Hornsby Shire Council v Catling (No 2)

[2002] NSWCA 127

CITATION:	Hornsby Shire Council v Catling & Ors (No 2) [2002] NSWCA 127
FILE NUMBER(S):	CA 40794/00
HEARING DATE(S):	Written submissions
JUDGMENT DATE:	8 May 2002
PARTIES :	Hornsby Shire Council (Appellant) Darin Catling (1st Respondent) Glen Anthony Johnson (2nd Respondent) Dirkje Hendrika Carr (3rd Respondent)
JUDGMENT OF:	Meagher JA at 1; Stein JA at 2; Heydon JA at 17

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 9273/98
LOWER COURT JUDICIAL OFFICER :	Hogan ADCJ

COUNSEL:	G O'L Reynolds/R Gambi (Appellant) M Joseph SC/G Gemmell (1st Respondent) R C Tonner (2nd/3rd Respondents)
SOLICITORS:	Phillips Fox (Appellant) White Barnes (1st Respondent) Moray & Agnew (2nd/3rd Respondents)
CATCHWORDS:	NOTICE OF MOTION - whether court gave adequate consideration of the question of causation - ND
LEGISLATION CITED:	N/A
CASES CITED:	March v Stramare (1991) 171 CLR 506
DECISION:	Notice of Motion dismissed with costs

CA 40794/00
DC 9273/98

MEAGHER JA
STEIN JA
HEYDON JA

Wednesday, 8 May 2002

HORNSBY SHIRE COUNCIL v CATLING & ORS (NO. 2)

Judgment

1 MEAGHER JA: I agree with Stein JA.

2 STEIN JA: The court gave judgment in this appeal on 18 September 2001, [2001] NSWCA 325. The following orders were made:

Orders:
1. Appeal allowed in part.
2. Verdict and Judgment for the first respondent set aside and, in lieu thereof, enter Verdict and Judgment for the first respondent against the appellant and second and third respondents in the sum of $526,298.40 to be paid in the proportion of 80% by the appellant and 20% by the second and third respondents. His Honour’s costs order of the trial is confirmed.
3. The appellant to pay the costs of the respondents of the appeal.
4. Cross-Appeal allowed in part. No order as to costs.

3 The orders have not been taken out. By Notice of Motion filed on 23 January 2002 the appellant seeks the following orders:

1. The orders made by Court of Appeal in these proceedings on 18 September 2000 (sic) be vacated.

2. The Claimant be granted leave to re-open the proceedings before the Court of Appeal.
3. The Claimant be granted leave to have its appeal from the judgment of Hogan DCJ dated 13 September 2000 be reconsidered by the Court.

4 The Registrar of the court directed the parties to file written submissions.

5 The appellant’s submissions indicate that a special leave application has been filed in the High Court, but ‘placed in abeyance pending the determination of the motion’. The submission proceeds to seek to put oral submissions to the court. I do not think that this is either necessary or appropriate.

6 In essence the appellant submits that the court did not deal with its submission that the trial judge gave inadequate reasons on causation and that his finding was not supported by the evidence.

7 Alternatively, the appellant submits that the court did not deal with its submission that the real cause of the accident was the increase made to the gradient of the driveway by an unknown third party, and for which the appellant Council was not responsible. Reliance is placed on statements made in March v Stramare (1991) 171 CLR 506 at 517 – 518.

8 It is submitted by counsel for the appellant, Mr Reynolds (who was not counsel appearing on the appeal) that my judgment did not deal with these submissions.

9 The second and third respondents do not concede that the court has any further function in the matter. Nonetheless, they submit that the court fully considered the question of causation.

10 The first respondent similarly submits, adding that the appellant did not, at the hearing of the appeal, submit that there was any severing of the causation by the change in level of the driveway.

11 At the hearing of the appeal, Mr Bridge SC appeared on behalf of the appellant, Mr Joseph SC for the first respondent (the plaintiff) and Mr Stitt QC for the second and third respondents (the land owners).

