Liability
61The starting point for liability is the defendant's reliance on Section 45 of the CLA. This is a gateway provision through which a plaintiff must travel if the injury occurs in circumstances falling within Section 45(1). I think it worth including the section in these reasons:
"45 Special non-feasance protection for roads authorities
(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.
(2) This section does not operate:
(a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or
(b) to affect any standard of care that would otherwise be applicable in respect of a risk.
(3) In this section:
carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993.
roads authority has the same meaning as in the Roads Act 1993."
62The defendant submitted that it was a roads authority. The plaintiff submitted the defendant was not a roads authority at least in respect of the car park. This was because the car park was not a public road. The plaintiff's argument went as follows:
(a)A roads authority is defined in the dictionary of the Roads Act 1993 to mean "a person or body that is, by or under this Act, declared to be a roads authority and, in relation to a particular public road, means the roads authority for that road".
(b)The dictionary defines a public road as:
"(a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and
(b) any road that is declared to be a public road for the purposes of this Act."
(c)Section 163 of the Roads Act requires a roads authority to keep "a record of the public roads for which it is the roads authority".
(d)The car park was community land under the Local Government Act 1993 (the "LGA").
(e)Section 10 of the Roads Act allows for the dedication by a council of land held by it as a public road.
(f)Under Section 47F of the LGA community land may not be dedicated as a public road under Section 10 of the Roads Act unless "... (c) there is a plan of management applying only to the land concerned and provision of the public road is expressly authorised in the plan of management".
(g)There was no dispute that there was no plan of management in respect of the car park and that it had never been opened, dedicated or declared to be a public road.
(h)Consequently, submitted the plaintiff, if the car park had never been dedicated as a public road then it was not a public road and the defendant could not be a roads authority in respect of it.
63The defendant's response to the plaintiff's argument was that the absence of a dedication as a public road did not necessarily mean that the car park was not a public road. The defendant's position arises from Section 249(1) of the Roads Act, which states:
"(1) Evidence that a place is or forms part of a thoroughfare in the nature of a road, and is so used by the public, is admissible in any legal proceedings and is evidence that the place is or forms part of a public road."
64This section, which I think is consistent with Section 7(4) of the Roads Act, does not require any compliance with other sections of the Roads Act or the LGA in order for the conclusion to be reached that a place is a public road.
65Section 249(1) received detailed analysis in Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364.
66I think the starting point, for present purposes, in the analysis of this case is paragraph 103 in the judgment of McColl JA. In this paragraph it is specifically stated, as is the case here, that the area in question had not "been opened, dedicated or declared to be a public road within the meaning of the Roads Act". Notwithstanding this, her Honour found that the place at issue in Stojan was a public road by reference to Section 249.
67In paragraph 105 her Honour set out the test arising from the section. She said:
"[105] Section 249(1) requires three conditions to be satisfied. First that a place form "part of a thoroughfare", secondly that that thoroughfare be "in the nature of a road" and thirdly that the place "is so used by the public". The Roads Act does not provide express guidance on those terms save, that it should be observed that it is apparent from the generality of the first object (s 3(a)), that the rights of members of the public to pass along public roads means in whatever manner, whether by foot or in a vehicle. That should be borne in mind when considering the expression "in the nature of a road"."
68At paragraph 109, in relation to a thoroughfare her Honour said:
"[109] The ordinary meaning of a "thoroughfare" has been held to be "a road which, either regularly or by license, passes from one place to another, not necessarily by a specifically defined way, but generally by getting from one place to another over an intervening space, by right or by permission of the owner": Sheahan v Jackman (1898) 4 Argus LR 47 (at 48) per Madden CJ, cited in Re appln for a Writ of Certiorari against the Shire of Gingin; Ex parte Machlin (1999) 103 LGERA 21 (at 30) per Murray J. The "primary meaning of a road or thoroughfare is that people usually pass along it": Sheahan v Jackman (at 48)."
69In paragraph 111 her Honour said that:
"The car park is more problematic, at least insofar as vehicular traffic is concerned. Vehicles presumably used the car park for the purpose for which it was intended, to park their cars then go about their business. In other words, the car park was not used as a thoroughfare for vehicular purposes."
70Her Honour then went on to say that the "car park was clearly used as a thoroughfare by pedestrians and, accordingly the first and second conditions of Section 249(1) are satisfied in that respect too".
71The car park in the present case, while serving as a place in which shoppers at the Plaza would park their cars was also a thoroughfare used by pedestrians so that, as in Stojan, the car park must satisfy the first two conditions identified by McColl JA. In relation to the third condition, the car park was used by the public to make their way either from their motor vehicles to the shopping centre or perhaps even as a thoroughfare from Eastern Valley Way or Harden Avenue, as pedestrians, to the shopping centre. There are aerial photographs showing the surrounding streets in Exhibit P. It was common ground that there were two means of accessing the car park, one from Eastern Valley Way, the other from Harden Ave.
