RTA v McGuinness

[2002] NSWCA 210

Reported Decision: (2003) Aust Torts Reports 81-688

New South Wales

Court of Appeal

CITATION:	RTA v McGUINNESS [2002] NSWCA 210
FILE NUMBER(S):	CA 40045/00
HEARING DATE(S):	28 June 2002
JUDGMENT DATE:	4 November 2002
PARTIES :	ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v RONALD JOHN McGUINNESS
JUDGMENT OF:	Mason P at 1; Handley JA at 2; Foster AJA at 41

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 8899/97
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

COUNSEL:	Appellant - J E Maconachie QC/P R Sternberg Respondent - C T Barry QC/J R K Pryde
SOLICITORS:	Appellant - I V Knight Crown Solicitor Respondent - Keddies
CATCHWORDS:	NEGLIGENCE - HIGHWAY RULE - FOOTPATH - DUTY OF CARE TO PEDESTRIAN
LEGISLATION CITED:	State Roads Act 1986
CASES CITED:	Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 75 ALJR 992 Wyong Shire Council v Shirt (1980) 146 CLR 40 Urban Transit Authority v Purcell (1994) 82 LGERA 284, 295 Rose-Beresford v The Commonwealth (1971) 45 ALJR 178 Hawkesbury City Council v Ryan [2001] NSW CA 212 Parramatta City Council v Watkins [2001] NSW CA 364 Lombardi v Holroyd City Council [2002] NSW CA 252
DECISION:	Appeal allowed with costs. Orders made

40045/00
DC 8899/97
MASON P
HANDLEY JA
FOSTER AJA


4 November 2002

ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v RONALD JOHN McGUINNESS

NEGLIGENCE – HIGHWAY RULE – footpath – duty of care to pedestrian

The respondent caught her right foot on the upstanding corner of a manhole cover on a footpath and fell heavily. The upstanding corner was 13 mm above the surrounding pavement. The trial Judge awarded $599,752.07 to the respondent.

The appellant submitted that the trial Judge erred on three points, that the manhole cover was dangerous, the extent of the duty owed to pedestrians and his finding that the Authority knew or ought to have known that the manhole was dangerous.

HELD per Handley JA (with Mason P and Foster AJA agreeing): The Authority’s only obligation was to exercise reasonable care. Proof that the state of the footpath “could possibly be an occasion of harm” was not sufficient. Ghantous v Hawkesbury City Council (2001) 206 CLR 512 applied. The upstanding corner was obvious and the modest height difference did not make the footpath unsafe for a person taking ordinary care. There was also no evidence that the Authority knew or ought to have known of the upstanding corner.

ORDERS

(1) Appeal allowed with costs;

(2) Judgment of the District Court in favour of the plaintiff set aside and in lieu thereof order that judgment be entered for the third defendant in the action with costs;

(3) Judgment for the appellant against Ronald John McGuinness, also known as Ronald John McGuiness, the administrator of the estate of the late Marion Amelia McGuinness, also known as Marion Amelia McGuiness, for $300,000 together with interest at judgment rates from 24 December 1999 to date;

(4) Respondent to have a certificate under the Suitors Fund Act.

IN THE SUPREME COURT

40045/00
DC 8899/97
MASON P
HANDLEY JA
FOSTER AJA


4 November 2002

ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v RONALD JOHN McGUINNESS

Judgment

1 MASON P: I agree with Handley JA.

2 HANDLEY JA: On 8 June 1990 the late Mrs McGuinness tripped on a manhole cover that had been installed by the appellant or its predecessor (the Authority) in the footpath of Botany Road, Waterloo and fell heavily. On 3 December 1999 Goldring DCJ held that the Authority had been negligent and awarded damages of $599,752.07. His judgment was delivered prior to the decision in Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512 (Brodie or Ghantous).

3 The Authority appealed on liability and damages but Mrs McGuinness died on 14 June 2001 while the appeal was pending. At the hearing before this Court orders were made substituting Mr Ronald McGuinness, her husband, and the administrator of her estate, as respondent to the appeal.

