The factual issues in dispute focused on the knowledge and conduct of relevant Council officers and primarily of Mr Peter Margery, Assistant Asset Engineer for the Council, who undertook inspections of Greens Crossing Road. In these circumstances, the mechanism of the accident may be addressed briefly.
The appellant was delivering a load of water to one of two property owners at the end of Greens Crossing Road, apparently on The Bucketts Way side of the Karuah River. He had traversed the road once before, some months earlier, without problem. At the culvert, there were white posts on either side of the road which the appellant said that he drove between. There were two white posts on the southern (left hand) side and one on the northern side. There was a grass verge alongside the gravel roadway. The trial judge accepted the appellant's evidence that his rear wheels remained inside the left hand white posts, which led to a finding that there was no contributory negligence on his part. Nevertheless, the left hand bank collapsed, so that the truck slowly rolled over.
A traffic engineering expert, Mr John Jamieson, obtained photographs of the truck after the accident and inspected the road in November 2011. His explanation of the cause of the accident, which was accepted by the trial judge, was in the following terms. [4]
"Technically, the reason engineers construct 'slope batters' (embankments) is to prevent this kind of incident occurring - by providing structural strength to the road's edge. If an embankment has eroded to a point where the embankment slope was almost vertical, then any vertical loading from the top would result in the shear forces applied to the road base spreading out and collapsing as shown.
Therefore, from an engineering viewpoint, it would be foreseeable that:
- any culvert without a head wall would inevitably result in the road's batter slope being eroded with regular flooding,
- the development of a vertical batter slope immediately adjacent to the travelled way, and
- the road being susceptible to edge collapse if loaded with a heavy wide vehicle."
It was common ground that the culvert, at the time of the accident, involved a concrete pipe under the roadway, but without "head walls" on either end. Mr Jamieson noted that, after the accident, the Council had replaced the culvert, widening it to about four metres and installing head walls on either side. [5]
The precise mechanism by which the walls were eroded was not the subject of a finding. There was some suggestion that the erosion may have occurred because the culvert was insufficient to allow the stream, which flowed into a dam on the lower side of the road, to flow through without flooding in the course of heavy rains. Further, there was a downhill slope on the roadway which, in heavy rain, might have led to runoff from the roadway. [6]
It was sufficient for the purposes of the trial, in order to determine the operation of s 45 of the Civil Liability Act, to make a finding as to the "particular risk", the materialisation of which resulted in the harm. The judge did that in terms which were not the subject of challenge on appeal: [7]
"The particular risk in this case was the risk that the carriageway over the culvert at Greens Crossing would give way due to the erosion of batter slopes, resulting in it being unable to take the weight of heavy vehicles."
The width of the road prior to the collapse was not identified with precision. However, the judge accepted that it must have been "at least 2.6 metres" and that the width of the truck was 2.37 metres. [8] The truck had dual rear axles with two wheels on each end of each axle. There was a dispute as to whether, as the driver said, his rear left wheels were within the white posts at all times, or whether, as a photograph of the tipped over truck suggested, the outer tyres were off the gravel road surface. The judge did not find that no part of the rear wheels were on the verge, but, in finding no element of contributory negligence, appears to have accepted the appellant's evidence. [9] Nevertheless, the photograph indicated that the collapsed bank clearly encompassed the grassed verge and only just impinged on the gravelled surface of the roadway. There was no evidence as to the width of the dual wheels.
As counsel explained, the appellant's case turned on what happened after maintenance work was undertaken in July 2009. [10] The appellant sought to establish notice on the part of the Council as to defects in the road as a result of complaints made by Sandra Shoobridge in the course of 2009. She said that she had at least one conversation (possibly three) with a person on reception at the Council, Kathy Dennis, both before and after the work was done on the road in July 2009. Apparently referring to the culvert, she gave evidence that she had said to Ms Dennis: [11]
"'Kath, I'm concerned about my horses and taking my float across that narrow causeway. I'd like to request council come and fix it.' … I said it was getting eroded and the pipes were deteriorating or very deteriorated."