72It follows that the three conditions required by Section 249(1) are satisfied so that there is "evidence that the place is or forms part of a public road".
73Once the car park becomes a public road then, in relation to it, the defendant must be seen as a roads authority. In turn the application of Section 45 of the CLA is triggered.
74Foreshadowing this eventuality the plaintiff submitted that it was not fatal to her case. She said that the protection given by Section 45 would not apply because "...at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm" (Section 45(1)).
75The plaintiff submitted that the various visits by Council employees to the area, the complaints from the public and the previous work done in the car park provided sufficient evidence from which it could be inferred that the defendant had actual knowledge of the particular risk.
76In this regard the plaintiff took me to a number of documents, mostly in Exhibit B, to establish the point. Without listing all of them, they included:
(a)The Safety Assessment conducted in 2005 (Exhibit B, page 328).
(b)The letter to V & J Wellington, especially on the second page (Exhibit B, page 348).
(c)The media release in 2009 (Exhibit B, page 410).
(d)The letter from Northbridge Progress Association dated 16 March 2011 (Exhibit B, page 493).
(e)The 2011 email detailing previous incidents (Exhibit B, page 523).
(f)The letter from Council's General Manager dated 12 August 2009 (Exhibit B, page 526).
(g)The 202 article in April 2011 (Exhibit B, page 528).
(h)The inferred presence of Council employees on 7 May 2011 (Exhibit B, page 545).
77The defendant's response was twofold:
(a)Firstly there needed to be evidence of knowledge by a person at the Council who could, in effect, have done something about the problem, and
(b)The knowledge had to have been of the actual pothole that caused the plaintiff's accident.
78In respect of the first of the above two points the defendant primarily relied on North Sydney Council v Roman [2007] NSWCA 27. This was a majority decision of the Court of Appeal. The majority was constituted by Bryson JA and Basten JA. McColl JA was in the minority. The plaintiff submitted that in a later decision, Blacktown City Council v Hocking [2008] NSWCA 144, the decision of McColl JA was stated to be correct, thus overturning the majority in Roman. The defendant disputed this assertion stating that while Tobias JA in Hocking said that McColl JA, in Roman, had been correct, that endorsement was not common to the whole court, or even a majority, thus leaving the majority decision in Roman as the correct statement of the law that I should apply.
79There is no doubt that Tobias JA prefers the reasoning of McColl JA (paragraph 223 of his judgment); however, as I read the judgments of the remaining members of the court in Hocking they do not express agreement with Tobias JA in respect of this point. There is however a greater problem for the plaintiff. Even on the views of Tobias JA the plaintiff faces significant obstacles. Tobias JA still agrees with Basten JA (in Roman) that relief from Section 45(1) "only arises where at the time of the alleged failure of the authority to carry out roadwork it had actual knowledge of the particular risk ..." (paragraph 223(g)). A little later he says the following:
"(h) The critical consideration is the requirement in s 45(1) that knowledge of the relevant risk must be "actual" as distinct from "constructive". The fact that an officer of an authority whose responsibility it is to inspect roads for the purpose of ascertaining the existence of hazards would, had such an inspection been carried out carefully, have discovered the existence of a hazard is insufficient in the absence of actual knowledge on the part of that officer of its existence. The fact that such an officer should or ought to have had knowledge of such a hazard is insufficient: actual knowledge must be established, either directly or by inference from proven facts." (emphasis added)
80The difficulty facing the plaintiff is to establish that whether directly or by inference any Council employee had actual knowledge of the pothole.
81The plaintiff's submission was that because the records indicate visits and work by Council employees to the site it could be inferred that those persons would have seen the pothole.
82Unlike Hocking there is no evidence in this case that would allow me to reach any conclusion about the age of the pothole. Further, it was common ground that the pothole had been previously repaired and that the repair must have broken down. There is, however, no basis upon which I could reach a conclusion about how long the pothole had been in the state it existed on the day of the accident. Mr Adams (Exhibit B, page 144) does not assist and I can draw no findings from the photographs. In other words there is no evidence that would assist me to say that a Council employee on any particular day would have seen the pothole in the state it was on the day of the accident.
83In order to draw an inference that a council employee had seen the pothole in its dangerous state there would need to be evidence, even if by inference, that the pothole had been dangerous for a period of time. At this stage of the inquiry I am not concerned with whether or not there was a proper system of inspection. That question might be relevant to a finding of negligence. At this stage the plaintiff must show there was actual knowledge of the risk. It is not enough that there should have been actual knowledge.
