Rodgers v Gold Coast City Council

[2004] QDC 8

DISTRICT COURT OF QUEENSLAND

CITATION:

Rodgers v Gold Coast City Council & Anor [2004] QDC 008

PARTIES:

jennifer evelyn rodgers

Applicant

and

GOLD COAST CITY Council

First Defendant

and

energex limited

Second Defendant  

FILE NO:

D1192/01

DIVISION:

District Court

PROCEEDING:

Application

DELIVERED ON:

 9 January 2004

DELIVERED AT:

Southport

HEARING DATE:

1 December 2003

JUDGE:

Alan Wilson SC DCJ

ORDER:

1.  Application dismissed
2. Second defendant to pay plaintiff’s costs of and incidental
    to the application assessed on the standard basis

CATCHWORDS:

PROCEDURE – SUMMARY JUDGMENT/STRIKING OUT PLEADING – whether plaintiff’s action against second defendant had no real prospect of succeeding, and there was no need for a trial of the claim (r 293) – whether plaintiff’s claim against second defendant untenable, and whether it ought be struck out (r 171)

Cases considered:

Bernstrom v National Australia Bank Limited (2001) 1 Qd R 469

Brodie v Singleton SC (2001) 206 CLR 512

Brown v Noosa Shire Council & Anor [2002] QDC 089

Burnie Port Authority v General Jones Pty Ltd (1994) 197 CLR 520

Crimmins v Stevedoring Industry Finance Committee

Dey v Victorian Railways Commissioner (1949) 78 CLR 62

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Graham Barclay v Ryan (2002) 194 ALR 334

Jaensch v Coffey (1894) 155 CLR 549

Johnson v Gore Wood & Co. (2002) 2 AC 1

Pyrenees Shire Council v Day

Romeo v Conservation Commission (NT)

Sullivan v Moody (2001) 207 CLR 562

COUNSEL:

Mr A S Kitchin for the applicant second defendant
Mr R P S Jackson for the respondent plaintiff

SOLICITORS:

Carter Newell for the applicant second defendant
Carter Capner Lawyers for the respondent plaintiff  

1. This is an application by the second defendant Energex Limited for summary judgment against the plaintiff (UCPR r 293) or, alternatively, to strike out the plaintiff’s further amended statement of claim against that defendant (r 171).

1. Under her amended statement of claim filed 11 July 2003 the plaintiff alleges that she suffered injury when, at about 9.20pm on 6 March 2001, she fell over while attempting to cross a road near Nobby Beach.  The first defendant, the local authority, is alleged to have been negligent in its construction or maintenance of the road surface.  As to the second defendant Energex it is alleged, relevantly:

4A  The second defendant owed a duty of care to persons using footpaths in the first defendant’s area of responsibility to exercise reasonable care to maintain and/or repair street lights which were not working and which it knew or ought to have known.

…

a) failing to take reasonable steps to maintain and/or repair the adjacent street light when it knew or ought to have known that it was not working.

1. The plaintiff also alleges that Energex was responsible for the construction, maintenance and repair of street lighting on that road; owned the street lights situated there; had the sole ability to perform maintenance of the street lighting; and, had contracted with the local authority to undertake maintenance of the street lights on the road.  There was also evidence that a street light was situated on a power pole on the other side of the road, opposite the place the plaintiff allegedly fell; that it was not working at the time of the alleged fall; and that a local worker had telephoned Energex four or five times over a four-week period asking that the street light be repaired, the first call occurring about two weeks before the plaintiff’s accident.

1. To obtain summary judgment the second defendant must demonstrate that the plaintiff has no real prospect of succeeding in all or part of her claim and that there is no need for a trial of it: r 293.  The Queensland Court of Appeal has said that the rule directs the court to the need to see whether the plaintiff has a realistic, as opposed to a fanciful, prospect of success: Bernstrom v National Australia Bank Limited (2001) 1 Qd R 469. To succeed in its alternate application under r 171, the second defendant must demonstrate that the pleading raises no real question to be determined whether of fact or law or, to put it another way, that it is so clearly untenable that it cannot possibly succeed: Dey v Victorian Railways Commissioner (1949) 78 CLR 62 per Dixon J at 41; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 130. As a matter of general principle, any reasonable doubt in a striking out application should be resolved in favour of the claimant: Johnson v Gore Wood & Co. (2002) 2 AC 1 per Lord Bingham at 36.