4 The manhole cover had been installed in connection with traffic lights which in one form or another have controlled the intersection of Botany Road and Raglan Street since May 1940 (blue 31). The cover was located about a metre from the wall of Abbot’s Hotel which stood on the corner. On the day of her fall the plaintiff had walked along Raglan Street, intending to go the TAB next door to the hotel in Botany Road. She was wearing low heeled, non slip shoes (black 15). She caught her right foot on the left hand corner of the manhole cover closest to Raglan Street which stood about ½” (13mm) above the surrounding pavement (the upstanding corner). The other corners were flush with the pavement.

5 The plaintiff had been diagnosed with multiple sclerosis (MS) in 1969 when she was only 31 years of age but at the time of her accident the condition had been in remission since 1974 and she was able to live a more or less normal life. However as a result of her MS her legs were weak and she could not lift them normally. She said “I sort of throw my right foot a bit” (26). Her right foot “swung out a bit” (31-2). This leg was “heavy” and “it throws me” (42). She sometimes described this as her “dickie” leg (44-5).

6 The traffic light system was changed in 1965 and as a result the pit below the manhole cover became redundant. The Authority could have removed the cover and restored the pavement but this did not occur until 1995.

7 In 1990 the highway authority responsible generally for the footpath in this part of Botany Road was the South Sydney Council. It was sued in the same proceedings but at an early stage in the trial judgment was entered in its favour by consent.

8 The Authority was sued as the party responsible for the pit and manhole cover. The cover was an artificial structure in the footpath and for that reason before Brodie the Authority did not have the benefit of the non-feasance rule. It had installed this structure in its capacity as the traffic authority, and for this reason also it had not been entitled, prior to Brodie, to the benefit of the non-feasance rule.

9 Thus the decision in Brodie, and more relevantly the decision in Ghantous, did not alter the duty or standard of care owed by the Authority to persons in the position of Mrs McGuinness.

10 The Judge said of the upstanding corner that “This protrusion was certainly enough to cause pedestrians walking up the street to trip. It was not readily obvious and it was a danger”. Later he said “The manhole and its cover that I must consider here was a danger to the public. It was obvious, and it was by no means far-fetched or fanciful that members of the public would trip over it, as the plaintiff did”. Mr Maconachie QC for the Authority submitted that these statements were inconsistent but I am reluctant to come to that conclusion. An appellate court should endeavour to reconcile apparently inconsistent statements in the reasons for judgment of a judicial officer, if that is possible, before concluding that they are in truth inconsistent. It seems to me that the earlier statement can be read as referring to the position of pedestrians such as this plaintiff. The later can be read as the conclusion that a reasonable person in the position of the Authority should have reached if it was aware of the upstanding corner and had to decide, in accordance with Wyong Shire Council v Shirt (1980) 146 CLR 40, what action, if any, it would take to eliminate the risk.

11 His Honour distinguished the decision of this Court in Urban Transit Authority v Purcell (1994) 82 LGERA 295 and continued:

“In this case there is ample evidence that the RTA had done work on many occasions between 1965 and 1990 on the traffic lights at the intersection, and the cost of removing this particular danger would have been minimal … if it did not remove the manhole at the time it became redundant through the installation of new equipment, there were many later opportunities when it might have done so. It was not necessary for the RTA to have an obligation to inspect, as it was present at the location of the danger frequently over the years before this accident”.

12 The Judge’s final conclusions on liability were:

“(1) The RTA ought to have foreseen that members of the public using the footpath were likely to trip on the manhole cover.
(2) The RTA were working on the traffic lights at this intersection regularly between 1965 and 1990, so there would have been little additional cost to inspect and remove the manhole cover …
(3) In the particular circumstances, the RTA had a duty to ensure that this manhole, which it placed in the road, did not become dangerous, because it knew or ought to have known, through being involved in regular work in the immediate area, that the manhole was dangerous, and it should have removed the danger”.

