Moyne Shire Council v Pearce

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.3743 of 2003

MOYNE SHIRE COUNCIL
	Appellant
v.
LORRAINE FLORENCE PEARCE	Respondent

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JUDGES:	BATT and CHERNOV, JJ.A. and GILLARD, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 2004
DATE OF JUDGMENT:	22 December 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 246

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NEGLIGENCE – Duty of care – Nature – Of highway authority towards pedestrian (unaffected by Transport Act 1983, s.37A) – Jury trial – Whether verdict finding negligence was against the evidence – Plaintiff tripped in defective roadside spoon drain outside home – Defect obvious and known by her – Whether directions as to duty and references to plaintiff’s age and reduced agility correct – Local Government Act 1989, ss.205, 206 and Sched.1, cl.10.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. P. Rose SC with Mr. A. Clements	Hunt & Hunt
For the Respondent	Mr. T.P. Tobin SC with Mr. A. Keogh	Maddens Lawyers

BATT, J.A.:

The facts relevant to this appeal are stated in the reasons for judgment of Gillard, A.J.A. Because the respondent’s County Court proceeding was brought before 10 October 2002 s.37A of the Transport Act 1983, which was inserted to reverse the decision of the High Court in Brodie v. Singleton Shire Council; Ghantous v. Hawkesbury City Council[1], did not apply.[2] The appellant had the care and maintenance of the road in question by virtue of s.205(1) of the Local Government Act 1989 as in force at the time, and had in relation to the road the powers set out in Schedule 10 by virtue of s.206(1). Those provisions extended to the spoon drain or gutter[3] beside the paved roadway by reason of the definition of “road” in s.3(1) of that Act.
[1](2001) 206 C.L.R. 512.
[2]Part XII of the Wrongs Act 1958, containing more general provisions, did not come into force until after the trial.
[3]Or, from one perspective, kerbing.

As the appeal was argued, there were two branches of challenge to the verdict and judgment entered thereon. The first asserted misdirection. It was said that her Honour in her charge and re-direction had misdirected or insufficiently directed the jury as to the existence, nature and extent of the duty of care owed by the appellant to pedestrians such as the respondent, having regard to the principles laid down by the High Court in Brodie and Ghantous (as explained in Boroondara City Council v. Cattanach[4] and Greater Shepparton City Council v. Davis[5]). More particularly, it was submitted, principally in the written outline, that her Honour should have spelled out in especially clear terms to the jury that the appellant did not owe any duty of care to the respondent to take action in respect of hazards on or around the road that were obvious to a pedestrian keeping a reasonable lookout. That submission cannot be accepted because her Honour directed the jury in that manner several times (including in her re-direction). Indeed, at only one point in her charge (that recorded at the foot of p.308 of the transcript) did her Honour not include a reference to the pedestrian who took reasonable care for her own safety, and that was in fact where her Honour was speaking of breach of the duty of care.
[4][2004] VSCA 139.
[5][2004] VSCA 140.

Although it was only first raised in the appellant’s written outline of argument and was added as a ground only by leave during the hearing, the appellant contended – and it was the principal contention on the first branch of the appeal - that a further misdirection had occurred, when, in the course of charging the jury in relation to matters properly to be taken into account in determining whether an authority responsible for a road had breached its duty of care to a pedestrian, her Honour had mentioned that the respondent was reasonably elderly and perhaps less agile than younger people. It was submitted that the jury would as a result have gained the impression that it was appropriate for it to take into account the respondent’s age and possible lesser agility when considering negligence generally and more particularly whether the appellant’s response to any risk of injury was reasonable. It was then submitted that insofar as such an impression was given to the jury by the charge her Honour erred in law as it had been made clear by the decisions in Cattanch, Richmond Valley Council v. Standing[6] and Hastings Council v. Giese[7] that local authorities do not owe any higher duty to elderly or frail pedestrians and that age and frailty are not matters to be taken into account in determining the existence, or breach, of a duty of care. On this point I am inclined to think that the failure of the appellant’s counsel at trial to object is fatal, for the asserted misdirection, now raised at a late stage, could easily have been cured by a further direction by the judge, if exception had been taken. Against that, it was pointed out, correctly, that at the time of the trial in the County Court this Court’s decision in Cattanach had not been given. However, the two New South Wales cases relied on had by then been decided. In view of what follows, I need not express a concluded view on this point.
[6][2002] N.S.W.C.A. 359.
[7](2003) 127 L.G.E.R.A. 109.

The second branch of the challenge was more far-reaching. It was that the decision of the jury by their verdict that there was negligence on the part of the appellant that was a cause of the respondent’s injuries was against the evidence and the weight of the evidence, in the sense that the evidence in its totality preponderated so strongly against the jury’s conclusion that the verdict was such that no reasonable jury, properly instructed and confining itself to relevant considerations, could have reached: Calin v. The Greater Union Organisation Pty. Ltd.[8]
[8](1991) 173 C.L.R. 33 at 41-42. In that case the appellant was the plaintiff, who, having failed at trial, sought a new trial.

A party relying on this ground needs an exceptionally strong case.[9] Nevertheless here, I consider, the appellant makes out this ground. It does so both upon a consideration of the element of duty and upon a consideration of the element of breach of duty. As regards duty, as appears from the transcript of her Honour’s charge[10], the trial was conducted, correctly[11], on the footing that the duty of care which the appellant owed to pedestrians was to take reasonable care to prevent or eliminate dangers to pedestrians taking care of their own safety. As her Honour told the jury, it was not a duty to eliminate obvious hazards. The defect in the spoon drain was obvious if one was keeping a proper look-out, as indeed the respondent admitted at the conclusion of her cross-examination. The drain was beyond doubt an obvious hazard. The plaintiff in evidence in chief stated that she supposed she should have appreciated that there was a risk, but did not. It was not open to the jury to find, on its way to answering the first question put to it, as it must have done, that the appellant’s duty of care was engaged in respect of the spoon drain.
[9]Ibid.
[10]At T302.
[11]See Cattanach [12]-[15] and Davis [28]-[34].

Disregarding, perhaps unrealistically, the conclusion just expressed, I turn to breach of duty. Before the appellant could be found to have been negligent in the sense of in breach of its duty of care to the respondent, the spoon drain had to be dangerous, not merely uneven. It is a fact of life that roads (including paths and drains or gutters beside paved roadways) are not perfectly smooth and level and that people are regularly required to walk on uneven surfaces. An injured plaintiff must show not merely that the roadway, path or drain in question could possibly be an occasion of harm, but that it was dangerous. The defect in question here was relatively minor and was plain to be seen. The spoon drain was not dangerous or a hidden trap. It was not open to the jury to find that in not repairing the defect for some 18 months or even longer the appellant was in breach of its duty of care to the respondent.

Nevertheless, the respondent went to the jury on the basis that there was, or must have been, inadvertence or ordinary inattention on her part and that the appellant should have allowed for this. The drain was, of course, easily capable of negotiation, as the respondent’s past experience showed. There is very little evidence about how the respondent actually tripped beyond the fact that she caught her right foot in the road and (broken) gutter. There is certainly nothing to suggest that she was distracted by some person or occurrence or that, conscious of the defect and intending some deliberate placement of her feet, she misjudged the distance or the height or the depth. Unlike much of the conduct of a worker in a factory or elsewhere the respondent’s conduct cannot be described as occurring during a repetitive task, where there may arise inattention bred of familiarity or repetition or pre-occupation with something else that is being done. Further, there is a well-recognised distinction between mere inattention or inadvertence, on the one hand, and negligence, that is, contributory negligence, on the other: McLean v. Tedman[12]. The jury found contributory negligence. The particulars of contributory negligence pleaded by the appellant were all, as Mr. Tobin ultimately recognised, of the nature of failing to keep a proper look-out. The contributory negligence found was, therefore, in the very conduct of crossing the drain. That finding prevents the respondent’s conduct in crossing the drain from being characterised at the same time as mere inadvertence or inattention. Thus, consideration of the respondent’s conduct confirms the conclusion arrived at from consideration of the appellant’s

conduct (including absence of conduct), that, even if a duty of care was engaged, the jury’s finding of negligence (that is, a breach of such a duty) was such as no reasonable jury could have reached.

[12](1984) 155 C.L.R. 306 at 315. Compare Temora Shire Council v. Stein [2004] N.S.W.C.A. 236 at [40].

For these reasons I uphold grounds 3 and 5. I would allow the appeal, set aside the verdict and judgment entered thereon and substitute a judgment for the defendant.

CHERNOV, J.A.:

I gratefully adopt the facts relevant to this appeal as they are set out in the reasons for judgment of Gillard, J.A. In my view the appeal should succeed and the orders proposed by Batt, J.A. should be made. I consider that, for the reasons given by his Honour, it was not open to the jury to find on the whole of the evidence that the appellant was negligent in failing to eliminate the defect in the gutter in which the elderly respondent slipped and injured herself. It is reasonably clear from the decision of the High Court in Brodie v. Singleton Shire Council; Ghantous v. Hawkesbury City Council[13] (as explained in Boroondara City Council v. Cattanach[14] and Greater Shepparton City Council v. Davis[15]) that a road authority in the position of the appellant does not owe a duty to any user of a footpath (in which I include a surface used as a footpath) to prevent or eliminate hazards in it merely because it is reasonably foreseeable that they might result in the injury being suffered by the user. Councils and like bodies owe such a duty to ordinary pedestrians who take reasonable care for their own safety. And it is for the plaintiff pedestrian to establish that he or she was an ordinary pedestrian who exercised reasonable care at the relevant time or, put another way, that the hazard was not one which, with the exercise of reasonable care by such a pedestrian, could have been seen or avoided by him or her.[16]

[13](2001) 206 C.L.R. 512.

