Kennedy v Shire of Campaspe
[2014] VCC 1833
•14 November 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
Case No.CI-10-03223
| IRENE SUSAN KENNEDY | Plaintiff |
| v | |
| SHIRE OF CAMPASPE | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4, 5 and 6 August 2014 | |
DATE OF JUDGMENT: | 14 November 2014 | |
CASE MAY BE CITED AS: | Kennedy v Shire of Campaspe | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1833 | |
REASONS FOR JUDGMENT
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Catchwords: Road Management Act 2004 – trip on elevated lip between pavers – plaintiff suffered Colles’ fracture of right hand – inter alia, ss40, 102, 103, 105 and 115 of the Act – whether plaintiff excluded from recovering damages because of operation of the Act – factors to be considered
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Nash QC with Mr G Grabau | Gleeson & Co |
| For the Defendant | Mr A N Murdoch QC with Mr D Oldfield | Minter Ellison |
HIS HONOUR:
General background
1 This matter comes before me by way of a proceeding issued by the plaintiff against the defendant in relation to a fall suffered by the plaintiff on the footpath in Haverfield Street, Echuca, on 23 July 2007. Whilst the defendant denies that it was the occupier of the footpath, there is no argument but that it had responsibilities in relation to it pursuant to the Road Management Act 2004 (“the Act”). There is also no dispute but that the plaintiff tripped on a lip between two pavers on the footpath in question. As a result of the fall, she suffered an impacted Colles’ fracture of the right wrist. She is right-handed.
2 Whilst the occurrence of the fall and the suffering of the particular injury are not in dispute, the defendant denies that it owed a duty of care to the plaintiff or, if it did, that there was any breach of that duty. Inter alia, it relies upon defences pursuant to ss102, 103 and 105 of the Act. Insofar as the application of the Act is concerned, neither senior counsel knew of any reported decision specifically related to the operation of the relevant provisions and I have certainly not encountered one, or, for that matter, the Act. Thus, there was considerable argument concerning its operation. One thing in relation to which there was agreement, an agreement into which I entered, was that the drafting of certain provisions is, to put it mildly, confusing.
3 In any event, despite what is contained in the Statement of Claim, it was made clear at the outset that the plaintiff seeks general damages only, although arguing that some allowance should be made for interference with her ability to carry out her chosen profession of a house designer and planner. Whilst the defendant denied any liability, in the event that this should be decided in favour of the plaintiff, it alleged contributory negligence. The bases of contributory negligence were, in essence, a failure to keep any or any proper lookout and a failure to lift her feet to the required height so as to avoid the tripping and fall.
4 Mr P G Nash QC with Mr G Grabau of counsel appeared on behalf of the plaintiff. Mr A N Murdoch QC with Mr D Oldfield of counsel appeared on behalf of the defendant. Oral evidence was received from the plaintiff; a friend of hers, Mrs Jean Bolitho; and her husband, Mr Hugh Kennedy. The defendant called Mr Glenn Major, a technical officer of the defendant; Mr Gary Lemon, employed by the defendant as unit leader of technical services, and the superior of Mr Major; and Ms Susan Walker, risk management officer of the defendant. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
5 As I indicated from the Bench, I am particularly grateful to counsel and those instructing them for the manner in which this case was presented. Apart from the fact that the operation of the common law in relation to accidents of this kind is not simple, the relevant provisions of the Act are not easy to interpret and it is legislation with which we were all relatively unfamiliar. Further, in that we would not seem to be alone. The manner in which the case was presented was commendable and the submissions were particularly helpful.
Factual background
(i) The plaintiff as a witness
6 I found the plaintiff to be a credible witness who did her best to answer questions honestly. As I said at Transcript (“T”) 158 and 193, I regarded her as a straight forward witness. At times she gave answers that were not necessarily in the interests of her case. I accept her as a witness of truth.
(ii) The plaintiff’s background
7 The plaintiff is aged 59 years, she having been born on 23 April 1955. She is separated from her husband, although they remain on comparatively amicable terms. As stated, her husband gave evidence in support of the plaintiff and as to difficulties encountered after she suffered the injury. Indeed, it was argued that the breakdown of the marriage and the separation of the plaintiff from her husband were consequences of the injury suffered.
8 Prior to the injury, the plaintiff was self-employed as a house and building designer and planner. Whilst she was unable to carry out the requirements of this occupation for a short period following the accident, she has continued in this work. However, it is claimed that she is now slower in performing the required tasks and that her work rate has decreased. As previously mentioned, the impact of her injury upon her ability to engage in and enjoy her work is said to be a component of her general damages. Otherwise, loss of earnings is not claimed.
(iii) The accident and its immediate consequences
9 The accident occurred on 23 July 2007. The plaintiff was walking between her place of business in Ogilvie Avenue, Echuca, and her car, which was parked in Haverfield Street. Ogilvie Avenue is a major street, being, in effect, the Murray Valley Highway as it passes through Echuca. In essence, it runs east and west. Haverfield Street, which runs north and south, intersects with Ogilvie Avenue. The plaintiff’s place of business faces Ogilvie Avenue and is on the south-western corner of the intersection. The plaintiff’s place of business had a driveway off Ogilvie Avenue in which she normally parked her car. On 23 July 2007 she could not park in this driveway because of the presence of other vehicles. Accordingly, upon arrival at work, she parked in Haverfield Street on the western side and no great distance from the intersection – as I understand it, her vehicle had none between it and Ogilvie Avenue. I might add that, in Haverfield Street to the north of Ogilvie Avenue, there is a supermarket and a more commercial area. South of Ogilvie Avenue, I understand that Haverfield Street is largely residential, although it provides access to a school and to a trotting track. Thus, it is a residential street but, particularly near Ogilvie Avenue, close to what one might expect would be a busy area.
10 At the intersection of Ogilvie Avenue and Haverfield Street, traffic lights had recently been installed. This had also involved the removal of a tree from the nature strip in Haverfield Street and alongside the plaintiff’s place of business. I will say now that, whilst there was some discussion and cross-examination concerning the removal of this tree and any effect which this might have had upon the paved footpath on the western side of Haverfield Street, what little evidence that there was does not persuade me that the removal of the tree is of particular relevance to the outcome of the case.
11 On 23 July 2007 the plaintiff arrived at her place of business at a time which is not clear and, as mentioned, parked on the western side of Haverfield Street, comparatively close to the intersection with Ogilvie Avenue. She left her place of business again at approximately 11.00am and then walked in a southerly direction along the footpath on the western side of Haverfield Street back towards her vehicle. It was not raining. The weather was clear and the light good – see Transcript (hereinafter referred to as “T”) 56. It was while so proceeding that the plaintiff suffered her fall.
12 Various photographs were placed in evidence. These would indicate that the plaintiff, heading south, would have encountered two sets of pavers where a lip existed. These are approximately two sets of pavers apart. On balance, I am satisfied that it was on the more northerly of the two lips that the plaintiff tripped. That was her original impression and is consistent with her evidence that she fell in the vicinity of 6 to 10 metres from the corner. In cross-examination, she became less certain as to on which of the two lips she had tripped, but the balance of the evidence, including the distance of the fall from the corner, would support the proposition that the plaintiff’s initial impression was correct. The plaintiff also gave evidence that she was on the right-hand side of the footpath when she tripped. The photographic evidence seems to me to establish that the lip on the northerly paver was at its greatest on the right-hand or western side, whilst the lip on the southerly paver was more prominent on the left-hand or eastern side. For reasons to which I will come, it seems to me that, at least in one regard, it may not make a great deal of difference as to which lip it was upon which the plaintiff tripped, but my finding is that it was on the more northerly lip, being the one which the plaintiff originally identified.
13 That the plaintiff suffered a right distal radial fracture requiring internal fixation is not disputed. Other physical injuries involving the spine alleged in the Statement of Claim were not the subject of evidence. Whilst dealing with the injuries sustained, the Statement of Claim also includes reference to a psychological or psychiatric reaction and to a Chronic Adjustment Disorder with anxiety and depressed mood. Whilst I accept that the plaintiff has been more irritable and difficult to get along with since the accident (although other medical conditions may well contribute to this), and at times she has undoubtedly been unhappy and despondent, there is no expert evidence to suggest that she suffers from a specific mental illness or condition which can be diagnosed.