13 With respect his Honour significantly overstated the duty owed by the Authority in the last paragraph. Its only obligation was to exercise reasonable care, and it did not have “a duty to ensure that this manhole … did not become dangerous”.

14 Mr Barry QC for the respondent submitted that the omission of any reference to the criterion of reasonableness in his Honour’s statement of the duty was only a verbal slip, but I cannot accept that submission. This was a formal finding leading immediately to the decision on liability. Moreover a correct statement of the Authority’s duty is not found elsewhere in his Honour’s reasons. Error has therefore been established. See Rose-Beresford v The Commonwealth (1971) 45 ALJR 178.

15 The Judge also found that the Authority knew or ought to have known that the manhole cover was dangerous and that it should have removed the danger. There is no evidence that the Authority had actual knowledge of the upstanding corner. His Honour drew this rolled up inference from evidence that the Authority’s employees had worked on the adjacent traffic lights on many occasions between 1965 and 1990.

16 According to Mr Keirnan, whose report was tendered for the plaintiff, the manhole cover was located about 8 metres north of the northern building line of Raglan Street. The footpath in both streets is 3.5 metres wide. Mr Keirnan inspected the area in October 1999 after the manhole and cover had been removed. He found three Authority manhole covers similar to the one on which Mrs McGuinness tripped, located about 500 mm behind the kerb alignment, two in Botany Road, and one in Raglan Street (blue 30).

17 There is no evidence of other manhole covers of the Authority at this corner. There may have been some on other corners but these would not be relevant. There was no occasion for the Authority’s employees who worked on the traffic lights at this corner after 1965 to go to this manhole or to examine its cover.

18 I cannot see how an inference that such employees would or should have noticed the upstanding corner was reasonably open. There is no reason to think that the duties of the employees included the inspection of disused manhole covers such as this, or that they would be working close enough to notice. The nearest point at which they were required to work was more than 8 metres away. There was no evidence of the nature of the work required at the manholes still in use, the number of men involved, and whether or not temporary barriers or other devices were erected around those manholes to protect the employees and the public.

19 One of the photographs in evidence which shows the manhole cover in question shows two manhole covers installed by other utilities. The original defendants included Sydney Water, Telstra, Sydney Electricity and AGL. There may have been other manhole covers at this corner apart from those identified in Mr Keirnan’s report and the photographs. The existence of other manhole covers in the vicinity would tend to discourage interest by the Authority’s employees in manhole covers other than those directly involved in their work.

20 There is another difficulty. There is, unsurprisingly, no evidence of when the upstanding corner first came to be in the condition it was in at the time of the accident. This section of the footpath is close to the corner where pedestrians cross the intersection in both directions and it is adjacent to an hotel and TAB shop. It must have carried significant pedestrian traffic.

21 If the upstanding corner was in that condition from 1965 to 1990 with no evidence or suggestion that any other person ever fell at this point, one would have to conclude that it was not dangerous. The evidence does not suggest any reason for the upstanding corner, other than the laying of insufficient bitumen in the first place. Accelerated wear and tear from pedestrian traffic at this point can be discounted, there is nothing in the photographs to suggest differential settlement, and there was no occasion to remove the manhole cover.

22 If the upstanding corner came to be in that condition some time after 1965, one does not know when this occurred. The longer this period the more pedestrians apparently passed by without mishap. The plaintiff said that she noticed no change in this footpath between 1974 until 1995 (14). In my judgment the finding that the Authority knew or ought to have known of the upstanding corner and that it was dangerous cannot be supported.

