Lake Macquarie City Council v Day

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 301 of 1996 LOWER COURT JUDICIAL OFFICER : Taylor DCJ

COUNSEL : Appellant - S G Campbell Respondent - B A Batchelor SOLICITORS : Appellant - Hunt & Hunt respondent - Armstrongs, Toronto CATCHWORDS : Negligence; highway case; degraded original road surface with different level ("step") from road surface of a trench for drainage piping; whether on probabilities step due to negligence in installing piping; on facts, just as possible that due to degradation of original road surface since piping installed; misfeasance not established. DECISION : Appeal allowed; Orders re costs and restitution made.

7 THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

1 GILES JA: Mrs Ivy Day claimed damages from Lake Macquarie City Council in respect of injuries suffered on 12 March 1996 when she fell while crossing Pemmell Street, Toronto, within the Council's local government area. It was not in dispute that she tripped in what was called a "pothole", and the issue was whether the Council was in breach of a duty of care owed to Mrs Day. On 22 October 1997 Judge Taylor found in Mrs Day's favour, and judgment in her favour was given for $15,151.15.

2 The Council filed a notice of appeal without appointment on 4 November 1997, and on 30 January 1998 it filed a notice of appeal with appointment. There was no appeal in relation to the assessment of the damages awarded to Mrs Day. The grounds of appeal were to the effect that his Honour had erred in finding that the Council was in breach of a duty of care owed to Mrs Day, and the Council sought that the judgment be set aside and that there be judgment in its favour.

3 A question arose as to the competency of the appeal. On 8 May 1998 the Council filed a protective summons for leave to appeal and on 23 May 1998 Mrs Day filed a notice of motion to strike out the appeal as incompetent. On 29 June 1998 the summons and the notice of motion were stood over for hearing concurrently with the hearing of the appeal. We have heard argument on the substance of the appeal thus far without attention to whether leave to appeal be necessary. In my opinion, if leave to appeal be necessary it should be granted, and what is to be done with the motion to strike out the appeal as incompetent is something to which we can return.

4 The pothole was near the western kerb of Pemmell Street on the southern boundary of the rough line which pedestrians would take using a crossing point served by sloping access at the kerb near the intersection of Pemmell Street and The Boulevarde. The road surface of Pemmell Street had been constructed and covered with an asphaltic hot mix in 1977. It had deteriorated since that time, and was subject to slightly greater deterioration in a length which included where Mrs Day fell because of the effects of heavier traffic in the area, it being at the bottom of a grade and near an intersection. In 1991 the Council installed drainage piping along the western side of Pemmell Street in conjunction with the construction of a library. The piping work included a pit with a manhole cover to accommodate a change in the direction of the piping. The trench for the piping was back-filled and covered with an asphaltic surfacing material. The pothole, and I continue to use that term for the moment, was a little distance away from the manhole cover, in an old section of the road surface adjacent to the new section of road surface which had been laid to cover the trench.

5 Judge Taylor expressed satisfaction that the old section of the roadway which had the pothole was "intimately connected to, and abuts, the new section brought into existence as a result of construction of the manhole". He considered that the Council had been negligent in one or other of two respects. The first was that the Council did not construct the manhole sufficiently carefully to avoid the creation of the pothole (in that regard, I assume his reference to the manhole to include the trench). The second was that if the pothole was in existence at the time, the Council was negligent in not rectifying it on the occasion of the construction of the manhole (and I make the same assumption). His Honour went on to say that the Council was in breach of its duty of care to Mrs Day, saying that it "created a danger by the artificial construction on the highway and the risk ought to have been eliminated".

6 His Honour adverted to the distinction in this area of the law between misfeasance and nonfeasance and in the manner described was of the view that there had been misfeasance rather than nonfeasance, on the part of the Council. The distinction was not in issue on the appeal. If the pothole was a consequence of the Council's failure to maintain or repair Pemmell Street, the Council would not be liable. If the pothole were a consequence of the work done by the Council in installing the drainage piping, at least on the basis that the drainage piping was not what might be called highway works but because of the description as works in conjunction with the construction of the library was in the exercise of some other function of the Council, then the Council would be liable if the work was not properly done.