14 Returning to the fall and its immediate consequences, the plaintiff, with the assistance of her friend, Mrs Bolitho, attended upon her doctor. An x-ray confirmed a fracture of the lower radius. She was seen comparatively rapidly by an orthopaedic surgeon, Mr Dugal James, who operated on her on 27 July 2007. Mr James identified and reduced the fracture and fixed it with a volar wrist plate and screws. Those items remain in her wrist.
15 Following the surgery, the plaintiff wore a splint for approximately six weeks. She then had physiotherapy and performed exercises on her own behalf. She has had ongoing symptoms and restrictions related to the wrist injury.
16 The plaintiff continues to suffer from symptoms and consequences resulting from the injury. She is a lot slower when performing her work as a building designer. There is interference with her ability to perform housework, play social golf and engage in hobbies such as working with leadlighting. She takes Panadol Osteo tablets. She has lost confidence when walking due to her fear of falling. She has weakness of grip strength in her dominant hand and pain in the wrist.
(iv)Subsequent developments in relation to liability, including the operation of the Act
17 The plaintiff returned with Mrs Bolitho to the scene of her fall approximately within a week of it occurring. She then took certain measurements. She estimated the height of the lip in question to be between 30 and 35 millimetres. However, she conceded that her method of measurement may not have been perfect. As she stated, “It’s probably just the way I did it, it was not accurate enough” – see T61.
18 I find the measurements taken by Mr Major, a technical officer employed by the defendant, to be more accurate. His oral evidence, supported by photographs taken on approximately 6 August 2007, is to the effect that the height of the lip in question is in the range of 10-12 millimetres and probably closer to 10. The photographic evidence seems to me to suggest that the height of the lip is about 11 millimetres, but it is hard to be precise. Certainly the range of 10-12 millimetres appears to be accurate. I accept that estimate. I might say that the height of the lip on the other paver upon which the plaintiff could possibly have tripped seems to me to be much the same. In this regard, there is little or no difference between the height of the two lips, but, for the reasons stated above, I remain of the view that it was on the right-hand side of the more northerly paver that the plaintiff tripped.
19 Returning to the sequence of events, the plaintiff completed a Public Incident Report which described the incident and the relevant location, this Report being dated 3 August 2007 and being received by the defendant on that day – see Exhibit T. The location of the incident appears to me to have been accurately reported. The mechanism of the accident is described as being that the injured person tripped and fell due to a paved section of pavement being a danger to her. Apart from its general relevance, the completion and service of the form arguably has some significance in relation to the operation of s102(3) of the Act.
20 It is perhaps appropriate if I now deal with the issue of inspections of the footpath by the defendant both before and after receipt of the relevant Public Incident Report. As shall be discussed, the footpath in question has been classified by the defendant as a secondary footpath, which, in accordance with its Road Management Plan pursuant to the provisions of the Act, is to be inspected, at the latest, each 18 months. It would seem that the footpath in question was inspected on 4 January 2006 – see, for example, Exhibit 8. The date of the next inspection was a matter of some contention. The initial handwritten note from Mr Major to Ms Walker, this apparently being in response to an email of 1 November 2007, contained the following relevant information:
“Last inspection 4-1-06.
This is a secondary footpath which are (sic) inspected every 18 months.”
21 However, a further document came to light. This would indicate that there had in fact been an inspection on 6 July 2007 – that is, prior to the plaintiff’s fall and two days outside the 18 month inspection period specified in the Road Management Plan.
22 That this inspection had been carried out was alleged by the defendant to be established by a Footpath Inspection Record of 6 July 2007 (Exhibits O and 6). This document did not come to light for a period that is not entirely clear, but seems to have been in the order of at least a few months. In his closing address, Mr Nash, on behalf of the plaintiff, indicated that originally he had some suspicion that “something funny had happened, it might have been some fabrication” in relation to the delayed appearance of the Footpath Inspection Record concerning 6 July 2007. However, he said, it was quite clear that there was no issue of wilful fabrication and what he had been cross-examining about had been the efficiency of the council – see T191. I accept this, and it reflects my own view of the situation. While some mystery surrounds the delayed production of the Record and where it had been, I am of the opinion that it is an issue of efficiency and organisation, rather than anything in the nature of dishonesty or fabrication.
23 The inspection in question on 6 July 2007 was carried out by a contractor engaged by the defendant. The contractor is Mr Murray Hitchcock, who was engaged for all secondary footpath inspections in the shire. At the time, Mr Hitchcock was a retired employee of the defendant, who in fact had previously performed a similar job to Mr Major. He was asked to come back in a contracting capacity and perform inspections of the secondary footpaths.
24 The Footpath Inspection Record of 6 July 2007 refers to the need for grinding of a cracked edge of the path in approximately the relevant area of Haverfield Street, but makes no reference to the lip or lips in question. It is not suggested that the cracked edge is relevant to either the fall or the lips.
25 I would make three further observations as to Mr Hitchcock and the inspection on 6 July 2007. Firstly, the lip or lips in question were well below the height of the 30 millimetres specified under the heading “Footpath Repairs” in the Road Management Plan. Secondly, Mr Lemon, the defendant’s employee in charge of those who inspect footpaths and carry out repairs, gave evidence that Mr Hitchcock had been asked to record every variation in footpath levels over 30 millimetres, then those from 20-30 millimetres, 10-20 millimetres and finally 5-10 millimetres. Also, in the opinion of Mr Lemon, a lip of 11 or 12 millimetres was one that “probably would have been discovered (by Mr Hitchcock) and I don’t know why it wasn’t at that particular stage” – see T132.
26 Thirdly, Mr Hitchcock was not called as a witness by the defendant. Mr Lemon said that he had been in touch with him some four days previously. Mr Hitchcock had said on that occasion that he could not go to court because he would be in Dubbo or the northern part of Australia. He was going on holidays. Mr Lemon, who was somewhat vague on this point, thought that Mr Hitchcock was going to stop in Dubbo “…or something like that and have a telephone hook-up or something like that; I don’t know” – see T145. Mr Hitchcock is a witness of some potential importance and I would have thought that it could be expected that the defendant would call him. In his closing address, Mr Nash referred to the failure of the defendant to call Mr Hitchcock or to organise a video link. I agree that this is a situation where I am entitled to draw the appropriate inference pursuant to cases such as Jones v Dunkel (1959) 101 CLR 298, O’Donnell v Reichard [1975] VR 916 and Earle v Castlemaine & District Hospital [1974] VR 722.
27 Some few weeks after the fall, it would seem that the plaintiff and Mrs Bolitho returned to the area in question and some photographs were taken. Mrs Bolitho has a recollection of there being some sort of “squiggle yellow line” or writing in the area. However, a photograph taken shows large white dots very close to the lip – see Exhibit E. There is no argument but that the lip in question and, indeed, the other nearby lip, were ground down by a contractor at the request of the defendant on 29 April 2008. The evidence, essentially of Mr Lemon, was to the effect that smaller lips of the height of that in question and of which the defendant was aware were ground down towards the end of the financial year if money was available. The timing of this work would also depend, to an extent, on whether contractors were in the area. What Mr Lemon described as the minor lips in Haverfield Street were put on what is called the “proactive list”. What that apparently means is that the defendant, whilst not obliged to do anything about such lips, at a convenient time may carry out repairs. This is because it wants to be seen as being proactive in the eyes of the public and because such lips could become worse.
28 Accordingly, following the plaintiff completing and delivering the Public Incident Report, an inspection of the area of footpath in question was arranged. This was presumably when the large white dots were placed on the footpath. The lip was then found to be comfortably below the size at which intervention would be required pursuant to the Road Management Plan and was placed on the “proactive list” to be dealt with at some future convenient date. The grinding down or rectification work was then performed on 29 April of the following year.
The legal arguments
(i) The Act
29 As it was argued that the Act provides one or more complete defences to the action, I shall now deal with the arguments concerning its operation.