1. As counsel for the applicant second defendant and respondent plaintiff argued the matter, in helpful written and oral submissions, the issue devolved to the answer to this question: did the plaintiff have any real prospect of establishing that, in the circumstances described earlier, the second defendant owed her a duty of care?  (Strictly speaking, of course, the question under r 171 is whether or not the claim of a duty of care is “tenable” but I do not think it can be said the distinction is a meaningful or significant one here).  The particular duty of care is that pleaded in para 4A above: to exercise reasonable care to maintain and/or repair street lights which were not working and of which it knew or ought to have known.

1. It is common ground that there is no known duty “category” into which the alleged duty might fall and it is necessary, therefore, to look to principles of common law to determine if it could or might exist.

1. I was not referred to any legislation obliging Energex to ensure adequate lighting although some evidence showed it does solicit information from the public about lights which are not functioning or damaged and aims to repair them within a short period.  Photographs show it is tolerably clear the street light in question is intended to illuminate a pedestrian crossing under it – presumably, for the benefit of motor vehicle drivers so they might more easily see pedestrians on the crossing.  The place where the plaintiff fell is not on the crossing, but on the opposite side and a little distance away and one of the second defendant’s principal’s submissions is that the acknowledgement of a duty of care in those circumstances would have a “flood gates” effect, with a number of attendant uncertainties: how far from the location of the light would the duty extend?  How powerful must the light be?  Do atmospheric and weather conditions have to be taken into account? 

1. Not surprisingly, the parties’ submissions traversed traditional touchstones in the law of negligence including in particular reasonable foreseeability, and proximity.  Neither provides a satisfactory ready reckoner in the area.  Reasonable foreseeability of a risk of injury to another does not by itself establish the existence of a duty to take reasonable care, and indicates no more than that a duty will or might exist if and to the extent that it is not precluded or modified by some applicable overriding requirement or limitation: Jaensch v Coffey (1894) 155 CLR 549 per Deane J at 583. As the High Court has more recently warned, however, in Sullivan v Moody (2001) 207 CLR 562 at 576:

“But the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness and harm results.

…

A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take care.”

1. One of those circumstances is, often, proximity between the plaintiff and the defendant but its usefulness has also been circumscribed by the decision in Sullivan v Moody, at 578:

“Notwithstanding the centrality of that concept, for more than a century, in this area of discourse, and despite some later decisions in this court which emphasised that centrality, it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established.  It expresses the nature of what is in issue, and in that respect gives focus to the enquiry, but as an explanation of a process of reasoning leading to a conclusion its utility is limited.”

1. The second defendant is a corporation.  Its precise nature and obligations (whether statutory or contractual) were not explored in evidence or submissions but it had an admitted obligation and indeed the sole responsibility to perform maintenance in respect of street lights.  That obligation places it in an analogous situation to highway authorities, of which it was said in Brodie v Singleton SC (2001) 206 CLR 512 at 559:

“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 (Burnie Port Authority v General Jones Pty Ltd (1994) 197 CLR 520 at 551-552).”

1. Later in the same judgment (of Gaudron, McHugh and Gummow JJ) this appears, at 573-4:

“The result … is that the powers vested in road authorities give them a significant and special measure of control over the safety of the person and property of road users.  This may make it incumbent upon the authority to exercise its powers, whether by averting the danger to safety or by bringing it to the notice of persons in the situation of the plaintiff.”

And, at 575:

“It is true, as Gaudron J pointed out in Romeo v Conservation Commission (NT) that the mere existence of powers in an authority does not of itself create a duty of care.  However, her Honour subsequently stated in Crimmins v Stevedoring Industry Finance Committee:

‘It is not in issue that a statutory body, such as the authority, may come under a common law duty of care both in relation to the exercise and the failure to exercise its powers and functions.  Liability will arise in negligence in relation to the failure to exercise a power or function only if there is, in the circumstances, a duty to act.  What is in question is not a statutory duty of the kind enforceable by public law remedy.  Rather it is a duty called into existence by the common law by reason that the relationship between the statutory body and some member or members of the public is such as to give rise to a duty to take some positive step or steps to avoid a foreseeable risk of harm to the person or persons concerned.’”

1. While I was not referred to any statutory or contractual duty requiring Energex to act in the sense of taking positive steps, the passage set out above does not categorise the duty in that way.  Rather, it requires the court to consider all the circumstances of the relationship between a body exercising some “public” obligations, and members of the public.  The nature of the relationship and the circumstances which might be used to discern it were considered by McHugh J in Graham Barclay v Ryan (2002) 194 ALR 334 at pp 359-360

“[82]  The likelihood of the common law imposing an affirmative duty of care whose content may require the exercise of a statutory power increases where the power is invested to protect the community from a particular risk and the authority is aware of a specific risk to a specific individual.  If the legislature has invested the power for the purpose of protecting the community, it obviously intends that the power should be exercised in appropriate circumstances.  If the authority is aware of a situation that calls for the protection of an individual from a particular risk, the common law may impose a duty of care.  In that situation, failure to exercise the power may constitute negligence.  This seems the best explanation of Pyrenees Shire Council v Day where the majority of the court held that a council which knew of a fire risk owed a duty of care and breached it by not exercising its powers.  Kirby J said:

‘The statutory power in question is not simply another of the multitude of powers conferred upon local authorities such as the Shire.  It is a power addressed to the special risk of fire which, of its nature, can imperil identifiable life and property.  Therefore, the nature of the power enlivens particular attention to its exercise and to the proper performance of a decision whether to give effect to it or not.’