[14][2004] VSCA 139.

[15][2004] VSCA 140.

[16]See Brodie at [12], [14], [15]-[18]; Davis at [28], [33], [34].

For the reasons given by Batt, J.A., it is plain that the hazard in question would have been obvious to an ordinary pedestrian exercising reasonable care and, as the respondent herself frankly admitted, it was known to her. In the circumstances described by his Honour, it was not open to the jury to find, as they must have done, that the respondent exercised reasonable care for her own safety and that the appellant owed a relevant duty of care to the respondent. This is not a question of my reaching a conclusion different from that reached by the jury. Rather, a reasonable jury, properly directed, would have concluded, on the totality of the evidence, that the respondent failed to exercise reasonable care for her own safety when she walked across or over the drain containing the obvious hazard. It was not a matter of inadvertence on her part, but failure to exercise reasonable care.

Moreover, for the reasons given by Batt, J.A., in the hypothetical context in which his Honour considered the question of breach of duty, I am of the view that no reasonable jury, properly directed, could have found that the appellant breached its (assumed) duty to the respondent.

In the circumstances, as I have said, I consider that the appeal should be upheld and the orders proposed by Batt, J.A. made.

GILLARD, A.J.A.:

This is an appeal by an unsuccessful defendant against the judgment entered and orders made in the County Court consequent upon a jury’s verdict. The plaintiff sought damages for injuries suffered when she fell after tripping on a damaged section of spoon gutter in Mortlake. The incident occurred on 26 October 2000. She sued in common law negligence, the local shire council, being the body responsible for the construction, maintenance and repair of footpaths and gutters.

Parties

The plaintiff, Lorraine Florence Pearce (“the plaintiff”), was born in Mortlake

on 15 March 1931, is a widow and a housewife living in Mortlake and was at the time of the incident aged 69 years. She was born in Mortlake but spent most of her adult life in Melbourne and returned to Mortlake in 1988 after being widowed.

The defendant, Moyne Shire Council (“the Shire”), is a body corporate by reason of the Local Government Act 1989 (“the Act”), and at the date of the incident was responsible for the care and management of roads including gutters in Mortlake, a country town in western Victoria.

The Incident

On the morning of 26 October 2000 the plaintiff was walking approaching her residence at 9 Teatree Court, Mortlake when she tripped and fell over a broken part of the concrete gutter adjacent to the drive outside her home. She suffered injuries to the face and right shoulder with consequential depression, shock, nervousness and anxiety.

The Proceeding

The plaintiff’s solicitors issued a writ in the County Court at Warrnambool on 28 March 2002. The trial commenced in the County Court sitting at Hamilton before a judge and jury on 6 August 2003. The plaintiff’s causes of action were common law negligence and nuisance but at trial she abandoned her claim in nuisance. In its defence, the Shire admitted it was a body corporate and could be sued, admitted that pursuant to the Act it had “certain specified powers relating to the construction, maintenance and repair of footpaths”, denied negligence, alleged contributory negligence and denied the injuries suffered and its liability for damages.

On 13 August 2003 the jury delivered its verdict. It found the Shire was negligent, found contributory negligence in the plaintiff, assessed her total damages at $71,000 and assessed the quantum of contributory negligence at 45%. The learned judge entered judgment for the plaintiff in the sum of $40,186, together with $1,136 damages in the nature of interest. She ordered the Shire to pay the plaintiff’s costs.

In her statement of claim, the plaintiff alleged that the Shire was responsible for the construction, maintenance and repair of footpaths and their surrounds in the town of Mortlake and was responsible for the construction, maintenance and repair of the spoon drain. In its defence the Shire did not deny those allegations and stated in respect to both allegations that it admitted that pursuant to the Act it had certain specified powers relating to the construction, maintenance and repair of footpaths and the drainage network within the municipality. Section 205 of the Act provides that a council has the care and management of all public highways vested in the council, and all roads that the council have agreed to have the care and management of. Section 206 provides that the powers of a council in relation to roads in its municipal district include the powers set out in Schedule 10 to the Act. Paragraph 1 of Schedule 10 empowers the council to “make, maintain and repair roads”. Section 3 defines “road” as including a street and “(a) any culvert or kerbing or other land or works forming part of a road.”

Counsel on the appeal informed the Court that no reference was made to the Act or schedule at the trial, and the trial proceeded on the basis of the admissions made in the defence. It is clear that there was no issue between the parties that at the relevant time the Shire did have powers concerning maintenance and repair of footpaths, roads and the drainage network which would include the spoon gutter outside the home of the plaintiff.

Appeal

On 22 October 2003 the Shire filed a notice of appeal. The Shire relied upon five grounds. However, at the hearing of the appeal the Shire relied on three grounds. They were –

(i)That the learned trial judge misdirected or failed to adequately direct the jury in relation to the issue of negligence. Mr Rose for the Shire informed the Court that the misdirection concerned the issue of the duty of care and whether the Shire owed a duty to the plaintiff.
(ii)That the learned trial judge erred in law by drawing attention to the respondent’s age and the fact that she may be less agile than younger people when directing the jury in relation to matters that might be taken into account by the jury when determining whether the Shire was in breach of any duty of care that it owed to the plaintiff. This ground was added by leave at the hearing.
(iii)That the decision of the jury that there was negligence on the part of the Shire was against the evidence and weight of evidence.

Facts

The plaintiff was born on 15 March 1931, and resided at 9 Teatree Court, Mortlake. She was born in Mortlake but lived in Melbourne with her husband for most of her life before returning to Mortlake after she was widowed in or about 1988. She has three children. Whilst living in Melbourne she had held a number of jobs.

At about 8.30 a.m. on 26 October 2000 when the plaintiff was aged 69 years, while returning to her home, having dropped her motor vehicle off at a local service station for servicing, she tripped and fell over a broken part of the concrete spoon gutter adjacent to the concrete driveway outside her residence. As a result she suffered the injuries stated above.

A number of photographs were tendered in evidence of the area where she fell. The photographs reveal that the surface of the roadway was bitumen, the drain abutting the edge of the bitumen and on the other side the nature strip was made of concrete and was a spoon gutter. It was coloured off-white and was obvious, abutting the bitumen surface which was a dark colour. The photographs reveal that there was a wide grass nature strip from the front boundary of the plaintiff’s home to the gutter. This comprised the footpath but was not used by the plaintiff because it was often soft. The driveway into her property was concrete, also coloured off-white. The driveway where it met the bitumen was splayed out until it met the top edge of the gutter. It is clear that the surface of the gutter was broken. There was a substantial crack running from the nature strip side edge of the drain to the bitumen side edge where the splayed side of the drive meets the gutter. A section of the surface of the gutter was removed to a depth of about 10 millimetres, the exposed area was uneven and the edges of the area were jagged. It appeared to be a rectangular area measuring about 450 millimetres by 200 millimetres. They are the observations that can be made from the photographs. A witness called by the defendant, Mr Lyons, observed the broken area on the day of the incident, and stated that “the topping of the concrete kerb was broken and cracked. The topping on concrete kerb which is put on to produce the finish is generally about 10 millimetres deep. I made the assumption that it was no different to the ordinary and the topping that had been broken and cracked and removed was approximately 10 millimetres in depth”. He also gave evidence that the length of the broken area was approximately 450 millimetres.

At the time of the incident, the plaintiff was wearing a pair of slacks, flat shoes and glasses. The weather was fine. She was not carrying anything and there were no trees or shadows obscuring her view or camouflaging the damage to the drain. The sun was not shining in her eyes. As she was going into her driveway she caught her right foot in the broken part of the gutter and fell, landing on the driveway. She suffered an injury to her right shoulder and injuries to her face. She called for assistance and it was provided by a neighbour. She was then taken to the local hospital for treatment. In examination in chief she was asked did she appreciate there was a risk as she approached the defective part of the gutter and she said that she supposed she should have “but didn’t”. She agreed that she had walked past and over the area in the three to six months prior to the incident and its condition had not changed over the preceding 12 to 18 months. The grassed nature strip outside her house from the edge of the open gutter to the front boundary was approximately five metres wide by about 15 metres long. This can be observed from the photographs. She stated that she mowed the nature strip outside her house regularly. She said she chose to walk on the road rather than the nature strip. In the past when she came to the front driveway she walked in the vicinity of the broken area and she had safely negotiated the damaged section of the gutter before this particular day. She stated that she knew the damaged section of the gutter was there.

