Frankston City Council v Eyles [2000] VSCA 97

Court of Appeal (Vic)|2000-05-29|Before: BROOKING, PHILLIPS and CHERNOV, JJ.A.

TORTS - Negligence - Highway authorities - Misfeasance - Nonfeasance - Injury to pedestrian - Depression in footpath caused by tree roots - Tree planted by Council an "artificial structure" - Immunity of highway authorities not enlarged by statutory provision - Tree planted by Council as factotum of all the town, not as highway authority.

On 18 February 1995 Mrs Eyles tripped and broke her wrist when she stepped into a depression in the pavement in Ross Smith Avenue, Frankston, which is close to the main shopping centre of that city. In an action in the County Court, tried by a judge sitting alone, she recovered judgment for about $150,000 in all as damages for negligence against Frankston City Council. Her action failed as regards an added defendant, South East Water. The Council has appealed against the judgment. Until recently South East Water was also a respondent, but the appeal has been discontinued as against that body and the appellant no longer complains of the outcome of the proceedings in so far as they concerned that body and now attacks only the judgment given against the appellant.

Originally that judgment was assailed on a number of grounds and the decision on both liability and damages was called in question. Now the appeal is confined to the decision on liability and raises only two points - the correctness of what the judge decided in relation to the "artificial structures" rule and the correctness of his rejection of a statutory defence.

Since the judge's findings of fact are no longer called in question, the circumstances of the accident may be stated very briefly. The depression in the footpath was caused by the action of tree roots in thrusting up one of the concrete slabs of which the footpath was constructed. The slab itself was pushed up but a metal water valve cover which was surrounded by the slab was not thrust up with it, so that the cover became recessed, forming the base of a small depression about 25 millimetres deep and 150 millimetres long and wide. The footpath had been constructed by the appellant some 15 or 20 years before the accident. The thrusting roots belonged to a plane tree nearby which the appellant had planted a short distance in from the kerb. How long ago the tree had been planted does not appear. It was accepted by the appellant at the trial that it had the care and management of Ross Smith Avenue.

The depression was, as I have said, a small one. His Honour's finding on the matter of negligence is very brief. No reference is made in it to the considerations which bore on whether the exercise of reasonable care required in all the circumstances the getting rid of the depression. The brevity of the reasons on this point may well, however, reflect the way in which the case was conducted, for we were told by Mr Stanley that negligence in fact was scarcely put in issue.

The appellant relied on the rule that highway authorities are not liable for nonfeasance and said that its failure to take steps to safeguard pedestrians against the danger of injury as a result of the depression in the footpath was mere nonfeasance. But the respondent successfully invoked the "artificial structures" rule, the judge holding that the tree was an artificial structure in or on the highway, put there by the appellant, which had negligently failed to take steps to safeguard pedestrians against the dangerous condition to which the tree had given rise. His Honour went on to reject the defence based on paragraph (c) of s.205(2) of the Local Government Act 1989. That sub-section is as follows:

"(2) A Council that has the care and management of a road - (a) must ensure that if the road is required for public traffic, it is kept open for public use (subject to the exercise of any powers that it has to the contrary under Schedules 10 and 11); and

(c) is not obliged to do any particular work on the road and, in particular, is not obliged to carry out any surface or drainage work on an unmade road."

I can quickly dispose of the second point raised by this appeal by saying at once that in my opinion para.(c) of s.205(2) affords the appellant no defence. As originally enacted, the predecessor of s.205, s.203 of the Local Government Act 1989, contained nothing resembling the present para.(c) of sub-s.(2). Section 205, as we find it now, was substituted by Act No. 125 of 1993 and came into force on 7 December 1993. This accident occurred on 18 February 1995. I assume in favour of the appellant that para.(c) is, having regard to the matter of date, available to it if that provision otherwise has the effect for which it contends.

On this assumption the paragraph is still of no avail to the appellant. It is intended, not to enlarge the common law immunity of highway authorities, but, if anything, to preserve it against any suggestion that paras.(a) and (b) of the sub-section trench upon that immunity. Paragraph (c) is intended to make it clear that the duty and power imposed and conferred by paras.(a) and (b) respectively impose no duty to do any of the things mentioned in para.(c). Thus the paragraph is concerned to assist in delimiting the public law obligations of councils (and so it may indirectly affect their private law obligations). It has nothing to say about the scope and effect of the "artificial structures" rule, nor does it otherwise enlarge the immunity of highway authorities in relation to things done by them as such.

