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[2009] VSCA 101
Court of Appeal (Vic)
2009-06-24
NEAVE and REDLICH JJA and PAGONE AJA
Original judgment source is linked above.
TORT - Council's liability to pedestrian slipping on temporary footpath - Whether Council acting as a highway authority - Immunity conferred by s 37A Transport Act 1983 - Artificial structure not on highway.
OCCUPIER'S LIABILITY - Whether Council acting as highway authority or discharging Building or Planning functions - Council not occupier of temporary footpath - Whether duty formulated in Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 applied - Jury directions - s 14B Wrongs Act - Obviousness of risk - Obligation of plaintiff to take reasonable care for her safety - Duty of Council to pedestrian if occupier.
1 I agree with Redlich JA that the appeal should be allowed.
2 For the reasons given by his Honour, I consider that:
(a) the appellant council was exercising its functions as a highway authority when it inspected the temporary footpath and associated structures;
(b) section 37A(1) of the Transport Act 1983 did not confer immunity from civil liability on the appellant, because the props and mesh netting erected to create the temporary footpath formed a structure which was excluded from the definition of a 'highway' under s 37A (2);
(c) under the principle in Brodie v Singleton Shire Council,[1] the duty of care which the appellant owed pedestrians was a duty to ensure that the roadway or footpath was safe for pedestrians exercising reasonable care for their own safety;
(d) the Brodie principle defined the nature of the duty owed by the appellant to a pedestrian on a footpath or roadway, regardless of whether the council issued the temporary footpath permit and inspected the structure in its capacity as a highway authority, or in the exercise of its planning and building functions; and
(e) the appellant was not an occupier of the temporary footpath. Accordingly, the trial judge erred in directing the jury on the basis that s 14B(3) applied.
3 In the passage from Roads and Traffic Authority of NSW v Dederer[2] which is cited by Redlich JA at [50], Gummow J seems to have considered that the specialised duty in Brodie applies to public bodies, whether they are acting in their capacity as occupiers or road [3]uthorities.3 Dederer was an appeal from a decision of the New South Wales Court of Appeal. Accordingly, it did not require consideration of the effect of s 14B of the Wrongs Act 1958 on the scope of an occupier's duty.
4 Since the appellant was not an occupier of the temporary footpath, it is unnecessary for the purpose of this appeal to determine the nature of the duty of care which the appellant would have owed Mrs Haley in that capacity. Had this Court been required to determine the duty of care which an occupier owed an entrant onto the occupier's property, I consider that it would have been incorrect for the Court to begin its analysis by applying the common law duty of care. The duty of an occupier is governed by the words of s 14B(3), which provides that
An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
This Court has repeatedly said in recent times that, where a statute of relevant operation has been enacted, it is the duty of Australian courts to start their analysis of the legal liability of parties affected not with the pre-existing common law but with the statutory prescription. The reason for this requirement is simple. Legislation of a parliament, acting within its constitutional powers, has an authority that displaces the common law to the extent of the statutory provisions. Where parliament has spoken, it is a mistake to start with common law authority.[6]
6 It is not self-evident that the matters set out in s 14B(4) are irrelevant in determining the scope of an occupier's duty of care. In particular, I agree with Redlich JA that the reference to the age of an entrant in s 14B(4)(e) may affect the scope of an occupier's duty of care under s 14B(3). My tentative view is that the requirement to take account of the age of any person on the premises, as well as of the matters in s 14B(4)(f) and (fa), in determining 'whether the duty of care under sub-section (3) has been discharged' indicates an intention to modify common law principles relating to the scope of the duty.
7 Since the specialised duty of care in Brodie governs the relationship between a pedestrian and a public authority exercising its powers as a highway authority, or planning authority, it is unnecessary for the purposes of this case to determine the limits of the Brodie principle or whether there are circumstances in which a public authority may owe a more generalised duty to take reasonable care to avoid foreseeable harm to those who use public facilities.
8 In my opinion, there are considerable disadvantages in limiting the liability of statutory authorities by the device of limiting the scope of the duty of care, rather by taking account of a plaintiff's lack of care for his or her own safety, for the purposes of deciding whether there has been a breach of duty on the particular facts of the case.
9 As Kirby J pointed out in his dissenting judgment in Neindorf, the effect of limiting the scope of the duty of care by reference to the negligence of an injured plaintiff effectively revives 'the ancient common law position so that effectively, contributory negligence, of whatever proportion, becomes again a complete defence to an action framed in negligence'.[7] In my opinion, this is an additional reason why the specialised duty in Brodie should not be expanded.
10 Finally, I should note my agreement with Redlich JA that if, contrary to the view expressed above, the council was an occupier of the temporary footpath and did breach its duty to the respondent, it should be liable for 40 per cent of the damages and the hoteliers should be liable for the remaining 60 per cent.
11 This is an appeal against an award of damages by a County Court jury for injuries sustained by the respondent ('plaintiff'). She slipped and fell on plastic mesh netting which had fallen from a hoarding onto a temporary footpath in the appellant ('Council') municipality. The plaintiff's case was that the Council and the 2nd, 3rd and 4th respondents ('the hoteliers') occupied and controlled the temporary footpath[8] and that by reason of their negligence the plaintiff suffered injury. The jury awarded the plaintiff the sum of $120,000 and found the plaintiff guilty of contributory negligence which they assessed at 12½ per cent. They apportioned liability as to 75 per cent against the Council and as to 25 per cent against the 2nd 3rd and 4th respondents who were jointly represented. The Council seeks to have the jury verdict and judgment set aside and judgment entered in its favour or alternatively that the claim be remitted to the County Court for re-trial according to law.
12 This appeal calls for a consideration of the following questions:
(1) Was the Council a highway authority to which the immunity conferred by s 37A of the Transport Act 1983 applied?
(2) Was the Council an occupier of the temporary footpath within the meaning of the Wrongs Act 1958?
(3) Did the duty as formulated in Brodie v Singleton Shire Council[9] apply to the Council in the present circumstances? Was the obviousness of the mesh netting lying on the temporary footpath and the obligation of the plaintiff to take reasonable care for her own safety relevant to the Council's duty of care or any breach of duty?
(4) Were the factors set out in s.14B(3) of the Wrongs Act to be applied by the jury to determine whether the Council had breached its duty of care?
13 In May 2002, extensive renovation works were undertaken at the Flagstaff Hotel in Maryborough by the hoteliers. They obtained a planning permit from the Council as the Responsible Authority under the relevant planning scheme and a building permit from the Council under the Building Act 1973 and the regulation made thereunder. The hoteliers also obtained a permit from the Council to occupy the footpath and to construct and occupy a 'make-shift' or 'temporary' footpath on the roadway in front of the hotel while the renovation work was being carried out. There was no dispute that the temporary footpath was part of the road reserve or that the Council had the care and management of the road.[10] The permit was to 'occupy part of road reserve to erect protective fencing.' Documents tendered by the plaintiff[11] show that it was granted in response to an application made under the 'Streets and Roads Local Law - Schedule 3 (L3.1)'. These local laws were made pursuant to the Local Government Act 1989 and contain specific provisions for the 'occupation of road for works'.
14 As required by the 'occupation permit' a hoarding was erected by the hoteliers between the hotel building site and the temporary footpath to prevent the public from inadvertently entering the building site. The temporary footpath was constructed by the hoteliers in part from materials supplied by the Council which included chevrons, concrete blocks, bollards, safety signs, flashing lights and pink plastic mesh netting. The Council gave the hoteliers instructions as to how it should be constructed. The mesh netting was hooked over three inch nails at intervals on the hoarding. Following the completion of the hoarding, to the Council's apparent satisfaction, the hoteliers supervised and inspected the temporary footpath daily. It was also inspected by officers of the Council two or three times per week.[12]
15 On the day the incident occurred the plaintiff and her husband were walking along the temporary footpath outside the hotel. It had been raining and it was wet underfoot. She gave evidence that she was walking on the hoarding side of the temporary footpath as she was frightened of the traffic. Her husband was walking on the road side of the temporary footpath. Some mesh netting had come off the nails and was intruding six to nine inches onto the temporary footpath so that there was only a couple of feet between the plastic mesh netting and the outer barrier for her and her husband to walk on. She said that she had to walk on the netting because it covered so much of the temporary footpath. The plaintiff said she was very conscious about where she was putting her feet, although she was not looking where she was walking at the time she fell. Just before she fell, the plaintiff took her eyes off the path and glanced over at her husband.
16 The plaintiff's case against the hoteliers and the Council was pleaded and presented to the jury on the basis that each of them 'occupied and controlled' the temporary footpath and were responsible for the 'management', 'maintenance', 'inspection', and 'supervision' of the temporary footpath on which she slipped and fell. The plaintiff pleaded that the incident occurred as a result of the hoteliers' and Council's negligence or breach of duty. Although the relevant paragraph of the statement of claim which contains this allegation, makes reference to their duties under the Wrongs Act 1958 (Vic), the pleading is incomprehensible because a number of words and phrases are obviously missing from the paragraph as pleaded.
17 In closing address counsel for the plaintiff made clear to the jury that the plaintiff's case rested upon the claim that the hoteliers and the Council were 'occupiers' of the temporary footpath as 'part of the construction site.' He explained that they were 'occupiers' because of their control over the site.[13] He then described the occupiers as having a duty to take such care as was reasonable to see that a person on the 'premises' will not be injured. He told the jury that the 'premises'[14] was the temporary footpath and that the Council and the hoteliers as occupiers of the footpath had a duty to do what was reasonable to make sure the plaintiff was not injured by reason of the state of the temporary footpath.
18 The particular of negligence upon which the plaintiff placed primary reliance as against the Council, both at trial and on appeal, was the alleged failure of the
18 Council to inspect the temporary makeshift footpath at regular intervals to ensure it was reasonably safe for pedestrians.
19 By its defence the Council admitted issuing the occupation permit to the hoteliers, denied that it was in occupation of and controlled the temporary footpath, denied that it was negligent or in breach of duty and pleaded contributory negligence by the plaintiff. The Council contended during submissions at trial that it was a highway authority and not an occupier. Before completion of the evidence at trial, the Council identified the 'highway rule' defence to the trial judge and sought that the jury be directed accordingly. The Council pleaded that by virtue of s 37A of the Transport Act 1983 (Vic) it had no liability to the plaintiff arising from any failure to inspect or repair the makeshift footpath. It specifically pleaded that the plastic mesh netting on which the plaintiff allegedly slipped would have been obvious to a reasonable pedestrian keeping a proper lookout and that it did not therefore owe the plaintiff any relevant duty of care.
20 The issues raised by the pleadings were the subject of extended discussion over a number of days during the trial.[15] It was not until after the trial judge had commenced her charge that her Honour's position on all of the questions raised by the pleadings and her proposed directions to the jury were finalised. Although there were no formal rulings or reasons given, it is unnecessary to trace the course of the debate as there is no dispute as to the position adopted by each party. Nor is there any dispute about what the trial judge decided as her conclusions are reflected plainly in what her Honour said to counsel and in the jury directions.
21 The trial judge informed counsel prior to directing the jury that she would instruct them on the basis that the Council and the hoteliers were occupiers of premises within the meaning of Part IIA Wrongs Act. The hoteliers admitted that they were occupiers. Her Honour rejected the Council's contention that it was discharging functions as a highway authority and was not an occupier. She ruled that the duty of care owed by both the Council and the hoteliers as occupiers was a general one unaffected by and independent of the principle stated in Brodie v Singleton Shire Council[16] and the case of Ghantous which was decided at the same time.