At the time of the incident she chose to walk up the driveway. She normally entered her residence from Jamieson Street rather than Teatree Court but she had in the past as a pedestrian used the Teatree Court driveway once or twice a week. She stated she had not reported the damaged gutter to the Shire. She believed the damage may have been there since 1992. To her knowledge no-one had fallen over the damaged section of the gutter. She agreed that the defect was obvious if one looked at it.

The plaintiff’s daughter, Ms Robyn Smith, stated that she had lived at her mother’s home in Mortlake in August 1992 for two to three weeks. The damage was present at that time. She agreed that one could see the damaged section from the Jamieson Street intersection. She confirmed that her mother knew the damaged area was there. To her knowledge no‑one had tripped over it before. After the incident she went to the Shire Offices, reported the incident and was present when a council officer inspected the area on the day of the incident.

Evidence was called from a number of witnesses concerning the injuries and their effect but it is unnecessary to summarise their evidence.

The Shire called one witness, John Patrick Lyons, who had been the manager of construction and maintenance for the Shire since 1997. He gave evidence concerning his role at the Shire and he stated that he had worked with the predecessor of the Shire prior to the amalgamations in 1994.

He gave evidence that there are 1,600 kilometres of sealed local roads, 360 kilometres of arterial roads and 1,000 kilometres of unsealed roads throughout the municipality. He stated that there were five designated crews assigned to different parts of the Shire’s road network, patrolling the area on a four weekly cycle and reporting any damaged or defective structures. Defects were the subject of a report sheet and if the crews cannot keep up with repairs he directed additional crews to repair the high priority defects.

He said he was unaware of the damaged drain outside the plaintiff’s home and the Shire had not received any report of the damaged gutter. He added that if the damage had been reported to the Shire, the town supervisor would know. His name was Barry Johnson. Mr Lyons said he was the man who currently inspected the area. He was not called as a witness and his absence was not explained. Mr Lyons received notice of the plaintiff’s accident and he went and inspected the site.

He stated in cross-examination that the relevant damaged section was a low risk compared to other defects that had been documented but accepted that it was foreseeable that somebody could trip on the section and hurt themselves. He agreed that the length of the area of damaged gutter was approximately 450 millimetres and further that he believed that the damaged section was caused by a heavy vehicle crossing the area. He did not think the damage could have been caused by the council grader. The area was repaired in 2003 at a cost of $20 to $70 dollars.

Change in the Law

The Shire, at the date of the incident, was a road authority which had been empowered to care for and manage public highways vested in it. It was given the legal authority by the Act.[17] Public highways include kerbing and works forming part of the road.[18]
[17]See ss.205 and 206.
[18]See s.3.

It is clear in my view that the spoon gutter formed part of the road which in turn was a part of the public highway and the Shire had the care and management of the spoon gutter. This was not disputed at trial.

The plaintiff sued the Shire as a road authority alleging that it was negligent in failing to repair the spoon gutter which was damaged near the driveway to her residence. The Shire having the lawful authority to care and manage the road and adjoining gutter had the authority to repair it[19].
[19]See s.206 and Schedule 10 to the Act.

At the date of the incident the law was clear, had been settled in England for centuries, and formed part of the law of Australia for at least 100 years. See Municipal Council of Sydney v. Bourke[20]; Miller v. McKeon[21]. An authority having the care and management of a road could be the subject of criminal proceedings for non‑repair, but no proceeding could be brought against it by a person injured as a result of defect in the road, if the defect was caused by a failure to repair the road.[22] It was not liable for failing to do anything even where the defect constituted an obvious hidden danger. It was said, the road authority was not liable for nonfeasance. On the other hand, if the person suffered injury because the defect resulted from some act by the road authority, it could be sued. The road authority in those circumstances was liable for misfeasance. It follows that it was not liable for non-activity, but was, if it negligently performed work.
[20][1895] A.C. 433.
[21](1906) 3 C.L.R. 50 at 60.
[22]The history of the rule in England and Australia is conveniently summarised by Latham CJ in Buckle v Bayswater Road Board (1936) 57 CLR 259 at 268 - 271.

The principles were discussed by the High Court in Buckle v. Bayswater Road Authority[23]. The principles were stated by Dixon, J. at pp.281 et seq. He said:

“In order that the public right may be enjoyed to best advantage, road authorities are established and armed with powers in relation to the highways. For that purpose a legal authority is given to them to construct, maintain and repair roads and to keep them free of obstruction and in an orderly condition. The existence of such powers gives rise to no civil liability for the consequences of the defective state of a road. … It is well settled that no civil liability is incurred by a road authority by reason of any neglect on its part to construct, repair or maintain a road or other highway.”

[23](1936) 57 C.L.R. 259.

However, liability may be imposed by statute. His Honour said:

“Such a liability may, of course, be imposed by statute. But to do so a legislative intention must appear to impose an absolute, as distinguished from a discretionary, duty of repair and to confer a correlative private right.”

His Honour went on to state that no civil liability arose by reason of the road authority being a body corporate or being capable of being sued. Further, it was not liable even though the soil of the highway was vested in it by statute or the highway was under its management and control.

His Honour stated the nonfeasance rule at p.282 when he said:
“A failure to act, to whatever it may be ascribed, cannot give a cause of action. No civil liability arises from an omission on its part to construct the road, to maintain a road which it has constructed, to repair a road which it has allowed to fall into disrepair, or to exercise any other power belonging to it as a highway authority.”

He summarised the misfeasance rule at p.283:
“It is, of course, a civil wrong to cause particular damage by obstructing a highway, or by making it unsafe or dangerous. Interferences with a highway which in themselves would be unlawful in a stranger are as a rule authorised acts when done by a road authority. But a road authority in doing them must take due care for the safety of those using the highway and is not protected if it creates dangers which reasonable care and skill could avoid. Because the road is under its control, it necessarily has the opportunity denied to others for causing obstructions and dangers in highways. But when it does so, the road authority is liable, not, I think, under any special measure of duty which belongs to it, but upon ordinary principles. These principles include the rule that to render the highway unsafe is to commit a nuisance, and that to execute authorised works without due care and skill for the safety of others leaves an action to anyone who suffers a consequential injury. … But it will be liable not on the ground that it failed to exercise its powers so as to prevent them, but on the ground that it was the active agent in causing an unnecessary danger in the highway.”
(Emphasis added).

On the facts in this case, if that law had applied to the proceeding brought by the plaintiff, she would have failed. The Shire would have been immune from suit. However, the law has changed.

In late 2000, the High Court heard two appeals which raised the question whether the law should be changed. On 31 May 2001 the Court delivered its reasons. See Brodie and Anor v. Singleton Shire Council[24]. By a majority the High Court changed the law. The road authority’s immunity from suit for nonfeasance was abolished. The immunity no longer applies.
[24](2001) 206 C.L.R. 512.

In the present proceeding the plaintiff issued her writ on 28 March 2002 and the law that applied to her proceeding was the law as stated by the High Court.

The Parliament in this State has stepped in and restored the road authority immunity rule. The Transport (Highway Rule) Act 2002 was passed to overcome the decision in Brodie v. Singleton Shire Council. The Act came into operation on 4 November 2002. It is clear from s.3, which inserted a new part IIA in the Transport Act 1983, that the restoration of the old law did not affect any proceeding brought before 10 October 2002. The new section, s.37A(1), provides an immunity from liability not only for failing to repair but also for failing to inspect a highway. It is interesting to note s.2(2) of that Act the effect of which is that on 1 January 2005 the immunity rule in s.37A will cease. Part IIA is repealed as at that date as regards new causes of action.

An important question which must be considered is - the nonfeasance rule having been abolished, what is the law that now governs a claim by a person who suffers injury due to a defect in the surface of a gutter which is under the care and management of a road authority? The plaintiff pleaded her case in common law negligence. It follows she had to prove a duty of care was owed to her by the Shire, that the Shire breached that duty and the negligence was a cause of her injuries. In other words, a case to be determined in accordance with the principles established in Donoghue v. Stevenson[25]. Dixon, J., in the passage quoted above, said in Buckle v. Bayswater Road Board that the liability for misfeasance was based on general principles and not any special duty.[26]
[25](1932) A.C. 562.
[26]See para. 27.

Turning to the claim brought by the plaintiff, the first element of proof was the duty of care. The law of negligence has developed to the point where in certain relationships, the mere relationship between the victim and tortfeasor establishes a duty of care. Familiar examples are road users to other road users, employer‑employee, teacher and pupil, and occupier to entrant (now the subject of a statutory duty).

In Richards v. Victoria[27] the Full Court at p.140 said:

“In such a case (i.e. a novel case) the very existence of a duty of care to the injured person may be said to depend on reasonable foreseeability of harm to him from particular conduct. But there are other cases in which the existence of the requisite duty of care may properly be considered to exist prior to and independently of the particular conduct alleged to constitute a breach of that duty. One such class of case in which such a pre-existing duty may be considered to exist is that derived from the relationship of employer and employee: vide Jury v. Commissioner for Railways (N SW) (1935) 53 C.L.R. 273 in which case at p.290 Starke, J. said: ‘The duty arises out of the relationship of the parties’.”

[27][1969] V.R. 136.

