Holden v Devonport City Council
[2002] TASSC 95
•14 November 2002
[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 - 526:
"In England, the common law rule which the applicants in both matters seek to challenge was abolished by statute in 1961. It then became easier for a pedestrian who was injured by falling on a road or footpath to succeed in an action for damages resulting from failure on the part of the responsible authorities to maintain and repair the road or footpath. Even so, when general principles of negligence, unqualified by any rule of immunity, were applied, the courts insisted that an injured plaintiff had to show that the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land.
In Littler v Liverpool Corporation (1968 ) 2 All ER 343 at 345 Cumming-Bruce J said:
'Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green.' "
Gaudron, McHugh and Gummow JJ said at 577 and then at 581:
"Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them are obliged to take reasonable care that their exercise of … those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff …
…
The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J pointed out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia), or the surrounding area (as in Buckle where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a 'trap' or, as Jordan CJ put it 'of a kind calling for some protection or warning'. In Romeo Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises 'is generally entitled to assume that most entrants will take reasonable care for their own safety'. Each case will, of course, turn on its own facts." [emphasis added]
Because of the immunity conferred by the Act, s21(4), the plaintiff can only succeed here in a claim based on misfeasance. The impugned conduct must be causative of the injury. If in undertaking repair work an existing danger is not alleviated or removed no liability will attach. The repair work needs to be shown to have created the injury causing danger or added to it. As Dixon J (as he then was) said in Buckle v Bayswater Road Board (1937) 57 CLR 259 at 283:
"It is, of course, a civil wrong to cause particular damage by obstructing a highway, or by making it unsafe or dangerous. Interferences with a highway which in themselves would be unlawful in a stranger are as a rule authorized acts when done by a road authority. But a road authority in doing them must take due care for the safety of those using the highway and is not protected if it creates dangers which reasonable care and skill could avoid. Because the road is under its control, it necessarily has an opportunity denied to others for causing obstructions and dangers in highways. But when it does so, the road authority is liable, not, I think, under any special measure of duty which belongs to it, but upon ordinary principles."
Supreme Court Rules 2000, r227(1), provides:
"A pleading is to contain in summary form a statement of all the material facts on which the party relies but not the evidence by which those facts are to be proved."
Rule 259 provides in its relevant part:
"If a pleading does not disclose a reasonable cause of action … the Court or a judge may order -
(a) that … the pleading be struck out;"
As to the repair work creating a danger it is not alleged that Council dug the hole. All that is alleged is that there was a hole which was only partially filled "thereby creating a tripping hazard". A conclusion that partially filling a hole creates a tripping hazard (as opposed to not removing it) is not open without more. Perhaps the repair works transformed an obvious danger into a hidden trap, but there is at the moment no allegation of fact sufficient to support such a thesis. Conclusions drawn from unstated or insufficient facts do not fulfil the function of pleadings: H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181 at 186. All the material facts necessary to formulate a complete cause of action (that is to say sufficient facts to give rise to an entitlement to relief) must be pleaded and if any one fact is omitted the statement of claim is bad and liable to be struck out: Bruce Bruce v Odhams Press Limited [1936] 1 KB 697 at 712. The statement of claim not containing sufficient facts to support a conclusion that the repair work undertaken by the council created a danger to pedestrians (that is, a hazard which existed for persons exercising sufficient care by looking where they are going, but allowing for some inadvertence) does not disclose a cause of action in negligence.
The plaintiff has alleged in the statement of claim that the Council was under a statutory duty to maintain the footpath. Under the Act, s21(4) the Council is immune from liability in respect of the condition of the highway except where that condition "results from the improper carrying out of highway works". The only statutory duty identified by the plaintiff is the very one for which immunity from suit is granted. To have a cause of action for breach of statutory duty the plaintiff needs to identify a statutory provision which properly construed provides for a private right of action for failure to perform work to a particular standard and then plead the facts showing that that standard was not met with resultant injury. The statement of claim does not disclose a cause of action for breach of statutory duty.
Finally, the Council complains that a number of the particulars of negligence allege failures to act and so ought be struck out as falling within the immunity conferred by the Act, s21(4). I do not think that the immunity provision provides a complete answer. If the Council has by its repair work created a danger which it then should have recognised and alleviated or eliminated by: redoing the work; barricading it off or providing warning signs then its failure to take these steps will be actionable. The matter of the particulars awaits the delivery of a statement of claim alleging sufficient facts to show that the Council by its repair works created a danger.
There will be an order that the statement of claim be struck out with leave given to the plaintiff to file and serve a further statement of claim conformable with these reasons by 29 November 2002.
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