22 The trial judge directed the jury in these terms:
the Council who had control over that footpath was an occupier too. As an occupier they owed the same sort of duty that I just described in relation to the hoteliers as occupiers, that is they owed a duty to take such care as in all of the circumstances of the case is reasonable to see that any person on the footpath would not be injured or damaged by reason of the state of the footpath or things done or omitted to be done in relation to the state of the footpath.
How do you determine what is reasonable? That is what we call the content of the duty. What was the duty in this case? Now Parliament has set out in the statute books a list of the factors that are to be taken into account by you as members of the jury in determining this standard of whether reasonable care was taken by the occupiers in this case.[17]
24 Her Honour then directed the jury to take into account the several factors derived from s 14B(4) of the Wrongs Act. She described them as non-exhaustive, saying 'there may be other matters that you consider are relevant in terms of looking at what is a reasonable standard of care'. The trial judge raised the question of 'what steps could have been taken to avert the risk' and directed the jury as follows:
In terms of the shire [Council] the suggestion is that the shire is essentially controlling what is happening on that footpath or is in quite significant control and you have got that Exhibit A which shows you the sort of conditions that were imposed by the council and the control that they were exercising. It is up to you to consider whether or not you think that there was adequate inspection by the council in this case and whether appropriate
measures were taken to ensure that that footpath was safe and that the webbing would not come down.[18]
25 Shortly thereafter her Honour returned to the questions of duty and breach in this way:
Essentially the content of duty then you have [check] to look at the performance of all of the defendants objectively and not subjectively. If you accept the plaintiff's evidence as to what happened on the day you have to look at the evidence of all of the circumstances and decide whether or not a reasonable and prudent defendant occupier in each of these cases would have taken better measures to try and avert the risk to the plaintiff. That is you [sic] task to assess that and it is your task to decide what is the appropriate objective standard of care in this case, having regard to those factor I have just directed you to.
26 These directions are the subject of specific complaint which I shall address later in these reasons.
27 Much of the Council's argument in support of the grounds of appeal rests upon the principles formulated by the High Court in Brodie. Until the decision in Brodie, a breach of the highway authority's duty of care would not give rise to a liability in damages to an injured road user for failure to maintain or repair (nonfeasance) the highway. But a highway or road authority had no immunity for a civil wrong where it had through the exercise of its powers created or increased a danger on the highway. Buckle v Bayswater Road Board;[19] Gorringe v Transport Commission (Tas).[20]
28 The majority in Brodie determined that the cases that excluded the ordinary operation of the tort of negligence should not be followed, so that highway authorities were subject to the general duty of care in respect of both the exercise and non-exercise of its powers.
Did the immunity conferred by s 37A Transport Act 1983 apply?
29 The appellant contends that the trial judge was wrong to conclude that the Council was not acting as a highway authority or that the immunity conferred by s 37A of the Transport Act 1983 did not apply.
31 The plaintiff submitted that s 37A could not apply as the Council was not acting in the capacity of a highway authority in exercising control of the temporary footpath and mesh netting. She maintained that it was doing so in its capacity as the authority responsible for planning or building in Maryborough and that it was in that capacity that it issued the permits subject to the conditions set out in those permits.[23] If the Council were exercising control through the discharge of one or other of these functions, it was said that the statutory immunity under s 37A would not apply.[24] The hoteliers advanced similar submissions.
32 There was no dispute at trial or on appeal that the temporary footpath was in the road reserve or that the Council fell within the definition of 'public authority'. There was, however, a contest at trial as to whether the acts or omissions evidencing negligence and upon which the plaintiff relied, amounted to nonfeasance in the Council's performance of a function as a highway authority, so as to entitle it to the conferred immunity. The particulars of those acts and omissions included failing to provide 'safe premises', failing to construct 'a safe makeshift path', allowing or permitting the tape to encroach on the footpath, failing to 'secure' the tape so it could not be walked on, failing to ensure that the permit contained adequate terms to ensure the footpath was safe, failing to 'inspect' the footpath at regular intervals and failing to ensure that the hoteliers complied with the terms of the permit.
33 Dixon J in Buckle v Bayswater Road Board stated:
A highway is devoted to public use and its use is an advantage enjoyed as of common right. The public right is independent of the ownership of the soil, which might be vested in the frontagers or in other persons not in the least concerned in the state of the way. In order that the public right may be enjoyed to best advantage, road authorities are established and armed with powers in relation to the highways. For that purpose a legal authority is given to them to construct, maintain and repair roads and to keep them free of obstruction and in an orderly condition.[25]
Was the Council acting as a highway authority in relation to the temporary footpath and hoarding?
35 Pursuant to ss 205(1)(a)-(d) and s 206(1) and Schedule 10 Local Government Act 1989 the Council is invested with power to control the temporary footpath. The provisions empowered the Council to perform the functions of a highway authority by inter alia 'caring for', 'managing', 'constructing', 'maintaining' and 'repairing' the highway. Whilst inspection is not specifically referred to in those provisions, it is a necessary incident of the powers expressly conferred. The joint reasons in Brodie treated inspection of the highway as a function of a highway authority.[28] Further s 37A(1)(b) clearly implies that inspection is a highway authority function.
Did s 37A of the Transport Act make it immune from liability?
36 The joint reasons in Brodie examined the common law qualifications to the highway authority immunity in the case of misfeasance or artificial structures on the highway. The immunity only extended to injury or damage arising from defects within the limits of the surface of the highway which were sufficiently associated with the road to be treated as part of it and which were not contributed to by some exercise of the authority's power.[29] Relevant to this, s 37A stated that:
(1) A public authority is not liable in any civil proceeding for any failure by that public authority, in relation to any function it has as a highway authority -
(a) to repair the highway or to keep the highway in repair; or
(b) to inspect the highway for the purpose of determining the need to repair the highway or to keep the highway in repair.
(2) For the avoidance of doubt, in sub-section (1) -
"highway" includes any land dedicated to the public for use as a highway but does not include any structure that does not form part of the highway;
(b) each Council, within the meaning of the Local Government Act 1989; ...
37 Concerning the defence that s 37A applied, the trial judge couched her conclusion in these terms towards the end of the discussion on this issue:
... the definition of 'highway' excludes a structure that doesn't form part of the highway and secondly, that the case is about something different to that set out in [Section] 37A, it's about negligence rather than a failure to inspect. So that I don't believe and I don't find that you're immune.[30]
38 The Council contended that the trial judge had erred in so ruling and submitted that the question whether s 37A was enlivened was a question of law which this court could resolve on appeal.
39 The Council submitted that the trial judge had drawn an erroneous distinction between 'negligence' and 'failure to inspect', as the alleged failure to inspect was an integral part of the plaintiff's case in negligence against the Council. But it is apparent from the transcript of the prior discussion with counsel, that what the trial judge was here seeking to emphasise was the nonfeasance-misfeasance dichotomy. Her Honour had earlier referred to clause 3 of the Explanatory Memorandum to the Transport (Highway Rule) Bill[31] which said that:
statutory immunity would apply in relation to failure to exercise functions to repair or keep in repair a highway or to inspect for these purposes. However it would not cover the negligent exercise of such functions, that is misfeasance.
Hence the further remark by the trial judge that s 37A is only concerned with a 'complete failure to act' as distinct from negligence arising from some exercise of the power.
40 As the accepted purpose of the Transport (Highway Rule) Act was to reinstate the nonfeasance immunity, it was not suggested on appeal that the term 'any failure' could encompass something more than nonfeasance as it had been understood in cases prior to Brodie. If the Council's conduct in relation to repair and inspection amounted to misfeasance it would fall outside s 37A(1).
41 The Council had inspected the temporary footpath on other occasions but they had not done so on the day of the accident. The joint judgment in Brodie drew attention to the illusory distinctions that had sometimes been made between nonfeasance and misfeasance.[32] On appeal senior counsel for the plaintiff submitted that in the present case there was a real distinction to be made as there was an inspection system in place which was 'bad' or insufficient so that the failure to inspect constituted misfeasance and not nonfeasance. This analysis accords with the broad view of misfeasance referred to in a passage in the joint judgment in Brodie that 'misfeasance' has sometimes appeared to consist in omissions to carry out certain steps while carrying out some positive steps.[33]
42 As there is a more compelling reason why the immunity conferred by s 37A does not apply in the present circumstances it is unnecessary to determine whether inspections or each of the other acts or omissions pleaded fell within the functions described in s 37A(1) and if so whether they should be characterised as nonfeasance. Save for the alleged failure to inspect, the parties did not address argument to these specific questions. As the function of inspection was the primary focus at trial and was the subject of a specific submission by the plaintiff on appeal, I should state my view that if there was a 'failure to inspect' in the context of the temporary footpath and netting, it concerned the manner in which the power, whatever its source, was being exercised. It was not a case of nonfeasance.
43 The Council maintained the submission that had been all but abandoned at the trial,[34] that the fallen mesh netting was not a 'structure' and that it was part of the boundary of the temporary footpath which was part of the road reserve which the plaintiff claimed should have been inspected and repaired.
44 The plaintiff and hoteliers submitted that the immunity conferred by s 37A did not apply to the Council because the accident was not caused by a failure to repair or inspect a highway but was caused by a defective artificial structure which was erected as part of the building site or was to protect the public from building operations.
45 It was not in issue that the concept of a 'structure' that was 'not part of the highway' within the meaning of s 37(2) was intended to replicate the 'artificial structure' qualification to the highway rule under the law prior to Brodie. But the term 'artificial structure' in relation to a highway at common law has never been clearly defined. Seats, lamp posts, pillar boxes, directions and signs have been treated as artificial structures.[35] On the other hand bridges, culverts, footpaths and any other place over which there is public right of passage and which forms part of the road surface has been treated as being part of a highway.[36] In Buckle, McTiernan J discussed the concept of 'artificial work' or an 'artificial structure'. His Honour said:[37]
The criterion for determining whether anything placed in the road is an artificial work must be the nature of the thing itself. It seems clear that the term should not be applied to a road or a section or a layer of road or its foundation made of artificial materials or of both artificial and natural materials. The expression, as I understand it, denotes a structure which is appurtenant or subservient to a road but not a component part of the road fabric.[38]
The majority in Brodie made these observations about the 'artificial structures' rule:
The notion, derived from the decision of the Privy Council in Borough of Bathurst v Macpherson, is that, if an 'artificial structure' or 'artificial work' is introduced on to a highway and either is dangerous or becomes dangerous through non-repair, then the act of the authority introducing it will be treated as misfeasance; this will be so even if the cause of injury to the plaintiff is solely non-repair of the structure. The scope of this qualification is obscure. That is because, in Buckle, Dixon J (in dissent but with whom Latham CJ agreed on this point) excluded from the qualification a structure installed in the authority's 'capacity' as a 'highway authority', where that structure 'forms part of the road construction and is put there to serve a purpose arising out of its character as a highway, as for example to carry off the surface water, or to drain off seepage and protect the road base'; in those circumstances the immunity in respect of non-feasance will apply to that structure unless 'in the first instance' the authority 'acted improperly in placing it there'.[39]
46 Whatever be the source of the Council's power, and whether the conduct of the Council involved nonfeasance or misfeasance, each particular of negligence pleaded related to an activity of the Council concerning the mesh netting. That netting did not comprise part of the highway but was placed there to protect people from tripping over the 4 x 2 wooden props which held up the hoarding on the boundary of the footpath and the temporary footpath. The hoarding was placed there to prevent the public from entering the abutting building site and to protect the public walking on the temporary footpath. The mesh fell onto the highway from its pinned position on the hoarding. It did not form part of the highway. It was a structure and was excluded from the definition of highway under s 37A (2). No immunity could arise.
