Central Goldfields Shire v Haley & Ors [2009] VSCA 101

Central Goldfields Shire v Haley & Ors [2009] VSCA 101 - VSCA 2009 case summary — Zoe

[80]

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]

[157]

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)

[174]

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]

At a glance

Court

Decision date

Before

Source

Judgment (328 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (44)