Wagner v Waverley Municipal Council

[2002] HCATrans 544

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S37 of 2002

B e t w e e n -

BARRIE WAGNER

Applicant

and

WAVERLEY MUNICIPAL COUNCIL

Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 2002, AT 10.46 AM

Copyright in the High Court of Australia

MS S. NORTON, SC:   If the Court pleases, I appear for the applicant with my learned friend, MS J.M. BAXTER.  (instructed by Bryden’s Law Office)

MR D.L. DAVIES, SC:   May it please the Court, I appear for the respondent.  (instructed by Phillips Fox)

GAUDRON J:   Yes, Ms Norton.

MS NORTON:   Thank you, your Honour.  Your Honours, this is a case about a man who suffered an injury when he was a pedestrian walking along Spring Street, Waverley, and he trod on a paving brick and it twisted to one side and he fell over.  The Court might say, on first blush, that we have recently looked at this question of pedestrians and footpaths ‑ ‑ ‑

CALLINAN J:   Ms Norton, could I just ask you a question first.  Was the issue of negligence, as such, litigated either at first instance or in the Court of Appeal?

MS NORTON:   The matter was pleaded in negligence.

CALLINAN J:   But I had the impression from reading the Court of Appeal judgments – and I may be wrong about this – that the only issue in the appeal was as to the Council’s responsibility by way of misfeasance for what had happened, not that the presence of the paving stones, or whatever they were, in the way in which they were was not negligent.  It seemed to be accepted that if the Council had been guilty of misfeasance then there had been negligence and that the plaintiff could recover.  Am I wrong about that?

MS NORTON:   The case was definitely run on – it was called negligence but the negligence was, in the court below, that the pavers had been incorrectly laid and it seems to have been accepted in the Court of Appeal that in fact the pavers were incorrectly laid.

CALLINAN J:   Right.  There was no notice of contention or anything in the Court of Appeal?

MS NORTON:   No.

CALLINAN J:   The only issue in the Court of Appeal was misfeasance, or nonfeasance, and what the effect of the different law would be.

MS NORTON:   Brodie and Ghantous.

CALLINAN J:   Yes.

MS NORTON:   It was raised in submissions that as the pavers had been there for 10 years and as the defendant called no evidence of any system of inspection then the plaintiff, who was the respondent in the court below, should succeed in any event, but the oral argument in the Court of Appeal did no go over that ground.

GAUDRON J:   Is that really the only basis on which you have put negligence post Brodie v Singleton Shire Council?

MS NORTON:   If the matter was being pleaded now, then you would probably plead it differently.  You would plead firstly the same ground, that the pavement was wrongly laid because the pavers were not laid up to a hard edge; secondly, that because it had been there for 10 years, whoever laid it, the Council had, in effect, if it did not call evidence of inspection, taken to adopted the negligence, as it were.  It used to be adopt a nuisance, but now I think the terminology would be adopt a ‑ ‑ ‑

GAUDRON J:   That is to reverse the onus of proof entirely, is it not?

MS NORTON:   No, your Honour.

GAUDRON J:   It is still the onus on a plaintiff to prove negligence.

MS NORTON:   Yes, your Honour.  But, in this particular case, and as the trial judge found, that because these pavers – and there were photographs which have not been produced in the application book, but the photographs show a very extensive area of paving, the whole width of the footpath running along Spring Street, past the post office and past some kind of commercial building.

The trial judge had the benefit of looking at those photographs.  He had the benefit of the evidence from an expert that the pavement had been laid for about 10 years and the evidence that the standards about laying pavers up to a hard edge had been around for about 30 or 40 years and using his knowledge of the fact that work on footpaths – there was an admission that the Council was the road authority.  It is a bit like someone admitting that this is my property and if you damage yourself or injure yourself on something that is negligently built on that property, then you would look to the property owner.  Councils are not in exactly the same position but the Council admitted it was the road authority for this road.

GAUDRON J:   Yes, but there is nothing in Brodie or Ghantous, is there, that equates councils even remotely with occupiers?

MS NORTON:   No, your Honour, but there are ‑ ‑ ‑

GAUDRON J:   That is almost what you would have to do, is it not?