47 The plain legislative intent of s 37A was that it cover only the area of immunity which protected a highway authority prior to Brodie and which did not extend to artificial structure placed on or next to the highway.[40] The netting would have been regarded, prior to Brodie, as part of an artificial structure. The netting fell from the hoarding which was not part of the road. It became a source of danger and would have been governed by the ratio decidendi of The Borough of Bathurst v Macpherson[41] which was discussed in the joint reasons in Brodie. In my opinion the trial judge correctly concluded that s 37A did not apply.
48 In the course of the extended debate during the trial, the Council had submitted that it was exercising control over the temporary footpath as a highway authority and not as an occupier. It further submitted that in any event, the duty of care it owed the plaintiff as a pedestrian, and any breach thereof, was, as explained in Brodie, informed by the requirement that the plaintiff take reasonable care for her own safety, and was so understood and applied in the subsequent cases of Moyne Shire Council v Pearce,[42] Boroondara City Council v Cattanach;[43] and Neindorf v Junkovic.[44] On appeal, those submissions were maintained. They had been rejected by the trial judge. Unfortunately, the focus at trial on whether the Council was an occupier distracted the trial judge from these critical questions.
49 In Brodie v Singleton Shire Council, Gaudron, McHugh and Gummow JJ said :
Pedestrians
The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily 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), 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, as Jordan CJ put it, `of a kind calling for some protection or warning' [Searle v Metropolitan Water, Sewerage and Drainage Board]. In Romeo, Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises `is generally entitled to assume that most entrants will take reasonable care for their own safety'. Each case will, of course, turn on its own facts.[45]
Inspections
Cases respecting inspections for dangerous conditions have been determined by the dichotomy between misfeasance and non-feasance. A 'highway authority' was not liable if it failed to conduct inspections but, seemingly, was liable if it began remedial work in response to the discovery by inspection of defects or, possibly, even once it discovered the existence of those defects. These cases usually involved 'non-feasance', as an inspection typically discloses a situation which is unsafe and needs repair. Allied to them are cases in which a danger first manifests itself when the road surface, or a structure, collapses or gives way either under the plaintiff or shortly before it is crossed.
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. In the cases, the danger usually manifests itself in decayed beams or supports of bridges, or drains or culverts, or other structures supporting a road or its surface. The reports of Macpherson, Buckle and Gorringe all disclose insufficient facts to determine the reasonableness of the inspections which did take place or of the failure to inspect and ascertain the existence of the danger which caused the injury to the plaintiffs in those cases.[46]
50 The majority judgment in Brodie has been considered in later decisions of the High Court[47] and has been applied in this court.[48] The scope of the duty stated in Brodie was the subject of exposition by Gummow J in Roads and Traffic Authority of NSW v Dederer.[49] Gummow J with whom Heydon J agreed referred to Brodie in these terms:
The result of that case is that a road authority is obliged to exercise reasonable care so that the road is safe "for users exercising reasonable care for their own safety". The expression of the scope of the RTA's duty of care in those terms has long antecedents in the law relating to occupiers ' liability. In Indermaur v Dames, giving the judgment of the Court of Common Pleas, Willes J held that:
we consider it settled law, that [a visitor], using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger.
The modern form of that principle has been frequently affirmed in recent times, both with regard to occupiers and roads authorities. Of course, the weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case, but in the present case it was also a specific element contained, as a matter of law, in the scope of the RTA's duty of care.
A road authority such as the RTA is not obliged to exercise reasonable care in the abstract; still less is it obliged to ensure that a road be safe in all the circumstances. So much was recently reaffirmed in Leichhardt Municipal Council v Montgomery. Such an expression of the duty's scope has an obvious and direct consequence when assessing breach. As Gaudron, McHugh and Gummow JJ stated in Brodie :
"In dealing with questions of breach of duty, whilst there is to be taken into account as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness', a proper starting point may be the proposition that the persons using the road will themselves take ordinary care." (citations omitted and emphasis added)
51 In Boroondara City Council v Cattanach[50] Chernov JA with whom Winneke P and Bongiorno AJA agreed undertook a careful examination of the decision in Brodie. Chernov JA referred to the majority view in Brodie that a highway authority was subject to a general duty of care when exercising or failing to exercise their statutory powers of construction or maintenance of the highway. He drew specific attention to that part of the joint reasons where it was said that such a duty did not involve an obligation on the part of the authorities to ensure the safety of all road users in all circumstances and that a proper starting point may be 'that persons using the road will themselves take ordinary care.' In that context Chernov JA referred to the judgments of Griffith CJ and O'Connor J in Miller v McKeon[51] which recognise that a road user had an obligation to take reasonable care for his or her own safety. The formulation of the duty by reference to this consideration was, as Chernov JA emphasized, more important where the plaintiff was a pedestrian. He referred to the judgments of Gleeson CJ and CallinanJ in Ghantous which were to the effect that it is not unreasonable to expect that people will avoid stumbling and falling on apparent uneven surfaces on both public and private land. Chernov JA described the council's duty in these terms:
Thus, it seems plain enough that a council is not under a duty to prevent or eliminate all dangers in footpaths. Ordinarily, where a council knows, or ought to know, of an impediment in a footpath, it will owe a duty to render it harmless to users of the path only if the danger arising from it would not be obvious to an ordinary, reasonable pedestrian exercising proper care for his or her own safety. Reference has already been made to the recognition in Brodie of the importance in the formulation of such a duty of the obligation of such a pedestrian to exercise reasonable care for his or her own safety.....it is for the plaintiff to establish that the hazard was not one which, with the exercise of reasonable care by the plaintiff, could have been seen and avoided.[52]
52 In Greater Shepparton City Council v Davis,[53] Winneke P adopted what had been said by Chernov JA in Cattanach and cited with approval a number of similar decisions of the New South Wales Court of Appeal..[54] As the defect over which the injured party had tripped was one which should have been obvious to the ordinary pedestrian taking reasonable care for his or her own safety, Winneke P, with whom the other members of the court agreed, found that the Council owed no duty nor was it in breach of a duty of care.
53 In Moyne Shire Council v Pearce[55] the measure of the duty of care of the highway authority owed to pedestrians was described by Batt JA as a duty 'to take reasonable care to prevent or eliminate dangers to pedestrians taking care of their own safety'. The trial judge had correctly stated that the duty did not extend to the elimination of obvious hazards. Batt JA concluded that as the hazard was obvious, as the plaintiff had admitted, the council's duty of care was not engaged. Chernov JA said that the duty does not extend to the prevention or elimination of hazards merely because it is reasonably foreseeable that they might result in the injury being suffered by the user.
Councils and like bodies owe such a duty to ordinary pedestrians who take reasonable care for their own safety. And it is for the plaintiff pedestrian to establish that he or she was an ordinary pedestrian who exercised reasonable care at the relevant time or, put another way, that the hazard was not one which, with the exercise of reasonable care by such a pedestrian, could have been seen or avoided by him or her.[56]
54 Gillard AJA described the duty as a specialised duty of care which only arises in circumstances 'where the pedestrian was exercising reasonable care for his or her own safety. If the pedestrian was not exercising reasonable care, then as the law now stands there is no duty of care owed'.[57]
55 That the principle in Brodie concerning pedestrians applied to both duty and breach was recognised by Ashley J (as he then was) in Burch v Shire of Yarra Ranges.[58] He also observed that the question of the obviousness of the hazard to road users was to be considered objectively. Subsequently in Whittlesea City Council v Merie[59] Warren CJ, Buchanan JA and Byrne AJA in joint reasons, applying the principle established by those cases that the obviousness of the hazard informs the content of the duty, upheld a finding of the trial judge that the Council was under a duty and said:
The plaintiff is entitled to the benefit of the duty if, at the relevant time, she falls within the class of reasonable pedestrians of ordinary physical capacity exercising sufficient care to see where they are going and perceiving and avoiding obvious hazards, subject always to acts of mere inadvertence. Her Honour's approach to the question of duty of care was consonant with that of this Court in Moyne Shire Council v Pearce.'[60]
56 There has been controversy particularly in the New South Wales Court of Appeal as to whether the principle in Brodie informs the content of the duty of care or goes only to breach.[61] In Cattanach, Chernov JA expressed his agreement with Handley JA in Burwood Council v Byrnes that this requirement enters into the definition of the duty.[62] That also accorded with the view expressed by Heydon J (as he then was) in Richmond Valley Council v Standing[63] that it bore upon the existence of the duty.
57 In Byrnes v Burwood Council McHugh J, in the course of an application for special leave which was dismissed, made plain that he regarded the observations in Brodie to bear upon duty. He said inter alia:
The problem that you face is that in Ghantous and its sister case the court has laid down a rather specialised duty. It is not just a general duty to take reasonable care for the safety of those who use the road. The court has dropped from the abstract to a more concrete situation and it has eliminated from the duty certain types of hazards, and that is the difficulty that you have. There is no duty of care in respect of certain types of hazards it is only when you get past that that any question of the sic [plaintiff's] obligation to take reasonable care comes in.[64]
58 I do not consider the matter remains open to any doubt. The reasoning in Cattanach, Davis, Moyne, Burch and Merie rests upon the formulation enunciated in Brodie being an expression of the scope and content of the duty. In Neindorf, Gleeson CJ treated the issue as bearing upon both duty and breach. Gummow J made that plain in the passage from his judgment in Dederer to which I have referred and in this further passage from his judgment::
The RTA's duty of care was owed to all users of the bridge, whether or not they took ordinary care for their own safety; the RTA did not cease to owe Mr Dederer a duty of care merely because of his own voluntary and obviously dangerous conduct in diving from the bridge. However, the extent of the obligation owed by the RTA was that of a roads authority exercising reasonable care to see that the road is safe "for users exercising reasonable care for their own safety". The essential point is that the RTA did not owe a more stringent obligation towards careless road users as compared with careful ones. In each case, the same obligation of reasonable care was owed, and the extent of that obligation was to be measured against a duty whose scope took into account the exercise of reasonable care by road users themselves.
In the Court of Appeal, Ipp JA referred to and adopted remarks he made in the earlier case of Edson v Roads and Traffic Authority, in which the plaintiff and many others exercised an obvious disregard for their own safety when they crossed a busy highway on foot. After referring to the passage from Brodie set out above, his Honour remarked that:
"the factual underpinning of the proposition that a road authority is duty bound only to require a road to be safe not in all circumstances but for pedestrians exercising reasonable care for their own safety, was absent. Here, the RTA long knew that the pedestrians were not exercising reasonable care for their own safety and, in large numbers, were constantly not doing so. The RTA could not rely on residents in the vicinity of the path to look after themselves and to act with due care."