30 Firstly, I shall summarise the provisions upon which emphasis was placed.
31 Section 40(1)(a) reads as follows:
“40 Statutory duty to inspect, maintain and repair public roads
(1)Subject to Part 6, a road authority has a statutory duty to inspect, maintain and repair a public road –
(a)to the standard specified in the road management plan for that public road or a specified class of public roads which includes that public road;”
32 Section 40(3) specifies that the statutory duty to inspect applies to a pathway and it was not argued but that it applies in the present case.
33 Section 99, which is found in Part 6, Division 1 of the Act, provides that such Division applies to any claim for damages resulting from negligence relating to performance or non-performance of road management function, regardless of whether the claim is brought in tort, contract, under statute or otherwise.
34 Section 100 states that the Division is to be construed as being an addition to Part XII of the Wrongs Act 1958.
35 Section 101 sets out a number of principles which are to be considered by a court in determining whether a road authority has a duty of care or has breached such duty in respect of performance of a road management function. It was argued that these are in addition to common law principles, a proposition with which I would agree. It was argued by Mr Murdoch on behalf of the defendant that, by reason of those common law principles and the decision in Brodie v Singleton Shire Council [2001] 8 CA 29 and the decision in Ghantous v Hawkesbury City Council, which is found at the same citation, the defendant did not owe a duty to the plaintiff in the present case. However, it was argued that, even if a duty was owed, s102 of the Act then comes into operation.
36 Section 102 reads as follows:
“102 Limitations on liability of road authority
(1)Subject to this section, a road authority is not liable in any proceeding for damages, whether for breach of the statutory duty imposed by section 40 or for negligence, in respect of any alleged failure by the road authority –
(a)to remove a hazard or to repair a defect or deterioration in a road; or
(b)to give warning of a hazard, defect or deterioration in a road.
(2)Subsection (1) does not apply if, at the time of the alleged failure, the road authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.
(3)For the purposes of subsection (2), the road authority is to be taken to have had actual knowledge of the particular risk if it is proven in the proceedings that the deterioration in the road had been reported in writing to the road authority under section 115.
(4)This section does not affect any liability of a road authority arising out of a breach of the duty to inspect a public road imposed by section 40.”
37 There is no definition of “actual knowledge” or “actual knowledge of the particular risk” referred to in s102(2) and (3). To add to the general confusion created by the lack of clarity in these provisions, s102(3) takes one to s115.
38 Section 115(1) reads as follows:
“115 Notice of incident
(1)If a person proposes to commence a proceeding in a court based on a claim in relation to an incident arising out of the condition of a public road or infrastructure, the person must give written notice of the incident to the responsible road authority within the prescribed period of the incident occurring.”
39 The balance of s115 deals with what is meant by the prescribed period, the particulars that are to be included in the Notice and the matters to be considered by a court if notice is not given as required. There is no dispute in the present case concerning the giving of notice by the plaintiff within the prescribed time or concerning inclusion of the prescribed particulars. I might say at this stage that some argument and confusion might have been avoided in the present case if there had been included in s102(3) a word such as “previously” after the word “reported” and before the words “in writing”.
40 Another section which was the subject of submissions is s103. It was argued by Mr Murdoch that this constitutes a complete defence. Section 103(b) reads as follows:
“103 Policy defence
For the purposes of any proceeding to which this Division applies, an act or omission which is in accordance with a policy–
…
(b)determined by the relevant road authority under section 39 does not constitute a wrongful exercise or failure unless the policy is so unreasonable that no road authority in that road authority’s position acting reasonably could have made that policy.”
41 There are Notes to s103. These read as follows:
“Notes
1. One of the ways in which a road authority may determine a policy with respect to its road management functions is by a road management plan: see section 52.
2. Section 27 enables a relevant Code of Practice to be used as evidence of the reasonableness of a road management plan.”
42 Section 39 deals with the making of policies or policy decisions by road authorities. Section 39(3) provides that a policy decision includes decisions about the circumstances and manner in which road management functions are to be performed and the standard to be achieved in performing a road management function. Section 39(4) states that a road authority is taken to have made a policy or policy decision if the road authority has made a road management plan, that includes provisions relating to the performance of that function.
43 Section 39(5) reads as follows:
“For the purposes of any proceedings, unless a policy or policy decision made by a road authority is so unreasonable that no road authority in that road authority's position acting reasonably could have made that policy or policy decision, any decision or standard which is a policy or policy decision relating to the exercise of a road management function by the road authority is to be taken to satisfy the statutory duty and any common law duty of the road authority in relation to the exercise of that road management function.”
44 Reference was also made to s105. Omitting s105(2), which does not appear to be relevant, this section reads as follows:
“105 Defence to prove that reasonable care was taken
(1)In any proceeding against a road authority for damages resulting from the performance or non-performance of a road management function in respect of a public road it is a defence to prove that the road authority had taken such care as in all the circumstances was reasonably required to ensure that the relevant part of the public road was not dangerous for traffic.
…
(3)For the purposes of the defence referred to in subsection (1), a road authority is to be taken to have established the defence if the road authority proves to the satisfaction of the court that –
(a)the road authority had a policy which addressed the matter which was a cause of the incident giving rise to the action; and
(b)the road authority complied with the relevant part of the policy.”
45 There are Notes appended to this section. They are identical to those appended to s103 as set out above. It was argued by Mr Murdoch that there was some overlap between s103 and s105. That would seem to me to be the case.
46 Having set out the relevant provisions and made some brief comments about them, I turn now to the competing arguments based upon the operation of the Act. I leave to one side questions involving the Wrongs Act and the common law. I shall set out these arguments in the order in which they were advanced.
(ii) The arguments on behalf of the defendant
47 The arguments of Mr Murdoch and Mr Oldfield, which arguments were advanced by Mr Murdoch, could be summarised as follows.
48 At the relevant time, the defendant had in place a Road Management Plan. Haverfield Street is a road referred to on the Municipal Road Register which forms part of the Plan. Haverfield Street south of Oglivy Avenue has secondary footpaths pursuant to the Plan. Paragraph 13 of the Plan (Exhibit M) deals with “Road Inspections”. In relation to secondary footpaths, the target for inspection frequency is 12 monthly, with the maximum period between inspections being 18 months. A Table appended to the Plan would indicate that the intervention level in relation to secondary footpaths is a 30 millimetre step in path levels and that the response time in relation to this is 30 days. In other words, pursuant to the Road Management Plan, inspections of secondary footpaths should be carried out every 18 months and, if such inspections reveal a step in path levels of 30 millimetres or greater, there should be intervention within 30 days.
49 Inspection carried out on 6 July 2007 did not record any defect requiring immediate attention within the intervention level of the Road Management Plan. An officer of the council, Mr Major, attended on 6 August, took photographs and measurements, and sometime later the step or lip was removed by a grinding process. The height of the lip was such that it was not something that required attention within 30 days pursuant to the Plan. Even if other defences are not completely clear, that pursuant to s105 is.
50 In relation to the facts, the height of the step was approximately 11 millimetres, although whether it was 10 or 12 millimetres is not greatly material.
51 No witness gave evidence of awareness of the existence of the lip prior to the fall. There is no evidence establishing that the lip was caused by, for example, the removal of a tree or by the nature of the soil.
52 The fact that the inspection carried out on 6 July 2007 was so done two days beyond the 18 month period does not remove any defence pursuant to s105, because the carrying out of such inspection rectified the problem. It might be different if the accident had occurred in that two day period. However, it did not. The inspection of 6 July 2007 occurred and time started running again. Were it not so, regardless of how many inspections were carried out subsequently over the years, the problem of the two day delay could never be fixed. The inspection of 6 July 2007 cured the delay and rendered it irrelevant.
53 The defendant accepts that it is unlikely that there was any dramatic change in the size of the lips in the footpath during the relevant period. There is no evidence suggesting that something caused a change. The defendant also accepts that, were the lips present on 6 July when Mr Hitchcock carried out his inspection, they should have been recorded.
54 However, there is no evidence that Mr Hitchcock had actual knowledge of the presence of the lips or of any risks that they posed. The defendant would accept that he ought to have been aware of their existence and, whilst imputed knowledge could be attributed to him, actual knowledge cannot. If he had recorded in his inspection the existence of the lips, actual knowledge of their existence could be ascribed to him, but not necessarily that they posed a particular risk. What has occurred here is not a failure to inspect, but a failure to record. Given the size of the lips, these were matters that effectively the defendant had taken upon itself to record as opposed to being required to do so by its Plan. The failure so to do is irrelevant. Had lips of 10 or 11 millimetres been noted and recorded, the evidence is that, nevertheless, no action would have been taken by the defendant before the occurrence of the accident. The inspection issue is thus causally irrelevant.
