Leichhardt Municipal Council -v-Green - [2004] NSWCA 139

NEW SOUTH WALES COURT OF APPEAL

CITATION: Leichhardt Municipal Council -v-Green [2004] NSWCA 139

FILE NUMBER(S):
40448/03

HEARING DATE(S): 27 April 2004

JUDGMENT DATE: 20/05/2004

PARTIES:
LEICHHARDT MUNICIPAL COUNCIL: Appellant
Kevin Anthony GREEN: Respondent

JUDGMENT OF: Santow JA Bryson AJA Stein AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 10367/02

LOWER COURT JUDICIAL OFFICER: Garling DCJ

COUNSEL:
D DAVIES SC/ K M GUILFOYLE (Appellant)
P. WEBB QC/ P R STERNBERG (Respondent)

SOLICITORS:
Phillips Fox (Appellant)
Elias Gates and Associates (Respondent)

CATCHWORDS:
Respondent injured stepping from cabin of truck into pothole - liability -negligence- manner of alighting from truck - whether injury caused by council's negligence - whether duty of care owed by council - whether duty breached

LEGISLATION CITED:

DECISION:
Appeal allowed with costs and judgment of District Court set aside. In lieu thereof, a verdict for the defendant with costs. If otherwise qualified, the respondent should have a certificate under the Suitors Fund Act, 1915.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA: 40448/03
DC:10367/02
SANTOW JA
BRYSON JA
STEIN AJA
20 MAY 2004

LEICHHARDT MUNICIPAL COUNCIL –v – GREEN

SANTOW JA: I agree with Stein AJA.
BRYSON JA: I agree with Stein AJA.
STEIN AJA:
Introduction
This is an appeal by the Leichhardt Council from a judgment of his Honour Judge Garling delivered ex tempore in the District Court on 13 May 2003. His Honour found a verdict and judgment in favour of the plaintiff (respondent), Kevin Anthony Green, in the sum of $173,354 for personal injuries he sustained on 22 November 1998 when he alighted from his truck and stepped into a pothole in Hay Street Leichhardt. The appellant argues that his Honour should have found a verdict in its favour, viz a verdict for the defendant on the issue of liability.
The Judgment at first instance
After recounting the facts of the accident, which I will not now repeat, his Honour noted that there was no dispute that the appellant was the appropriate road authority and had control of Hay Street, where the accident occurred. His Honour then turned to the appellant’s submissions and dealt with them in turn. The first is no longer relevant.
The second concerned the “obviousness” of the pothole and the respondent’s own responsibility to look where he was stepping. His Honour distinguished a number of authorities saying that they raised quite different circumstances, e.g Richmond Valley Council v Standing [2002] NSWCA 359, RTA v McGuiness [2002] NSWCA 210; Burwood Council v Byrnes [2002] NSWCA 343, Brodie v Singleton Shire Council (2001) 206 CLR 512 and Ghantous v Hawkesbury City Council (2000) 206 CLR 512.
His Honour said that this was not a pedestrian case but one of a person getting out of a vehicle in the middle of the street, and stepping into a pothole. He stated, “I have no difficulty in finding that this particular pothole was dangerous.”
The primary judge addressed the appellant’s submission that…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2004] NSWCA 139
Decision Date: 20 May 2004

CaseChat Overview and Summary

This matter concerned an appeal by Leichhardt Municipal Council (the appellant) against a District Court judgment that found it liable for injuries sustained by a respondent who stepped into a pothole while alighting from a truck. The respondent's injury occurred when he stepped from the cabin of his truck into a pothole. The central dispute revolved around whether the council's alleged negligence caused the respondent's injury.

The court was required to determine several legal issues. These included whether the council owed a duty of care to the respondent, whether that duty had been breached, and crucially, whether the injury was caused by the council's negligence. A significant point of contention was the admissibility of expert reports tendered by the respondent, and whether the trial judge erred in admitting them into evidence. The court also considered whether the onus of proof had been improperly reversed, requiring the appellant to prove its inspection system rather than the respondent proving the council's negligence.

The court reasoned that the trial judge had erred in admitting the expert reports, finding them speculative and lacking a proper evidentiary basis. It was held that there was insufficient evidence to establish that the appellant, or its contractor, had performed the work associated with the pothole, or to identify who had done the work and when. Consequently, the court found that there was no evidence of an inspection system by the council that could support a finding of negligence. The court concluded that the trial judge had effectively reversed the onus of proof, which was impermissible.