23 The decision of this Court in Urban Transit Authority v Purcell (1994) 82 LGERA 284 establishes that the Authority has no duty to inspect its installations to identify those which are defective and pose a risk to the public. That case concerned a bus zone pole erected by the Authority at the request of the Urban Transit Authority. The pole was severed in a motor vehicle accident and the severed portion was removed by a person or persons unknown. The jagged stump, which was near a bus stop, brought the plaintiff to grief while he was hurrying to catch a bus. He sued the RTA, amongst other defendants, and claimed that it had a duty to inspect its installations. Mahoney JA, who delivered the principal judgment for the majority, said at 289-290:

“But the cost of imposition of a duty to inspect would be apt to be great. In the present case, consequent upon a suggestion that the RTA might have a duty to inspect the condition from time to time of works erected by it on public highways, its witness ventured an estimate of the cost of such inspections. The learned Judge concluded that it ‘did not have the financial resources necessary to carry out regular inspections. In order to carry out monthly inspections, a budgetary allocation of some $22 million would be required which is over 22 times the actual budgetary allocation’. It is not necessary to consider the degree of accuracy of estimates made in this way. But what was said indicates the impact of duties of this kind … What is in question … is whether, having the power to erect and to repair such structures, it had an obligation to keep itself informed as to the state of the structures which it had erected. I do not think that it did”.

24 The respondent did not challenge this decision.

25 The Judge found that the upstanding corner was not readily obvious and was a danger. However, as the photographs demonstrate, the metal cover itself was clearly visible against the background bitumen of the pavement. The plaintiff and her husband moved into their flat in Cope Street, off Raglan Street, in 1974 and she was familiar with this section of the footpath (15). She knew the cover was there having been over it many times (35). She did not notice any change until the footpath was dug up about 1996 (14, 36).

26 Although the photographs show that the pavement in this area was relatively even, there were other manhole covers, kerbs, gutters and pedestrian ramps nearby. A vertical face of about ½” or 13mm where a manhole cover abuts the bitumen surface is not an unexpected or unusual danger to a pedestrian in the Sydney metropolitan area who is taking reasonable care and keeping a proper lookout.

27 The contrast between the Brodie and the Ghantous cases is significant. There was nothing that Mr Brodie could reasonably have done to protect himself against the risk that the wooden bridge would collapse. The Council on the other hand knew how long the bridge had been there, knew that its timbers would not last forever and it alone had the means of testing its load-bearing capacity. If the bridge was found to be weak or dangerous, and the Council did not have the resources to repair or rebuild it, it could have barred heavy traffic, imposed weight limits, warned drivers of the risk, or in the last resort closed the bridge.

28 Pedestrians on the other hand are in a position of relative advantage 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.

29 All this is made clear by the judgments in Ghantous (2001) 206 CLR 512. In that case the drop from the concrete footpath to the surrounding dirt surface was about 50 mm, approximately 2”. The plaintiff lost her balance when she moved to step onto the dirt surface but caught her heel on the edge of the concrete. Gleeson CJ referred to the abolition of the non-feasance rule in England by statute and continued [paras 6-7]:

“… when general principles of negligence, unqualified by any rule of immunity, were applied, the courts insisted that an injured plaintiff had to show that the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land. In Littler v Liverpool Corporation [1968] 2 All ER 343, 345 Cumming-Bruce J said: ‘Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted . A highway is not to be criticised by the standards of a bowling green’.” (emphasis supplied)

30 Gaudron, McHugh and Gummow JJ said [para 163]:

“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 in 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 (as in Webb v South Australia (1982) 56 ALJR 912) or the surrounding area (as in Buckle where the hole was concealed by grass). 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 … ‘of a kind calling for some protection or warning’.”

31 At para [166] they agreed with the finding by Callinan J that Mrs Ghantous failed “because the footpath was not unsafe for a person taking ordinary care”.

32 Hayne J also agreed with Callinan J [para 339] who said [para 355]:

“Even if I were to assume that an action in negligence lay against the respondent for any failure to maintain or improve the footpath to keep or make it safe … there was no failure in that regard because the footpath was not, despite what the expert witness was allowed to say, unsafe. The case of the applicant in negligence was that a differential in height between the concreted path of the footpath and the earthen part of it created a dangerous situation. A court is not obliged to accept an expert, especially when his or her evidence is evidence purportedly resolving and concluding an issue of a kind which arose here. A court is not bound to accept that a matter of ordinary observation such as the readily apparent state of the footpath is a matter calling for expert opinion … there was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this”.