84It follows that I could not conclude that the defendant had actual knowledge of the risk.
85The second issue that I outlined above concerned whether or not the knowledge of the defendant must have been of the actual pothole as opposed to the general state of the car park. The defendant relied upon the decision of Adamson J, sitting in the Court of Appeal in Botany Bay City Council v Latham [2013] NSWCA 363. Her Honour said the following, commencing at paragraph 45:
"[45] Ground 3 raises the application of s 45 of the Act. The "harm" referred to in the last words of s 45(1) is a reference to the "particular harm" which has resulted from the materialisation of the "particular risk", being the "particular harm" to which the determination of causation in s 5D is addressed.
[46] It follows that "the particular risk" is s 45(1) is at the same level of generality. In this case, given the way Ms Latham put her case that a particular paver that was uneven or irregular caused her to trip, the actual knowledge required is actual knowledge of the particular risk posed by the unevenness or irregularity of the very paver that caused her to trip and fall. It would not be sufficient for the Council to know of the more general risk that she might trip and fall on an area of irregular pavers between the tree and the adjacent building, as was contended on her behalf on the appeal."
86The plaintiff submitted that the present case could be distinguished from Latham because in the latter case the pleadings directed the negligence at the particular paver that caused the plaintiff's fall. In the present case the pleadings attacked the state of the car park more generally.
87The difficulty with the plaintiff's argument is that the particular risk is the pothole into which the trolley descended. This is the risk of which the Council was required to have actual knowledge. Accordingly I do not think any distinctions in the breadth of the pleadings between the present case and Latham are of any assistance to the plaintiff.
88The plaintiff did not suggest that any necessary action to repair or maintain the car park would not have been "road work" within Section 45.
89The result of the above is that I have found that the car park is a public road, the Council is a road authority entitled to the protection of Section 45 and the plaintiff has failed to establish the exception provided by Section 45(1). The plaintiff's case must therefore fail. Accordingly I will enter a judgment for the defendant.
90Notwithstanding the conclusion I have reached I think it important for me to express my views on the assumption that this conclusion is wrong. I will do so as briefly as possible but hopefully giving sufficient reasons for my findings.
91Had I found that the exception in Section 45 applied it would first of all have been necessary for me to approach the matter on the basis of the duty of care owed by a roads authority. This was stated in the following manner by McColl JA in Stojan.
"[118] As a roads authority, the Council was obliged, if the state of the stairs, whether from design, construction, works or non-repair, posed a risk to road users, to take reasonable steps by the exercise of its powers within a reasonable time to address the risk."
92My next task would have been to approach the facts having regard to Section 5B of the CLA. The defendant conceded that Section 5B(1)(a) and (b) were not in issue. It did, however, contest Section 5B(1)(c), submitting that a reasonable person in the Council's position would not have taken precautions to deal with the risk. I would have been against the defendant on this point. The only subsection of Section 5B(2) that the defendant relied upon was (a). In my view the failure to take precautions would have raised a significant probability that harm would occur. The pothole was in an area often and well traversed by shoppers with trolleys that might be heavily laden, including with children. A trolley going into a pothole in the circumstances, and falling over, would be likely to cause harm not only to the pusher of the trolley but also to any child seated within it.
93No submissions were put to me in relation to Section 5D. I would have found that but for the negligence of the Council (arising under Section 5B) that the injury to the plaintiff would not have occurred. I do not think this was seriously disputed if I found the plaintiff's injuries were a product of the fall.
94It follows that I would have found in favour of the plaintiff if she had passed through the Section 45 gateway.
95My next task would have been to address contributory negligence under Section 5R. The plaintiff submitted that there was no contributory negligence because she was, as many people do, simply pushing a trolley through the car park with no reasonable expectation that there were any hazards ahead of her. The defendant submitted that the plaintiff was aware of hazards, as disclosed in her letter to 202 (Exhibit B, page 535) and she could, for example, have taken smaller loads of shopping to and from her vehicle. Alternatively she did not need to do the entire shopping list on the one day but, bearing in mind she was working part-time, she could have spread her shopping requirements over more than one day.
96My initial reaction was that there should not be any contributory negligence because of the impracticalities facing a mother with three young children in having to spread her shopping through the week as opposed to achieving it on the one occasion. On further consideration however, having regard to the plaintiff's apparent knowledge of hazards in the car park, I am of the view that she should have exercised more care in proceeding towards her car with both a child and a heavily laden trolley. The plaintiff made the decision to do the shopping "in one go" when there were alternatives available to her. She lived very close to the Centre and presumably could have visited on other occasions during the week. Although not raised in evidence one must also consider the possibility of having supermarket items delivered. I would have assessed contributory negligence at 15%.