The court went on to hold that the relationship of schoolmaster and pupil is another example of the case in which the duty springs from the relationship itself. In the absence of a relationship which establishes a duty of care, the plaintiff in seeking to establish the duty of care relies upon the principles stated by Lord Atkin in Donohue v. Stevenson[28]. This involves the twin tests of reasonable foreseeability of injury and proximity.
[28][1932] A.C. 562.

The road authority immunity rule was abolished in England in 1961 with qualifications. In the cases prior to its abolition both in England and Australia alleging misfeasance, the claims were brought in nuisance and negligence. Insofar as cases were brought in negligence, the plaintiff had to establish a duty of care and breach. The plaintiff’s case here, was heard by judge and jury. It is necessary in a jury trial that the distinction between questions of law and questions of fact is maintained. Whether or not there is a duty of care is a question of law for the judge. However, if the primary facts are in dispute which are relevant to the question, then the determination of the facts is for the jury. The duty is always the same. It is to take reasonable care in all the circumstances to avoid the risk of injury to the plaintiff.[29] That is a statement of law. It is not a statement of fact. But the degree of care required to respond to the foreseeable risk of injury must depend upon all the circumstances and is a question of fact. The jury sets the standard.
[29]See Benson v. Lee [1972] V.R. 879 at 881; The Law of Torts, Dr Fleming, 9^th ed. at p.150; Prosser and Keeton on Torts, 5^th ed. at p.356; the learned authors said: “… In negligence cases the duty is always the same – to conform to the legal standard of reasonable conduct in the light of the apparent risk. What the defendant must not do, or must do, is a question of the standard of conduct required to satisfy the duty.” Sir Wilfred Fullagar, in an article – Liability for Representation at Common Law (1951) 25 A.L.J. 278, at p.287, said: “But it does mean that there is one duty in all cases – a duty to take reasonable care. There is no one duty in relation to underpants and another and different duty in relation to sulphuric acid.” – quoted with approval in Todman v. Victa [1982] V.R.849 at 852.

Whether or not the person or entity owing a duty of care has breached the duty of care, that is, was negligent in the circumstances, is a question of fact for the jury. Negligence is established when it is proven that the alleged tortfeasor has failed to attain the standard of care which would be expected of the reasonable person knowing all the relevant circumstances when responding to the risk of injury. This means that the person or entity owing the duty of care is obliged to exercise such care as would be expected of the reasonable person. It is strongly arguable that the relationship, of road authority and a person travelling or walking over areas under its care and management, results in a duty of care. In other words, the relationship would establish the duty.

The High Court case of Webb v. the State of South Australia[30] exemplifies the application of the above principles. In that case a pedestrian injured his foot when he jammed it in an open gap between a permanent kerb on the edge of a footpath and a temporary false kerb constructed by a highway authority as he was stepping onto the footpath from the roadway to walk to a bus stop. He sued the road authority in negligence and the trial judge held that the false kerb and gap was an obvious feature and was not dangerous. He accordingly held that the authority was not negligent. The Full Court dismissed the appeal. The High Court, by a majority, held that the authority was negligent. Mason, Brennan and Deane, JJ. proceeded on the basis that the authority owed a duty of care to the pedestrian. Their Honours said at the beginning of their judgment[31]:

“In this case the issue, essentially one of fact was whether the respondent was in breach of its duty of care to the appellant as a pedestrian by so constructing a false kerb as to leave an open gap between the false kerb and the permanent kerb which might cause injury to a pedestrian.”

The duty of care arose because the authority had constructed the false kerb.

[30](1982) 56 A.L.J.R. 912.

[31]At p.912.

Their Honours posed the question as to the standard of care required in the circumstances when they said:

“What steps would a reasonable man take in the circumstances of the case to avoid the risk of injury to a class of persons of which the plaintiff is a member?”

Their Honours held that there was a risk of injury and observed[32]:

“The happening of the accident demonstrated, if demonstration be needed, that the construction had the potential to cause injury.
Of course a pedestrian could avoid the possibility of injury by taking due care. However, the reasonable man does not assume that others will always take due care; he must recognise that there will be occasions when others are distracted by emergency or some other cause from giving sufficient attention to their own safety. …
The question then is: what is the response which the reasonable man, foreseeing the risk, would make to it? Is the risk so small that a reasonable man would think it right to neglect it?
… Here the risk of significant personal injury was obvious; the occurrence of such an injury was a distinct possibility. To determine liability in the present case, one must postulate the reasonable man’s response to the risk of occurrence of personal injury arising from the construction and maintenance of the false kerb, a risk which might lead to injury in a variety of ways. It is not necessary to postulate a response to the risk that personal injury would arise in the precise way in which the appellant actually sustained his injury – by jamming his foot in the intervening space.”
(Emphasis added).

[32]At p.913.

The majority in Brodie referred to Webb v. South Australia with evident approval. At paragraph 54 Gaudron, McHugh and Gummow, JJ. referred to what the majority said at p.467-8 and then noted:

“That treatment of the content of the duty of care was consistent with the well known passage in the judgment of Mason, J. in Wyong Shire Council v. Shirt.”

I emphasise the reference to the phrase “the content of the duty of care”. This is a reference to the question of breach which when considered and determined gives content to the duty. Their Honours, when discussing what should replace the immunity rule, referred again to Webb v. South Australia and said:[33]

“The Court there gave the duty of care of the highway authority a content reflecting what had been said by Mason, J. in Wyong Shire Council v. Shirt.”

[33]At paragraph 149.

This also confirms that the phrase “content of the duty of care” is determined by considering the response of the reasonable authority to the risk of injury.

Given that the immunity rule has been abolished, a person suffering injury from a defect in a road who brings his or her action in common law negligence, would have to establish a duty of care, which is a question of law, breach of the duty, which is a question of fact, and that the negligence was a cause of the injuries suffered, also a question of fact. Where the trial is by jury, it is vital that the issues are kept separate so that there is no confusion as to questions of law and questions of fact.

However, since the decision in Brodie, there have been a number of cases in the New South Wales Court of Appeal and this Court[34] which have held that there is a special type of duty which is not the general duty to take reasonable care for the safety of those who use the road. The duty of care, according to the recent cases, is only owed to a pedestrian taking reasonable care for his or her own safety. It therefore becomes necessary to closely analyse what Gaudron, McHugh and Gummow, JJ. stated in Brodie’s case. They formed the majority of the Court with Kirby, J. It is clear from the reasons of Kirby, J. that he did not hold that the duty owed by a road authority to a pedestrian was a special duty owed only to a pedestrian taking reasonable care for his or her safety. Gaudron, McHugh and Gummow, JJ. commenced their discussion of the duty at common law after the immunity rule was eliminated. The heading to the discussion was as follows:

“F. Content and breach of duty of care.”[35]

[34]Burwood Council v. Byrnes [2002] NSWCA at 343; Hastings Council v. Shirley Dawn Geise [2003] NSWCA 178; Boroondara City Council v. Ellen Cattanach [2004] VSCA 139; and Greater Shepparton City Council v Tammy Lee Davis [2004] VSCA 140.

[35]See para 150.

Appellate courts increasingly over the past 20 years, have talked about the content or scope of a duty of care. To talk about the content of a duty or its scope tends to bring together the question of duty of care and its breach and whilst it may be of little moment in a case before a judge alone, it has the tendency to blur the difference between duty and breach and could cause confusion in a jury trial. See observations of Professor Fleming, The Law of Torts, 9^th Ed at pp.117-8.

The scope of the duty was referred to by Lord Keith of Kinkel in Peabody Trust v. Sir Lindsay Parkinson Ltd[36]. After referring to cases examining the law relating to duty of care after Donohue v. Stevenson, his Lordship said:

“There has been a tendency in some cases to treat these passages as being themselves of a definitive character. This is a temptation which should be resisted. The true question in each case is whether the particular defendant owed to the particular plaintiff a duty of care having the scope which is contended for, and whether he was in breach of that duty with consequent loss to the plaintiff? A relationship of proximity in Lord Atkins’s sense must exist before any duty of care can arise, but the scope of the duty must depend on all the circumstances of the case.”

[36][1985] A.C. 210 at p.240.

It is observed that his Lordship is running together two concepts, namely duty and breach. The consideration of the issue of breach and the determination of what would be expected of the reasonable person in the shoes of the alleged tortfeasor, leads to what the duty of care required, that is, the content of the duty of care. The exercise determines the nature and extent of the duty. What his Lordship said was quoted with approval by Gibbs, C.J. in Sutherland Shire Council v. Heyman[37] and in a number of recent High Court cases, members of the High Court have referred to the scope of duty. In Sullivan v. Moodie[38] five judges of the Court referred to the “existence and nature or scope of a duty of care.” Sometimes judges refer to “formulating the duty of care” in a context where they are talking about the nature and scope of the duty of care. In Brodie’s case, Gaudron, McHugh and Gummow, JJ. referred to “the content of the duty of care” a number of times.[39] In my opinion, it is clear what the learned judges are referring to. They are not referring to a situation where the question is whether or not there is a duty of care owed. They are referring to the result of considering the question of breach which requires the Court to consider and determine the response by the reasonable defendant to the risk of injury which will lead to the content of the duty. The exercise does not, in my opinion, lead to a specialised duty. That conclusion is supported by what the learned authors of the Liability of Employers, Glass, McHugh and Douglas, said in the second edition at p.13 –

“There is accordingly only one legal rule relating to standard of care and that is necessarily involved in the explicit formulation of the duty relationship itself, viz., that the defendant is under a duty to exercise towards the plaintiff such care as conforms to the standard of conduct of the reasonable man. It will be seen that the question of whether the legal standard of care has been observed is identical with the question whether a breach of duty has occurred and that there is only one standard.”