MS NORTON:   Not exactly.  They had admitted that they were the road authority and they had pleaded in their defence that if they did any work they had immunity that applied to road authorities, so that was taken by the trial judge.

GUMMOW J:   But was it clear that they were the only small “a” authority?

MS NORTON:   There was no suggestion there was anyone else.  It was never pleaded that the Road Traffic Authority had anything to do with the footpath.  It is a footpath and trees.  We are not talking about a road and pipes.

GAUDRON J:   Yes.  Your client stepped in virtually under a tree.

MS NORTON:   Virtually, yes.  The paving ran around the – as you normally see, there is an area of dirt left and then the pavers start to run.  The last paver before the dirt is what he stepped on and because it was not laid up to a hard edge it had come loose and it tipped and that is what caused him to fall.

GAUDRON J:   Because the tree had grown.  The roots of the tree, perhaps.

MS NORTON:   The experts said it was because it did not really matter about the tree.  The problem was whenever you lay paving where it stops there should be a hard edge because paving will always come loose.

CALLINAN J:   That was your case in negligence, assuming the Council had a responsibility, that there is uncontested evidence that this was negligently done, is that correct?

MS NORTON:   Yes, that is correct.

CALLINAN J:   Then there was a finding that it was negligently done.

MS NORTON:   Yes.

CALLINAN J:   If you look at the grounds of appeal on page 16, there is no challenge to the finding that whoever did it or whoever was responsible for it was negligent.

MS NORTON:   That is correct.

CALLINAN J:   Whether you can make it out might be another question, but your case would be that the Council was under a continuing duty – just what the nature and content of that duty might be would be contentious – not to cause or permit dangerous nuisances on a road.  There might be questions of obviousness and resources and things of that kind, but you do not have to prove negligence, that has been accepted.

MS NORTON:   That has been accepted and in fact the Court of Appeal – there was an issue raised in ‑ ‑ ‑

GUMMOW J:   Where do we see that in the trial judge’s judgment?

MS NORTON:   If you turn to page 6 of the application book, at line 15 he states his finding about why he reached the opinion that it was the responsibility of the Council.  He says:

Whenever the pavers were put on the footpath there can be little doubt that the council or a person or body on its behalf was authorised by the Council to do that work.  The Council certainly had statutory power to do that work and there has been no evidence called on behalf of the defendant indicating that any work was not authorised by the council.

Then he says, starting at about line 27:

In any event, on the evidence of Mr Towson –

he was the expert who prepared a report and gave oral evidence –

it is clear that in placing pavers around the tree or the area available for use for planting a tree, the Council in not ensuring that the pavers were placed with a hard edge against another hard edge, failed to take a reasonable care for users of the footpath.  That is a civil wrong and the council could have avoided danger to users of the highway in the manner indicated by Mr Towson in evidence before the court and as referred to in his report and, I find that such means were available to the defendant.

CALLINAN J:   There is just no challenge to that finding of negligence.

MS NORTON:   No.

CALLINAN J:   It is surprising because it is obviously a matter about which minds might differ, but there it is, you do not have any challenge to it in the Court of Appeal.

MS NORTON:   No, and the Court of Appeal put aside questions of whether the Road Traffic Authority had some authority under any section in the Roads Act and said, simply, in the words of Justice Young, much would turn on whether the Council laid the pavers or an independent contractor.  That is at page 23 of the application book.  That is really one of the main issues we take in this appeal because it is not enough to say the work could have been done by an independent contractor.

If you accept there was a factual basis for the trial judge’s conclusion that it was either done by the Council or under the authority of the Council – and we say that finding should not be attacked because it is open ‑ ‑ ‑

CALLINAN J:   How would you put your proposition now, after Brodie?  Assuming negligence, what would you say is your principal proposition?

MS NORTON:   The principal proposition would still be the same, one that either, as the trial judge found, that they had breached their duty of a care either in allowing the footpath to be built this way, in building it themselves in this way or in not fixing it in the 10 years that it was in this state.

CALLINAN J:   Now, is that within your pleading?  I do not think we have your pleading, have we?

MS NORTON:   No, the pleadings were broad, to say the least.  I have brought up the red book.  The particulars of negligence started off with failing to take any or any adequate precautions for the safety of the plaintiff, which would probably be wide enough to cover ‑ ‑ ‑

CALLINAN J:   Nobody asked for particulars of that in the District Court?