55 There is no evidence that the lips probably would have been attended to between 11 July 2007, when Mr Hitchcock’s maintenance report was completed, and 23 July, when the accident occurred. The likelihood is that nothing would have been done in that period concerning lips of this size. In any event, pursuant to the Plan there was still a 30 day period during which intervention should occur.
56 In some legislation, there are express provisions to the effect that the legislation is not to be taken into effect with the common law, save to the extent that it says so. Whilst that does not exist in the Act, it is clear that the Act contemplates the ongoing existence of the common law. The common law remains in place. However, it is modified by statutory defences. Section 101 of the Act makes this clear.
57 Section 102 of the Act effectively operates as a defence. A road authority is not liable, whether under s40 of the Act or in respect of negligence, to remove a hazard or repair a defect or to warn in relation to same. Section 102(2) states that the removal of the liability does not apply in certain circumstances. The Second Reading Speech makes it clear that the policy defence contained in s103 applies. It applies if the relevant road authority is not actually aware of a hazard, defect or deterioration, which is a factor in causing injury or damage. Section 102(2) requires actual knowledge of the particular risk on the part of the relevant authority. If it had such knowledge, the removal of liability in s102(1) does not apply. In the present case, there is no evidence of actual knowledge on the part of any agent or employee of the shire other than Mr Hitchcock and, at its highest, all that could be attributed to him is imputed knowledge. The evidence falls short of actual knowledge on his part.
58 The defendant accepts that Mr Hitchcock was its agent. If he had imputed knowledge, that can be imputed to the defendant, but he had no more than imputed knowledge. He had no actual knowledge.
59 The actual knowledge which he must possess is that the lips posed the particular risk in question. Their modest size and obvious appearance does not permit this inference, that someone would trip and fall on them, to be drawn. It is the particular risk of which actual knowledge must exist.
60 Section 102(3) does not apply because no notice was given by the plaintiff until after the event and there is no evidence of any other notice. Section 102(4) concerns liability arising from a breach of duty because of a failure to inspect. There was no breach of any such duty in the present case.
61 In relation to s40 of the Act, a standard has been specified, because the defendant has a Road Management Plan which sets out that the relevant standard to which inspections should be carried out is the intervention level of 30 millimetres. Thus, there is no duty to inspect to any lesser level. Asking Mr Hitchcock to inspect the levels from five millimetres upwards does not arise from the Road Management Plan. There has been no breach of the statutory duty in the present case, because there was no defect in the footpath at the relevant place which exceeded the standard of inspection specified in the Road Management Plan.
62 In addition, if there was a breach of the statutory duty to inspect, it is not actionable, because such breach had no causal effect. No inspection would have led to the removal of the lips in time to prevent the accident, because the lips were so far below the intervention level. It is unlikely that action relating to any sub-intervention level would have occurred between 11 and 23 July 2007.
63 The appropriate test in respect to causation is that found in s51 of the Wrongs Act. It is effectively a “but for” test. The plaintiff must show that, but for the breach of statutory duty, she would not have suffered harm. She has not done that in the present case.
64 In relation to s103, Mr Murdoch commented that the drafting is not immediately easy, a proposition with which I would agree. He submitted that the Second Reading Speech is of some assistance. What the Parliament intended to achieve was to adopt the administrative law test known as “Wedensbury unreasonableness”. Matters of negligent performance of road management function are treated as matters of policy. If the relevant road authority’s actions are consistent with its policies in relation to the performance of its functions, an act or omission will not be wrongful. Pursuant to s103(b), an act or omission which is in accordance with a policy determined by the relevant authority under s39 does not constitute a wrongful exercise or failure unless the policy is so unreasonable that no authority in the road authority’s position, acting reasonably, could have made that policy.
65 Note 2 to the section effectively states that the policy is the Road Management Plan. On the basis of this, it is submitted that, for the plaintiff to overcome this defence, she must establish that the matters set out in the Road Management Plan were so unreasonable that no reasonable road authority acting reasonably could have created them as a policy. The plaintiff has fallen far short of establishing this, particularly in relation to the intervention level of 30 millimetres. There has been no expert evidence in this regard. It cannot be concluded that a 30 millimetre intervention level is unreasonable at all, let alone to the required level.
66 In relation to Wedensbury unreasonableness, reference is made to the decision of the High Court of Australia in Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18, and particularly at paragraphs 63-76. In particular, reference is made to what is said in paragraph 76, namely that unreasonableness as a conclusion may be applied to a decision which lacks an evident and intelligible justification. In the present case, the court has no evidence which would justify it in concluding that there was no evident, intelligible justification for what the authority decided in the present case in relation to the intervention level.
67 There was some suggestion that the characterisation of the relevant footpath as a secondary one was incorrect, and that it should have been a primary one, with more frequent inspections. Firstly, this conclusion is not open on the basis of the evidence and, secondly, in any event an inspection was carried out in time to address an intervention level defect if one existed, regardless of the status of the footpath.
68 The problem with s103(b) is that, whilst it provides for a protection or defence in relation to a wrongful exercise or failure, that is not explained or defined further. However, it is submitted that, despite this difficulty with the drafting, it is sufficiently clear for the court to accept that the Road Management Plan in the present case constitutes a relevant policy. That policy is not so unreasonable that the defendant, acting reasonably, could not have made it. Thus, a defence is provided pursuant to s103.
69 Further, there is a defence pursuant to s105. The onus would be on the defendant to make out this defence. The defence operates if it is proven that reasonable care has been taken to ensure that the relevant part of the road is not dangerous for traffic. Pursuant to s105(3), a road authority is to have established that defence if it proves to the satisfaction of the court that it had a policy which addressed the matter which was a cause of the incident giving rise to the action and it complied with the relevant part of the policy. In the present case, the policy, being the Road Management Plan, addressed the relevant matter, being differences in levels in the footpath. The defendant complied with its Road Management Plan or policy because the relevant defect was under the intervention level of 30 millimetres.
70 Further, s105(3)(b) provides that such an authority only has to comply with the relevant part of the policy. Thus, the benefit of the defence would not be lost if there was a failure to comply with some other part of the policy – for example, the timing of inspections. Clearly, there has been compliance with the policy insofar as it provides intervention levels of 30 millimetres and the question of inspections is irrelevant. The defence is made out.
(iii) The submissions on behalf of the plaintiff
71 The submissions of Mr Nash and Mr Grabau, which were presented by Mr Nash, in relation to the Act could be summarised as follows.
72 A small and concealed hazard can be dangerous and establish liability – see Whittlesea City Council v Merie [2005] VSCA 199. It was argued on behalf of the defendant that the raised lip was obvious, should have been seen by the plaintiff, and therefore was not dangerous. However, it was something that was not discovered by the defendant’s contractor when conducting his inspection.
73 Given the problems with paperwork, the overlooking of the lips by Mr Hitchcock and the failure of the defendant to call him as a witness, the question arises as to whether or not there was in fact a proper inspection. According to the Road Management Plan, the goal is to have an inspection of secondary footpaths once every year, but at least once every 18 months. The purpose of the inspection concerns the maintenance of the footpaths and not merely whether someone has had a look at them. The purpose of the inspection is to enable some action to be taken if required. What occurred was already late at the time that it was conducted. There was already a breach of the statutory duty, which breach was not cured by a later inspection. The only issue is as to whether that breach of statutory duty resulted in any damage to the plaintiff.
74 Had the inspection taken place on 6 June rather than 6 July, it was likely that the lips in question would have been treated and fixed by the date of the accident, remembering that this was at the end of the budget period and that is when the defendant dealt with lesser defects.