7 The description "pothole" may have been a little grand, indeed inaccurate. Judge Taylor had no more than photos to assist him to reach the views I have extracted. The photos in evidence show a degraded portion of the original roadway surface adjacent to the surface of the trench for the piping. The degraded road surface has left a depression where the original surfacing has worn away, with a change in level between the original road surface and the trench surface, but the wearing away of the of the road surface is not uniformly abutting on the line which may be inferred for the trench. The evidence did not show whether the degraded road surface was as the photos show, or something like that, in 1991. Mrs Day's argument was that this could be inferred, so that it should be concluded that the so-called pothole was a consequence of the work done by the Council in installing the drainage piping, that work being done in a way which left the change in level. The change in level was described in a report of Mr Bubb as a "step", and Mrs Day's submission was that it should be inferred that the step was due to negligent performance of the work of installing the drainage piping.

8 However, there was nothing more to show that the degraded road surface was present, and so that the step was created, in 1991. On the evidence, which as I have indicated was scanty, the degradation, the depression, and the change in level could have been due to ordinary deterioration of the original road surface in the period since 1991. It is evident that the road surface was not in a good condition in and after 1991 so that progressive deterioration and possibly particular deterioration such as by the creation of the pothole from the operation of the effects of traffic after 1991 was also a possible cause of the pothole, or as it might better be called the step. The contest really came down to whether, on such evidence as there was, it was more probable than not that the step was the consequence of improper work in 1991, or whether it was at the least just as possible that the step was the consequence of degradation of the road surface since 1991. If the latter, Mrs Day had not made out her case. 9 With all sympathy for Mrs Day, in my opinion his Honour was in error in (as it seems) finding the former situation on the balance of probabilities. In my opinion, the latter situation is just as possible, and to find the former would be speculation rather than discharge of the burden of proof. I do not think that the case as proved against the Council rose above nonfeasance, and for that reason I consider that the appeal must be allowed.

12 HANDLEY JA: The Court has already given judgment on the merits of this appeal and it only remains to deal with consequential relief and costs.

13 Encouraged by the Registrar, the respondent lodged a belated objection to the competency of the appeal which provoked an application for leave to appeal by the Council. These matters were heard by a court comprising Justices Sheller and Sheppard on 19 June last year and in the result, the Court adjourned the leave application to the hearing of the appeal and ordered that the costs of the application be costs in the appeal.

14 The written submissions of counsel for the appellant were significantly late resulting in the respondent's counsel filing and serving written submissions before the appellant's submissions had been filed and served. In due course supplementary written submissions for the respondent had to be prepared in the light of the late submissions for the appellant.

15 In these circumstances the Court, although ordering costs in favour of the successful appellant, directs that those costs not include the costs of the written submissions on the appeal.

16 The appeal books in this case have been significantly worse than either the normal standard which we tolerate in this Court or the required standard which perhaps we should enforce but hitherto have not. There were no reasons for judgment on the application for leave, and the reasons for judgment of Justice Sheller on the stay application were incomplete so that in each case the Court was not aware from the appeal book of the orders made. The appeal book included 26 pages of documentary evidence on medical issues when no issue as to quantum was raised in the appeal. They also include 72 pages of material on interlocutory applications in the District Court and this Court as to which no issue was raised in the appeal. For example, we were favoured with three copies of the plaintiff's statement of claim at various points in the appeal book.

17 In these circumstances the Court will direct that the appellant not recover the costs of preparing, printing and serving the appeal books.

18 Subject to those matters the appellant is entitled to its costs of the appeal. The costs of the leave application were ordered to be costs in the appeal by Justices Sheller and Sheppard and that order stands.

19 The respondent is entitled to a certificate under the Suitors Fund Act.

20 The amount of the judgment entered in the District Court has been paid pending the hearing of the appeal, Justice Sheller having refused a stay of proceedings. The successful appellant is entitled to an order for restitution and there will be judgment in its favour for the recovery of the amount in question $15,151.15 with interest at the schedule rate or rates from the date or dates on which the judgment debt was paid to the respondent.

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