12 Besides paragraphs 8, 9, 13 and 14 of my reasons for judgment, under the heading ‘Breach of duty and causation’, I said as follows:

25. I have already recorded that in the present circumstances the Council had an obligation under s 333 to consider both vehicular and pedestrian access. It simply failed to consider pedestrian access. His Honour was entitled to find that the approved driveway, with its slope of 25%, far exceeded what was a reasonably safe maximum for pedestrians. It was the unanimous view of the expert witnesses that it was dangerous and unsafe for pedestrians. They indicated that a safe maximum would be in the order of 12.5%.
26. His Honour found that even if the slope of the driveway had all been at or about 25% for vehicular access, provision should have been made for some safe means of access for pedestrians by imposing conditions on the approval. These could have required the building of steps, railings or cleats to afford a safe means of access. The power to impose such conditions was available to the Council under s 331(2).
27. His Honour’s conclusion on this aspect was one which was open to him and supported by the evidence of Dr Cooke.
28. The Council further submits that the plaintiff fell on the area at the top of the driveway which had been constructed or added to without the approval of the Council to a grade of 47%. It also relies on the evidence of the occupiers that they never experienced any problems with use of the driveway on foot. In particular, a portion of Dr Cooke’s report is emphasised by the appellant. In the final paragraph Dr Cooke said that if the plaintiff had walked on the right hand side of the driveway, where the slope was less (15), it is probable that he would not have slipped.
29. However, this statement has to be understood in the context of Dr Cooke’s evidence. In his report, he said that the top of the driveway was unsuitable for pedestrian use. The gradient of between 27% and 47% ‘grossly exceeds the reasonably safe maximum … for pedestrians’, while the safe maximum was, he said, 12.5% for pedestrians.
30. In oral evidence Dr Cooke was even more forthcoming. He made it plain that any slope in excess of one in eight (12.5%) was likely to be dangerous.
31. He repeated later in the evidence that he considered the slope at 25% dangerous for pedestrians, and that the steeper it was the more dangerous it became.
32. Dr Cooke also said that a pedestrian less familiar with the site than, for example, the occupiers, would be at greater risk of slipping. A person with knowledge of the slope would be in a better position to make a judgment than a casual user. Even someone familiar with the driveway would however have to take care because the slope was obviously dangerous.
33. In the light of the oral evidence of Dr Cooke, as well as the contents of his report, I do not see that his Honour was required to accept the conclusion in his report that if the plaintiff had used the right hand side, he would not have slipped. Indeed, the conclusion was inconsistent with his oral evidence.

13 In exchanges between the bench and counsel at the hearing of the appeal the following took place:

STEIN JA: Yes. Does your case really come down to that, where this person fell was much steeper than the council had approved and therefore the council should not have any responsibility?
BRIDGE: That’s exactly right, that’s really right at the heart of what we put. It’s as simple as that. If the council had approved 47 percent then I would probably have to take on the chin everything that your Honour has put to me. But the critical distinction is that 25 percent on the evidence of Dr Cook the plaintiff would not have fallen and that’s borne out by the history. …

14 Mr Bridge later said:

BRIDGE: The next point that I seek to argue is the causation point, we’ve touched on much of what I wanted to say in relation to that issue. It’s dealt with at paras 26 - 33 of the written submissions and there are a number of facts which again we touched upon, if I could just itemise them one by one now, we submit are relevant to that issue. The first is that the driveway was approved at 25 percent. The second is that it was constructed at 24.47 percent and I took your Honours to p 272 of the blue book. The third point is that unbeknownst to the council the top left hand side of the driveway was altered to 47 percent. The fourth point is the location where the plaintiff fell, and that’s identified through Dr Adams who was on the 47 percent portion and not somewhere else …

15 At the appeal the written submissions of counsel for the appellant did not submit any severing of the chain of causation by the change in level of the driveway. Nor did Mr Bridge make any such submission at the hearing of the appeal. In particular, no reliance was placed on March v Stramare.

16 In my view, the court adequately addressed the appellant’s case. It dealt with the appellant’s written and oral submissions. There is, in my opinion, no merit in the appellant’s Notice of Motion, which should be dismissed with costs.

17 HEYDON JA: I agree with Stein JA.

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