[37](1985) 157 C.L.R. 424 at 441.

[38](2001) 207 C.L.R. 562 at para 50.

[39]See para 54, and the heading to para 150.

It is now necessary to consider the joint judgment of Gaudron, McHugh and Gummow, JJ. in Brodie to determine what the law now is in Australia in a case where a pedestrian sues a road making authority in negligence. Does a road authority owe a duty of care to a pedestrian walking in an area where it has road making or repair and maintenance powers? Does a duty of care arise out of the relationship? Their Honours said[40]:

“We conclude that the common law of Australia did not give rise to the ‘immunity’ spoken of in the ‘highway rule’ pleaded in Brodie and relied upon in Ghantous. Buckle and Gorringe should not be taken as placing any impediment in the path of what otherwise would be a right to a judgment in negligence.”

[40]At para 137.

Their Honours then said[41]:

“The relevant considerations in expressing the duty of care that does arise involve the exercise of statutory powers such as those conferred by the [Local Government] Act upon the respondents. Those powers have been outlined earlier in these reasons under the heading ‘Negligence and Statutory Powers’. The content of the duty of care to be owed by public authorities may be outlined by reference both to the fundamentals of the law of negligence and some of the decided cases. Many of these cases would fall to be decided the same way under an approach properly resting upon principles of negligence. In particular, cases imposing liability upon the criterion of ‘misfeasance’ may be given a firmer footing on ordinary considerations of negligence.”
(Emphasis added).

[41]At para 139.

Their Honours emphasised that the powers vested in a public road authority are important to the question whether there is a duty of care. Their Honours said:[42]

“… It has become more clearly understood that, on occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard the factor of control is of fundamental importance.”

[42]At para 103.

They added:

“It is often the case that statutory bodies which are alleged to have been negligent because they failed to exercise statutory powers have no control over the source of the risk of harm to those who suffer injury. Authorities having the control of highways are in a different position. They have physical control over the object or structure which is the source of the risk of harm. This places highway authorities in a category apart from other recipients of statutory powers.”

Under the heading of “Content and Breach of a Duty of Care”[43] their Honours said:

“The duty which arises under the common law of Australia may now be considered. The authorities having statutory powers of the nature of those conferred by the [Local Government] Act upon the present respondents to design or construct roads, or to carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be expected to exist.
The perception of the response by the authority calls for, to adapt the statement by Mason, J. in Wyong Shire Council v. Shirt, a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case.”
(Emphases added and citations omitted).

[43]At para 150.

As I understand what their Honours are saying, they are stating the duty of care and the matters relevant to determining whether there had been a breach. My understanding leads to the conclusion that the relationship of road authority and pedestrian establishes a duty of care by the authority to a pedestrian walking in the area where the road authority has powers of road construction, repair and maintenance.

What followed in their Honours’ judgment was concerned with breach of the duty of care. Their Honours said[44]:

“In dealing with particular cases and in determining factual issues respecting breach of duty, it may be convenient to differentiate between the design and construction of a roadway, between subsequent works done on it and between courses of inspection to ascertain its soundness. These matters are not mutually exclusive and sometimes may overlap.”

[44]At para 152.

Their Honours then discussed under a number of headings the matters relating to breach of duty. One topic was headed “Pedestrians”. This paragraph has been quoted in support of the proposition that the existence of the duty of care depends upon the road user exercising reasonable care for his or her own safety. Their Honours said[45]:

“The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan, J. points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger, or surrounding area. In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a ‘trap’ or, as Jordan, C.J. put it, ‘of a kind calling for some protection or warning’. In Romeo, Toohey and Gummow, JJ. noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby, J. pointed out in the same case that even an occupier of premises ‘is generally entitled to assume that most entrants will take reasonable care for their own safety’. Each case will of course turn on its own facts.”
(Emphases added and citations omitted).

[45]At para 163.

What their Honours said has a tendency to blur the distinction between duty of care and breach and uncertainly flows from the phrase, “the formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian.” This paragraph dealing with pedestrians follows on from a paragraph which dealt with repair, maintenance and works and some of the observations there made by their Honours tends to blur the distinction between duty and breach. Their Honours said[46] (with parenthetic commentary added by me):

“A rejection of the ‘immunity’ for ‘highway authorities’ and the recognition of a duty of care in terms expressed above with reference to Wyong Shire Council v. Shirt does not necessarily involve the imposition of an obligation in all cases to exercise powers to repair roads or to ensure they are kept in repair. An authority may have various statutory powers invested in it and would be under a duty not to use, misuse or fail to use those powers to create a situation of danger which creates a reasonably foreseeable risk of injury to a user of the road. (This is a reference to duty of care).
The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. (This appears to be a reference to the standard of care required). …
In dealing with questions of breaching of duty, whilst there is to be taken into account as a ‘variable factor’ the results of ‘inadvertence’ and ‘thoughtlessness’ a proper starting point may be the proposition that the persons using the road will themselves take ordinary care.” (This is also appears to be reference to negligence).
(Emphases added and citations omitted).

[46]At paras 158 et seq.

The reference to the last proposition is to the case of Miller v. McKeon[47] where Griffith, C.J. was talking about the standard of care that was required in the circumstances to respond to the risk of injury. His Honour said:

“”So the Government of a newly-settled country, which undertakes the first formation of a road, whether the soil has or has not been formally dedicated as a highway, is bound to use such care to avoid danger to persons using it as is reasonable under all the circumstances. These circumstances include the nature of the locality, the extent of the settlement, the probabilities as to the persons by whom the road is likely to be used, and the moneys available to the government for the purpose; it being always assumed that the persons using the road will themselves take ordinary care. If the government used such care they are not guilty of misfeasance.”

[47](1905) 3 C.L.R. 50 at p.60.

I do not read what Gaudron, McHugh and Gummow, JJ. said concerning pedestrians as establishing the legal proposition that a duty of care only arises to pedestrians who are using reasonable care for their own safety. In other words, in considering whether a duty of care arises the factual question has to be addressed, namely, whether the pedestrian was using reasonable care for his or her own safety at the relevant time. Applying basic principles and what I understand their Honours said, in my opinion, their Honours did not lay down any such proposition. In my opinion, a duty of care arises where a road authority has statutory powers relating to maintenance and repair and the duty is owed to pedestrians within its area of control. When determining the question of breach of the duty, in considering whether the reasonable road authority has responded to a foreseeable risk of injury, it will be assumed that the pedestrian using the road will take ordinary care for his or her own safety. That is what our experience of life tells. As a general rule we may assume that others will take reasonable care for their own safety. If that assumption did not apply, life would stop. We could not go out our front door if we could not rely on others looking out for themselves. The factor is an important one to the question of negligence. It is clear that Kirby, J. who was the other judge who held the immunity rule no longer applied, did not put forward any concept of a special duty. His Honour said[48]:

“These conclusions leave the liability of the respondents to be determined by the ordinary principles of negligence law as applied to a statutory authority with relevant duties and powers.”

[48]At para 239.

His Honour referred to Sutherland Shire Council v. Heyman[49].
[49](1985) 157 C.L.R. 424 at 442 – 6.

In the passage that I have set out above[50], Gaudron, McHugh and Gummow JJ referred to what Callinan J said concerning the expectation that people will ordinarily exercise sufficient care for themselves. Reference to what Callinan J said[51] shows that his Honour made the observation in the context of negligence, that is, breach of the duty. This also provides some support from my understanding of what the majority said.
[50]Para. 56.
[51]At para 355.

However, cases in the New South Wales Court of Appeal have construed the judgment as establishing a principle that the duty only arises if it is factually found that the pedestrian exercised reasonable care for his or her own safety at the relevant time. The decisions in question were appeals from a judge sitting alone. They were not from judgments consequent upon a jury verdict. An appeal from judges sitting alone is usually a re-hearing on the evidence. In those circumstances an appeal court is usually in as good a position as the trial judge to draw inferences from the established facts[52]. However, where the trial is by jury no reasons are given for the verdict and the appeal involves different considerations.
[52]See Warren v. Coombes (1979) 142 C.L.R. 531.

On 4 November 2002 the New South Wales Court of Appeal handed down its judgment in Burwood Council v. Byrnes[53]. In that case the plaintiff tripped over a concrete paver on a council footpath and fell heavily. One paver had sunk more than others resulting in a height difference of 20 millimetres. The trial judge found negligence against the defendant and also found contributory negligence against the plaintiff. On appeal it was held that the judge misdirected himself with respect to the council’s duty of care. It was held that a council’s duty to pedestrians is to take reasonable care to prevent or eliminate dangers to pedestrians taking reasonable care for their own safety. Handley, J.A. who delivered the leading judgment referred to the advantages enjoyed by pedestrians “because they can generally protect themselves from uneven surfaces on footpaths and other public areas by keeping a lookout and taking care for their own safety. The position will be otherwise if the surface contains something unusual or unexpected which creates a real danger for ordinary pedestrians.”
[53][2002] N.S.W.C.A. 343.