75 What the plaintiff fell on was a lip at the right hand edge of the footpath close to overgrowing weeds, all of which is relevant to the issue of whether a reasonable pedestrian keeping a proper lookout would have seen the lip. This footpath was just off the main business area and the photographic evidence establishes that, after the lips were treated, it was in first class condition. The degree of care that a pedestrian would be expected to take relates to the nature of the surface being walked upon. This surface appeared on its face to be an almost continuous concrete pathway, as opposed to a pavement with tree roots projecting through it. There is no evidence that the plaintiff was not keeping a proper look out. The plaintiff, a truthful witness, was walking back to her car along a path on which she had not walked before. She tripped on a lip that was right on the edge of the footpath and not readily observable by a person walking a city footpath in the centre of town. It is repeated that the person conducting the inspection did not observe, or at least did not record, the existence of the lips. Reference is made to the failure by the defendant to call the contractor as a witness. At common law, obvious defects do not give rise to a cause of action. It is implicit that a defect which is small represents a hazard which is not readily observable and which does give rise to a cause of action.
76 Section 103 of the Act, which could be described as the policy defence, on its face does not relate to a defence to an action for negligence. An act or omission in accordance with the policy does not constitute a wrongful exercise or failure unless the policy is so unreasonable that no road authority could have made it. There is no mention there of negligence or of common law proceedings. The section is directed to any statutory cause of action brought under the Act in respect of a wrongful exercise of a duty or the failure to exercise a duty created by the Act.
77 Mr Nash described the language used in the section as “strange”, and this is again a description with which I agree. However, he was also saying that it was strange language to use in relation to a common law action in negligence.
78 I raised with Mr Nash the proposition that the provisions in questions fall within Part 6 of Division 1 of the Act and that s99, which is in that Division, states that it applies to any claim for damages resulting from negligence and the like. Mr Nash stated that an exemption of this nature should be narrowly construed. In s102(1), negligence is clearly mentioned. It is quite clear that the draughtsman was aware of the differences between breach of statutory duty and negligence, but the policy defence contained in s103 is limited to a wrongful exercise or failure.
79 Turning to s102, there are problems in relation to the interaction between s102(3) and s115. Section 115 in essence deals with an obligation on the part of a plaintiff or injured person to notify the responsible road authority within 30 days. Thus, s102(3) appears to relate to a notice given after the event. In order to obtain the effect that such notice must have been given in respect of an earlier incident or complaint, the word “previously” would need to be inserted. I have previously alluded to this problem, caused by what could be described as somewhat confusing or unclear drafting. Going on with the submissions of Mr Nash, reference is also made in s102(3) to the fact that, for the purposes of s102(2), the road authority is taken to “have had” actual knowledge of particular risk if deterioration in the road had been reported in writing under s115. That appears to relate back to some previous time.
80 The defendant’s Road Management Plan does not appear to contain any provision in relation to the giving of warnings as to defects or hazards. Mr Nash expanded upon this, and as to the conflict between the common law situation and the council’s Road Management Plan. I asked whether he was suggesting that the Plan is an unreasonable or defective one. Mr Nash considered this, stating that it was tempting to argue that the Plan was unreasonable because it did not provide for the removal of hidden traps such as the 11 millimetre lip. However, what he ultimately put was that the defendant’s practice appeared to be to detect and remove any lip over 10 millimetres and perhaps over 5 millimetres. This was a relatively cheap and quick operation. A properly handled inspection would have revealed the defects and a reasonable council, aware of its obligations, would have placed some warning sign in relation to the unexpected hazard caused by the lip. This did not occur. The defendant would have had actual knowledge of the hazard if the inspection of this part of the street had been carried out to the same level as that elsewhere and if the report had been made available to it. The report then would have been properly within the defendant’s records.
81 I might add that some of Mr Nash’s submissions in this regard may be seen as moving away to some degree from legal arguments concerning the operation of the defences available pursuant to the Act. However, whilst I have attempted to deal with submissions concerning the statutory defences in the Act separately from those embracing broader issues, this was not the manner in which the case was presented or submissions necessarily made. Further, there is some overlap between what could be described as arguments concerning the common law and negligence generally, and those specifically directed to the operation of the Act.
82 In any event, Mr Nash referred again to the absence of Mr Hitchcock and to the existing evidence concerning the absence of the inspection records of 6 July 2007 for a considerable period.
83 Had there been a proper inspection, the defendant would have had actual knowledge for the purposes of s102 of the Act. An inspection means more than just looking at the surface of the footpath. It is for a purpose. Had it been carried out properly in accordance with the practice of the defendant, the defendant would then have had actual knowledge of the hazard. For that reason, and pursuant to s115(3), it should be treated as having actual knowledge.
84 An alternative way of approaching the matter is that the failure to carry out a proper inspection pursuant to s40 resulted in a situation where the defendant did not know of the hazard and was unable to provide a warning in relation to it. To attribute the lack of a warning to the lack of proper inspection does not involve any break in the change of causation. It is the defendant not performing its duty, as a result of which it was not aware of the situation and therefore was unable to take the next step of warning people.
85 Turning to s101, things to be taken into account in considering whether there has been a breach of a duty of care include the character of the road and the type of traffic that could reasonably be expected to use it. This particular footpath is just around the corner and literally five or six paces from the commercial area. Another thing to be considered pursuant to s101 is the standard of maintenance and repair appropriate for a road of that character and used by traffic of that type. Further matters to be considered are the state of repair which a reasonable person would have expected to find in a road or piece of infrastructure of that character and whether the relevant road authority could reasonably be expected to have known of the condition of the road or infrastructure at the time of the relevant incident. Had the defendant complied with its duty pursuant to s40, it could reasonably have been expected to have known of the condition of the footpath.
86 Returning to s105(3) of the Act, it is disputed that this enables the defendant to separate failure to comply with the inspection regime from failure to comply with any other element of policy. This does not enable the relevant road authority to separate out one small item, namely “To what level do we cut or grind a step?” from the obligation to inspect.
87 The inspection regime is part of the whole policy, and there was a failure to inspect. If, as happened here, a council inspects carelessly and does not have access to the inspection report for the next four or five months, it is not complying with the policy in relation to road maintenance. The obligations of a road authority have to be viewed as a whole, and not in small, separate packets.
(iv) Further submissions on behalf of the defendant
88 It was also argued by Mr Murdoch that s39 of the Act deals with the making of a policy. Section 39(5) uses the language, “for the purposes of any proceedings”. There may be no reference in s103 to a claim in negligence, but s39(5) contemplates that negligence proceedings would be covered. Reference is also made to the Second Reading Speech.
89 I then directed a question to Mr Murdoch concerning the relationship of s102(3) with s115 of the Act – see T204. His response was that s102(3) appears to contemplate a situation where there are two accidents. An accident occurs. Notice is given under s115, which puts the road authority on notice that there is a deterioration in a roadway and that this has caused an accident. That is the notice that is referred to in s102(3). It is operative in respect of a subsequent accident suffered by reason of the same defect.
Ruling in relation to defences pursuant to the Act
(i) Introduction
90 On balance, I am of the view that the plaintiff is excluded from recovering damages because of the operation of the Act. This could all be seen as unfortunate. The plaintiff, who impressed me as a straightforward witness, has suffered a nasty injury in circumstances where the paver lip upon which she tripped was subsequently highlighted with large dots of white paint or a similar substance. This was doubtless done by the defendant. There is no argument but that grinding work was performed later, so as to smooth out the protruding lip. There is also no argument but that there is no reference to the offending lip in the inspection report of Mr Hitchcock, such inspection being carried out only 17 days prior to the accident. Further, the defendant did not call Mr Hitchcock as a witness.
91 The foundations of an arguable plaintiff’s case in negligence might appear to be present. Indeed, some might consider that an adjective stronger than “arguable” might be selected. However, it seems to me that the operation of the relevant provisions of the Act prevents the plaintiff from recovering damages. I agree with the proposition that the provisions of the Act do not supplant or codify the common law and tenets of negligence generally. However, I also agree with the proposition that the Act does provide some complete defences to claims for damages resulting from negligence “regardless of whether the claim is brought in tort, in contract, under statute or otherwise” – see s99. Accordingly, if a complete defence pursuant to the provisions of the Act is made out, that is the end of the matter. As I am of the view that more than one such defence has been made out by the defendant and the burden of proof which it carries in this regard discharged, even leaving to one side possible arguments concerning the plaintiff bearing the burden of proof in establishing exceptions, there is then no need for me to turn to issues of negligence generally.