In the present case, his Honour concluded that "the 'factual underpinning' was also absent". This was in error, as the expectation of reasonable care was not merely a "factual underpinning", but rather a legal aspect of the scope of the duty owed by the RTA.[65]
The parties' arguments as to the application of Brodie
59 The jury was instructed in the terms earlier set out, that the Council was an occupier by virtue of its level of control over the temporary footpath and that the duty of care was as stated in s 14B(3) of the Wrongs Act. It provides:
An occupier of premises[66] owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
60 The Council took exception to the aforementioned directions and submitted that the jury should have been directed in accordance with Brodie, and Moyne.[67] The trial judge refused to re-direct and distinguished the present case from the Moyne as it was 'not an occupier's case'. Her Honour made her view plain that a direction about an 'obvious hazard' was not relevant to 'occupier's liability' and the 'duty of care'.[68]
61 The plaintiff submitted that the specialised duty formulated in Brodie did not apply because the Council was an occupier. It was the plaintiff's case at trial that the Council was in occupation because it was one of the parties that had control of the temporary footpath and the structure adjacent thereto and it therefore owed the duty of care set out in s 14B of the Wrongs Act. As I have said, it was asserted that the Council was not discharging highway authority functions but was exercising planning or building powers which gave it the necessary control of the structure and the temporary footpath. Alternatively, relying upon Buckle v Bayswater Road Board,[69] it was submitted that if the Council was at the same time discharging dual functions, as both a highway and as a building or planning authority, the highway principle would not apply. The contention was that if the Council was exercising statutory powers in a capacity distinct from its powers as a highway authority, the Council was to be treated as an occupier of the relevant premises. The principle in Brodie should not be extended to apply in respect of a duty of care owed by a public body exercising other powers even if they were exercised in conjunction with highway authority powers.
62 At trial, counsel for the hoteliers had supported the Council's submission that the principle in Brodie extended to any occupier of the highway including the hoteliers. On appeal, for obvious forensic reasons, the hoteliers changed their position. They did not seek to impugn any aspect of the jury verdict and now supported the plaintiff's contention that the principle did not extend to any occupier who was not solely exercising a highway authority function.
63 The Council submitted on appeal that the trial judge was in error in concluding that the principle explained in Brodie had no application to the content of the duty of care. In turn, that error, it was said, led to a failure to instruct the jury that the obviousness of the mesh netting or the obligation on a pedestrian to take reasonable care for their own safety was also relevant to the Council's breach of duty.[70]
64 Before considering whether the present case is one in which the formulated duty in Brodie applies, it is convenient to address the question whether the trial judge was correct in holding that the Council was in law an occupier. In fairness to the trial judge it must be observed that the plaintiff asserted that the question of occupation was decisive as to the content of the duty of care, occupation being the sole basis upon which the plaintiff alleged that the Council was liable. While that may not have been the intent of the plaintiff's primary pleading, it was the way that the plaintiff conducted the trial.
Was the Council an occupier? Pursuant to what powers was it that the Council was in control?
65 At trial and on appeal, the plaintiff without amplification asserted that the Council was not at any material time discharging a function as a highway authority. She claimed that by issuing the permit and inspecting the hoarding or temporary footpath, the Council was acting in its capacity as a building or planning authority, which thus gave it the necessary control to make it an occupier. The plaintiff without elucidation by reference to principle or authority argued that these powers conferred such a degree of control as to make it an occupier.[71] I have already mentioned that we were not referred to any statutory provisions which it was thought underpinned these building or planning functions. Moreover, no argument was advanced at trial or on appeal why it should be concluded that the source of the powers and duties conferring the requisite control resided in the Council's building or planning functions rather than in its highway authority function or why, if the Council was not exclusively discharging highway authority functions, it was an occupier. Neither did the Council seek to examine any relevant statutory regime. It made the bare assertion that its only role was as highway authority, hence it was not an occupier.
66 It was not in dispute that if the Council was only discharging these functions as the highway authority it was not to be treated in law as an occupier. In Buckle Dixon J said:
The duty of a road authority towards individual members of the public exercising the common right of passage over the highway has no similarity or even analogy to the duty or duties of occupiers of property to safeguard those who lawfully come upon the premises they occupy from dangers arising from their character or condition. The principles upon which the road authority's liability, or absence of liability, depends have nothing to do with the ownership or occupation of property or the relation between an owner or occupier and persons whose presence he may solicit or suffer.[72]
The position of the highway authority has no resemblance to that of an occupier of premises who is liable to persons who are invited or allowed to come on to the premises. The authority has no control over who uses the highway and the public use it as of right.[75] The authority is not an occupier of the highway.[76]
68 The joint judgment in Brodie regarded the common law notion of a public right of user as marking off highway authorities from occupiers of private land and rendering inapt any analogy between occupation of privately owned land and the management and control by statutory bodies of lands set aside for public use and enjoyment.[77]
69 The common law position is now reflected in specific legislation in NSW and Victoria.[78] Although the Roads Management Act 2004 (Vic) does not apply to the circumstances of the present appeal, as it received Royal Assent on 11 May 2004,the explanatory memorandum and second reading speech refer to the common law that a highway authority was not an occupier for the purposes of the Wrongs Act. The Roads Management Act was intended to reflect the position at common law. Section 3 defines a Road Authority as 'a person or body specified in or under section 37'. Section 37 states:
Subject to sections 15 and 16 and subsections (1A) and (2), the responsible road authority is -
(a) if the road is a freeway, for the whole of the road reserve, VicRoads;
(b) if the road is an arterial road -
(v) for any pathway, other than a pathway on a freeway road reserve, the municipal council of the municipal district in which the pathway is located; and
Section 108 of the Roads Management Act provides:
For the avoidance of doubt, it is hereby declared that for the purposes of section 14B of the Wrongs Act 1958 -
a road authority is not an occupier of a road; and
a road is not premises.
70 The explanatory memorandum introducing this provision stated:
[Section 108] declares, for the avoidance of doubt, that a road authority is not an occupier, and a public road is not premises, for the purposes of section 14B of the Wrongs Act 1958. It is understood that this is consistent with the position under the common law: see Buckle v Bayswater Road Board [1936] HCA 65; (1936) 57 CLR 259 at 280-1.
71 The second reading speech included the following passage:
Occupier's liability
Clause 108 clarifies that a road authority is not an occupier of land, and that a road is not 'premises', for the purposes of occupier's liability under section 14B of the Wrongs Act 1958. This exemption from liability will not apply to buildings on roadside areas. The purpose of the clause is to ensure consistency with the position under Australian and English common law in relation to occupier's liability. Roads are public places, and road authorities cannot exercise the same degree of control over roads that private land-holders can exercise over their holdings.
72 A highway authority has a broad range of functions in relation to the highways and footpaths in its municipality.[79] But not every act undertaken by a council in relation to the highway will necessarily be in its capacity as a highway authority. For example, the cutting of a trench in a highway for drainage work has been considered an exercise of agricultural authority functions,[80] and the fixing of traffic studs, in the exercise of traffic authority functions.[81] Another example is Thompson v Bankstown Municipal Council,[82] where the electricity pole which gave rise to the injury had been erected on the highway by the council in the exercise of its authority under the Local Government Act to provide for the transmission of electricity. The council had failed in its duty to road users to take reasonable care in the management of its electricity.[83] As the authors of Fleming on the Law of Torts note, the combination of separate functions by an authority has been exploited to side-step immunity.[84]
73 Even if the Council were discharging functions affecting the highway in a number of capacities, it does not necessarily follow that the Council must be an occupier.[85] No sufficient attention was given at trial or on appeal to the nature and extent of the control that must be exercised over the relevant premises to establish occupation.[86] In Jones v Bartlett the right to enter premises for the purpose of carrying out or inspecting necessary repairs to or maintenance of the premises did not demonstrate that the respondents had control of the premises.[87] A particular application of the control test is seen in cases where a person has a right to immediate supervision and control and the power of permitting or prohibiting the entry of other persons. It will be a question of fact in each case whether there is a sufficient degree of control to make the person an occupier.[88]
74 Control has emerged as a salient factor in cases where the negligent tortfeasor has statutory responsibilities and powers. As the joint judgment in Brodie states, in the area of negligence, powers such as those of a road authority involve a significant measure of control over the safety of persons or of property so as to require the authority to exercise their powers to avert a danger to safety in discharge of their duty of care.[89] But the nature and extent of the control sufficient to attract a duty of care in negligence will not necessarily correspond with the control required to establish occupation.
75 The plaintiff in my view failed to establish that the Council occupied the temporary footpath and hoarding and the trial judge was wrong to have so ruled. It was not demonstrated that the Council was not exercising highway authority functions in exercising these powers. A permit for occupancy of the temporary footpath-being part of the highway - could only have been issued by the Council in discharge of powers that conferred upon it, responsibility for the care and management of the highway. It was invested with that responsibility by virtue of its powers as a highway authority. The plaintiff did not refer to any statutory powers available to the Council under its planning or building functions that conferred such a responsibility. At best, in controlling the construction of the temporary footpath and hoarding, the Council may have exercised powers in its capacity as the building or planning authority or as the highway authority or both.
76 The Council as a highway authority had the power to inspect the temporary footpath and hoarding.[90] The plaintiff's argument before this court and at trial rested upon an assumption that the Council, exercising planning or building functions also had a power to inspect and that it was pursuant to those powers that it was inspecting. Beyond making this assertion, the plaintiff could not demonstrate that the Council was not discharging a highway authority function. Hence the plaintiff fell back upon the argument that the Council may well have been discharging that function in a dual capacity with some building functions .
77 Even if the control of the construction of the temporary footpath and hoarding and the subsequent inspections were conducted by the Council in discharge of building functions, no examination of any statutory powers was undertaken to demonstrate that the Council had the degree of control sufficient to make the Council an occupier. Neither was any authority cited in support of the proposition that a statutory authority, in discharge of its responsibilities for planning or building activities, is in the position of an occupier of the land to which that activity relates. It would be surprising if that were so. As the joint reasons in Brodie state, highway authorities are in a different position to other recipients of statutory powers as they have physical control of the highway.[91]
78 If the Council were exercising non-highway authority powers which invested the Council with management and control of the temporary footpath, it would be inconsistent with the reasoning in Buckle and Brodie to treat the Council's position as analogous with an occupier of land, so as to equate its liability with that of an occupier. The formulated duty in Brodie would apply to the Council, whatever be the statutory powers that gave it care and management of that part of the highway comprising the footpath and hoarding.[92]
79 The trial judge wrongly applied s 14B of the Wrongs Act which relevantly refers to 'the standard of care that an occupier was required to discharge towards persons entering on his premises'.[93] While at trial the plaintiff focussed upon the temporary footpath, on appeal the plaintiff submitted that it was the hoarding, including the webbing which constituted the 'premises' within the meaning of s 14A of Wrongs Act.[94] The Council asserted that neither the temporary footpath or hoarding were 'premises' for the purposes of determining the Council's liability. As no party advanced any detailed submissions in support of their respective positions on this issue I express no concluded view on that question.
80 As the Council did not occupy the temporary footpath or hoarding it is entitled to judgment in its favour.
Did the trial judge err as to the scope or content of the Council's duty of care? Were the directions to the jury as to breach of duty deficient?
81 I agree with the submission made by senior counsel for the Council that even if it was to be treated as 'occupier', the formulated duty in Brodie would still apply although it may require some modification in light of s 14B (3) and (4) of the Wrongs Act.[95] The content of the duty where the statutory powers gave the Council a measure of control over a highway or other large tract of land, was to be informed by whether the plaintiff had taken reasonable care for her own safety as explained by the majority in Brodie. That was so whatever the capacity in which it was acting. It was therefore unnecessary to ascertain whether the Council was an occupier. The nature and purpose of the powers being exercised, and the context in which they were performed, determined the content of its duty of care. The duty and any breach was to be determined by reference to principles of negligence as they applied to a public authority exercising or failing to exercise its powers. The trial judge therefore misdirected the jury.