I now return to the common law rule about artificial structures. We were told by counsel that on 10 December 1999 Kirby and Hayne, JJ. referred to a Full Bench, to be argued as on appeal, a special leave application seeking to have the general rule of the immunity of highway authorities reconsidered: Brodie v. Singleton Shire Council. There can be no question of this Court's reconsidering the general rule, nor did Dr Pannam suggest that we should do so. In addition, this Court must proceed upon the basis that the general rule of immunity does have attached to it a qualification relating to artificial structures, having regard to the authorities, including what was said in Buckle v. Bayswater Road Board[1]; Gorringe v. Transport Commission (Tas.)[2]; and especially Webb v. South Australia[3]. The effect of what was said by the High Court in Webb v. South Australia was briefly discussed in argument. Having regard to what was said in that case, Dr Pannam has not invited us to deny the existence of the "artificial structure" rule. Rather has he invited us to apply the rule, not by asking whether the thing is not a component part of the road fabric (Buckle v. Bayswater Road Board[4]), but by applying a functional test and so asking whether the thing serves the purpose of beautifying the highway, and perhaps providing shade, and so making it more commodious or agreeable as a highway. He submitted that it was wrong to regard a tree planted by a municipal council (as was done in this case) as an artificial structure for the purposes of the rule.

But there is authority against the appellant on this point. As long ago as 1924 the Full Court of New South Wales upheld a verdict for a plaintiff who had tripped because of a depression in the footpath where the soil around a tree, left exposed when the path was asphalted, had with time become somewhat lower than the surrounding asphalt: Donaldson v. Municipal Council of Sydney[5]. The tree was one of a row planted by the council, which had later asphalted the path, leaving a small circle of exposed soil around each tree, which was made level with the asphalt. The Full Court seems to have been in no doubt that the trees were artificial structures for the purposes of the rule. It is perhaps worth noting also that in Morrison v. Sheffield Corporation[6] the Court of Appeal accepted that a municipality which had planted trees in a highway and erected guards around them in the exercise of the statutory power was obliged to take reasonable care to see that they did not become a danger to the public. The rule about artificial structures is simply not mentioned in the judgments. In Grafton City Council v. Riley Dodds (Australia) Ltd[7] the trees had been planted and the Full Court[8] listed trees among the objects which did not fall within the general rule of the immunity of highway authority for nonfeasance. A self-sown tree was held by the Full Court not to be an "artificial structure" in Bretherton v. Hornsby Shire Council[9]. Most important of all is the decision of the Court of Appeal in Hughes v. Hunters Hill Municipal Council[10], where the Court allowed an appeal by a plaintiff who had failed in her action for damages because of the nonfeasance rule. She had fallen at a bus stop because of the uneven surface of the footpath caused by the roots of a tree planted by the defendant. Her appeal succeeded on the ground that the tree was an artificial structure.

Two other decisions, both relied on by the appellant, should be mentioned. In the first, Hellyer v. Commonwealth[11], Joske, J. dismissed an action by a pedestrian injured in the Australian Capital Territory when she tripped over a pavement slab which had been raised by the roots of one of a number of trees lining the street. The footpath had been constructed in place of a dirt track at a time when the trees were already quite well grown although by no means fully grown. I imagine that they were not self-sown. Joske, J. found that the footpath had been constructed in a usual and proper way and that the Commonwealth, as a highway authority, was not liable for failing to take steps to safeguard pedestrians against the unsafe condition that had later arisen. The value of this decision to the present appellant is affected by the judge's failure to refer to the "artificial structure" rule. I do not think the judge can be taken to have formed the view that planted trees are not artificial structures: for all the report shows, his mind may never have been directed to the question.