MS NORTON:   I do not know, your Honour.  I am not aware of that.  I was not in the case, at first instance.

CALLINAN J:   It is fairly unlikely in the District Court in a $29,000 claim, anyway.

MS NORTON:   The second one was putting the plaintiff in a position of peril in the circumstances and (c) providing a paved surface which was unsuitable for pedestrian traffic.  So, that one is getting almost specific enough to cover how we would plead it now.  I mean, there were reasons it was pleaded that way.  There was a belief that one had to plead a misfeasance rather than a lack of inspection, but paragraph (c) would probably cover it and paragraph (g) was laying pavers in an area where they were unsuitable, to wit, adjacent to a tree.  But probably it would be (c), providing a paved surface which was unsuitable for pedestrian traffic.

GUMMOW J:   Now, what do you say is wrong with paragraph 16 on page 23 of the book

MS NORTON:   Yes, it is a longish paragraph and it says ‑ ‑ ‑

GUMMOW J:   I mean, putting that side‑by‑side with page 6

MS NORTON:   What we say the Court of Appeal did here is the trial judge looked at a wider question.  He looked at whether the Council had breached its duty of care to the plaintiff, as it was, before him.  The Court of Appeal narrowed it down to look at whether the paving which they accepted had been wrongly laid, or carelessly laid, was laid by the respondent or the Council or could it have been laid by an independent contractor.  So, we say they are making the question – it is the wrong question to be asking.  The question to be asking posed ‑ ‑ ‑

GUMMOW J:   They are saying you had to exclude a negative.

MS NORTON:   I have to exclude a negative, and they say that the reason I have ‑ ‑ ‑

GUMMOW J:   But had the judge found the positive?

MS NORTON:   The judge had found that the pavings were laid either by the Council or under the authority of the Council and they say he should not have made that finding because there was:

no evidence fit to go to the tribunal of fact that the Council laid the pavers. 

That is paragraph 18 of the judgment on page 24.

GUMMOW J:   Yes.

MS NORTON:   But, again, that is misstating the question.  The question is not whether the Council laid the pavers but whether, as the trial judge found, the Council laid the pavers or they authorised someone to lay the pavers or they, being aware the pavers had been laid, did nothing in 10 years to fix it up.

GUMMOW J:   It is really an evidence question, is it not, at the end of the day?

MS NORTON:   Partly an evidence question, yes, but it is the finding that is made by a trial judge applying ‑ ‑ ‑

GUMMOW J:   Yes, but it is said it is a finding made without the necessary support for it.

MS NORTON:   The Court of Appeal found it was without the necessary support but they did not ‑ ‑ ‑

GUMMOW J:   Yes.  That is paragraph 18 of the book.

MS NORTON:   That is paragraph 18.  But the question they ask themselves in paragraph 18 was too narrow a question.  They ask themselves only, “Is there enough evidence to show the Council laid the pavers?”, and that is not the question.  The question is the wider question which the judge answered, that is, “Were these pavers either laid by the Council or under its authority?”  And it is a footpath ‑ ‑ ‑

GAUDRON J:   Assume they were under its authority, though.  You would have to prove, would you not, to lay responsibility on the Council, either that they authorised them to be laid in this particular dangerous way or that they knew they had been laid in this way before you could sheet home liability to them.

MS NORTON:   The evidence was that the footpath is in their area and that it was laid not in accordance with correct standards – and they called no evidence to contradict that so there is no dispute about that.

GAUDRON J:   No, we know ‑ ‑ ‑

MS NORTON:   The Council is the person who issues building authorities within their area.  They must be taken to know what is good building practice, unless they come along and say ‑ ‑ ‑

GAUDRON J:   But that does not really answer my question.  Can you sheet home negligence to the Council without establishing either that they authorised pavers to be laid in the way they were or that they knew that the pavers were laid in the way they were?

MS NORTON:   We say yes, because it is in their Council area and because of the provisions in the Local Government Act, which means they are the people who authorise any work done on footpaths.  It cannot be done without their authorisation.