82 The plaintiff's contention that the Council owed a generalized duty of care based upon its occupation and control and that the duty in Brodie is to be confined to the activities of a highway authority must be rejected. In the context of statutory powers, there has, since Nagle v Rottnest Island Authority and Australian Safeways Stores Pty Ltd v Zaluzna[96] been a discernible shift away from a generalised duty towards a more specialized duty[97] reflected by a greater receptiveness to the approach taken by Brennan J in his dissenting judgment in Nagle. The duty formulated in Brodie is not to be confined to a highway authority or the highway.
83 The rule articulated in the old highway authority cases and the principle as formulated in Brodie which replaced it were concerned with how the law should address the responsibilities of bodies which have statutory powers to manage highways where the public could go as of right. But the content of the formulated duty in Brodie, has not been confined to highway authority functions and has been applied beyond the highway to public land over which the statutory authority has the necessary control.
84 The existence and nature of a common law duty of care is necessarily a multi-faceted inquiry involving a consideration of the relationship between the statutory authority and a class of persons and the salient features of the relationship. In Graham Barclay Oysters Pty Ltd v Ryan[98] Gummow and Hayne JJ referred to those salient features including the degree and nature of the control exercised by the authority over the risk of harm that eventuated, the degree of vulnerability of those who depend on the proper exercise by the authority of its powers, and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. The joint reasons recognised that the factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority and cite the passage from the joint judgment in Brodie to which I have referred by way of illustration.
85 The joint reasons in Brodie recognised that decisions such as Sutherland Shire Council v Heyman,[99] Pyrenees Shire Council v Day,[100] Romeo v Conservation Commission (NT)[101] and Crimmins v Stevedoring Industry Finance Committee[102] were important because they reflected an underlying principle that 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 which may oblige the authority to exercise those powers to avert a danger.[103] The joint reasons in Brodie recognise that the powers vested in road authorities are an example, involving the safety of the person and property of road users.[104] The formulated duty in Brodie which required the road to be safe for users exercising reasonable care for their own safety[105] was informed by these considerations. In Leichhardt Municipal Council v Montgomery[106] the High Court rejected the proposition that the council owed a non-delegable duty of care to such users when engaging an independent contractor to perform road works. As Hayne J stated, such a proposition could not stand with the restatement in Brodie and Ghantous of the common law of negligence in its application to highway authorities.[107]
86 Recent developments in the common law have established that the 'content' 'measure' or 'scope'[108] of the duty of care of a public authority with statutory powers of management and control over large areas of public land and the question of breach of that duty, may be informed by whether the injured party has taken reasonable care for his or her own safety and whether the state or condition of that land or facility was an obvious hazard. In particular circumstances it may also inform the content of the duty of care in the case of an owner of private land who grants the public a general right of access.
87 The majority of the High Court in Nagle spoke of a generalized duty of care to members of the public who made use of facilities under the management and control of a statutory authority to take reasonable steps to avoid foreseeable risk of injury to those persons.[109] The generalized standard of care was formulated as the response by a reasonable person in the circumstances to a foreseeable risk.[110] In Zaluzna the same sort of duty was said to be owed by an occupier to visitors.
88 At least in the context of reserves, parks and other tracts of land under the management and control of a public authority, the content of the more specialised duty of statutory authorities towards pedestrians as expressed in Brodie may be seen as a specific application in a different context of the principle stated by Willes J in Indermaur v Dames[111] and the broad test formulated by Dixon J in Aiken v Municipality of Kingborough.[112] Dixon J in Aiken, was dealing with the duties of an occupier and said:
What then is the reasonable measure of precaution for the safety of the users of premises, such as a wharf, who come there as of common right? I think the public authority in control of such premises is under an obligation to take reasonable care to prevent injury to such a person through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise of ordinary care.[113] (emphasis added) .
89 Only Brennan J in Nagle expressed a preference for this more specific duty enunciated by Dixon J in Aiken[114] which he considered superior because it focussed on the obviousness of the danger and the care ordinarily exercised by the public. Gummow J in Vairy v Wyong Shire Council[115] proposed that a starting point in determining the scope of the duty of care may be the path taken by Brennan J in his dissenting judgment in Nagle "of looking to the nature of the danger, assessed prior to the accident, with reference to such matters as the functions of the public authority, the obviousness of the danger, and the care ordinarily exercised by members of the public".[116]
90 Although other members of the court in Romeo v Conservation Commission (NT) considered Aiken could no longer provide a guide, Toohey and Gummow JJ in their joint judgment referred to a passage from the dissenting judgment of Brennan J in Nagle in which he sought to reconcile Zaluzna and the approach taken by Dixon J in Aiken.[117] The majority in Romeo maintained the more generalised approach to the duty of care while Brennan J stated that entrants should not be protected from the consequences of their failure to take reasonable care to protect themselves by extending the duty beyond the test stated in Aiken.
91 In Romeo, Brennan J referred to the passage of Barwick CJ's oft quoted judgment in Schiller v Mulgrave Shire Council[118] in which he said that the source of liability in that case was the statutory power and duty of care, control and management and not merely the occupation of land.[119] He referred also to a passage from the judgment of Walsh J who said:
When land to be used for public purposes is placed under the control of a statutory body then, whether the measure of its duty to persons using the land is or is not identical with that of an occupier of private the fact that it has control and that it alone has the means of securing the users of the land against injury provides a basis for holding that a duty of care is cast upon it: see Aiken v Kingborough Corporation.[120]
92 After quoting the standard of care as defined by Dixon J in the passage from Aiken which I have previously set out Brennan J said:
His Honour's formulation of the authority's duty of care reflects the formulation then current of the duty owed by an occupier to an invitee. But, in my respectful opinion, when the sole basis of liability of a public authority is its statutory power of management and control of premises, its liability for injury suffered by a danger in the premises is not founded in the common law of negligence but in a breach of a statutory duty to exercise its power and to do so reasonably having regard to the purpose to be served by an exercise of the power. Of course, the statutory powers of management and control of premises are usually accompanied by the public authority's occupation of the premises, the nature and extent of the occupation varying with the nature of the premises. But, for the reasons stated, that occupation is not, or is not necessarily, to be equated with occupation that regulates the terms of another's entry onto the occupier's premises. In any event, whatever duty of care is imposed on the authority towards those who enter the premises as of right can hardly depend on whether the public authority has gone into de facto occupation of the premises. The powers are statutory and any duty that arises from the conferring of those powers must also be statutory.[121]
93 Brennan J adopted the standard defined by Dixon J in Aiken as expressing the true extent of a public authority's statutory duty to exercise a power to manage and control premises for the purpose of protecting persons entering thereon as of right.[122] He then said:
Having considered further the statutory basis of the duty of care owed by a public authority having the management and control of premises, I would adhere to that test not as a matter of mere preference but as a matter of principle. A public authority empowered to manage and control premises has a discretion as to the steps it will take to protect the person of those entering the premises and that discretion is governed relevantly by the purpose for which the power is conferred. If the discretion be exercised on the footing that entrants upon the premises will exercise reasonable care for their own safety, it cannot be said that there is some additional duty of care to be discharged. (emphasis added)
94 Kirby and Hayne JJ in separate judgments also advocated a more precise identification of the risk which the authority was under a duty to guard against. Hayne J, while of the view that Aiken could not stand as exhaustively stating the scope of the duty of care of a public authority in light of Nagle and other later decisions said that the fact that the injury was reasonably foreseeable did not conclude the inquiry about the scope of the authority's duty to act reasonably. He said:
What is reasonable must be judged in the light of all the circumstances. Usually the gravity of the injury that might be sustained, the likelihood of such an injury occurring and the difficulty and cost of averting the danger will loom large in that consideration. But it is not only those factors that may bear upon the question. In the case of a public authority which manages public lands, it may or may not be able to control entry on the land in the same way that a private owner may; it may have responsibility for an area of wilderness far removed from the nearest town or village or an area of carefully manicured park in the middle of a capital city; it may positively encourage, or at least know of, use of the land only by the fit and adventurous or by those of all ages and conditions. All of these matters may bear upon what the reasonable response of the authority may be to the fact that injury is reasonably foreseeable. Similarly, it may be necessary, in a particular case, to consider whether the danger was hidden or obvious, or to consider whether it could be avoided by the exercise of the degree of care ordinarily exercised by a member of the public, or to consider whether the danger is one created by the action of the authority or is naturally occurring. But all of these matters (and I am not to be taken as giving some exhaustive list) are no more than particular factors which may go towards judging what reasonable care on the part of a particular defendant required. In the end, that question, what is reasonable, is a question of fact to be judged in all the circumstances of the case.[123]
95 The judgment of Brennan J in Romeo in which he adhered as a matter of principle to his previous dissenting judgment in Nagle, was the subject of either explicit or implicit approval in a number of the judgments in Vairy v Wyong Shire Council.[124] Where a local authority administers tracts of public land over which the public may travel as of right, the reasonableness of any response to a foreseeable risk of injury to a pedestrian is to be assessed recognising that the duty does not extend to ensuring the safety of the public in all circumstances,[125] the content of the duty also being informed by the obviousness of the risk and whether it should have been avoided by the exercise of reasonable care. In Vairy Gleeson CJ and Kirby J in their joint judgment said:
A defendant's duty of care is owed to an individual plaintiff, but it is a duty to do what is reasonable in all the circumstances. The fact that a defendant is a public authority with the responsibility of managing large areas of recreational land may be a circumstance material to a judgment about the reasonableness of its conduct. As Brennan J pointed out in Nagle, the duty owed to the plaintiff is, in the ordinary case, owed to him or her as a member of the public. The nature of the premises, and the right of public access, will have an important bearing on what reasonableness requires by way of a response to risks associated with the use and enjoyment of the land.[126]
96 Gummow J after referring to the large area of land under the Council's control and management emphasised that the circumstance that a statutory authority has powers of management over public lands, which are in turn used as of right by members of the public, will not alone be sufficient to enliven the duty of care in question. He said:
The danger of diving off the rock ledge from which the plaintiff dived was apparent. In that respect, reference is apt to the formulation of duty in Brodie. This was to the effect that, even in the case of public roads, the use of which is 'a matter of basic right and necessity', the duty of the public authority requires that 'a road be safe not in all circumstances but for users exercising reasonable care for their own safety.[127]
97 Hayne J recognising that a statutory authority's task of care, control and management of the areas committed to its care may be much larger and more complicated than any obligations a private owner of land may encounter, stated that the duty of care, owed in such circumstances by a statutory authority to those who enter land is not a duty to ensure that no harm befalls the entrant. It is a duty to take reasonable care.[128] Then in Modbury Triangle Shopping Centre Pty Ltd v Anzil[129] a more specific identification of the scope of the duty by reference to the risk to be guarded against was expressed by the majority who disapproved the concept of a generalized duty as stated in Zaluzna and Nagle.[130]
98 In the judgment of the Court in Sullivan v Moody, the following appears:
Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle.
