Lombardi v Holroyd City Council - [2002] NSWCA 252

NEW SOUTH WALES COURT OF APPEAL

CITATION: Lombardi v. Holroyd City Council & Anor. [2002] NSWCA 252

FILE NUMBER(S):
40961/01

HEARING DATE(S): 22 July 2002

JUDGMENT DATE: 01/08/2002

PARTIES:
Guiseppa Lombardi - appellant
Holroyd City Council - 1st respondent
Australian Gaslight Company - 2nd respondent

JUDGMENT OF: Hodgson JA Foster AJA Brownie AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC2404/99 and DC8833/00

LOWER COURT JUDICIAL OFFICER: Patten DCJ

COUNSEL:
Dr. A Morrison SC with Mr. J. Ryan for the appellant
Mr. Garling SC with Mr. R. Gambil for first respondent
Mr. M. Minehan for second respondent

SOLICITORS:
Stacks, Sydney for appellant
McCabe Terrill, Sydney for first respondent
Colin Biggers & Paisley, Sydney for second respondent

CATCHWORDS:
LOCAL GOVERNMENT - Step in footpath - Risk to pedestrians - Council's liability
TORT - Negligence - Expert evidence as to causation of subsidence to footpath - Whether appealable error by primary judge.

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40961/01
DC 2404/99
DC 8833/00
HODGSON JA
FOSTER AJA
BROWNIE AJA
Thursday 1 August 2002

LOMBARDI V. HOLROYD CITY COUNCIL & ANOR.

Judgment

HODGSON JA: On 6 November 2001, Patten DCJ gave his decision in proceedings in which the appellant Guiseppa Lombardi had sued the first respondent Holroyd City Council (the Council) and the second respondent Australian Gaslight Company (AGL) for negligence in connection with injuries she suffered when she fell on a footpath at Westmead. The primary judge’s decision was that there be verdict and judgment for both respondents, and the primary judge ordered the appellant to pay the respondents’ costs. The appellant appeals to this Court from that decision.
CIRCUMSTANCES
The appellant is a widow, and was born in Italy on 1 January 1931.
At about 5pm on 7 November 1997, she was walking towards her home at 1 Austral Avenue, Westmead, when she fell on the footpath outside 33A Austral Avenue, and thereby suffered injuries. It appears that her foot had caught a small step between two adjoining slabs of concrete, which ranged from about 25 millimetres in height at the northern edge of the footpath down to about zero at the southern edge, and which had resulted from subsidence affecting one of the slabs.
The slab affected by subsidence had been replaced after being removed in 1993 or 1994 by AGL in the course of renewing gas pipelines, by a process known as “Goldline” whereby new pipes were inserted inside the existing pipes. The gas pipe in Austral Avenue ran east-west under the footpath, probably under the northern half of the footpath, and probably at a depth of about 700 millimetres at this point. The process required digging of holes about 1.6 metres long at intervals along the footpath, with the footpath slabs at these points being removed. The protocol between the Council and AGL regulated the procedure for replacement: AGL was to backfill the hole, properly compact the filling, and temporarily seal the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2002] NSWCA 252
Decision Date: 1 August 2002

CaseChat Overview and Summary

This matter concerned an appeal from a decision of the primary judge regarding liability for subsidence of a footpath. The appellant, Lombardi, had sued both Holroyd City Council and AGL. The dispute centred on whether AGL's excavation and backfilling activities, or an pre-existing two-metre deep pit to the north of the excavation, or a combination of factors, caused the subsidence.

The legal issues before the appellate court were whether the primary judge had erred in finding that the appellant had failed to prove that AGL's actions were the sole or contributing cause of the footpath subsidence, and whether the primary judge had erred in finding that the Council was not liable. Specifically, the court considered whether the primary judge had made an appealable error in assessing the expert evidence regarding causation and in determining the scope of the issues fairly before the court.

The court reasoned that the primary judge was entitled to infer that AGL had excavated a pit of approximately 700-850 millimetres, and that a separate, deeper two-metre pit existed to the north. While expert opinions suggested that deficiencies in backfilling and water ingress caused subsidence, they did not clearly distinguish between the AGL pit and the pre-existing pit, nor identify the source of the water. Consequently, the primary judge was not satisfied that the subsidence was due to AGL's inadequate backfilling. The court found no appealable error in the primary judge's assessment of the evidence, including the possibility that water ingress was facilitated by AGL's work on gas pipes, as this basis of liability was not adequately supported by expert evidence. The finding of no liability against AGL was also fatal to the Council's liability, as no alternative basis for the Council's responsibility was established.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr. Minehan for AGL submitted that there was clear evidence of a two metre pit or trench immediately to the north of the slab, dug by someone else, and that problems from that trench caused or contributed to the subsidence. Mr. Minehan submitted that neither the appellant nor the experts made out a case that, even if AGL was not responsible for the two metre pit or trench to the north of the footpath, subsidence was caused by AGL’s inadequate backfilling of its 700 millimetre pit or trench underneath the footpath. DECISION In my opinion, there was an inference open that AGL had dug a pit under the slab to a depth of around 700 millimetres, and certainly no greater than about 850 millimetres; and that there was another pit or trench to a depth of two metres immediately to the north of the slab. The primary judge drew that inference, and in my opinion made no error in doing so. The expert opinions supported the view that it was deficiency in backfilling and ingress of water that caused the subsidence. However, the opinions did not differentiate between deficiencies associated with an AGL pit of around 700 millimetres and the two metre pit or trench; and did not identify the source of the water. On that basis, in my opinion it was open to the primary judge not to be satisfied that the problem was due to AGL’s inadequate backfilling and compacting. It is true that the primary judge might have inferred that the two metre pit or trench was dug about twenty years ago, when the stormwater pipe was installed; that there was no indication of subsidence problems until the AGL work was done; and that accordingly, AGL caused the subsidence by its own inadequate backfilling and compaction, or by introducing a source of water to the two metre pit, or both. It does seem clear that water could have been introduced to the area by opening up the old gas pipes and inserting the smaller new gas pipes inside them, leaving a space along which water could run. However, this basis of liability in AGL was not specifically addressed or supported by any of the experts, so in my opinion one cannot find appealable error of the primary judge in not reasoning along those lines. The problem for the appellant of evidence of a two metre deep pit or trench was raised in cross-examination, and there is no evidence that it was not raised in submissions; so in my opinion there is no substance in any suggestion that the primary judge decided the case on a basis that was not fairly before him. For all these reasons, in my opinion there is no appealable error in the primary judge reaching the conclusion that there was deficiency in proof by the appellant as to whether the subsidence was the fault of AGL or was due to other causes associated with the two metre pit or trench for which AGL had no responsibility. As regards the Council, in my opinion the finding in relation to AGL is fatal to any liability of the Council based on the backfilling by AGL and the installation of the pavement by the Council. No basis was suggested on which the Council could be held liable for problems associated with the two metre deep pit or trench.

Ratio Decidendi

Legal Principle Established

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