Percy v Noosa Shire Council

[2001] QDC 230

DISTRICT COURT OF QUEENSLAND

CITATION:

Percy v Noosa Shire Council [2001] QDC 230

PARTIES:

JOHN PERCY
(plaintiff)
NOOSA SHIRE COUNCIL
(defendant)

FILE NO/S:

D185 of 1999

DIVISION:

District Court

PROCEEDING:

Civil

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

5 October 2001

DELIVERED AT:

Maroochydore

HEARING DATE:

1 October 2001

JUDGE:

K S Dodds DCJ

ORDER:

Judgment for the defendant against the plaintiff

CATCHWORDS:

TORT – NEGLIGENCE – DUTY OF CARE – where plaintiff broke his leg on an unexposed tree root – where plaintiff had left the designated walking track

TORT - NEGLIGENCE – STANDARD OF CARE – where plaintiff had left the designated walking track – where impossible for Council to remove all tree roots

COUNSEL:

Mr P. B. de Plater for the plaintiff
Mr C.K. Copley for the defendant

SOLICITORS:

Boyce Garick for the plaintiff
King & Company for the defendant

1. This is an action for damages for personal injury.  The amount of damages has been agreed.  Liability remains in issue. 

1. The plaintiff is a 54 year old man.  On 28 January 1999 at about 5.15 p.m. he was out jogging when his foot came into contact with portion of a tree root protruding above the surrounding ground.  He fell and was injured. 

1. The defendant is the local authority for the area where the plaintiff fell.  The plaintiff's case as litigated is that he was injured because of the defendant's breach of its duty of care to him. 

1. The plaintiff had been jogging in the Noosa National Park and was returning towards his home when the fall occurred.  Just prior to falling he had been jogging west on Solway Drive towards its intersection with David Low Way which, for present purposes, may be regarded as running north/south. 

1. Solway Drive consists of a bitumen surfaced carriageway.  On its northern side where the plaintiff was jogging there is a cement gutter and beyond that an area of footpath.  The evidence including photographs shows that at the northern side of Solway Drive at the truncated corner at its intersection with David Low Way the footpath consists of a mown, but sparsely grassed, area of ground from the gutter to a formed asphalt surfaced walkway and bikeway (the walkway).  The grassed area appears to have consisted of a somewhat stony level surface perhaps rising slightly from the gutter to the walkway with areas bare of grass.  Separating the walkway from the grassed area was a barrier consisting of a single row of horizontal round logs about 60 to 70 centimetres above ground level supported on posts.

1. Apparently the plaintiff had been jogging along the walkway.  In Solway Drive a short distance east of its intersection with David Low Way there existed a pedestrian crossing point across Solway Drive with a break in the horizontal log barrier for access to it.  There was another break in the horizontal log barrier a short distance around the truncated corner into David Low Way giving access to a pedestrian crossing point on David Low Way north of its intersection with Solway Drive. 

1. The plaintiff intended to cross David Low Way to its western side but at a point south of the pedestrian crossing point I have mentioned on David Low Way.  To achieve this he emerged from the walkway through the break in the horizontal log barrier at the pedestrian crossing point in Solway Drive and on to the grassed area between the barrier and the gutter.  He then jogged slowly along between the log barrier and the gutter until the fall occurred.

1. I have no reason to doubt the plaintiff's account about how he fell.  He said he had slowed down considerably and was getting ready to cross David Low Way when he put his foot on what appeared to be some tufty grass which turned out to have concealed within it the tree root.  His foot rolled on the tree root, his ankle cracked and he fell. 

1. The photographs which the plaintiff tendered which he took of the area a couple of weeks later show bare earth and stones about the area where the tree root is.  The tree root, which does not appear to be of recent origin, evidently belonged to a tree growing in bushland on the other side of the walkway which had found its way under the walkway emerging some centimetres above the ground's surface on the road side of the walkway.  It does not appear to go right to the gutter but to emerge next to the walkway and to occupy about a quarter of the distance from the edge of the walkway to the gutter.

1. Recently in Brodie v Singleton Shire Council and Ghantous v. Hawkesbury Shire Council (2001) 75 ALJR 992, the High Court by majority decided that what had been regarded as the law in Australia providing immunity to highway authorities in cases of non feasance should be overruled and replaced by ordinary principles of negligence. In the joint judgment of Gaudron, McHugh and Gummow JJ the Justices said (at paragraphs 149, 150, 151, 158, 159, 160 and 163):

"the better course is that indicated in the passage from Webb v.  South Australia set out earlier in these reasons. The Court there ((1982) 56 ALJR 912 at 913) gave to the duty of care of the highway authority a content reflecting what had been said by Mason J in Wyong Shire Council v.  Shirt (1980) 146 CLR 40 at 47-48

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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 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 road way 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 suspected 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
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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.