99 For an example of the scope of duty where the defendant is the repository of statutory powers, the court referred to Brodie. Finally, in Dederer, Gummow J, with whom Heydon J agreed, confirmed in the passage I have quoted, that the principle as formulated in Brodie has been affirmed in recent times 'both with regard to occupiers and road authorities'.[131]
100 Folkes v A and Maria Calabro, Leon Constructions Pty Ltd, City of Canada Bay Council[132] although not referred to by the parties, raised issues not dissimilar to the present case. It illustrates that the principle in Brodie is not to be confined to a highway authority. The first defendants were the owners and occupiers of the relevant property in the local government area of the third defendant. They obtained a development consent from the third defendant, one of its conditions being that during the carrying out of the works the footpath at the driveway into the property was to be protected against damage 'by means of close boarding with chamfered ends'. They engaged the second defendant as their builder, and it constructed the boarding. The plaintiff tripped on the boarding and suffered an injury. She claimed that she was exposed to the risk of injury by negligence of one or more of the defendants. Giles JA with whom other members of the court agreed said:
The key to the outcome of the proceedings was the judge's finding that the street lighting sufficiently illuminated the boarding, such that it would have been readily visible to any pedestrian keeping a proper lookout. It was sought to outflank this finding by the submission that the case against the first and second defendants was not governed by the principles to be found in Ghantous v Hawkesbury City Council; so far as those principles referred to pedestrians keeping a proper lookout and taking care for their own safety. It was submitted that what were called 'the ordinary rules of negligence' applied, that the ordinary rules were not to be formulated in terms of pedestrians exercising reasonable care for their own safety, and that according to the calculus in Wyong Shire Council v Shirt it was sufficient that in the present case there was a foreseeable risk of injury created by the first and second defendants which could readily enough have been averted by chamfering (if in fact there had not been adequate chamfering), or other methods such as laying a bitumen substance as a ramp at the edge of the boarding, providing a warning sign, or painting the edge of the boarding to improve its visibility.
Brodie v Singleton Shire Council; and Ghantous v Hawkesbury City Council did away with the non-feasance rule which had placed highway authorities in a special position. They brought the liability of highway authorities as such within mainstream principles of negligence. I do not think that there is any reason to distinguish in approach between the third defendant, which in any event on the facts of the present case may not have been in the position of a highway authority under the law as it was prior to Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council, and the other defendants. For all of them their duty of care and the discharge of their duty of care were to be found and assessed on the basis of pedestrians exercising reasonable care for their own safety.[133] (citations omitted)
101 In Liverpool City Council v Millett & Anor[134] Tobias JA with whom Mason P agreed also discussed the juristic basis for the specialised duty :
There is also another category of circumstances where, as noted by Ipp JA in [29] of Clarke, the law recognises that it is reasonable for a defendant to assume that its conduct may be governed by the assumption that the plaintiff will take reasonable care for his or her own safety. Cases that fall under this category include those involving adult persons who walk along footpaths in broad daylight in fine weather or who participate in risky recreational activities in large areas of open land and water (such as national parks or reserves or the ocean): Romeo v Conservation Commission (NT); would be an example of such a case.
As Ipp JA observed in Clarke at [33], the foregoing considerations explain
"the view taken of the limited scope of the duty of care owed by a local authority to a person walking along a footpath (see Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council) and to visitors to national parks (see Secretary to the Department of Natural Resources and Energy v Harper; [2000] VSCA 36; (2000) 1 VR 133). It also explains the limited scope of the duty of care that is the basis of the diving cases such as Prast v Town of Cottesloe [2000] WASCA 274; (2000) 22 WAR 474 and Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council ."[135]
102 What is a reasonable response by a statutory authority to a hazard on a pathway on land which it manages and over which the public may traverse as of right, is informed by the content of the formulated duty in Brodie. The trial judge was obliged to direct the jury as to the content of the Council's duty in accordance with the principle as stated in Brodie, even if the Council was occupier and the land was not part of the highway.[136] It was error for the plaintiff to have persuaded the trial judge to apply a generalized duty to the Council and ignore the formulated duty in Brodie.
103 If the Council was to be treated as occupier, then its liability fell to be determined by reference to the provisions of the Wrongs Act. But the duty as stated in s 14B(3) has not been viewed as in conflict with the common law duty[137] as formulated in Brodie. Subject to the observations I make at paragraph [111] the jury should have been instructed as to its content in accordance with Brodie.[138]
104 To further demonstrate the fallacy of the plaintiff's primary contention that a generalised duty of care applied, the Council submitted that any occupier of land over which the public had right of egress, owed the duty of care defined in Brodie. It submitted that even the content of the duty of care of a private owner of land and the question of breach were informed by whether the pedestrian who is invited to walk on a defined pathway has taken reasonable care for their own safety.[139]
105 In Neindorf v Junkovic[140] the appellant invited the public to attend a garage sale which was conducted on the driveway of her residence. The driveway surface was uneven. The respondent entered the premises and tripped on the uneven surface of the driveway. The issue concerned the standard of care owed by the appellant to the respondent, and whether there was, in the circumstances of the case, a breach of duty. That was to be determined by the application of s 17C of the Wrongs Act 1936 (SA) which prescribes the matters a court is to take into account in 'determining the standard of care' to be exercised by the occupier of premises. This is in contrast to s 14B(4) of the Victorian Wrongs Act which refers to most of the same matters for the purpose of determining whether the duty of care specified in s 14B(3) has been 'discharged'. On appeal from the decision of a magistrate, Besanko J extrapolated from the principle stated in Brodie, that the duty of care of the occupier of a domestic property did -
not extend to include risks which are obvious and which it is well known are likely to be encountered and which, in all the circumstances, an entrant may reasonably be expected ... to notice and avoid.
106 Doyle CJ, although in the minority in the Full Court in Junkovic v Neindorf, said:
The formulation in Brodie of the scope of the duty of care owed by a statutory authority to a pedestrian cannot simply be transposed to a case involving an occupier of private land. In Brodie and in Ghantous the fact that the defendant was a statutory authority with statutory powers to construct, maintain and repair roads and footpaths was significant in the reasoning of the Court. So is the fact that Mrs Ghantous fell while walking on the footpath adjacent to a public road. The reasons of the Justices of the High Court make it plain that the decision in that case was influenced by these matters in particular, along with other circumstances of the case.
The decision in Brodie that the liability of the statutory authority in question was to be determined according to the ordinary principles of the law of negligence does not lead to a conclusion that the formulation of the duty of care in respect of a footpath is to be transposed to a case involving the duty of an occupier of private premises in respect of a pathway on private premises. Different considerations apply in each case, and a different outcome in each case would not reflect an unsatisfactory principle of law.
The occupier of private premises can exercise a greater degree of control over those premises than can a statutory authority responsible for public roads and footpaths. The occupier of private premises can exclude others at will. An occupier of private premises is likely to be able more easily to identify hazards on the property and to neutralise them. There are other differences.[141]
107 Despite these qualifications Doyle CJ considered that the law of negligence would depart from the concept of fault according to everyday standards, and from the concept of taking reasonable care for one's neighbours, if it imposed a duty to protect entrants on private property against such a hazard.[142] Gray J with whom Nyland J agreed said:
In the present case the learned judge considered that the common law duties of a private occupier of property had been developed by the High Court in Ghantous. It was suggested that this decision had developed the common law beyond the decisions in Hackshaw and Safeway Stores. This allowed the judge to conclude that the scope of the duty owed by Ms Neindorf to entrants to her property did not extend to the taking of any step at all to guard against the dangerous state of her driveway. The judge reasoned that the danger was so obvious that Ms Neindorf could safely rely on visitors taking care for their own safety. One consequence of this reasoning is that it may lead to the conclusion that the more obvious the danger the less the scope of the duty owed by an occupier. The common law has not developed to this point. Ghantous addresses the duty owed by a public authority in respect of public places. Different considerations arise concerning duties owed by a private occupier. Different policy issues arise.[143]
108 In the High Court, Gleeson CJ, Hayne Callinan and Heydon JJ agreed with the conclusion of Besanko J and Doyle CJ, that the unevenness of the surface on which the respondent tripped was so visible that reasonable care did not require the occupier to take any measures to reduce or diminish the danger. Gleeson CJ[144] and HayneJ[145] regarded it as important that the statute with which they were concerned provided that an occupier who takes no measures against a danger will not necessarily have failed to take reasonable care (s 17C(3)). They also regarded it as significant that the court is required take account of the extent to which it would have been reasonable to take measures against the danger (s 17C(2)(g)). Those factors and most of the matters set out in s 17 were matters that are taken into account at common law. None of the majority judgments referred to the principle in Brodie and the issue considered by the Court of Appeal.
109 Kirby J who dissented accepted that the statement of legal principle upon which Besanko J had relied may in some circumstances have application to injuries happening on private property.[146] He distinguished Brodie and Ghantous saying:
Nevertheless, Doyle CJ was clearly right in pointing to the significant factual differences between Ghantous and the present case. The relationship of the respondent to the appellant was much closer, more direct and with greater economic mutuality than was Mrs Ghantous' relationship with the local government authority. What might reasonably be expected of the repair and upkeep or precaution and warning in the context of a driveway and forecourt in confined suburban premises to which the public was invited could not reasonably be expected for the maintenance of all verges beside the entire network of a municipality's footpaths.[147]
110 In Cehner v Borg & Ors[148] Chernov JA with whom Batt JA agreed found that even if the respondents were the occupier of the uncovered sewer pit, they were not in breach of duty either at common law or under s 14B(3) of the Wrongs Act, for an obvious hazard. He said:
But even if I am wrong in my above conclusions and it was open for the magistrate to find that the Borgs were the occupiers of the domestic pipe, I consider that the magistrate could not have properly found that the Borgs breached a duty of care to the appellant in respect of the uncovered sewerage pit. As Mr. Bick for the second respondent submitted, in order to attribute liability to the Borgs under s.14B(3) of the Wrongs Act (or at common law), the appellant was required to show, inter alia, that if the Borgs were occupiers of the shaft, they breached their common law duty to the appellant. Mr. Bick submitted that the appellant failed to establish this. And consequently, he claimed, the Borgs could not have been found liable by the magistrate for breach of the Wrongs Act or of a common law duty of care. ...
Mr. Bick went on to submit that, in essence, the appellant's case was an ordinary tripping case that occurred on a public footpath, and he pointed to Brodie, and the subsequent cases that have applied it, whereby it has been held that liability attaches to an occupier of a footpath only where the relevant danger is not an obvious one. The High Court in Brodie reasoned that, ordinarily, pedestrians will be expected to exercise reasonable care for their own safety by avoiding such obvious hazards as 'uneven paving stones, tree roots or holes'. The view was expressed in that case that liability for negligence in such circumstances would arise if the danger was not an obvious one, for example, where there was inadequate lighting or the concealment of a hole. Here, the accident occurred, as I have said, at approximately 7 p.m. and the appellant's evidence in that regard did not give any indication what led him to 'fall into the hole' other than that he was distracted by an argument that was taking place in the adjacent car parking area and, in those circumstances, put his foot in the hole. The appellant said that he fell into the hole 'because there was [sic] people arguing [in] ... the parking area and I just turned around there and all of a sudden bang I went into the hole.' It follows, said Mr. Bick, that this evidence failed to establish, in accordance with accepted principle, either at common law or under s.14B(3) of the Wrongs Act, that the Borgs breached their duty of care to the appellant. I agree. The appellant's evidence fell short of demonstrating that his injury occurred because of a breach of any duty that the Borgs might have owed him.