His Honour then said[54]:

“A council’s duty to pedestrians is therefore to take reasonable care to prevent or eliminate the existence of dangers in the road or footpath. The duty is not to prevent or eliminate ‘obvious hazards’ which ‘could possibly be an occasion of harm’. The standard of care is that which is reasonably required to protect pedestrians who are taking reasonable care for their own safety. The care which pedestrians must themselves take enters into the definition of the duty and is not relevant only to contributory negligence.”
(Emphasis added).

[54]At para 33.

After referring to three cases in the Court of Appeal, his Honour concluded:

“It follows in my judgment that the judgment under review was vitiated by legal error because the judge misdirected himself as to the council’s duty of care.”

As I have stated, I do not read the majority judgment in Brodie as support for the proposition that it is a special type of duty of care. Indeed, it may be said that if the High Court intended that there should be a special duty, it would be against the trend of cases over the last 20 years in which the High Court has changed the law with respect to special duties in nuisance and negligence cases. By way of example, I instance the change in the law concerning occupiers’ obligations to entrants[55] and the rule in Rylands v. Fletcher.[56]
[55]See Australian Safeways Stores Pty Ltd v. Zaluzna (1987) 162 C.L.R. 479.
[56]Burnie Port Authority v General Jones Pty Ltd Ltd (1994) 179 C.L.R. 520.

Application for special leave was made to the High Court in the Byrnes case[57]. McHugh and Kirby, JJ. refused special leave on 14 November 2003. The basis for application was twofold. Applicant’s counsel said that the statement of duty by the Court of Appeal, which I have set out above[58], was overstated and secondly to formulate the duty in that way has the effect of shutting out scope for the application of principles concerning contributory negligence. It can be seen that the attack was in respect of the formulation of the duty that is the scope and extent of the duty. This is confirmed by what Kirby, J. said in response. He said:

“That in formulating the duty of care, you do not take any regard to the consideration that that duty has to operate in an environment where the alleged tortfeasor can make certain assumptions about the care the people will take for their own safety?”

[57]See Byrnes v. Burwood Council [2003] HCA Trans. – 462.

[58]At para 64.

Counsel responded by saying that the proper place for that analysis was at the breach level and not the duty level.

McHugh, J. said:

“The reasonable care that is required is in respect of obvious hazards such as uneven paving stones, roots and holes, and there is no duty on the council in respect of those matters. Once you get beyond that, the council has a duty to take reasonable care and so does the plaintiff.”

When properly analysed what the learned judges were talking about was the obligation resting upon a victim and the assumptions that can be made by the reasonable road authority when considering the question of the breach. It is that determination which gives content to the duty of care.

However, McHugh, J. later said:

“The problem that you face is that in Ghantous and its sister case the court has laid down a rather specialised duty. It is not just a general duty to take reasonable care for the safety of those who use the road. The court has dropped from the abstract to a more concrete situation and it has eliminated from the duty certain types of hazards, and that is the difficulty that you have. There is no duty of care in respect of certain types of hazards it is only when you get past that that any question of the plaintiff’s obligation to take reasonable care comes in.”

Whilst it is arguable that his Honour was running the two concepts of duty and breach together and was in effect talking about the nature and extent of the content of the duty, the Court’s decision appears to put beyond doubt that the question is relevant to the duty of care.

McHugh, J. stated the court’s decision as follows:

“This is a case concerning a highway authority’s duty to take care for the safety of those using the highway and its adjoining footpaths. The applicant seeks to exclude entirely from consideration of the existence of the duty of care owed by the highway authority the postulate of a plaintiff’s obligation to take reasonable care for his or her own safety. The applicant contends that the latter obligation only arises in considering breach and any question of contributory negligence.
We do not agree with this contention. We see no error in the reasoning of the Court of Appeal.”

Although I have read Brodie’s case differently, it is now clear from the decision of two judges of the High Court on the special leave application that the very existence of the duty depends upon proof by the plaintiff that at the relevant time she was taking reasonable care for her own safety.

This Court in two decisions has followed the reasoning of the Court in New South Wales. They were appeals from judges sitting alone. The cases are Boroondara City Council v. Ellen Cattanach[59] and Greater Shepparton City Council v. Tammy Lee Davis.[60] In both cases the plaintiff succeeded at trial. In the first case a 26 year old woman was jogging in the vicinity of her parents’ home when she fell whilst running across a driveway which was cracked and the surface uneven. In the other case the plaintiff, aged 25 years, and who was pregnant, left her aunt’s home and tripped over two holes in the footpath. The Court of Appeal upheld the appeals and dismissed both proceedings.
[59][2004] VSCA 139.
[60][2004] VSCA 140.

In the Boroondara City Council case, Chernov, J.A., who gave the leading judgment, concluded that the trial judge had erred in applying the wrong test to determine whether the appellant owed a duty of care to the pedestrian. His Honour followed the views expressed in the New South Wales cases. That is, the duty of care only arose in relation to a pedestrian taking reasonable care for his or her own safety. In the Greater Shepparton City Council case Winneke, P. delivered the judgment of the Court. He referred to the question of the formulation of the duty and that it was not owed to all road users but to “users exercising reasonable care for their own safety”.

The law that applies in this State is the law stated by the High Court as explained by this Court in the two cases just mentioned. This means that there is a specialised duty of care which only arises in circumstances where it is established by the plaintiff that at the time when he or she fell over suffering injury, the pedestrian was exercising reasonable care for his or her own safety. If the pedestrian was not exercising reasonable care, then as the law now stands there is no duty of care owed. In one of the later New South Wales cases of Hastings Council v. Shirley Dawn Geise[61] which was discussed in the present case at trial, Tobias, J.A. underlined the approach in this area when he said:

“Even making allowance for inadvertences adumbrated in the joint judgment in Ghantous, in the present case the undulation or depression in question did not constitute an unreasonable hazard or danger giving rise to any duty of care on the part of the appellant to eliminate it.”

[61][2003] NSWCA 178.

It is desirable to briefly state the principles which should guide a judge in charging a jury in a case involving a pedestrian suing a road authority in negligence for injury suffered as a result of falling because of a defect in a road or footpath.

· The duty of care is a mixed question of law and fact. The factual question is whether or not the plaintiff was exercising reasonable care at the relevant time for his or her own safety. In my opinion, this is a question for the jury. Accordingly, the judge is bound to leave that question to the jury and to direct the jury that if in the event it is satisfied that the plaintiff was exercising reasonable care for his or her own safety, then the road authority owed a duty of care to take reasonable care in all the circumstances to avoid the risk of foreseeable injury. This if course proceeds on the basis, that the trial judge is of the opinion that but for the factual question, the authority would owe a duty of care.

· The judge should direct the jury that the duty is to take reasonable care in all the circumstances and what that involved is a question of fact. The question for the jury is – what steps would the reasonable authority knowing all the relevant facts take in the circumstances of the case to avoid the risk of injury to the class of persons of which the plaintiff is a member?[62] In answering this question what Mason, J. said in Wyong Shire Council v. Shirt[63] is relevant.
[62]See Webb v. The State of South Australia supra at pp.912-13.
[63](1980) 54 A.L.J.R. 283 at 285.

· The jury should then be directed on the question of causation.

· If contributory negligence is pleaded, it will be necessary to direct the jury in respect of contributory negligence. It would be incumbent on the trial judge to draw attention to the tension which may occur between the jury answering the first factual question relating to duty of care and the question of whether or not the plaintiff took reasonable care for his or her own safety in the context of contributory negligence. On the special leave application in Byrnes v. Burwood Council, McHugh, J. stated that the two can work together, both the duty and apportionment. His Honour said:

“In other words duty does not begin until a point is reached where the plaintiff has taken reasonable care for his or her own safety in respect of certain defects and then the duty arises. Once that duty is engaged, then questions of contributory negligence come in.”

It is fairly apparent that there may be an overlap in relation to these two questions and it would only be that part of the factual issue which falls outside the determination of the first factual issue concerning duty of care which could be the subject of any finding of contributory negligence. In many cases if the jury came to the view that there was a duty of care and the authority was negligent, there would be no finding of contributory negligence. However, the jury could find a duty of care having been satisfied the plaintiff took reasonable care for her own safety, for example because the plaintiff fell through inadvertence, and yet find that in all the circumstances she failed to take reasonable care leading to a finding of contributory negligence.

I now turn to the grounds of appeal.

Misdirection
(i) Duty of Care

It was submitted that the learned trial judge failed to properly direct the jury in relation to the existence of and the nature and extent of the Shire’s duty of care to the plaintiff. In particular it was argued that the learned trial judge should have directed the jury in relation to the matters that must be taken into account when determining whether there was any duty of care having regard to the principles laid down by the High Court in the Brodie case as those principles have been explained by this Court in Boroondara City Council v. Cattanach and The Greater Shepparton City Council v. Davis. Of course those two cases had not been decided at the time of trial. It was submitted that those cases showed that an authority is not under a duty to prevent or eliminate all dangers in footpaths and that the duty only extended to dangers that were not obvious to an ordinary reasonable pedestrian exercising proper care for his or her own safety. It was further submitted that the trial judge should have directed the jury that if they considered the broken gutter would have been obvious to a pedestrian taking reasonable care then it would follow that the Shire owed no duty of care.