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.  Such a risk may arise from a failure to repair a road or its surface from the creation of conditions during, or as a result of repairs or works (Greater Bendigo City Council v Miles (2000) MUR 137 at 137-8), from a failure to remove unsafe items in or near a road  --- or from the placing of items upon a road which create a danger (Thompson v Bankstown Corporation (1953) 87 CLR 219) or the removal of items which protect against danger (Flukes v Paddington Municipal Council (1905) 15 SR NSW 408).

In dealing with questions of breach of duty whilst there is to be taken into account as a “variable factor” the results of “inadvertence” and “thoughtlessness” (Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 343) a proper starting point may be the proposition that the persons using the road will, themselves, take ordinary care (Miller v McKeon (1905) 3 CLR 50 at 60).

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(iii)PEDESTRIANS

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 would 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 ( as in Webb v South Australia ---) or the surrounding area (as in Buckle where the hole was concealed by grass) ((1936) 57 CLR 259 at 266). 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 CJ put it “of a kind calling for some protection or warning” (Searle v Metropolitan Water Sewerage & Drainage Board (1936) 13 LGR 115 at 117).  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 (Romeo (1998) 192 CLR 431 at 455). 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 (at 478). Each case will, of course, turn on its own facts - - -.”

1. A number of witnesses in the defendant’s employ gave evidence. Evidence showed that the defendant appears to have had in place a responsible and reasonable system of maintenance to identify and respond reasonably to hazards in its authority area. What emerged was that maintenance inspections of the area where the plaintiff fell occurred from time to time: see Exhibit 13.  The grass area between the walkway and the gutter was regularly mown and trimmed by a contractor. The last occasion prior to the plaintiff's injury on 20 January 1999.  The quality of the contractor’s work was checked intermittently by a responsible employee of the defendant.  The walkway was mechanically swept from time to time.  The defendant had a risk assessment system so that if a potential hazard was noticed by an employee or reported by a member of the public a decision may be made whether, and if so how urgently, the defendant's resources would deal with it.  Prioritisation of use of the defendant's resources was necessary for, apart from other responsibilities, there existed about 1,000 kilometres of roads in the shire, about 300 kilometres of those in urban areas.  About seventy-five per cent of roads in urban areas had at least one footpath.  The use of the defendant's resources for hazard management was weighted to the heavier use areas. 

1. There was no evidence the defendant was aware of the root upon which the plaintiff stood beforehand.  It appears to have become aware of it when the plaintiff wrote a letter of complaint. By 19 April 1999 it had been removed: see Exhibit 16.  The reference in the defendant's letter to the plaintiff advising of its “rectification” and referring to the "tree roots hazard" was a reflection of the plaintiff's description in his letter of complaint.

1. As I have already observed the tree root protruding above the ground surface did not appear to be of recent origin. No doubt grass could grow up around it and make it more difficult to see as the plaintiff said it was.  Mowing may not have cut that particular grass sufficiently to expose it. 

1. The tree root was not located in the walk way but rather was underneath and on the other side of the log barrier in the area of mown grass and bare earth.  That area appears to have contained stones and sticks.  Grass growing over the root sufficiently to conceal it in that area of mown grass and bare earth should have alerted a pedestrian, who chose to walk (or jog) on that surface, of the need to take care where feet were placed.

1. A particular of the breach of duty alleged was that the defendant failed to warn the plaintiff of the peril posed by the root.  There were no warning notices. As to this, the defendant's duty is to take reasonable care.  What that requires can only be judged in all the particular circumstances.  To say the duty requires removal of every tree root that intrudes on to a portion of a road reserve (apart from the carriageway) or even on to a footpath throughout the shire or to erect warnings on all such footpaths is to my mind beyond what the defendant's duty of care requires.  There may in an instance be other relevant circumstances which require some particular action by the defendant in the discharge of its duty of care.  There may be evidence the local authority knew of a particular hazard.  It may be open to infer that a local authority knew or should have known of a particular hazard.  It may be shown to be in a heavily trafficked area. Injury may have, to the local authority's knowledge, occurred in the past.  In all cases it will be necessary to consider the likelihood and magnitude of the risk of injury, the knowledge or means of knowledge of the local authority, the difficulty and cost of remediation, the resources of the local authority and the demand on its resources.

1. I am not persuaded the defendant is shown to have failed in its duty of care as pleaded. 

1. I give judgment for the defendant against the plaintiff.