Conclusion
Thus, even if the Borgs were occupiers of the domestic pipe for the purposes of the Wrongs Act and even if they owed the appellant a duty of care in relation to it, it was not open for the magistrate on the evidence to find that the appellant's injury occurred by reason of a breach of that duty.[149]
111 The decision in Cehner is authority for the proposition that the content of the duty of care under s 14B(3) is the same as that which applies at common law. In Cehner, Chernov JA also concluded, after referring to Brodie, that common law principles applied to the question of breach of duty.[150] He considered that the trial judge erred by failing to charge the jury in the terms suggested in Brodie and by Gillard AJA in Moyne[151] even if the provisions of the Wrongs Act were to be applied. I would leave open the question that was not argued in Cehner that there may be a need for some modification of the specialised duty to accommodate the provisions of s14B(3) and (4) of the Wrongs Act.[152] Assuming without deciding that some modification is required, the directions on the duty of care and breach of duty were not framed in accordance with authority or principle.
112 The Council was also correct in submitting that the trial judge had fallen into error in failing to direct the jury to consider the obviousness of the hazard as bearing upon both the question of duty and breach. The care to be expected of pedestrians on the highway or on public land is related to the obviousness of the danger.[153] A statutory authority may not be required to take steps to guard against a risk of injury that is obvious to and most easily avoided by a plaintiff exercising proper care for his or her own well being.[154]
113 In Thompson v Woolworths (Q'land) Pty Ltd[155] the joint reasons of Gleeson CJ and McHugh, Kirby, Hayne and Heydon JJ contains the following passage:
The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. ....
The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response.[156]
114 In Berrigan Shire Council v Ballerini,[157] another diving accident in a park under the management of the council and which preceded the High Courts decisions in Mulligan and Vairy, Nettle JA identified obviousness of risk as one fact amongst a number in a 'fact-value complex' to be considered in assessing what is reasonable.[158]
115 In Mulligan v Coffs Harbour City Council[159] Gleeson CJ and Kirby J, who were in the minority, but not as to this issue, concluded that 'the obviousness of a danger can be important in deciding whether a warning is required'. In Vairy v Wyong Shire Council[160] McHugh J thought it seldom that the obviousness of a risk created or permitted by a defendant who owes a duty of care would require no action by that party.[161] Gummow J did not regard the obviousness of the risk as a concept necessarily determinative of questions of breach of duty or the existence and content of the duty.[162] He expressed agreement with Hayne J's observation that the description of a risk as 'obvious' was apt to mislead and could not be used 'as a concept determinative of questions of breach of duty' nor should it be elevated into some doctrine or general rule of law.[163] Callinan and Heydon JJ referred to their reasons in their judgment in Mulligan v Coffs Harbour City Council[164] that in a particular case obviousness might be of such significance as to carry with it such a very high degree of importance, as to be overwhelming and effectively conclusive and that in Ghantous v Hawkesbury City Council, 'five judges of this Court stressed, and treated obviousness as a decisive factor'. They referred to the observations of Gleeson CJ in Woods v Multi-Sport Holdings Pty Limited[165] with whom Hayne J agreed, that obviousness may be decisive in relation to the recreational activity in which the plaintiff was there engaged.[166] In Woods v Multi-Sport Holdings Pty Ltd[167] Gleeson CJ said that what reasonableness requires by way of warning from an occupier to an entrant is a question of fact, not law and as a proposition of fact, it is not of universal validity.
116 Following the decisions in Thompson, Mulligan and Vairy Ipp JA dealt with the concept of obviousness of risk in Consolidated Broken Hill Ltd v Edwards.[168] He said:
A common expression of principle as to the concept of obviousness of risk is manifest from the unanimous decision in Thompson and the judgments of those justices in Mulligan and Vairy who formed a majority on this issue. It can be articulated as follows. Obviousness of risk is not a phrase that denotes a principle or rule of the law of negligence. It is merely a descriptive phrase that signifies the degree to which risk of harm may be apparent. It is a factor that is relevant to whether there has been a breach of the duty of care. I make no comment as to whether it is relevant also to the existence of a duty of care as that was not in issue in this case (and see Ghantous and the comments of Gummow J in Vairy at [55] and [80]). The weight to be attached to the obviousness of the risk depends on the totality of all the circumstances. In some circumstances it may be of such significance and importance as to be effectively conclusive.[169]
117 These observations have subsequently been referred to with approval.[170] It is now beyond debate that the formulation in Brodie also applies to the content of the duty as well as breach. As the duty to take reasonable care is owed to pedestrians who exercise reasonable care for their safety, the degree to which the risk of harm may be apparent will in most cases be material in determining the reasonableness of the response to the danger.[171]
Other misdirections in dealing with the factors enumerated in s 14B(4)of the Wrongs Act
118 If the Council were an occupier, it contended in its written submissions that the directions given to the jury concerning the factors set out in s14B(4) were also unsatisfactory. The trial judge informed counsel before her charge that she would instruct the jury as to the standard of care in accordance with the Wrongs Act. In the passages I have earlier set out, Her Honour enumerated the list of factors that the jury were to take into account to determine 'this standard of whether reasonable care was met by the occupiers in this case.' The factors that were referred to were derived from Section 14B(4) of the Wrongs Act. The Council submits that many were not to the point or were otherwise inapt, in particular the gravity and the likelihood of the 'probable injury'; the circumstances of the entry onto the 'premises'; the knowledge which the occupier has or ought to have of the likelihood of people being on the 'premises'; the age of the person entering the 'premises'; and the ability of the person entering the 'premises' to appreciate the danger.
119 The direction was said to confuse the standard of care and breach of duty. It was submitted that this confusion was compounded shortly thereafter when reference was made to 'the factors that you need to take into account in terms of this slipping on the webbing.'
120 The Council did not seek to amplify these written submissions during the hearing of the appeal and they were not addressed by the plaintiff. Neither party made submissions as to how the formulated duty in Brodie should be dealt with by the tribunal of fact when considering a question of breach of duty and the factors enumerated in s 14B(4). It is unnecessary and undesirable to express any views on these matters which have not been the subject of full argument.
121 The Council also submitted that the trial judge fell into error by inviting the jury to take into account the age of the plaintiff when considering duty and breach. Certainly Brodie as applied in Cattanach[172] and the New South Wales cases[173] to which Chernov JA referred in his reasons, stand for the propositions that the duty of care of a council is to be resolved by reference to a reasonable pedestrian, of ordinary physical capacity and that the particular characteristics of the plaintiff are not relevant for the purpose of determining if the Council owed a duty. At common law the Council would not owe any higher duty to elderly pedestrians when assessing whether the Council's response to the risk of injury was reasonable. But s14B(3) and (4) did not fall for consideration in Cattanach as the council was not sued as occupier and they were not raised for consideration in Cehner. The question arises whether the approach taken in those cases to duty and breach requires modification in light of s14B(4). I am inclined to think that the formulated duty in Brodie would require some modification to allow for the matters enumerated in s14B(4) but in the absence of argument I do not regard it as necessary or desirable to express any concluded view on this question.
122 The Council also submitted that the trial judge did not sufficiently raise for the jury's consideration the magnitude of the risk and degree of probability that it would occur.[174] It is unnecessary to resolve this issue but I observe that the questions raised by Mason J in Wyong Shire Council v Shirt apply in this setting.[175] Would a reasonable person have foreseen that the conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer to that question is in the affirmative, it is for the tribunal of fact to determine what a reasonable person would do by way of response to the risk. As stated by Mason J in Shirt:
The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.
123 In the event that I am incorrect in the conclusion that the Council was not an occupier, the misdirections would require that the matter be remitted for retrial. No submission was made that by virtue of the finding of contributory negligence the plaintiff must inevitably have failed had the jury been properly directed as to duty and breach. As there were serious misdirections as to the question of duty and breach which may have affected the jury's assessment of contributory negligence, the finding of contributory negligence could not be taken into account. I should not be understood as expressing any view as to whether a finding that a plaintiff breached their duty to take reasonable care for their safety, precluded a finding that a duty of care existed as articulated in Brodie or that there was a breach of that duty.[176]
124 Finally, in the event that the correct view was that Council was in occupation and only a generalized duty applied so that no order for a retrial was required, it is
necessary to deal with the Council's contention that the jury's apportionment of liability between the Council and the hoteliers was not open on the evidence. As I have mentioned, the primary basis on which the plaintiff alleged that the Council and the hoteliers were in breach of their duty was their failure to adequately inspect the temporary footpath and hoarding. It was not in issue that the hoteliers had day to day control generally inspecting the area more than once each day. The Council's inspections were much more infrequent. Making due allowance for the plaintiff's particular of negligence that it was the Council that had prescribed the method by which the netting should be affixed to the bracing for the hoarding, it was the hoteliers who principally assumed daily responsibility for the state of the footpath. The jury's apportionment does not reflect that different level of responsibility and cannot be supported. I would set aside the jury apportionment and order that liability be 60 per cent against the hoteliers and 40 per cent against the Council.
125 I would allow the appeal, set aside the jury's verdict and enter judgment for the Council.
126 I have had the benefit of reading a draft of the reasons of Redlich JA and Neave JA. I too agree that the appeal should be allowed and would set aside the jury's verdict and enter judgment for the council as proposed by Redlich JA.
127 I agree for the reasons given by Redlich JA that the appellant council was not an occupier of the temporary footpath and that the directions of the trial judge to the jury ought to have been in accordance with the principle stated in Brodie v Singleton Shire Council[177] even if the council was an occupier and the land was not part of the highway. I also agree with the apportionment of liability proposed by Redlich JA if the council was in occupation and only a general duty applied.
[1] [2001] HCA 29; (2001) 206 CLR 512 ('Brodie').
[2] [2007] HCA 42; (2007) 234 CLR 330 ('Dederer').
[3] Ibid 346,[45]-[47]; see also 406 (Callinan J).
[4] The language of s 14 B differs from Wrongs Act 1936 (SA) s 17C.
[5] [2005] HCA 75; (2005) 222 ALR 631 ('Neindorf').
[7] Ibid [74]. See also Ashley JA, 'Reconciling Duty of Care and Breach', unpublished conference paper, Supreme and Federal Court Judges' Conference, Brisbane, 2006.
[8] This was the way in which the plaintiff's case was pleaded and conducted.
[13] The trial judge had ruled that the Council was an occupier.
[14] The term used in s 14B Wrongs Act 1958.
[15] Described as a 'rolling debate' in the appellant's submissions.
[21] See: Second Reading of the Transport (Highway Rule) Bill, Legislative Assembly, 10 October 2002, Hansard pp.511-514 & Legislative Council, 31 October 2002, Hansard pp.822-825.
[22] Transport (Highway Rule) Act 2002 Act No 54/2002.
[25] [1936] HCA 65; (1936) 57 CLR 259, 281.
[26] Halsbury's Laws of Australia [225-210]; McDonogh v Commonwealth (1985) 9 FCR 360, 371-3 (Neaves J); Municipal Council of Sydney v Bourke [1895] AC 433, 443-4; Buckle v Bayswater Road Board [1936] HCA 65; (1936) 57 CLR 259, 286-7 (Dixon J). See also Gorringe v Transport Commission (Tas) [1950] HCA 6; (1950) 80 CLR 357, 362 (Latham CJ).
[27] Municipal Council of Sydney v Bourke [1895] AC 433, 436-7; Buckle v Bayswater Road Board [1936] HCA 65; (1936) 57 CLR 259, 268 (Latham CJ).