33 The 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” [para 28 above]. 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.

34 This Court has considered Ghantous in at least three cases involving pedestrians injured on a highway. In Hawkesbury City Council v Ryan [2001] NSW CA 212 the plaintiff was returning to her car parked in Richmond shopping centre next to the kerb. At this point the gutter was deep and the top of the stone kerb was 22mm higher than the brick paved footpath. The plaintiff tripped over the kerb while stepping down into the gutter. Williams DCJ held that the height differential at the edge of the kerb was a trip hazard. It had been created either when the footpath was laid or as a result of subsidence due to poor compaction of the foundation material. His judgment in favour of the plaintiff was upheld by this Court.

35 In Parramatta City Council v Watkins [2001] NSW CA 364 the plaintiff again succeeded. She had parked her car next to the kerb in a designated parking area in Granville shopping centre. She walked around the front to get to the footpath and fell onto a manhole cover. This was flush with the road surface at the kerb but 50 mm or 2” below with a steep drop from the surface on the side furthest from the kerb. The manhole was partly obscured by her car and the space in front of her car was probably limited by another parked vehicle.

36 There was a similar manhole cover 40 metres away which did not present the same hazard because of the gradual slope from the surface to the cover. The judgment of Robison DCJ was upheld because the change in level would not have been expected and its existence was likely to be and was partially obscured by the car. The change in level was found to be an unreasonable hazard created during resurfacing work a few years earlier.

37 In the third case, Lombardi v Holroyd City Council [2002] NSW CA 252, the pedestrian failed. The plaintiff tripped over a concrete slab in the footpath which was 25 mm higher than the adjoining slab on one corner and substantially level with it at the other. This Court upheld the decision of Patten DCJ who found that the difference in height was plainly visible and could not be categorised as a concealed hazard. Hodgson JA, who delivered the principal judgment in this Court, said (para 32): “that a plainly visible step of 25 mm in a footpath is [not] correctly regarded as high risk or unacceptable risk”.

38 In my judgment the Authority was not liable to this plaintiff for her fall and its consequences. The upstanding corner was obvious. It was not in the nature of a trap and the modest difference in height did not make the footpath unsafe for a person taking ordinary care. There was no evidence that the Authority knew or ought to have known of the upstanding corner. Even if the Authority did become aware of the difference in height, it would not have been obliged to take any action. Judges may be permitted to know that there are a large number of height differences of this order or more in footpaths in built-up areas, and there was nothing to make this one any worse than others.

39 The plaintiff may have come to grief because of the weakness in her right leg, which aggravated her stumble, and the weakness in both legs which prevented her recovering her balance. However the Authority did not owe her a higher duty than it owed to other pedestrians. The appeal must be allowed. The appellant paid $300,000 to the plaintiff as a condition of a stay of execution and is entitled to recover this amount with interest by way of restitution.

40 The following orders should be made:

(1) Appeal allowed with costs;

(2) Judgment of the District Court in favour of the plaintiff set aside and in lieu thereof order that judgment be entered for the third defendant in the action with costs;

(3) Judgment for the appellant against Ronald John McGuinness, also known as Ronald John McGuiness, the administrator of the estate of the late Marion Amelia McGuinness, also known as Marion Amelia McGuiness, for $300,000 together with interest at judgment rates from 24 December 1999 to date;

(4) Respondent to have a certificate under the Suitors Fund Act.

41 FOSTER AJA: I have had the benefit of reading in draft the judgment of Handley JA. His Honour has set out the relevant facts. I shall not repeat this process and will only refer to such facts as are necessary to explain my reasons. I have reached the same conclusion as his Honour, but by a somewhat different route.

42 I shall deal in the first place with three preliminary matters.

43 The first relates to the learned trial judge’s statement of the relevant duty to be imposed on the appellant. Handley JA has set out this statement in paragraph 11(3) of his reasons. Although I agree that the statement is defective so far as it makes no reference to the exercise of reasonable care, I am prepared to ascribe this deficiency to infelicitous expression on the part of the learned trial judge rather than to a fundamental error of principle. I am satisfied that his judgment was not vitiated by this slip.