“[83]  Similarly, in Brodie v Singleton Shire Council, Gaurdron J, Gummow J and I said 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.’

“[84]  Where a plaintiff claims that a public authority owed him or her an affirmative duty of care in a situation that has not yet been recognised by the common law, the court must examine a number of matters to determine whether the duty existed.  I pointed to these matters in Crimmins v Stevedoring Industry Finance Committee:

·     Would a reasonable public authority reasonably foresee that its act or omission, including a failure to exercise its statutory powers, might result in injury to the plaintiff or his or her interests?

·     Was the authority in a position of control and did it have the power to control the situation that brought about the harm to the injured person?

·     Was the injured person or his or her interests vulnerable in the sense that the injured person could not reasonably be expected to adequately safeguard himself or herself or those interests from harm?

·     Did the public authority know, or ought it to have known, of an existing risk of harm to the plaintiff or, in some cases, to a specific class of persons who included the plaintiff (rather than a risk to the general public)?

·     Would the imposition of the duty of care impose liability with respect to the defendant’s exercise of “core policy-making” or “quasi-legislative” functions?

·     Is there any supervening policy reason that denies the existence of a duty of care?

[85]  If the first four of these questions are answered in the affirmative and the fifth and sixth questions in the negative, the court will ordinarily hold that the authority owed a duty of care to the plaintiff.  Conversely, if any of the first four questions are answered in the negative or either of the fifth and sixth questions are answered in the affirmative, ordinarily no duty of care will arise.”

1. It is at least arguable that the six questions posed by McHugh J might, at trial, be answered in a way favourable to the plaintiff here.  While, again, it is not clear that the second defendant can necessarily be categorised as a “public authority” or one exercising a “statutory power” those are also matters which might ultimately be determined in a way favourable to the plaintiff.  Although these matters are redolent of some complexity, that is something which ought not tell against the plaintiff.  Complex or simple, they militate against extinguishing her claim at this stage.

1. The second defendant placed considerable reliance upon the decision of Dodds DCJ in Brown v Noosa Shire Council & Anor [2002] QDC 089. There Energex was a third party, joined by the defendant local authority which had been sued by the plaintiff for damages allegedly sustained when he walked through some parkland under its control during the night. His Honour’s reasons show there was a light pole about three metres from the place the plaintiff tripped containing a street light which, it may be inferred, was not working at the time. The Council’s statement of claim against Energex alleged it owned the street lights and had sole responsibility and power to maintain or replace them and was under a duty to provide adequate lighting and/or to ensure established street lights were operative and effective.

1. In its pleading Energex had admitted that it provided street lighting.  His Honour was not persuaded that a duty of care of the kind alleged by the local authority arose:

“[16] For there to be actionable negligence, there must be a relationship sufficiently proximate to give rise to a duty of care.  All that is pleaded is that the plaintiff as a pedestrian was injured by tripping over a chain attempting, during the hours of darkness, to access a public park adjacent to a road upon which was a street light and associate infrastructure installed and owned by the third party and for which it allegedly had a responsibility, authority, or power to maintain, service and/or replace.

[17]  I find that there are not pleaded material facts which could found a duty of care owed by the third party to the plaintiff or, to use the words of r 171, disclose a reasonable cause of action.”

1. In the present case there are two distinguishing factors which, I accept, are relevant to the possible legal relationship between the plaintiff and Energex here.  The first is the allegation, and evidence which might prove at trial, that the second defendant had known for some time that the light was not working.  Second, it is admitted that Energex contracted with the local authority to undertake maintenance of the street lights.  It is at least arguable that these factors touch, and may affect, the ultimate conclusion in this case concerning proximity, reasonable foreseeability, and any other elements germane to the relationship.

1. While the plaintiff’s case against the second defendant is not unadventurous it cannot, for these reasons, fairly be categorised as having only fanciful prospects of success, or described as clearly untenable.  The application is dismissed.  The parties agreed that costs ought follow the event and the second defendant will, then, pay the plaintiff’s costs of and incidental to it assessed on the standard basis.