive to have raised the surface of the soil in the vicinity of the pit, in order to prevent it constituting a tripping hazard to pedestrians who were unaware of its existence. Similarly, it did not require any particular expert evidence to establish that the steps of painting the lid of the cover, or erecting appropriate warning signs, were precautions which could have been easily, cheaply and practicably implemented by the applicant.

It is well recognised that, in a number of cases, a court may rely on common sense and common knowledge to reach a conclusion as to the existence of a risk, and as to the reasonable and appropriate precautions which a defendant should have taken to avert that risk. In Neill v NSW Fresh Food & Ice Pty Ltd,[64] Taylor and Owen JJ stated:

No doubt in many cases no more than common knowledge, or perhaps common sense, is necessary to enable one to perceive the existence of a real risk of injury and to permit one to say what reasonable and appropriate precautions might appropriately be taken to avoid it. Hamilton v Nuroof (WA) Pty Ltd[65] was such a case and many other examples may be found where the problem was considered to be capable of resolution by the application of common knowledge.[66]

[64](1963) 108 CLR 362.

[65](1956) 96 CLR 18.

[66](1963) 108 CLR 362, 368. See also Vozza v Tooth & Co Ltd (1964) 112 CLR 316, 322 (Windeyer J); Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239 [83]–[85] (Hoeben JA); Harrington Estates (NSW) Pty Ltd t/as Harrington Grove Country Club v Turner [2016] NSWCA 369 [51]–[52] (Leeming JA).

In similar terms, in Swain v Waverley Municipal Council,[67] McHugh J stated:

In some cases, common knowledge or common sense is all that is required to prove a reasonably practicable alternative. In other words, the plaintiff may be able to discharge the evidentiary onus of establishing a practicable alternative without the benefit of technical or expert evidence.[68]

[67](2005) 220 CLR 517 (‘Swain’).

[68]Ibid 535–6 [44] (citations omitted).

In this case, we doubt that the precautions of painting the cover of the lid, or of erecting an appropriate warning sign, would have been sufficient to have alerted the respondent to the hazard posed by the pit, particularly given the dark conditions in which the accident occurred. However, on the other hand, it is plain on the evidence that if the lid of the pit had been flush with the surface of the surrounding ground, the respondent would not have suffered his injury. In his amended statement of claim, the respondent pleaded (inter alia), as a particular of negligence, the failure of the applicant to build up the area in proximity to the stormwater pit so the surface of the surrounds was of the same height as the pit. In the absence of any evidence by the applicant that such a precaution would have not been practicable, or would have been unduly expensive, the primary judge was entitled to conclude that such a step would have been practicable, and reasonably inexpensive.[69] Accordingly, the applicant has failed to make out the contentions contained in ground 4.1(d) and (e).
[69]Swain (2005) 220 CLR 517, 525 [17] (Gleeson CJ), 566–7 [154]–[155] (Gummow J), 586 [225] (Kirby J).

The third factual finding by the judge, which the applicant seeks to impugn, is his Honour’s determination that the applicant knew of the tripping hazard posed by the pit to pedestrians who traversed the reserve.[70] By ground 4.1(f), the applicant contends that that finding, by the judge, was not supported by any of the evidence at trial.
[70]Reasons [102(d)].

The judge based his finding, about the hazard constituted by the pit, on the evidence of Mr Harford. In particular, the judge stated:

Use of the reserve by pedestrians would have been well known to the defendant. Mr Harford knew of the stormwater pit and accepted that it was a tripping hazard for pedestrians crossing the reserve at night. I have no hesitation in concluding that the defendant had actual knowledge of the particular risk which the stormwater pit posed to pedestrians crossing the reserve at night.[71]

[71]Ibid [83].

In his evidence, Mr Harford agreed that in the course of his duties with the applicant, he had observed the pit surround, and was aware that the pit cover protruded 120 millimetres or 130 millimetres above ground level. He agreed that he was aware that ‘all sorts of people at all sorts of ages’ walked over the reserve. He agreed that there was no lighting at the reserve which would illuminate the pit, so that pedestrians crossing the reserve at night would have ‘very little if any opportunity’ of observing the existence of the raised pit surround. He agreed with the proposition, put to him in cross-examination, that at night the pit would constitute a tripping hazard. Mr Harford further agreed that employees of the parks and gardens section of the applicant had attended to perform various forms of maintenance activities of the reserve on a regular basis in 2008, and that they would have had an opportunity of observing the existence of any hazards in the reserve.