(ii) The policy defence pursuant to s103
(a) The existence and operation of a policy
92 There is no argument but that, at all relevant times, the defendant had in operation a Road Management Plan – Exhibit M. It is not disputed that the footpath in question is part of a municipal road within s17(1)(g) of the Act and that the defendant is the relevant road authority pursuant to s40(1) of the Act. The defendant has a statutory duty to inspect, maintain and repair the path, being a public road, to the standard specified in the Road Management Plan. It is not disputed but that in the present case, the footpath is part of a secondary road, the intervention level being “30 mm step in path service (sic) levels”. The service response time is 30 days. The Target Inspection Frequency is 12 monthly and the Maximum Period between Inspections is 18 months.
93 Pursuant to 39(4) of the Act, a road authority is to be taken to have a policy or policy decision relating to a road management function if the road authority has made a road management plan that includes provisions relating to performance of that road management function. Thus, by making its Road Management Plan, the defendant has made a policy. Whilst Mr Nash seemed tempted by the idea, ultimately it was not argued that the policy in the present case is an unreasonable one for the purposes of s103(b). Further, there was no evidence, expert or otherwise, which would support this proposition. Some people might consider that a 30 millimetre lip is quite sizeable, but there is no evidence to support an argument that the policy is so unreasonable that no road authority in the position of the defendant acting reasonably could have made that policy. In any event, no submission to this effect was made.
94 I am not persuaded that the absence of a specific reference to an action for negligence or to common law proceedings in s103 means that there is no application of that section to a proceeding so based. The opening words of s103 are “For the purposes of any proceeding to which this Division applies…”. Section 99 reads as follows:
“This Division applies to any claim for damages resulting from negligence in relation to performance or non-performance of a road management function, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.”
95 Thus, it seems to me that s103, falling with Division 2 of Part 6, applies to the present case. Further, as argued by Mr Murdoch, s39(5) of the Act commences as follows:
“For the purpose of any proceedings, unless a policy or policy decision made by a road authority is so unreasonable…”
Emphasis was placed by him upon the words “any proceedings”.
96 If s103 does apply, an act or omission which is in accordance with a policy determined by the relevant road authority, being the defendant, under s39 (which deals with the making of policies and policy decisions) does not constitute a wrongful exercise or a failure. The proviso, relating to unreasonable policies, is not applicable. Accordingly, if the relevant act or omission by the defendant is in accordance with the policy, it does not constitute a wrongful exercise or failure.
(b)Inspections – did the defendant act in accordance with the policy by being two days late with an inspection and, if so, what was the effect of that?
97 If all of the above be so, what was done, or not done, by the defendant does not, prima facie, constitute a wrongful exercise or failure. However, there is then the argument that the defendant had not acted in accordance with its Road Management Plan (the policy) because, pursuant to the Plan, it was obliged to carry out an inspection within a maximum of 18 months following the previous inspection.
98 I am satisfied on the evidence that there was an inspection on 4 January 2006 and that there was no further inspection until 6 July 2007. Mr Nash and those on behalf of the plaintiff originally had some suspicions about whether there had been any inspection between that of 4 January 2006 and the occurrence of the accident. Given the content of the handwritten note in November 2007 and to which reference has been made earlier, that such suspicion should have existed is not surprising. Ultimately such suspicion fell away and the late production of the Footpath Inspection Report relating to an inspection on 6 July 2007 has been accepted as credible. The initial absence of, and the delay in the retrieval of, the relevant Report is now seen to be more a reflection of the inefficiency of the defendant, rather than a question of some fabrication – see T191. Of course, the situation has not been assisted by the failure of the defendant to call evidence from Mr Hitchcock, the contractor who carried out the inspection.
99 The bottom line is that I accept that an inspection was so carried out by Mr Hitchcock on 6 July 2007. That he did not report the lips which ultimately received attention is also not disputed. However, the essential question immediately arising is whether the breach of the Road Management Plan caused by the inspection being carried out two days late in some way means that the defence pursuant to s103 is not available.
100 I struggle with this concept. If the plaintiff had suffered her accident on, say, 5 July 2007, being one day after the inspection was due and before it was in fact carried out, the situation might be different. However, what has occurred is that the inspection was carried out. The offending lips were not noted, but they were not in breach of the Plan. For the plaintiff to succeed in this argument, it would have to be accepted that, once there was a breach of the requirements set out in the Plan, whatever happened thereafter would not be in accordance with the policy and therefore not attract the protection afforded by s103. Once the defendant had been two days late in relation to one inspection, no number of subsequent inspections could remedy the situation. This is not an argument which appeals to me. The defendant had remedied the situation by carrying out an inspection, admittedly two days late. If it had temporarily departed from what is contained in the policy, the situation was soon remedied. It had returned to acting in accordance with the policy. The s103 defence in relation to acts or omissions was again available to it.
101 In relation to this argument, I would also point out that, even if it was accepted that there was some type of ongoing breach of the policy, and that therefore the act or omission of the defendant did not fall within s103, there is no evidence that the breach was causative of the accident. An argument was advanced by Mr Nash that, for example, if the inspection had been carried out on 6 June, repair work might then have been done, as it was the habit of the defendant to carry out non-compulsory repairs towards the end of the financial year. If that had occurred, there might have been no accident. However, it is equally true to say that if, for example, the inspection had been carried out on 3 July, within the 18 month period, the non-essential repairs might not have been carried out until late in that financial year – that is, they might not have been carried out until well into 2008. There is simply no evidence that the carrying out of the inspection two days late and not within the period specified in the Plan caused the accident. The dimension of the lips was not such as to demand any, or any immediate, attention. Had Mr Hitchcock carried out his inspection on, say, 3 July 2007 and placed his report before the defendant on that day, and even included in that report reference to the two lips, there is no reason to believe that they would have received any immediate attention, because they were comfortably within the intervention level set out in the Plan. I would add that no particular emphasis was placed upon the fact that the Target Inspection Frequency in accordance with the plan was 12 monthly, as opposed to 18 month intervals being the maximum period between inspections. This was not something which was the subject of argument and, in any event, I do not see it as taking matters further.
(c)Ruling as to s103 defence
102 The defendant has proved to my satisfaction the existence of a policy and that, for the purposes of s39 of the Act, it has made a policy decision relating to road management functions. Wherever the burden may otherwise lie, I am not satisfied that the policy is so unreasonable no road authority in the defendant’s position acting reasonably could have made that policy. I am not satisfied that, by being two days late with its inspection, the policy was in some way brought to an end and the defendant subsequently was acting either without or outside the policy. My conclusion is that the s103 defence does operate to the detriment of the plaintiff and that, even if there was a breach of it, such breach was not causative of the accident and the resultant loss and damage suffered by the plaintiff.
(iii) The s102 defence
(a) The nature of the defence
103 The defendant also argued that it has a defence pursuant to s102 of the Act. That section, which has been set out earlier, provides that a road authority is not liable in any proceeding for damages, whether for breach of statutory duty or for negligence, in respect of any alleged failure to repair or give warning concerning a defect or deterioration in a road. It is also not liable for any failure to give warning of a hazard. This does not apply if, at the time of the alleged failure, the road authority in question had actual knowledge of the particular risk “the materialisation of which resulted in harm”. It is taken to have had actual knowledge of the risk if it is proven that the deterioration in the road had been reported in writing to the road authority under s115. The section does not affect any liability arising out of the breach of the duty to inspect a public road. Essentially I have dealt with this last-mentioned provision above.
104 Thus, the defendant is not liable for its failing to repair a defect or give a warning concerning it unless, at the time of the failure, it had actual knowledge of the particular risk or unless the deterioration in the road had been reported in writing pursuant to s115.
105 There seem to me to be two essential issues to be considered in relation to this defence. The first is whether the defendant had actual knowledge of the particular risk, and the meaning of that terminology. The second concerns the meaning of s102(3), a far from clear provision, and what is meant by a report in writing under s115.
106 What is required if the exception contained in s102(2) is to operate is that the relevant authority had “actual knowledge” of the particular risk at the time of the failure.
(b)What is the meaning of the word “actual” for the purposes of s102(2)?
