Holden v Devonport City Council - [2002] TASSC 95

[2002] TASSC 95

CITATION: Holden v Devonport City Council [2002] TASSC 95

PARTIES:  HOLDEN, Jennifer Tracy
  v
  DEVONPORT CITY COUNCIL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1146/2001
DELIVERED ON:  14 November 2002
DELIVERED AT:  Hobart
HEARING DATES:  8 November 2002
DECISION OF:  Master S J Holt

CATCHWORDS:

Procedure - Supreme Court - Tasmania - Practice under the Rules of Court - Pleadings - Statement of Claim - Whether reasonable cause of action disclosed.

Supreme Court Rules (Tas) 2000, rr227 and 259.
Aust Dig Procedure [272]

REPRESENTATION:

Counsel:
           Plaintiff:  L A Harper
           Defendant:  C J Gunson
Solicitors:
           Plaintiff:  Hilliard & Associates
           Defendant:  S B McElwaine

Judgment Number: [2002] TASSC 95
Number of Paragraphs: 9

Serial No 95/2002
File No 1146/2001

JENNIFER TRACY HOLDEN v DEVONPORT CITY COUNCIL

REASONS FOR DECISION MASTER HOLT

14 NOVEMBER2002

The plaintiff has sued the Devonport City Council. In brief, the statement of claim is as follows. There was a hole in the footpath at Best Street, Devonport. The Council undertook repair work on the hole, but in so doing failed to fill the hole completely. The plaintiff stepped in the partially repaired hole and sprained her ankle. She says that the repair works were undertaken negligently and in breach of the Council's statutory duty and claims damages. The Council has applied to have the whole of the statement of claim struck out as failing to disclose a reasonable cause of action and in the alternative has applied to have the allegation of breach of statutory duty and some particulars of negligence struck out.

The Local Government (Highways) Act 1982 ("the Act"), s21, provides in its relevant part:

"(1) Subject to this Act, the corporation of a municipality is charged with the duty of maintaining the local highways in the municipality that are maintainable by the corporation as shown on its municipal map, and, in any particular case, it shall discharge that duty in such manner as, having regard to all the circumstances of the case, it considers practicable and appropriate.
…
(4) Except as otherwise provided in this Act, a corporation is not liable for any injury or loss arising from the condition of a highway unless that condition results from the improper carrying out of highway works that are carried out by, or at the direction of, the corporation."

Leaving aside the non-feasance immunity in s21(4), for the highway authority to be liable the plaintiff must show that the footpath was dangerous: Meggs v Liverpool Corporation (1968) 1 WLR 689. The mere fact that a footpath may have an uneven surface or contain a hole or other tripping hazard is not sufficient. The question is whether the imperfection in the road surface creates a danger in the nature of a trap or otherwise for people exercising reasonable care for their own safety albeit allowing for some inadvertence. This is made clear in Ghantous v Hawkesbury City Council (2001) 206 CLR 512. Gleason CJ said at 525 -…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2002] TASSC 95
Decision Date: 14 November 2002

CaseChat Overview and Summary

The case of Holden v Devonport City Council involved the plaintiff, Jennifer Tracy Holden, suing the defendant, Devonport City Council, in the Supreme Court of Tasmania. Holden claimed that she had sprained her ankle after stepping in a hole in the footpath at Best Street, Devonport, which the Council had allegedly failed to fill completely during repair work. Holden argued that the Council was negligent in its statutory duty to maintain the local highways and sought damages for her injuries. The Council, in turn, applied to have the statement of claim struck out on the grounds that it did not disclose a reasonable cause of action and, in the alternative, to strike out the allegations of breach of statutory duty and certain particulars of negligence.

The central legal issues in this case were whether the statement of claim sufficiently disclosed a reasonable cause of action in negligence and breach of statutory duty. The court had to determine if Holden had adequately pleaded that the Council's repair works created a danger that resulted in her injury and if the statement of claim identified a statutory provision that provided for a private right of action for failure to perform work to a particular standard. Additionally, the court had to consider whether the Council's immunity from liability for the condition of the highway, except in cases of improper carrying out of highway works, applied to the particulars of negligence alleged in the statement of claim.

In its reasoning, the court noted that under the Local Government (Highways) Act 1982, the Council is immune from liability for the condition of the highway unless the condition resulted from the improper carrying out of highway works. The court highlighted that for the Council to be liable, Holden had to show that the footpath was dangerous. This meant that the imperfection in the road surface had to create a danger in the nature of a trap or otherwise for people exercising reasonable care for their own safety. The court concluded that the statement of claim did not contain sufficient facts to support the conclusion that the Council's repair work created a danger. Therefore, the statement of claim did not disclose a cause of action in negligence. Moreover, the court found that the statement of claim did not disclose a cause of action for breach of statutory duty, as it failed to identify a statutory provision that provided for a private right of action for failure to perform work to a particular standard. Regarding the particulars of negligence, the court noted that while the immunity provision provided some protection, it did not offer a complete answer if the Council had created a danger through its repair work and failed to alleviate or eliminate it.

The court ordered that the statement of claim be struck out and granted Holden leave to file and serve a further statement of claim by 29 November 2002, conformable with the reasons provided.

Orders