Accordingly, the appeal was allowed with costs, and the judgment of the District Court was set aside. A verdict was entered for the defendant (the appellant) with costs. The respondent was to receive a certificate under the Suitors Fund Act, 1951, if otherwise qualified.

Orders

Orders of the court

Appeal allowed with costs and judgment of District Court set aside. In lieu thereof, a verdict for the defendant with costs. If otherwise qualified, the respondent should have a certificate under the Suitors Fund Act, 1915.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It should be noted that Mr Webb sought to submit that Wagner was wrongly decided and should be reconsidered. No notice was given of this intention and we should not permit the submission to be made.Conclusion To summarise, it is my opinion that his Honour fell into error in a number of ways. He should not have admitted the expert opinions; he in effect reversed the onus of proof; there was simply no evidence that the appellant, or its contractor, did any of the work associated with the pothole; there was no evidence as to who did the work or when it was done and there was no evidence of any inspection system by the council. It follows that the contention must also fail. Accordingly, it is unnecessary to examine the issue of the failure to warn, although there was no evidence from the respondent as to what effect a warning would have had on him or where and how the warning should have been placed, Hoyts v Byrnes (2003) 201 ALR 470.Orders It follows that the appeal should be allowed with costs and the judgment of the District Court set aside. In lieu thereof, there should be a verdict for the defendant with costs. If otherwise qualified, the respondent should have a certificate under the Suitors Fund Act, 1951.* * * * * * * * * *

Ratio Decidendi

Legal Principle Established

His Honour was entitled to have been satisfied to a degree necessary to shift the evidentiary onus to the appellant to prove its inspection system. See Ryan at [58] and Watkins at [28-29]. There was no reversal of the onus. Consideration Some submissions of the appellant may be set aside. It seems moderately clear that notwithstanding that there was no specific particular of negligence relating to the inspection system or a failure to warn, the extensive exchanges between the judge and counsel early in the hearing when the reports of the experts were tendered, confirm that the allegations were or became part of the respondent’s case. Second, an examination of the transcript of evidence and judgment seems to confirm that the reports of Mr Porman and Dr Yeaman were received into evidence. There was extensive discussion as to their admissibility when they were sought to be tendered. At Combined Appeal Book 42-43 his Honour decided to provisionally admit the reports, saying that he would reconsider the issue at the conclusion of the case because he had some doubts. The reports were marked as exhibits E and F. However, it does not appear that his Honour returned to reconsider the admissibility of the reports. His comment in the judgment on the value, or lack of value, of the expert evidence (quoted above at para [7]) appears to confirm their receipt into evidence. Accordingly, I will approach the argument on the basis that the reports were admitted into evidence.Should the expert reports have been admitted? Mr Porman is a consulting engineer with Simpson Associates Forensic Engineering. Dr John Yeaman is a highly qualified civil engineer. When one reads Mr Porman’s report it is plain that without having any stated instructions, appropriate expertise or experience, or at least none that is apparent on the face of the report, he expounds on the practice and policy of the appellant council. For example, he says at page 7:It is important at this point to note that the Defendant has a long standing practice regarding the restoration of work carried out by others in the public way. And later, as one possible scenario:The Defendant completely resheeted the carriageway up to the circular surrounds of the Sydney Water manholes, then at a later date Sydney Water carried out maintenance on its 100mm line requiring that at each manhole a square of the carriageway be removed.Sydney Water then reset the manholes and temporarily reinstated the excavation, pending permanent restoration by the Defendant. Again, at page 9 Mr Porman stated:…under the Defendant’s policy/practice the responsibility for the asphalt at the manholes remains with excavating body until such times as it is permanently restored. After postulating four possible scenarios as to what might have occurred, Mr Porman’s concluding opinion is noteworthy. He says that it is “most probable that the council repaired the subject pothole and placed the adjacent patch at the time of restoring the nearby electrical trench” (p12). Unfortunately, this conclusion was not based on any evidence available to Mr Porman, nor referred to in his report. It was, it seems, entirely speculative. Nor is it made clear why this scenario was to be preferred to any of the other possibilities which he saw.