44 In the second place, my reading of the judgments in Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512 (Brodie or Ghantous) does not lead me to the conclusion that the robust statements in the Ghantous judgments, relating to the appellant’s liability in respect of the condition of the footpath in question, were intended to or, in fact, did lay down a principle of general application. Rather, they may be seen as an admonition to trial judges not to abandon common sense in the evaluation of liability in such cases. The analysis in Ghantous cannot require a similar result in cases where the facts are significantly different.

45 In any event, the passage from the joint judgment of Gaudron, McHugh and Gummow JJ, set out in paragraph 29 of the judgment of Handley JA formulating the duty of care in relation to pedestrians in terms of their “exercising reasonable care for their own safety”, is subject to the qualification that “of course some allowance must be made for inadvertence.” It is pointed out that some dangers “may not readily be perceived because of inadequate lighting or the nature of the danger…or the surrounding area…”, particular reference being made to dangers “in the nature of a trap”.

46 The learned trial judge, who did not have the benefit of the decision in Ghantous, made findings in relation to this aspect of the case, which he expressed as follows:-

“..the only evidence against the RTA is that of the plaintiff and the photographs which show a clear protrusion of the south-western side of the pit above the pavement to the extent of about ½ inch or so. This protrusion was certainly enough to cause pedestrians walking up the street to trip. It was not readily obvious and it was a danger.”
For the reasons given by Handley JA, I do not regard his later reference to this danger in his judgment as containing any inconsistency.

47 In my opinion, the considerations raised in Ghantous do not require a finding of appellable error in this part of his Honour’s reasons. The facts are significantly different from those in Ghantous, where the potential danger was reasonably obvious to any pedestrian taking ordinary care. In my view, the finding by his Honour that the protrusion of the corner of the pit constituted a tripping hazard which was not “readily obvious” was available on the facts and should not be disturbed. The pit with its cover plate had been in place for a substantial period of time. It was not situated in an area of footpath involving obvious hazards “such as uneven paving stones, tree roots or holes”. It was established in a reasonably flat bituminised surface, which also contained other plates and pits of a similar kind, in fairly close proximity to it.. In these circumstances, in my view, there was nothing which would call for particular care on the part of a pedestrian when approaching this pit and cover, in the course of ordinary use of the footpath. The protrusion in the corner could reasonably be regarded as a “trap” for a person exercising reasonable care for his or her own safety. Because there would be no reason to approach the metal surface with any particular care or at reduced walking speed, a trip over this hazard could well produce more than a mere stumble and recovery; it could result in a heavy and dangerous fall.

48 In the third place, I am, with respect, not prepared to regard the decision in Urban Transit Authority v Purcell (1994) 82 LGERA 284, as authority for a general principle that a statutory authority in the position of the appellant is not under any duty to carry out inspections of artificial structures which it has placed in road surfaces, in order to determine whether they have become a risk to the public. It is clear that in Purcell, the Court had evidence from the relevant authority of an estimated cost of the carrying out of inspections of its works erected on public highways. The estimate was not a carefully prepared one, but would have clearly raised the question whether the undertaking of regular inspections would have been a reasonable response to a foreseeable risk that the installations might have become defective and dangerous to the public. Although, it must be recognised that the cost of such inspections could well produce the result that, in the majority of cases, an obligation to inspect would not arise, I do not consider that Purcell elevates this question into the area of principle rather than fact. In any event, I would regard the question as one which now calls for determination in accordance with the reasons of the High Court in Brodie. Accordingly, I now turn to that decision.

49 In Brodie, in their joint judgment, Gaudron, McHugh and Gummow JJ, after extensive consideration of earlier authority, determined what was the duty of care of a highway authority, in the context of such an authority being no longer entitled to the immunity conferred by “the highway rule”. Their Honours said, (at page 577):-

“The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the LG 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 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 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.” (Reference to authority omitted).