The trial judge gave directions concerning the duty of care and breach. No exceptions were made to her charge. After the jury had been deliberating for some hours the foreman asked the following question:

“In yesterday’s charge that you read out could you please explain what (sic) duty of care to the jury again please, like on both sides?”

The learned judge heard submissions in the absence of the jury and then recharged the jury in respect of duty of care. No exception was taken to her further directions. Counsel for the Shire submitted that the question whether or not there was a duty of care involved a factual matter which should be left to the jury. Counsel for the plaintiff opposed this submission. However, her Honour directed the jury that it was a question for them and that the factual question was whether the plaintiff was taking reasonable care for her own safety.

The learned judge left the question of whether there was a duty of care to the jury, confirmed that the duty was only owed to a pedestrian who was taking reasonable care, and indicated to the jury that they had to consider the plaintiff’s behaviour and whether it was reasonable. Her Honour drew attention to the nature of the defect in the kerb, whether it was obvious and whether the plaintiff was inadvertent. She emphasised that they were findings of fact that the jury would make. She emphasised that the Shire did not owe a duty of care to a pedestrian who was injured because he or she behaved unreasonably or because he or she was injured as a result of not observing an obvious defect. She had earlier in her charge stated the duty and that the duty was to “eliminate dangers to pedestrians who are taking care for their own safety”.

In my opinion, the learned trial judge did not misdirect the jury in respect to the issue of duty of care. She left the question to the jury involving as it did a question of fact.

(ii) Misdirection with respect to breach of duty

Whether or not the Shire was guilty of negligence was a question of fact for the jury. Complaint was made that when charging the jury in relation to matters that could be properly taken into account the trial judge drew attention to the plaintiff’s age stating that she was “reasonably elderly and whilst she was a very active woman she was perhaps less agile than younger people”. It was submitted that this was a misdirection because it was not relevant to the issue of negligence, the age and agility of the particular plaintiff. It was submitted that the Shire did not owe a higher duty of care to elderly pedestrians and indeed frail pedestrians.

In the Boroondara City Council case, Chernov, J.A.[64], discussed whether the requirement of the plaintiff taking reasonable care in the duty question involved a subjective or an objective test. His Honour said:

“It is plain enough from the passages in the judgements in Brodie, to which I have referred, that questions such as whether a defect in the path gives rise to a reasonable foreseeability of harm including whether the hazard is obvious are to be resolved by reference to the ordinary, reasonable pedestrian keeping a proper lookout and not, as the trial judge did, by reference to the particular user of the pavement.”

[64]At paras 16 – 18.

Later[65], his Honour said:

“That such issues are to be resolved by reference to a reasonable pedestrian, of normal physical capacity, who exercises reasonable care for his or her safety, seems to have been accepted by the New South Wales Court of Appeal in a number of cases that were decided after Brodie, where the particular characteristics of the pedestrian plaintiff were held not to be relevant for the purpose of determining if the council owed a duty and on which emphasis was placed on the responsibility of users of public paths to take reasonable care for their own safety.”

[65]At para 17.

His Honour’s comments were directed to the factual question involved in the duty of care issue. Whether or not Brodie’s case supports his Honour’s conclusion is not to the point. The complaint made by the Shire in this case is the reference to the plaintiff’s age and possible lack of agility in reference to the factual question concerning breach of the duty. Chernov, J.A.’s comments were not directed to that.

In respect to the question of negligence her Honour directed the jury that they had to consider the position of the plaintiff in the determination of the factual question whether there had been a breach. Whether or not the Shire was negligent was to consider what response the reasonable road authority, knowing what the authority did know or ought to have known about the spoon gutter, would have taken to avoid the risk of injury to the class of persons of which the plaintiff was a member[66]. As the Court said in Webb’s case, the question is what is the response which a reasonable man foreseeing the risk would make to it. Their Honours quoted with approval what Mason, J. said in Wyong Shire Council v. Shirt[67]. His Honour said:

“The perception of a reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.”
(Emphasis added).

[66]See Webb v. The State of South Australia, supra at 912.

[67]Supra at p.285.

In my view, clearly the reasonable authority would have to take into account that there are pedestrians of all ages and states of agility and the age and agility of the plaintiff when considering the magnitude of the risk. In my view, it was appropriate for the judge to mention these matters to the jury. They were matters which were relevant to the consideration by the jury whether the Shire had been guilty of negligence.

Further, no objection was taken to the judge’s charge or her redirection in respect to either matters now complained of. If the plaintiff’s age and agility were irrelevant to the question of breach of the duty, that could have been easily cured by a direction from the judge if exception had been taken. In my opinion, if the judge had misdirected the jury on this question, it is not now open to the Shire to argue this question on appeal. It could easily have been cured by further directions. It is now too late.[68]
[68]See General Motors-Holden Pty Ltd Ltd v. Moularas (1964) 111 C.L.R. 234 at 242 – 3.

(iii) Verdict contrary to the evidence and weight of evidence

This ground attacks two findings of fact made by the jury. The first finding, which is implicit in its answer to the first question that the Shire was negligent, was the finding that the Shire owed a duty of care to the plaintiff who at the relevant time was taking reasonable care for her own safety. This concerns the factual question at the duty level. The plaintiff had the burden of persuading the jury on the balance of probabilities that at the time immediately before the fall she was exercising reasonable care for her own safety.

The second issue concerns the finding of the jury that there was a breach of that duty, that is, negligence on the part of the Shire.

The test whether a verdict is against the evidence and perverse was re‑stated by Mason, C.J., Deane, Toohey and McHugh, JJ. in Calin v. Greater Union Organisation Pty Ltd[69]. The test is did the jury reach a conclusion “which is against the evidence in the sense that the evidence in its totality preponderates so strongly against a conclusion favoured by the jury that it can be said that the verdict is such that reasonable jurors could not reach?”
[69](1991) 173 C.L.R. 33 at p.41.

Their Honours then referred to what Dixon, J. said in Hocking v. Bell[70] where his Honour drew a distinction between a misdirection and the case where on conflicting evidence, the verdict is found to be against the weight of evidence. Their Honours then said:

“In the cases last mentioned, as Starke, J. noted, ‘The verdict is not disturbed unless the jury, viewing the whole evidence reasonably, could not properly find it’. The party seeking a new trial on this ground needs an exceptionally strong case because it must be shown that ‘the evidence so preponderates against the verdict as to show that it was unreasonable and unjust’.”
(Emphasis added)

[70](1945) 71 C.L.R. 430 at 440.

It is clear that the Shire in this case carries a heavy burden of persuading this Court that the verdict was such that no reasonable jurors could have reached it when considering the evidence in totality. It is difficult to attack a jury verdict on appeal because the jury does not give reasons for its decision. In carrying out its function, the jury not only determines what may be described as the primary facts, but also determines the legal consequences of the facts found by them. The determination of the legal consequences, requires the jury in a negligence case to set the standard expected of the reasonable person. This involves an area for debate. The question in the present case concerning the existence of the duty of care depended upon the jury setting the standard which the plaintiff was obliged to attain if the Shire was to owe a duty of care.

In the present case there was no conflict of evidence concerning the plaintiff’s evidence of the circumstances leading up to and including the incident. Hence, this appeal is not concerned with a verdict based on a conflict of evidence. However, Calin’s case did not involve a conflict of evidence. The test stated by the High Court applies to an attack upon the verdict being against the evidence.

It is not for this Court to say whether the jury verdict was wrong because the Court itself would have arrived at a different verdict.[71] As Barton, A.C.J. said:

“The real question is whether it was such a verdict as reasonable men might have given. If it is, we have no right to say that they have ignored the duty cast upon them.”[72]

[71]See Middleton v. Melbourne Tramway and Omnibus Co Ltd (1913) 16 C.L.R. 572 per Barton, A.C.J.

[72]See also observations of Isaacs, J. at p.583.

The question is whether the jury has discharged its duty.

At the outset it is important to observe that the question was one for the jury. Secondly, at no stage at trial did counsel for the Shire submit that there was no evidence to go to the jury either on the question of duty of care or its breach. Further counsel did not seek reservation of leave prior to the jury’s verdict, to move for judgment notwithstanding the verdict. Reference has been made to observations made in Brodie, the New South Wales cases and the two cases in this Court which tell against a verdict for the plaintiff. All those cases were appeals from judges sitting alone. The observations made by the various appellate judges as to factors which were relevant and of importance in determining the various issues are not principles of law. Hence findings made in some of the cases of the size of the defect in a footpath, its depth and the like and whether the particular plaintiff would have seen or should have seen the hole are all matters that are clearly relevant to the issues but are not statements of law. The findings represent the opinions of judges which led to a certain result. They are merely findings of fact made by those judges and expressions of the legal consequences. Each finding of course depends upon its own particular circumstances. Hence a decision in any particular case by an appellate court on the facts as to whether or not there was negligence has no value as a precedent. Lord Somervell in Qualcast (Wolverhamptom) Ltd v. Haynes[73] said:

“When negligence cases were tried with juries the judge would direct them as to the law as above. The question whether on the facts in that particular case there was or was not a failure to take reasonable care was a question for the jury. There was not, and could not be, complete uniformity of standards. One jury would attribute to the reasonable man a greater degree of prescience than would another. The jury’s decision did not become part of our law citable as a precedent. In those days it would only be in very exceptional circumstances that a judge’s direction would be reported or be citable. So far as the law is concerned they would all be the same. Now that negligence cases are mostly tried without juries, the distinction between the function of judge and jury is blurred. A judge naturally gives reasons for the conclusion formerly arrived at by a jury without reasons. It may sometimes be difficult to draw the line, but if the reasons given by a judge for arriving at a conclusion previously reached by a jury are to be treated as ‘law’ and citable, the precedent system will die from a surfeit of authorities.”