[28] Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, 582.
[31] Section 35 Interpretation of Legislation Act 1984 permits use of such extrinsic evidence in aid of interpretation.
[32] Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, 552-4 (Gaudron McHugh and Gummow JJ).
[35] Drake v Bedfordshire County Council [1944] 1 All ER 633, 638.
[36] Fleming, The Law of Torts, 9th edition, 1998, 487.
[37] [1936] HCA 65; (1936) 57 CLR 259, 300.
[39] Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, 550.
[40] This objective is also made clear by the extrinsic material introduced in aid of interpretation .
[45] [2001] HCA 29; (2001) 206 CLR 512, [163].
[47] Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22, [26], [68], [150] & [179], Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330, [45]-[47], [270], [283].
[48] Boroondara City Council v Cattanach [2004] VSCA 139; (2004) 10 VR 109, Greater Shepparton City Council v Davis [2004] VSCA 140; and Moyne Shire Council v Pearce [2004] VSCA 246; (2004) 136 LGERA 434.
[52] Boroondara City Council v Cattanach (2004) 10 VR 107, 117.
[53] [2004] VSCA 140, [29].
[54] Hawkesbury City Council v Ryan [2001] NSWCA 212; (2001) 130 LGERA 99; Roads & Traffic Authority of NSW v McGuinness (2002) NSWCA 210; Burwood Council v Byrnes (2002) NSWCA 343, [54] (Handley JA); Richmond Valley Council v Standing [2002] NSWCA 359; (2002) 127 LGERA 237; Newcastle City Council v Lindsay [2004] NSWCA 198; Temora Shire Council v Stein [2004] NSWCA 236.
[55] [2004] VSCA 246; (2004) 136 LGERA 434, [90].
[60] Ibid [16] (Warren CJ, Buchanan JA, Byrne AJA).
[61] See Richmond Valley Council v Standing [2002] NSWCA 359; (2002) 127 LGERA 237, [29]; Liverpool City Council v Millett & Anor [2004] NSWCA 340; (2004) 43 MVR 193, [67]; Temora Shire Council v Stein [2004] NSWCA 236; (2004) 134 LGERA 407, [38]; Hastings Council v Shirley Dawn Giese [2003] NSWCA 178; (2003) 127 LGERA 109; Burwood Council v Byrnes [2002] NSWCA 343; Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; Booksan Pty Limited v Wehbe [2006] NSWCA 3, [53]; [2005] NSWCA 380; (2005) Aust Torts Reports 81-815; Shellharbour City Council v Rhiannon Rigby & Anor [2006] NSWCA 308; (2006) 150 LGERA 11.
[62] [2002] NSWCA 343, [15].
[63] [2002] NSWCA 359, [29].
[65] [2007] HCA 42; (2007) 234 CLR 330, [47]-[48].
[66] Occupiers' liability is liability in respect of 'premises.' The Wrongs Act defines 'premises' to include 'any fixed or moveable structure, including any vessel, vehicle or aircraft.' At common law, the basic example of premises is land and immoveable structures on land. The liability of an occupier can extend to the means of access to the premises even if the occupier has no legal right of control over them and only the most minimal factual control. There is no reason to think that there is any significant divergence between the common law and statutory definitions of 'premises': see Francis Trinidade et. al., The Law of Torts in Australia (2007, 4thed.) p. 581-582.
[71] If the Council were an occupier, the content of the duty owed to the plaintiff was that stated by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. As to the duty in s 14B(3) Wrongs Act see [81], [111], [121].
[72] Buckle v Bayswater Road Board [1936] HCA 65; (1936) 57 CLR 259, 280-1.
[73] Sisson v North Sydney Municipal Council [1966] 1 NSWR 580; McDonogh v Commonwealth of Australia (1985) 9 FCR 360; Whiting v Hillingdon London Borough Council (1970) 68 LGR 437; Gosford City Council v Timbs [2000] NSWCA 31.
[75] McGeown v Northern Ireland Housing Executive [1995] 1 AC 233.
[76] Whiting v Hillingdon London Borough Council (1970) 68 LGR 437, 443.
[77] Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, 576-8.
[78] Section 146(1)(d) Roads Act 1993 (NSW).
[79] See Bass Coast Shire Council v King [1997] 2 VR 5; City of Ballarat v Perovic [2001] VSCA 222; (2001) 4 VR 1; Moyne Shire Council v Pearce [2004] VSCA 246; (2004) 136 LGERA 434.
[80] Buckle v Bayswater Road Board [1936] HCA 65; (1936) 57 CLR 259.
[81] Skilton v Epson & Ewell Urban District Council [1937] 1 KB 112.
[83] Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, 544-5.
[84] Fleming, The Law of Torts, 9th edition, 1998 at pp 487-8.
[85] Ystradyfodwg & Pontypridd Main Sewerage Board v Bensted [1907] 1 KB 490, 500; Metters v District Council of West Torrens [1910] SALR 1, 21; Franklin v Ind (1883) 17 SALR 133; Goddard, Ex Parte; Re Howlett (1940) 40 SR (NSW) 459.
[86] Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 [150] (Gummow and Hayne JJ).
[88] The State of New South Wales v Broune [2000] NSWCA 3, [69]-[70].
[89] Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, [102] (Gaudron, McHugh & Gummow JJ); see discussion of control in SB v State of New South Wales [2004] VSC 514; (2004) 13 VR 527, [171]-[186].
[90] Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512.
[92] See Folkes v A and Maria Calabro, Leon Constructions Pty Ltd, City of Canada Bay Council [2004] NSWCA 191, [92].
[94] At trial the plaintiff described the temporary footpath as the 'premises'.
[96] (1987) 162 CLR 479, 488.
[97] See Berrigan Shire Council v Ballerini [2005] VSCA 159; (2005) 13 VR 111 (Nettle JA)
[103] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (Gleeson CJ and Kirby J).
[104] [2001] HCA 29; (2001) 206 CLR 512, [139]-[140].
[108] Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, [17] [42].
[109] [1993] HCA 76; (1993) 177 CLR 423, 430.
[110] Neindorf v Junkovic [2005] HCA 75; [2005] 222 ALR 631, [8] (Gleeson CJ ).
[112] [1939] HCA 20; (1939) 62 CLR 179, 206-7.
[121] Romeo v Conservation Commission (NT) (1998) 192 CLR 431, 442-3.
[124] [2005] HCA 62; (2005) 223 CLR 422, [145] (Hayne J), [209] (Callinan and Heydon JJ). See also [76] (Gummow J).
[125] See Commissioner of Main Roads v Jones [2005] HCA 27; (2005) 215 ALR 418.
[126] [2005] HCA 62; (2005) 223 CLR 422, [6].
[128] Ibid [116]-[118]. See also [129].
[130] Ibid [17], [42], [59], [65], 102], [139]-[140].
[131] [2007] HCA 42; (2007) 234 CLR 330, [45].
[137] Wellington Shire v Steedman [2003] VSCA 115; (2003) 128 LGERA 294. See n [2].
[138] See the judgment of Gillard AJA in Moyne as to the form of direction that could be given.
[139] Cehner v Borg [2003] VSCA 72, [24]-[26].
[141] [2004] SASC 325; (2004) 89 SASR 572, [23]-[25].
[144] Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631, 634-635.
[147] [2005] HCA 75; (2005) 222 ALR 631, 651.
[149] [2003] VSCA 72, [24]-[27].
[150] [2003] VSCA 72, [26].
[151] Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, [150].
[153] Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 431, [52] (Toohey, Gummow JJ).
[154] Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 431; David Jones Limited v Bates [2001] NSWCA 233; Richmond Valley Council v Standing [2002] NSWCA 359; (2002) 127 LGERA 237; Hastings Council v Giese [2003] NSWCA 178; (2003) 127 LGERA 109; Shellharbour City Council v Rhiannon Rigby & Anor [2006] NSWCA 308; (2006) 150 LGERA 11; Whittlesea City Council v Merie [2005] VSCA 199; Temora Shire Council v Stein [2004] NSWCA 236; (2004) 134 LGERA 407; C Coventry, "You Had Better Watch Out: Liability of Public Authorities for Obvious Hazards in Footpaths" (2006) 14 TLJ 81; The Hon Justice D A Ipp AO, "The Metamorphosis of Slip and Fall" (2007) 29 Aust Bar Rev 150.
[170] Randwick City Council v Muzic [2006] NSWCA 66, [24] and Shellharbour City Council v Johnson [2006] NSWCA 67, [23]; McColl JA in Ainger v Coffs Harbour City Council [2005] NSWCA 424, [79]; Campbell AJA in Eutick v City of Canada Bay Council [2006] NSWCA 30; (2006) Aust Torts Rep 81-832, [69]; Ipp JA in Edson v Roads & Traffic Authority NSW [2006] NSWCA 68; (2006) 65 NSWLR 453, [103]; Tobias JA in Langham v Connells Point Rovers Soccer Club Inc [2005] NSWCA 461, [50]; Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Rep 81-874.
[171] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, [8] (Gleeson CJ and Kirby J); Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, [150]-[165],[163].
[172] Boroondara City Council v Cattanach [2004] VSCA 139; (2004) 10 VR 109, 117-119
[174] Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, [150]-[151].
[175] Webb v The State of South Australia (1982) 43 ALR 465, Moyne Shire Council v Pearce [2004] VSCA 246; (2004) 136 LGERA 434, [90] (Gillard AJA).
[176] See Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, [222] (Callinan and Heydon JJ); Moyne Shire Council v Pearce [2004] VSCA 246; (2004) 136 LGERA 434, [7] (Batt JA), [90]-[91] (Gillard AJA); Montfroy v Roads Corporation [2005] VSC 320, [33] (Gillard J); Liverpool City Council v Millett & Anor [2004] NSWCA 340; (2004) 43 MVR 193, [10]-[17] (Sheller JA), [91]-[92] [113] (Mason P, Tobias JA).
Central Goldfields Shire
Haley & Ors [2009] VSCA 101
(2001) 206 CLR 512
(1936) 57 CLR 259
(2000) 1 VR 133
(2000) 22 WAR 474
(2007) 234 CLR 330
(2005) 222 ALR 631
(1950) 80 CLR 357
(1985) 9 FCR 360
(2004) 136 LGERA 434
(2004) 10 VR 109
(2007) 230 CLR 22
(1905) 3 CLR 50
(2004) 10 VR 107
(2001) 130 LGERA 99
(2002) 127 LGERA 237
(2004) 42 MVR 1
(2004) 43 MVR 193
(2004) 134 LGERA 407
(2003) 127 LGERA 109
(2006) 150 LGERA 11
(1987) 162 CLR 479
(2001) 4 VR 1
(1953) 87 CLR 619
(2000) 205 CLR 166
(2004) 13 VR 527
(2005) 13 VR 111
(2002) 211 CLR 540
(1985) 157 CLR 424
(1998) 192 CLR 330
(1998) 192 CLR 431
(1999) 200 CLR 1
(2005) 223 CLR 422
(2000) 205 CLR 254
(1993) 177 CLR 423
(1939) 62 CLR 179
(1972) 129 CLR 116
(2005) 215 ALR 418
(2003) 128 LGERA 294
(2004) 89 SASR 572
(2005) 221 CLR 234
(2005) 80 ALJR 43
(2002) 208 CLR 460
(2006) 65 NSWLR 453
(1982) 43 ALR 465