The second case relied on by the appellant was cited by Joske, J. - the decision of the British Columbia Court of Appeal in Scott v. City of Nanaimo[12]. There a pedestrian died from a fall after stubbing her toe on a concrete slab, part of a pavement, which had been pushed up by tree roots about one and a half inches above the adjoining slab. An appeal against the dismissal of the action was unsuccessful. The pavement had, as in Hellyer v. Commonwealth, been constructed over the roots of existing trees. The trees were undoubtedly not self-sown. The Court of Appeal refused to disturb a judgment for the defendant given on the basis of a finding that the footpath had been constructed according to good engineering practice, so that the case became one of mere nonfeasance. Again, the utility of the decision for present purposes is diminished by the omission of the judgments to make any reference to the artificial structure question.

In my view we should follow the Full Court and Court of Appeal of New South Wales by holding that the tree planted by the appellant was an artificial structure and that it was accordingly open to the judge to find the appellant liable on the basis that it had failed to take reasonable care to safeguard the respondent against the dangerous condition to which the tree had given rise.

The result reached by the trial judge might perhaps be arrived at in a somewhat different way as a matter of analysis. There was no discussion of the source of the appellant's power to plant this tree until we raised the matter. Sweeping changes were made to the Local Government Act 1958, as it was then still called, and as I shall continue to call it, as a result of the enactment of the Local Government Act 1989 and the amendments to the Act of 1958 made by the Local Government (Consequential Provisions) Act 1989. In consequence, the planting by councils of trees in streets is, it seems, no longer specifically dealt with by the legislation. Schedules 10 and 11 of the Local Government Act 1989, dealing with the powers of councils over roads and traffic respectively, confer no express power to plant trees in streets, and presumably that power is now to be derived from the statement of functions of councils in Schedule 1, coupled with the general grant by s.8(3) of power to do all things necessary or convenient to be done for or in connection with the performance of a council's functions. The tree in Frankston, from the photograph which we have of it, was not an elderly or even a middle-aged plane tree. It was planted at a time when the Local Government Act specifically empowered councils to plant trees and erect tree-guards in or upon streets in their municipal districts without unduly obstructing the thoroughfare. Very likely it was put in pursuant to the power conferred by s.555 of the Local Government Act 1958. At most it might have been put in pursuant to the power conferred by the immediate predecessor of that section, s.554 of the Local Government Act 1946. The power concerned can be traced from s.555 of the Local Government Act 1958 back to s.33 of the Local Government Act Amendment Act 1883, which section conferred only a power to plant trees and erect tree-guards. It appears in each of the consolidating Local Government Acts after its début. A similar statutory provision is mentioned in Morrison v. Sheffield Corporation[13] and Grafton City Council v. Riley Dodds (Australia) Ltd[14]. For many years the power has been coupled in the same section with numerous other powers in the Local Government Acts of this State.

The possible alternative basis for imposing liability upon the appellant might, as a matter of analysis, be found in the "source of authority" approach by holding that the statutory power to plant trees in streets which was exercised in this case some years ago, was not conferred upon the appellant in its capacity of highway authority, so that (as was held in Morrison v. Sheffield Corporation, where the tree or tree-guard had been put in under a similar power) the case was simply one in which a public authority was liable for its failure to exercise reasonable care where what was originally safe had become dangerous. I shall not list all the diverse powers to be found in s.555 of the Local Government Act 1958. They include power to erect statues, monuments and fountains, powers to be used for the purpose of regulating traffic, power to put in parking metres and a power to erect urinals. It might be said that when the council planted this tree it was acting, not as a highway authority, but as "the factotum of all the town".

It has, I note in passing, been doubted whether the "dangerous structures" rule is an independent exception to the general rule of immunity or, on the other hand, merely another version of the "source of authority" test: Fleming, Law of Torts, 9th ed., p.487; Trindade and Cane, Law of Torts in Australia, 2nd ed., p.696.

I say nothing about Mr Stanley's alternative argument for the respondent that there was here misfeasance beyond indicating that I am not presently persuaded by it.

I think we must dismiss this appeal and order the costs of the remaining respondent, the plaintiff, to be paid by the appellant.

The appeal is dismissed and the appellant is ordered to pay the costs of the remaining respondent, that is to say, the plaintiff.

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Judgment (36 paragraphs)

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