[73][1959] A.C. 743 at 757.

The true principle is that the cases of negligence decided by the appellate courts are examples or illustrations of how the law is applied to the facts in that particular case. Accordingly, one must approach with caution statements of fact as to what may or may not be expected of a pedestrian and what may or may not be expected of a reasonable road authority. In the end the factual questions in a jury trial are for the jury. The plaintiff gave evidence that she should have appreciated there may be a risk there but she said that she did not on this occasion. She accepted that the defect would have been obvious to any person keeping a proper look out, that she did know of the existence of the defect and that it had been there for some years. It would be open to the jury to infer that on this occasion she forgot about the defect, and that she did not see it prior to her fall. On the other hand, the defect had been there for a period of at least eight years, that with the passage of time there would have been weathering, and that what may have been a small defect had deteriorated to a point where it became a trap for the unwary. The removal of the top 10 millimetres of concrete created a lip which the plaintiff tripped over.

With respect to the duty question, was there evidence supporting the finding that the plaintiff was taking reasonable care for her own safety in the circumstances? The plaintiff had the burden of proof and the jury was satisfied that she was in the circumstances taking reasonable care for her own safety. In considering this question, the Court must take the most favourable view of the evidence to the plaintiff. See Zoukra v. Lowenstern[74]; Liftronic Pty Ltd v. Umver[75].
[74][1958] V.R. 594 at 595.
[75](2001) 75 A.L.J.R. 867 at 872.

It is clear that the plaintiff was aware that the defects was present in the spoon drain and had been there for some time. Further, it would be expected that she, acting reasonably, would keep a proper lookout as she walked. In addition, she admitted that if a person looked at the defect it could be seen. The weather was clear on the morning of the incident. However, human experience tells us that we do not walk around with our eyes focussed on the ground.

Pedestrians proceed on the assumption that the area which apparently looks level and straight will be level and straight and may be lulled into thinking that it is. Photographs reveal that the spoon gutter was white cement, it was straight and apparently flat although slightly curved, and that the road upon which the plaintiff was walking was also a flat, secure surface and abutted the side of the open gutter drain. Inadvertence is a matter that can be considered and taken into account. In Brodie, Gaudron, McHugh and Gummow, JJ. made reference to some allowance being made for inadvertence.[76] Also in Webb v. The State of South Australia, the majority referred to a pedestrian being distracted by some cause.[77]
[76]See para 163.
[77]Supra at p.913.

In Slade v. Batterseaand Putney Hospital Management Committee[78] Finnemore, J. made the point that the normal pedestrian does not usually walk focussing on the ground in front. His Lordship said in response to a submission that the danger was obvious:[79]

“It would be obvious, I suppose, if one walked down the ward with one’s eyes fixed on the ground to see when and where and if the boards changed at all; but that is not what people are supposed to do when they walk along the ward of a hospital. A person looks in front of himself for any obvious obstruction: it does not seem to me that he is called upon to make particular search of the floor as he goes along.”

[78][1955] 1 W.L.R. 207.

[79]At p.211.

What his Lordship said of course is not a statement of law, it is an observation on a factual matter and accords with common sense and human experience. In the absence of some indication of potential risk of injury we do not walk around looking at the ground in front of our feet.

It was open to the jury, to conclude that the plaintiff’s mind was elsewhere, that she was not looking at her feet and the ground immediately in front of her as she walked. That in the circumstances she was not required to do so. That by inadvertence she had forgotten the existence of what may have been an innocuous defect and that given the circumstances, including the set up of the bitumen and the smooth surfaced spoon drain, she was, at the relevant time, taking reasonable care for her own safety.

The matters identified by the judges in the recent Court of Appeal decisions are relevant to the issue but are observations on matters of fact. One can refer to the views expressed by judges in various cases involving different factual situations and highlight where there is a degree of similarity. But they are decisions on facts and facts alone. In the end it was a matter for this jury to decide whether in the particular circumstances on this morning the plaintiff was taking reasonable care for her own safety. It is to a degree unreal to think that as we walk along our eyes are focussed on the ground and always focussed in a straight ahead position. As we proceed along, our eyes may be focussing in an arc that could go between 0 to 180 degrees. Another matter that the jury could take into account was the appearance of the defect itself. One thing is clear, the defect was of such a nature that it caused the plaintiff to lose her balance and fall heavily. Accordingly, it had potential to cause injury and the happening of the incident demonstrated that. On the other hand, a pedestrian, walking along seeing that defect would not necessarily come to the view that it must be avoided because it was potentially dangerous. It could be described as a wolf in sheep’s clothing. On appearance it did not look dangerous and yet the happening of the incident demonstrated it was.

What was reasonable in the circumstances is a matter of judgment for the jury. The jury must set the standard of what the reasonable pedestrian should have done in all the circumstances. It was a matter for six persons drawn from the community to set the standard of what reasonable care was required of the plaintiff as she approached the area where she fell on the morning in question. In my opinion, there was evidence available to this jury to reach the verdict it did, namely, that at the relevant time the plaintiff was taking reasonable care for her own safety as she approached the area where she fell and accordingly the Shire owed her a duty to take reasonable care. This attack upon the jury’s verdict fails.

This brings me to the question whether there was any evidence to support the finding of negligence. In my opinion, there was evidence to support the verdict. I refer to the reasoning of the majority in the High Court decision of Webb v. South Australia. The observations and conclusion in that case are apposite. They are not principles of law; but observations on the facts and the legal consequences flowing from the facts.

Webb’s case concerned a pedestrian who suffered injury because of the state of the kerb on a roadway, suing an authority. The majority took the following matters into account in determining that the authority was negligent:-

·The foresight of the possibility of injury did not call for the possession of a vivid imagination. It was an obvious possibility.
·The risk of injury could not be dismissed as being “fanciful” or “far fetched” because the prospects of it happening appeared unlikely.
·Although it was an obvious feature there existed the distinct possibility that a pedestrian in a hurry, or because his attention was distracted for some reason would fail to take care to avoid injury. The happening of the injury demonstrated that the defect had a potential to cause injury.
·It cannot be assumed that pedestrians will take due care for their own safety and that there will be occasions when insufficient attention is given.
·The risk of significant personal injury was obvious and the occurrence a distinct possibility.
·The risk could be eliminated without undue difficulty or expense.

All those matters were present in this case.

In the present case the evidence revealed that the defect had been there for eight years. It was open to the jury to infer that employees of the Shire were aware of the existence of the defect because of the passage of time, the inspection regime and the failure to call the witness who was in charge of inspections. As Mr Lyons said, if the defect had been known the person in charge would have known it. He was not called. Clearly, the gutter had a potential to cause injury.

Another matter of importance in the present case was the fact that the defect had been present for at least eight years. The defect arose because of the cracking and ultimate lifting of the 10 millimetres of concrete forming the surface. The photograph revealed and it was open to the jury to conclude that over the eight years the area would have been weathered and deteriorated gradually expanding the area.

It was open to the jury to conclude that the reasonable road authority should have guarded against the risk that the reasonable pedestrian would not always take due care.

In the present case the risk could have been eliminated without much difficulty or expense. Indeed it was eliminated for a cost of between $20 to $70.[80]
[80]See at p.913.

Their Honours held in Webb’s case that the road Authority was negligent.

Of course, as I have already stated, their Honours’ reasoning is not a precedent and is an illustration of the application of the law to the facts on the issue of negligence. However, what their Honours said identified relevant matters to be considered by the tribunal of fact on the issue of negligence. They were present in this case. They were matters that the jury could take into account in determining whether the Shire was negligent. In my opinion, there was abundant evidence to support the finding of negligence. I conclude by referring to what the Full Court said in Zoukra v. Lowenstern:[81]

“So far as the findings of negligence against each party are concerned, this depends upon the view taken by the jury as to the failure of each party to observe the required standard of care. This is essentially a jury question, it is only where the Court is able to say that on no possible view of the facts could negligence be found against a party by a reasonable jury that a finding on this issue will be interfered with on appeal.”
[81]Supra at p.595.

Conclusion

It is my opinion that the learned trial judge did not misdirect the jury, and secondly that there was evidence which supported the jury’s verdict.

In my opinion, the appeal should be dismissed with costs.

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[2004] VSCA 246

22 December 2004