50 Later their Honours considered the obligations of a statutory authority to conduct inspections for dangerous conditions. They said (at page 582):-

“Where the danger could not reasonably be suspected to exist, or could not be found except by taking unreasonable measures, generally there will be no breach of duty by the authority. On the other hand, there will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, or of which the authority has been informed or made aware, and, if they are found, fails to take reasonable steps to correct them.” (Reference to authority omitted).

51 In the present case I agree, with respect, with Handley JA that the facts cannot support a finding of actual knowledge on the part of the appellant of the danger in question. Although the documentary evidence indicates that employees of the appellant and its predecessor worked in the general area of the pit, the work did not involve the pit itself which was out of use from 1965. The danger, if, in fact, it were in existence, at the various times when the employees were in the area, would only have been observable on close inspection. It would not have been so, on casual inspection from the distances referred to in the evidence.

52 In these circumstances, the question of need for inspections by or on behalf of the appellant necessarily arises. The appellant was authorised by s 27 of the State Roads Act 1986 “to maintain, repair, alter, operate or remove traffic lights and associated equipment installed by its predecessor”. The pit and its cover had been in position, unused, since 1965. There was no evidence that it had ever been inspected by the appellant prior to the plaintiff’s accident, or, indeed, thereafter, until its removal in 1995. As it was not in use, the appellant could have exercised its power to remove it. On behalf of the respondent it was submitted that this would have been a relatively simple task involving little expense. There was no evidence in relation to those matters, but, it may be assumed, that, if the appellant, in compliance with its duty of care, undertook the removal it could have been done with little inconvenience or expense. However, it is plain that such pits and covers form a regular feature of public footpaths in Sydney. They are regularly walked upon. Their removal by the statutory authority which put them in place would, reasonably, be required only when there was a need to do so occasioned by their having become unsafe or by a decision on the part of the Council in whom the footpath was vested, to undertake its “beautification”, as occurred in the present case, in 1995. I can see nothing, in the present case, which could be said to have triggered any obligation on the part of the Council to remove the pit and its cover, prior to the plaintiff’s accident.

53 Whilst it is true that no evidence was given in the present case, on behalf of the appellant, to negative any obligation on its part to conduct inspections of the pit, either at routine regular intervals, or on occasions when its employees were doing other work in relation to the traffic lights in the area, that cannot have a significant effect upon the result. It may well be that the cost of conducting regular inspections would have been prohibitive or the arranging of them in conjunction with other work administratively too difficult. There was, however, no evidence directed to these matters. However, the major questions remain, whether the circumstances obliged the appellant to carry out inspections and whether such inspections, if carried out, would, on the facts of the case, have had any effect in preventing the plaintiff’s accident. These were issues in respect of which, in my opinion, the plaintiff necessarily carried the onus of proof.

54 In considering these questions, it is necessary to have regard to the nature of the danger. It is clear that there was no significant deterioration in the pit or its cover. The hazard consisted in its protrusion approximately half an inch above the surrounding asphalt surface of the footpath. The footpath and its surface was the responsibility of the Council, not the appellant. It was under no obligation to conduct inspections, regular or otherwise, of the surface of the footpath. There is nothing in the case to suggest that deterioration, to a dangerous extent, in pits and covers of the type in question in this case, was so likely to occur over time as to require that inspections by the appellant be carried out. Indeed, if such an inspection had been carried out it would have revealed, so far as the evidence indicates, nothing untoward about the condition of the appellant’s structure.

55 Moreover, the evidence is, in my view, incapable of indicating whether any inspection was reasonably likely to have revealed the danger which occasioned the plaintiff’s accident. It is simply not established how, or when, the pit and its cover ceased to be flush with the surrounding footpath.

56 In these circumstances, in my opinion, the respondent necessarily failed to establish circumstances leading to an obligation on the part of the appellant to inspect the pit. Also, it was not proved that, had any inspection been carried out, it would reasonably have obviated the danger to the respondent.

57 In these circumstances, I agree that the appeal should be upheld and orders made as proposed by Handley JA.

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