Based on that evidence, the judge was entitled to conclude that the applicant, by its employees, had relevant knowledge of the nature and shape and size of the pit, and, in particular, the fact that it protruded 120 or 130 millimetres above ground level, so as to constitute a tripping hazard to persons who did not have the opportunity to observe it. Further, there was evidence to support the conclusion that the applicant, by its employees, knew that the pit was not illuminated by artificial light at night. Mr Harford disagreed with the proposition that ‘heaps of people’ walked over the reserve at night. However, a fair interpretation of the evidence that he gave in that respect is that he conceded that people ‘possibly’ did walk over the reserve at night.

In that respect, the judge concluded that it was reasonably foreseeable that pedestrians would cross the reserve at night. He based that conclusion on the fact that the reserve was in Shepparton, located close to shops, schools, roads and residences, and that it was a flat relatively open reserve, which was mown and maintained by the applicant. In our view, those facts are sufficient to support the inference drawn by the judge, on the balance of probabilities, that it was reasonably foreseeable that pedestrians would cross the reserve at night.

Thus, the judge was entitled to conclude, from the evidence, that the applicant knew of the shape and size of the pit cover, that it was not illuminated by artificial lighting, and that pedestrians would cross the reserve at night. In those circumstances, the judge was entitled, on the evidence, to conclude that the applicant had actual knowledge of the risk, which the stormwater pit posed to pedestrians crossing the reserve at night. Accordingly, ground 4.1(f) of the proposed grounds of appeal must fail.

Those conclusions, relating to the grounds alleging specific errors of fact finding by the judge, enable us to return to the principal point advanced on behalf of the applicant on ground 4, namely, that the judge failed to make any finding concerning the probability that harm would occur, if the applicant did not take steps to address the hazard to pedestrians posed by the raised pit cover in the reserve. That issue is raised by ground 4.1(a) and (b) of the proposed grounds of appeal. As we have noted,[72] it is contended on behalf of the applicant that the judge should have concluded that the probability of any harm posed by the pit at night was exceedingly low, so that it was reasonable for the applicant not to have taken steps to attend to the risk of harm to pedestrians who might trip over the pit.
[72]Above [87]–[88].

It is self-evident that in determining whether a defendant has failed to exercise reasonable care to prevent injury from a foreseeable risk for which the defendant is responsible, the Court must make an assessment of the degree of probability that harm would occur if the defendant did not take that care. That requirement is specified in s 48(2)(a) of the Wrongs Act 1958, which, as we noted, replicates an important aspect of the test expounded by Mason J in Shirt. Clearly, the fact that a risk of injury is reasonably foreseeable does not, of itself, dictate whether steps should be taken to alleviate that risk, nor does it, of itself, dictate the type of steps which a reasonable person would undertake in respect of it.[73] The critical question, then, is whether the judge did make an assessment of the probability of the risk of injury, such as to provide an appropriate basis for his conclusion that the applicant had breached its duty of care to the respondent by failing to take steps to alleviate the risk of injury constituted by the location and shape of the pit in the reserve.
[73]See Vairy (2005) 223 CLR 422, 456 [107], 452 [127], 468 [153]–[155] (Hayne J); Dederer (2007) 234 CLR 330, 353–5 [65]–[71] (Gummow J).

The judge identified, in clear terms, the nature of the task that he was required to undertake. His Honour stated:

The s 48 analysis begins with the proper identification of the risk of harm. I identify the risk in this case as being that a pedestrian crossing the reserve at night would encounter the stormwater pit and come to grief upon it. Section 48 requires an analysis of foreseeability, the probability of occurrence of the risk of harm, the magnitude of that risk and, in all the circumstances including those listed in subsection (2), what a reasonable person in the position of the defendant would do (if anything) in response to the risk. It is important not to take a ‘mechanical or formulaic approach in applying the three prerequisites specified in s 48(1)’. The breach analysis must be undertaken prospectively, and not in retrospect with the benefit of hindsight.[74]

[74]Reasons [89].

The applicant does not take issue with the judge’s formulation of the analysis, and, in particular, with the judge’s articulation of the requirement that he analyse the probability of the occurrence of the risk of harm and the magnitude of that risk. As we have already noted, the factors specified in s 48, and the matters outlined by Mason J in Shirt, are not to be analysed in a formulaic or mechanical manner. It is not necessary for a judge to recite those requirements, and the judge’s findings in relation to them, in arithmetic terms or in any other prescribed manner. Rather, what is important is whether the judge did attend to the analysis, that he had expressly identified was necessary in order to determine the outcome of the respondent’s claim against the applicant.