107 The knowledge that is required of the defendant for the operation of the exception to occur is “actual” knowledge. The meaning of the word “actual” received some consideration in Accident Compensation Commission v Alger [1993] 1 VR 379. The phrase there being considered was “actual weekly earnings”, but Ashley J, as he then was, paid particular attention to the meaning of the word “actual”. He referred to the dictionary definition of it as being “existing in fact or act; real; now existing; present”. His Honour went on to say that the word “actual” compels attention to a reality. He also referred to the decision in Trevor Boiler Engineering Co. Pty. Ltd v Morely [1983] 1 VR 716, where it was said that the word “actually” in the context of a return to work must have been intended to distinguish a real return to work from a casual job. Again, the emphasis was on a reality. I would also refer to the discussion of “knowledge” contained in cases such as The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239. In that case a distinction seems to be drawn between actual knowledge and, for example, constructive knowledge.
(c)The meaning of “actual knowledge” – the decision in North Sydney Council v Roman
108 The meaning of the phrase “actual knowledge” was discussed in North Sydney Council v Roman [2007] NSWCA 27. It was discussed in the context of a provision which, whilst not identical with s102(2), operates in a similar factual context. That provision is s45(1) of the Civil Liability Act 2002, which reads as follows:
“(1)A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from failure of the authority to carry out roadwork, or to consider carrying out roadwork, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.”
Whilst the provisions are not identical, the similarity in wording between s45(1) of the Civil Liability Act and s102(2) of the Road Management Act can be seen.
109 Essentially in Roman, there was no suggestion that the councillors or general manager of the Council had actual knowledge of the pothole in which Mrs Roman stepped. It was argued that particular council workers, including an unidentified street sweeper, must have had such knowledge. Basten JA, with whom Bryson JA agreed, referred to the well‑known decision of Brodie v Singleton Shire Council [2001] HCA 29 and the companion case of Ghantous v Hawkesbury City Council. Basten JA suggested that it was significant that the legislation in question had been introduced following the decision in Brodie. In Brodie, there was reference to a breach of duty arising in relation to dangers “of which the authority has been informed or made aware”. Having considered a number of cases, Basten JA stated at paragraph 156 that:
“… it would seem that actual knowledge must be found in the mind of an officer within the council having delegated (or statutory) authority to carry out the necessary repairs.”
Basten JA also said at paragraph 157 that:
“…the knowledge must exist at or above the level of the officer responsible for undertaking necessary repairs. … The use of the term “actual” precludes reliance on constructive or imputed knowledge. It follows that, even if a street sweeper having a duty to note and report defects, was aware of the pothole, the immunity is engaged absent proof on the balance of probabilities that the officer in charge of maintenance works received that information”.
110 Basten JA ultimately concluded at paragraph 186 that:
“…no Council officer at a decision-making level had “actual knowledge” of the particular pothole and therefore the Council did not have such knowledge. Accordingly, the exception to s45 was not engaged and the statutory immunity must prevail.”
111 Whilst dissenting, McColl JA stated at paragraph 51 as follows:
“The use of the expression “actual knowledge” in s45 was plainly intended to prevent a roads authority being found civilly liable merely because it had constructive knowledge of a risk. This had been the outcome in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29 … decided the year before the introduction of the Civil Liability Act”.
112 I would also point out that McColl JA, when dissenting and referring to the attributing of knowledge to the roads authority, referred to persons acting within the scope of their duties who learn of the particular risk and are under an obligation to report it. Whilst I am not bound by the decision in Roman, I would respectfully point out that it is a careful and considered one. It seems to me that I should follow it unless I am convinced that it is wrong. I am not so convinced.
(d)The state of “actual knowledge” of the defendant in this case
113 In the present case, that the contractor, Mr Hitchcock, learned of the lip or lips in question on 6 July 2007 has to be inferred, as his report makes no reference to them. Secondly, because the lips were below the intervention level in the Plan, it is at least arguable that he was under no obligation to report them and thus bring them to the attention of Mr Lemon, the council officer with the relevant authority to authorise repairs (or, for that matter, to his assistant, Mr Major).
114 As was said by Mr Lemon, the unit leader of technical services for the defendant and in essence the officer in charge of these matters, it is only lips of a certain height that get comparatively immediate attention. Lips of a height of, for example, 5 to 10 millimetres would not be a concern. Mr Lemon also stated that, if there were lips over about 15 or 20 millimetres, contractors would be rung; if the height was something in the order of 25 to 28 millimetres, steps would be taken to do something as soon as possible; and if the height of the lip was over 30 millimetres, something would be done immediately. If the relevant height is less than 10 to 20 millimetres, the areas in question are put on a list and the works done when the contractors are next in the area. Whilst Mr Lemon agreed that the lips in question “should have been picked up probably” on Mr Hitchcock’s inspection, (see T131-132), he also stated that:
“… these hazards, if you like to call them, are very minimal. They may not have even got their way onto – I don’t know whether they made their way onto the final sheet. …” (See T136)
He also said that:
“… This report is very minor … I would only source the ones which I knew I could repair because they were major damage, or just under intervention heading down like that”. (See T138)
Having referred to the 11 millimetre lip in question, Mr Lemon stated that:
“… If there was nothing anywhere near to intervention level I would sit on it for a while to see how we are going money-wise … or we might have contractors in that immediate area”. (See T142)
If the intervention level was exceeded, barricades would be put in place immediately. Mr Lemon gave a more detailed explanation of the system at T143-144.
115 The bottom line is that it is debatable whether Mr Hitchcock had an obligation to report the lips in question for the purposes of what was said by McColl JA. It may be that the officers of the defendant considered it desirable that he report all lips. That may well be seen as differing from an obligation to report. Further, even if he had reported lips of approximately 11 millimetres, there was then no obligation on the defendant to carry out immediate repairs in accordance with its Plan.
116 The decision in Roman and the cases referred to therein reinforces the conclusion at which I have arrived in relation to actual knowledge. That is so even if the approach adopted by McColl JA is adopted. Section 102(2) does not assist the plaintiff.
(e)Is there evidence that the defendant had actual (or constructive) knowledge of the risk?
117 It seems to me that the requirement of actual knowledge goes beyond constructive or imputed knowledge. The knowledge must be “real”.
118 In the present case, as shall be discussed, there is no evidence that the defendant, via its officers at the relevant level, had actual or real knowledge of the hazard represented by the lips. For that matter, it is difficult to say that there is evidence that it had constructive or imputed knowledge. All we know is that the defendant hired a contractor who carried out an inspection and did not record the existence of the lips in question. There is no evidence that he had knowledge of them, much less that such knowledge could be imputed to the defendant. Indeed, it could be argued that the absence of any reference to the lips in the inspection report might, in the absence of any other evidence, be more suggestive of the conclusion that Mr Hitchcock did not have knowledge of them. Then again, it could be argued that there being no reference to them in his report it is consistent with the fact that they were below the required intervention level, although the officers of the defendant who gave evidence seemed to be of the view that nevertheless he should have reported the presence of the lips if he was aware of them.
119 In any event, the evidence of the officers of the defendant, and particularly that of Mr Lemon, makes it clear that they had no knowledge of the particular risk prior to the accident or, indeed, prior to the plaintiff lodging a Public Incident Report. The evidence of Ms Walker, whose role with the defendant involves risk management, liability and the like, is that she received a telephone call from the plaintiff on 1 August 2007, as a result of which she forwarded to the plaintiff a form headed “Public Incident Report” in which were to be put details of the fall in Ogilvie Avenue on 23 July 2007. Ms Walker then recorded the information given to her by the plaintiff and sent an electronic message to Mr Lemon requesting action. The completed Public Incident Report was returned by the plaintiff to the defendant, it being stamped as being received on 3 August 2007 (see Exhibits S and T in relation to these matters). Mr Lemon passed on the request of Ms Walker for action to one of his inspectors, namely Mr Major. This occurred on 3 August. Subsequently, Mr Major attended at Haverfield Street, inspected the scene, took photographs and the like. Matters proceeded from there. That this was the sequence of events was, in essence, not challenged.
120 Accordingly, there is no evidence that, at the time of the alleged failure, knowledge existed at or above the level of the officer responsible for undertaking necessary repairs – to employ the wording used by Basten JA in Roman. The evidence, essentially unchallenged, is to the contrary. Even if Ms Walker and Mr Major are included as relevant officers, it is not suggested that they had knowledge of the particular risk at the time of the alleged failure or prior to 1 August 2007.
