The Submissions of the Appellant .
60 In his written submissions, Mr Deakin referred to the various passages concerning Mr Brown's report and the premise on which it proceeded, which I have quoted. He submitted that the essence of his Honour's finding, which he embraced, was that he could not rely on Mr Brown's report and find that the base for the paving blocks had been improperly prepared, and that in rejecting that conclusion he left open the possibility that the base and the pavers were all properly prepared and built.
61 In my opinion, that is not a proper analysis of what his Honour had found. Either Mr Brown's common sense approach that the pavers had been laid flush with the top of the kerb was correct, which then called into question the adequacy of the preparation and compaction of the sand on which they lay, or the pavers were originally laid below the level of the top of the kerb. The premise or assumption, which his Honour found had not been proved, was that the pavers were laid flush with the top of the kerb. However, as I have pointed out, Mr Brown's opinion was that if this had happened the reason for the lowering of their level was by virtue of subsidence caused by the carrying out of improper preparation work.
62 Mr Deakin's submission that an alternative conclusion was that the difference in height "may have been caused by normal settling of a footpath that would expect to occur over time" cannot be accepted in the light of Mr Brown's unchallenged evidence. Nor, in my opinion, can his submission that the respondent failed to prove the actual cause of the difference in height. In my opinion there was evidence that established that it was either by virtue of subsidence through improper and incomplete preparation and compaction or because there was originally the difference in height. No other alternatives were put forward.
63 Mr Deakin submitted that the last two sentences of his Honour's reasons on liability appeared to rely upon there being no evidence of wrongdoing by any other party, such that the appellant was liable. In my opinion, a fair reading of the whole of his Honour's reasons on liability does not lead to this conclusion.
64 The written submission continued that:-
"Having rejected the expert evidence, there was no evidence available to his Honour to make any finding of misfeasance against the Council. As the Council is a road authority in the circumstances and the footpath forms part of the road, relevantly for present purposes the Council is entitled to the benefit of the defence of nonfeasance".
65 I do not accept that his Honour rejected Mr Brown's evidence. He was not satisfied that the assumption Mr Brown made had been established, but he certainly did not reject, and in my opinion on the evidence and in the way in which the case was conducted, he could not have rejected his evidence as to the cause of subsidence. As I have said, perhaps on too many occasions, even if his Honour did reject all that evidence, that only means that the construction left a trippable area from the beginning.
66 I think it also necessary to note that in his oral submissions Mr Deakin made much of the fact that one was not aware as to how long this footpath had been laid. This submission, in my view, overlooked the agreement of counsel that it had been laid some four to five years prior to the accident. Accordingly, it was not a footpath which, on the agreement of the parties, had been laid for a lengthy period. I should note that the agreement in the passage of his Honour's reasons to which I have referred appears to have stemmed from what his Honour said in the first paragraph of his judgment under the heading "Facts", RAB p 14:-
"Whilst there is no evidence as such before me in regard to the relationship between the first defendant and the second defendant, it would appear from submissions made by Council that the second defendant was the firm responsible for constructing a footpath where the plaintiff tripped and fell under tender from the Council. It also appears that this construction work took place in approximately 1991".
67 Whilst, at first blush, it appeared that these sentences stemmed from submissions and not evidence or agreement, it is clear, at least as to when the work was done, that there was an agreement reached by counsel and advised to his Honour as to when the work was done.
68 In his written submissions, Mr Deakin made substantial reference to the decision of this Court in Lake Macquarie City Council v Bottomley (CA 40098/98 - 3 March 1999 - unreported).
69 The first passage upon which he relied appears in par 37 of the judgment of Powell JA, with whom Handley JA agreed without further comment and Giles JA agreed, although his Honour delivered a short judgment. The passage followed an extensive reference to the judgment of Dixon J in Buckle v Bayswater Road Board (1936) 57 CLR 259. That decision, as indeed all other decisions to which the Court referred, proceeded on the basis that there was a difference between misfeasance and nonfeasance. However, as Powell JA pointed out, his statement was qualified by the requirement that the work done should not "attract liability unless it has in fact increased the risk of accidents".
70 Powell JA continued by referring to the decision of Latham CJ in Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357 at pp 363-4 and, in par 38, Powell JA continued:-
"If, in order that it might be charged with misfeasance, a road authority must be shown to have been an active agent in negligently creating, or adding to, an unnecessary danger in the highway - including within the term 'highway' not merely the carriageway but also the other areas - such as the grass verge in the present case - within what might be called the 'road reserve' - then, as it seems to me, as a matter of logic, three consequences flow, they being:
1. if the evidence which is tendered to a Court does not disclose when, or by whom, or by which, the relevant works were carried out, the plaintiff's claim must, without more, fail for want of proof;
2. if it appears from the evidence tendered to the Court that the works in question were carried out prior to the road becoming vested in the road authority then, in the absence of express words in the Act pursuant to which the road became vested in the road authority, the road authority is not to be held liable for its predecessors' misfeasance ... ;
3. even if the evidence tendered to the Court establishes that the relevant works were carried out by the road authority, the road authority is not to be held liable unless it carried out the works without due care and skill for the safety of those who might come to use the road, it following that, if the works were carried out in accordance with the standards of the time and the circumstances then prevailing, the road authority is not to be held liable, either, by reason of the carrying out of the works or, by reason of the fact that, as the result of the deterioration of the works and the road authority's failure to maintain or repair them, the works have become unsafe (see, for example, Buckle v Bayswater Road Board; Hill v Commissioner of Main Roads )".