As we have noted, the judge, earlier in his reasons, had concluded that, to a pedestrian crossing the reserve at night in the dark conditions experienced by the applicant, the pit represented a significant hazard, both in terms of the likelihood of tripping over it, and the seriousness of injury that might be sustained as a result.[75] Those findings are not the subject of any complaint by the applicant. The judge further considered it ‘improbable’ that pedestrians did not from time to time cross the reserve at night.[76] Each of those two findings contain a conclusion by the judge both as to the magnitude of the risk, and the probability otherwise of it coming to pass. Subsequently, the judge returned to that issue, noting that the reserve was in suburban Shepparton, close to schools, shops, roads and residences, and that pedestrians regularly crossed the reserve and used it for activities such as sport. It was in those circumstances that he held that it was ‘clearly foreseeable’ that pedestrians would cross the reserve at night. Again, none of those findings of fact, by the judge, are put in issue in this application.
[75]Ibid.
[76]Ibid [55].

Taking those findings together, the judge did sufficiently analyse, and express a view about, the probability that harm would occur if the applicant failed to take steps to address the risk of tripping over the pit, and his Honour also expressed his view as to the likely seriousness of the harm that might ensue. In our view, those findings are sufficient for the purposes of the requirements in s 48(2)(a) and (b) of the Wrongs Act 1958, and, in particular, to enable the judge to have determined the ultimate question in the trial, namely, whether the applicant breached its duty of care to the respondent by failing to take reasonable steps to address the risk of injury, constituted by the pit, to persons crossing the reserve at night.

Ultimately, the question whether the applicant had failed to take reasonable care, in the circumstances of this case, was substantially a question of fact and judgment for the primary judge. It is correct, as senior counsel for the applicant has pointed out, that the pit, in question, was one of 8,000 such pits located throughout the area for which the applicant was responsible. However, there was no evidence, adduced by the applicant, as to the position or location of the other pits, nor was any evidence led as to whether those pits, like the pit in question in this case, protruded above the ground level. Thus, the applicant did not seek to demonstrate that, to alleviate the risk of injury posed by the pit, it would have equally needed to address the same risk posed by a large number of other pits in its jurisdiction. In the present case, as we have concluded, the judge was correct to consider that simple, inexpensive precautions could have been taken to address the risk posed by the pit in the reserve, namely, by raising the surrounding ground to the level of the top of the pit. The evidence of the circumstances in which the accident occurred in this case demonstrates that if that simple precaution had been taken, the respondent would not have suffered his injury.

As we mentioned, the question whether, in those circumstances, the applicant breached its duty of care to the respondent, was fundamentally a question of fact for the trial judge. In reaching that conclusion, the judge possessed the advantages, that we have outlined earlier, and, in particular, the advantage of hearing the evidence and the witnesses as it was given before him, and of considering the various issues raised by the evidence in the course of the trial. Taking those matters into account, we do not consider that the applicant has established that the judge made any relevant error in concluding that the applicant had breached its duty of care to the respondent by failing to take reasonable precautions in respect of the pit, and, in particular, by failing to raise the ground surrounding the pit to the level of the top of the pit.

Ground 5: causation

The applicant did not seek to address any additional arguments on ground 5, other than those advanced in support of ground 4. In essence, under ground 5, it is contended that the finding by the judge, as to causation, was based on the finding by the judge that reasonable care required the applicant to raise the ground around the stormwater pit or place warning signs upon it. In light of our conclusion that the judge did not err in making that finding, it follows that ground 5 must also fail.

Conclusion

For the foregoing reasons we have reached the following conclusions:

(1)The reserve, in which the respondent fell and sustained injury, was not a pathway for the purposes of the Road Management Act, but was part of the roadside. Accordingly, s 107 applied to exclude the statutory and common law liability of the applicant, as a road authority, in respect of the reserve. To that extent, ground 1 of the application would succeed.
(2)However, the applicant has correctly conceded that s 107 of the Act did not exclude or affect the common law duty of care owed to the respondent by the applicant as the infrastructure manager in respect of the stormwater pit on which the respondent fell and suffered injury.

(3)The judge did not err in concluding that the injury, sustained by the respondent, was caused by the breach by the applicant of that common law duty of care. Accordingly grounds 4 and 5 of the proposed ground of appeal does not succeed.

It follows from the foregoing that, while we would grant leave to the applicant to appeal, the appeal should be dismissed.

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[2017] VSCA 107

9 May 2017