121 That leaves only the possible knowledge possessed via Mr Hitchcock, and I have referred to that above. However, as he was not called to give evidence, there was some suggestion that an inference could be drawn. I shall now deal with that.
(f)Does application of the rule in Jones v Dunkel fill the void created by the absence of other evidence?
122 The next related issue is whether the failure of the defendant to call Mr Hitchcock enables me to draw an inference that leads to the conclusion that Mr Hitchcock, and arguably therefore the defendant, had the required knowledge. I am not persuaded that application of the rule in Jones v Dunkel permits me to go that far. Assuming that the rule does operate in relation to the failure to call Mr Hitchcock, I would be entitled to draw the inference that his uncalled evidence would not have assisted the defendant’s case. What was said in Jones v Dunkel was discussed in Earle v Castlemaine District Community Hospital [1974] VR 722. In that case, Lush J referred to the decision in Tozer Kemsley & Millbourn (A’asia) Ltd v Collier’s Interstate Transport Services Ltd (1956) 94 CLR 384 and in particular to what was said by Fullagar J as follows:
“The silence of one party cannot, of course, fill the place of actual evidence on an issue, but it may serve to resolve a doubt or an ambiguity, especially where the facts are peculiarly within the knowledge of the silent party.”
Shortly after referring to what was said by Fullagar J, Lush J stated as follows:
“The form of direction sought by the plaintiff can never be appropriate if, by taking advantage of the liberty it gives to them, the jury could find a fact of which there was no evidence.”
123 In the present case, there is no evidence that the defendant had actual knowledge of the particular risk. In my opinion, the drawing of an inference from its failure to call Mr Hitchcock cannot fill that void. There remains no evidence of the fact of actual knowledge. Indeed, as previously stated, it is difficult to say that there is evidence that the defendant had constructive or imputed knowledge, even assuming that this would be sufficient. Of course, even if actual knowledge could be established by reason of an inference drawn in accordance with Jones v Dunkel, the situation would remain that the size of the lips was within the intervention level.
(g) The meaning and operation of s102(3) and s115
124 There was also some argument concerning the meaning of s102(3). Pursuant to this sub-section, the defendant would be taken to have had actual knowledge of the particular risk if it was proven that the deterioration in the road had been reported in writing to the road authority under s115. Section 115 concerns the notice which a person proposing to commence a proceeding in relation to an incident must give to the responsible road authority within the prescribed period. While s102(3) is a poorly drafted provision, it does not seem to me that, if it is to make any sense, the report pursuant to s115 to which reference is made could be the report of the actual incident the subject of the claim in question. Logically the situation cannot be that, immediately a report is made pursuant to s115 in relation to an incident, the road authority is to be taken to have actual knowledge of the particular risk involved. It seems to me that the provision can only mean that, if deterioration in a road has previously been reported under s115, the relevant road authority is then deemed to have actual knowledge of the particular risk. If a subsequent claim arises out of the same risk, the road authority cannot be heard to say that it knew nothing of that risk. In the present case, there is no evidence that, whilst the plaintiff reported what had occurred in accordance with s115, any earlier report had been made. Accordingly, it seems to me that s102(3) does not assist the plaintiff. Again, even if actual knowledge is attributed to the defendant, the fact remains that the lips in question were of a dimension that fell below the intervention level.
(h) Section 102(4)
125 Section 102(4) provides that s102 does not affect any liability of a road authority arising out of a breach of the duty to inspect a public road imposed by s40. This brings us back to the same point as to the effect of the inspection being two days beyond the maximum period specified in the road management plan. I remain of the view that an inspection carried out two days late does not mean that the plan is in some way vitiated or that there has been a relevant failure of the duty to inspect. Accordingly, s102(4) does not apply to the benefit of the plaintiff.
(i) Ruling as to s102 defence
126 As was the situation with the policy defence, this defence has been made out. For the reasons set out above, the defendant has established that it is entitled to the immunity provided by s102. It did not have actual knowledge of the particular risk, within the meaning of those words. The evidence does not establish that it had actual knowledge or knowledge that could be inferred. From the plaintiff’s viewpoint, there also remains the problem that the particular risk was not one which demanded intervention pursuant to the defendant’s policy. The defence defeats the plaintiff’s actions.
(iv) Section 105 defence
127 As freely conceded by Mr Murdoch, the onus in relation to s105 is on the defendant.
128 Pursuant to s105(3), the defence that a road authority has taken such care as, in all the circumstances, was reasonably required to ensure that the relevant part of the public road was not dangerous for traffic is established if that authority proves to the satisfaction of the court that it had a policy which addressed the matter which was a cause of the relevant incident and that it complied with the relevant part of that policy. Aspects of this defence have already been touched upon when s103 and the policy defence were being discussed. In any event, the defendant has proved to my satisfaction that it had a policy, namely the Plan, which addressed the matter which was a cause of the incident giving rise to the action. The Plan addressed footpath repairs and steps in levels.
129 The second requirement that the defendant must prove is that it complied with the relevant part of its plan. The argument then arises as to whether the timetable for inspections is included in the “relevant part of the policy”. Mr Murdoch argued that the “relevant part” in the present case is the provision of an intervention level of 30 millimetres and that the question of the timing of inspections is another part of the policy and irrelevant.
130 Mr Nash argued that s.105(3) of the Act did not enable the defendant to divide the policy into the small components suggested by Mr Murdoch. It cannot separate out one small item to do with the level of steps from the obligation to inspect. As previously mentioned, Mr Nash argued that the obligations of the defendant have to be viewed as a whole and that the inspection regime, concerning which there was a failure, is part of the whole policy. The inspection regime is the relevant part of the policy for the purposes of s105(3)(b).
131 Because of the other Rulings which I have made, the outcome of my finding in relation to the operation of s105 is somewhat academic. However, I would make the following observations. Again, as is probably evident from even a brief summation of the argument involved, the drafting of this particular provision seems to be far from perfect. What is meant by “the relevant part of the policy” is not entirely clear. There is certainly some attraction in the argument advanced by Mr Nash. Arguably, it is confining “the relevant part of the policy” excessively, if it is interpreted as meaning solely the issue of different levels of the footpath, without also including the timing of inspections of the levels of that footpath. Then again, in the present case, because an inspection was carried out shortly before the accident, arguably the timing of the inspections is not relevant to the accident and the words “the relevant part of the policy” should be interpreted as being confined to the difference in levels. Arguably, that is “the relevant part of the policy” because the difference in levels caused the accident, whereas the timing of the inspections is irrelevant.
132 Whilst I do not have to determine it, given my findings in relation to ss102 and 103, my view is that the operation of s105 also provides immunity to the defendant in this particular case. Generally speaking, it seems to me that the timing of the inspections could be just as much a relevant part of the policy as the intervention level concerning differences in levels of a footpath. However, the word “relevant” is of sufficient breadth to lead one to the view that the situation must be assessed on a case-by-case basis. In the present case, an inspection had been carried out within a three week period before the occurrence of the accident. Therefore, as previously discussed, the inspection schedule in the Plan was “back on track”. What then caused the accident was a lip or step in the footpath which did not breach the relevant part of the policy. If the issue of inspections is removed, the relevant part of the policy is the intervention level in relation to such steps. In the present case, that seems to me to be “the relevant part of the policy”. The evidence satisfies me that there was compliance with it.
133 On balance, I am of the view that, in the particular circumstances of this case, the defence pursuant to s105 has also been made out by the defendant. Whilst it may not be strictly necessary for me to determine this issue, it seems to me that the defendant has discharged the burden of proof which it carries and has also established a defence pursuant to s105. This also defeats the plaintiff’s claim.
Conclusion
134 In the circumstances, it is not necessary for me to consider what could be described as the common law position in relation to this accident. As I stated earlier, this unfortunate plaintiff may well have had an arguable case based upon negligence. However, the operation of the Act seems to me to prevent her from succeeding and to establish immunity on the part of the defendant.
135 The plaintiff is unsuccessful. Her action is dismissed. I shall hear the parties as to any ancillary orders that are required.
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