71 Mr Deakin relied, in his written submissions, upon the words appearing in par 38(1). They have no application to the present case because it was established that the work was carried out some four to five years prior to the accident by the second defendant.
72 Mr Deakin nextly relied on sub-par 3. In my respectful opinion this passage merely draws the distinction between misfeasance and nonfeasance. However, it also calls for evidence that the works were carried out in accordance with the standards of the time and the circumstances then prevailing. It is, in the present case, at this point that, in my opinion, the appellant's case fails. There was no evidence to support a finding that the work was carried out in those ways and, as I have said, the evidence was to the contrary.
73 Mr Deakin nextly submitted that his Honour accepted that the appellant did not carry out the work and noted his Honour's rejection of the submission that "absent any evidence to the contrary his Honour ought to find that the Council had engaged competent persons to carry out the work". He referred to the submission that the Council had delegated the work to the second defendant, and to his Honour's apparent refusal to accept that the second defendant was competent. The issue is not whether, as Mr Deakin's written submissions seem to imply, the duty was delegable, but whether it was delegated to a competent person. That was not established and, therefore, assuming that the work was delegable the appellant did not prove that it reasonably believed that the second defendant was competent to perform it.
74 In his oral submissions Mr Deakin relied heavily upon the decision of the High Court in Ghantous v Hawkesbury City Council [2001] HCA 29. In that case, of course, judgment was given at the same time in Brodie v Singleton Shire Council, which removed the immunity for nonfeasance.
75 In Ghantous, Mrs Ghantous tripped and fell while walking along a concrete footpath. Since its original construction, which was not shown to have been negligent in any respect, erosion had resulted in the earth beside the footpath in some places, so that the verge was about 50 mm below the concrete. When Mrs Ghantous stepped aside to allow other pedestrians to pass, she placed her foot so that it was partly on the concrete and partly on the lower verge. This resulted in her fall.
76 In this case the High Court agreed that there was no negligence and with the reasoning to that conclusion to which Callinan J came in par 355:-
"In my opinion the application should fail at the outset. The respondent has not abandoned its contention that it was not negligent, whether as a highway authority or otherwise. Even if I were to assume that an action in negligence lay against the respondent for any failure to maintain or improve the footpath to keep or make it safe, whether as a matter of misfeasance or otherwise, I would conclude that there was no failure in that regard because the footpath was not, despite what the expert witness was allowed to say, unsafe. The case of the applicant in negligence was that a differential in height between the concreted part of the footpath and the earthen part of it created a dangerous situation. A court is not obliged to accept an expert, especially when his or her evidence is evidence purportedly resolving and concluding an issue of the kind which arose here. A court is not bound to accept that a matter of ordinary observation such as the readily apparent state of the footpath is a matter calling for expert opinion. But in any event the expert's opinion (uncontradicted as it was) did not go so far as to say that the 'poor maintenance' which caused the 'hazard' actually caused one of such a nature that to leave it unrectified was negligent. There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this. The applicant herself admitted in cross-examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the eastern verges. There was no negligence on the part of the respondent either in the construction of the footpath or in not keeping the concrete strip and verges level".
77 Mr Deakin relied heavily upon this passage and, in effect, submitted that there was no distinction between Ghantous and the present case. In my opinion, that submission must, on the facts of the present case, be rejected. First, there was no evidence that the actual concrete footpath was not constructed properly. Secondly, there was no concealment of the difference in height between the concrete and the earth. The difference between that case and the present, so far as the height differential, was extreme. Thirdly, the respondent in the present case was confronted with another difficulty. She had to step down from the footpath into a deep gutter. Part of her duty was to keep a proper lookout as to where she was stepping. This she was doing. His Honour's finding that she was not guilty of contributory negligence negates, in my opinion, the suggestion that she was not keeping a proper lookout and, it is significant, that there was no appeal against that decision.
78 In each case it must be a question of fact as to whether, in all the circumstances, a Council has been negligent. Mr King submitted that the decision in Ghantous could not have been intended by the High Court as providing a licence for such authorities to be negligent. Ghantous merely stands as authority for the proposition that on the facts of that case there was no negligence.
79 A great deal of time was spent in submissions about the effect of the decisions in Brodie and Ghantous, which were given after the decision here under appeal. I do not find it necessary to encumber these already lengthy reasons with a consideration of that point. The simple facts of this case established that the appellant was guilty of negligence or misfeasance. This was not a case, in my opinion, of nonfeasance. In those circumstances I consider that I am doing nothing more than applying the law as it existed prior to the recent decisions of the High Court and which is unaffected by them relevantly for present purposes.