GAUDRON J:   No, let us talk about the common law duty of care.  You have to establish, in the absence of evidence, that the Council laid the pavers negligently, have you not?  To get a common law duty of care you have to establish either that they authorised them to be laid in that particular way, of which there was no evidence, or that they knew that they had been laid in that particular way without authority and took no action in that regard.  How else can you sheet home negligence at common law against a council who, on this hypothesis, did not lay the pavers?

MS NORTON:   That would be correct, your Honour, but factored into it is the other factor that was before the court, was that these pavers had been laid in this way for 10 years.  So it would be highly unlikely that they would be laid that way for 10 years and it not to come to the attention of the Council.  The other alternative is that as the footpath authority ‑ ‑ ‑

GAUDRON J:   What one assumes is that they had been laid without – and given no difficulty for 10 years – a contrary assumption.

MS NORTON:   No, because the expert’s report – and the expert visited it – said that this was not the only paver that was giving way and there were a series of them and you can see them in the photographs, the ones around where the trees are have been giving way.  So I do not think that there could be any error on the part of the trial judge in drawing an inference that this footpath was incorrectly laid and it was – to anybody who was an engineer looking at it, it would be obvious; not to a pedestrian looking at it, it would not be obvious, because we do not know that pavers have to be laid up towards hard edges or they will tilt, but engineers have known that for at least 30 years.

So, anybody familiar with the building of pavements would look at this pavement and realise it was not correctly built.  That was the evidence, basically of the expert, that this system – or it had been known ‑ ‑ ‑

GUMMOW J:   It sounds like res ipsa loquitur.

MS NORTON:   Yes, almost, your Honour, res ipsa loquitur.  The fact is that the Court of Appeal seemed to concentrate only on the fact that the plaintiff had to prove that the Council laid the pavers, but if the Council authorised the laying of the pavers, then regardless of who laid them ‑ ‑ ‑

GAUDRON J:   In that way.

MS NORTON:   In that way.  Well, that is the way they were laid.

GUMMOW J:   That is the immediate problem, I think.

MS NORTON:   Yes.  As to whether it is a question of general importance, I realise that there are some limitations in the evidence in this case but I have sent up a number of other cases that no doubt your Honours may have heard about anyway recently in the Court of Appeal.  The fact is that there seems to be some difficulty at the moment of grappling with the problem of how to approach footpath cases in cases where the footpath was negligently built because in Ghantous it was decided, from my reading of it, anyway, that the footpath was not negligently built there, there was nothing wrong with the footpath, and now those in the lower courts are trying to apply the principles of negligence and they really need some guidance about what to do when the footpath is negligently constructed.

At the moment it appears that provided whatever flaws you put in the footpath are obvious ones when you construct it, then you cannot be held liable because they are obvious flaws.  I do not know if that is what the Court really meant in the decision of Ghantous.  So, this is a question on which there are a number of cases every year and there seems to be a grave difficulty at the moment working out exactly what the decision in Ghantous means as applied to footpaths negligently constructed.

Finally, as in my submissions, we seem to have now the situation in this case in the Court of Appeal where the court has said, “Well, the plaintiff cannot win because they cannot prove that the pavers were not laid by an independent contractor”.  Then, opposingly, in the case of Ryan where the Council joined the independent contractor and the Court of Appeal in that case said, “Well, the Council cannot get out of liability because they have not produced any evidence to show the independent contractor was competent and they knew that before they engaged them”.  So we have these two decisions and it is very difficult to reconcile them and it is difficult to run pedestrian cases for negligently built footpaths at the present time.

GAUDRON J:   Thank you, Ms Norton.  Yes.  We need not trouble you, Mr Davies.

The only issue raised directly by this application is whether the evidence was sufficient to permit the inference that the pavers in question were laid by the respondent Council.  That is not a question which warrants the grant of special leave.

Further, insofar as Brodie v Singleton Shire Council (2001) 206 CLR 512 might permit of a finding that there was a duty of inspection, we are not persuaded that it is proper to infer that inspection would have revealed the dangerous nature of the paver or that it was reasonably foreseeable that a person would step on a paver in such close proximity to a tree.

Accordingly, special leave is refused.  In accordance with the ordinary practice, it is refused with costs.

The Court will now adjourn briefly to reconstitute.

AT 11.10 AM THE MATTER WAS CONCLUDED