Mr Margery gave evidence that the Council categorised roads according to the level of use and maintenance. Greens Crossing Road was category 1, that is "the least maintained", apparently because little used. [12] Nevertheless, he said that it was inspected "[r]outinely once per year and maybe after a rain event or some other thing, depending, that may have got an inspection just for a safety thing." [13] He explained the process of inspection which involved looking for "a severe amount of potholes, a lack of gravel, guide posts on culverts, dangerous trees that were on the side of the road that could drop a limb." [14] The annual maintenance involved grading the road, a process which he described. [15]
He was taken through the work carried out in 2009 on Greens Crossing Road which he described as "programmed work" and not as a reaction to a complaint. The plant involved in that work included a 12.5 tonne roller, with a drum approximately 2.2 metres wide and a wheelbase close to 5 metres in length. It also involved a grader weighing approximately 16.2 tonnes with a wheel width of about 2.44 metres. Finally, there was a water truck, which would have a gross weight of 15 tonnes fully laden and wheelbase with a width of about 2.4 metres. [16] The implication from this evidence was that such equipment worked satisfactorily on the road in July 2009.
Mr Margery was asked how complaints were processed, to which he replied: [17]
"If I received a verbal complaint I would have a look at the road, but routinely our complaints are registered on a request for service system. So if someone rings up, the person that receives the call is supposed to write down the information, take their name, phone number, the details of what their request for service is, and that was to be registered as a formal service request and, depending on the area that that happened - if that happened in an area external to Forster, that paperwork was then to be faxed by the end of the day to the office at Forster where someone entered it on to the council's computer system and then the following day or that afternoon the paperwork would be faxed to my office for me to do an inspection and carry out the necessary repairs."
Mr Margery also gave evidence that he had carried out an "ancillary roads inspection" on 3 September 2009. On that occasion, a "defect" was noted in relation to the culvert. It was given a defect score of "medium priority". Mr Margery explained: [18]
"As I drove along the road, in the longitudinal direction I noticed there was a slight curve over the culvert, and I considered that it needed to be slightly straightened, but it was not a safety issue, so the number was not given a high priority."
Mr Margery stated that he had received no complaints at all about the culvert prior to 1 January 2010. He did, however, recall a complaint from Sandra Shoobridge which he dated at June 2007 regarding the condition of the road, following which he did an inspection and gave instructions to carry out maintenance.
Mr Margery was cross-examined with respect to his proposal in September 2009 to install a 375 mm pipe in the culvert. It was noted that, following the accident, two 375 mm pipes were installed. [19] Three lines of questioning followed from this factor: the first related to the possibility that steps would have been taken earlier had there been a complaint, the second to the nature of the risk and the third to the means by which the change in the post-accident work came about.
In respect of the first matter, the following exchanges took place: [20]
"Q. Indeed, if there had been a complaint of erosion to the culvert prior to 1 January 2010, it would have been reasonable for the council to go out and check the culvert and make those calculations; don't you agree?
A. If there had been a complaint, the council would have inspected the structure, yes.
Q. No, that's not quite what I'm putting to you. If there had been a complaint about erosion to the embankment and batter beside the trafficable surface made prior to 1 January 2010 it would have been reasonable for the council to go out and inspect the culvert and see whether it needed the works that were ultimately done; do you agree?
A. Yes."
It was not put to Mr Margery that such a complaint had been made.
With respect to the nature of the risk, some very broad propositions were put to him, which he did not accept. The questioner then refined his questions to the following propositions: [21]
"Q. … What I'm suggesting to you is this, that there's always the risk if there's a high intensity water flow coming into a culvert, if the culvert is insufficient to dissipate that water, that the water flow will erode the batter above the pipes?
A. Yes, I agree with that.
Q. That's a risk of which you, as a council engineer, would be acutely aware, I suspect?
A. Yes."
With respect to the third matter, the change in the design, the following questioning took place: [22]
"Q. When the work was done on 7 and 8 January 2010 there were new pipes installed. Correct?
A. On the seventh and eighth, that's correct.
Q. A greater diameter?
A. That's correct.
Q. The reason that was done was because the view was taken by you that the pre-existing pipes weren't sufficient to hold a substantial high density discharge of water?
A. No.
Q. But it was, would you agree, to lessen the likelihood of damage by a high density flow of water?
A. By me, no.
Q. Not your decision. That's what you're saying. Is that right?
A. That's correct.
Q. It was Mr Anderson's decision, was it?
A. Yes.
Q. So when you answered no to my question that was because that wasn't within your - not within your parameters of duties?
A. I thought you were specifically asking me did I choose to upgrade the culvert and, no, I did not.
Q. But Mr Anderson did?
A. Mr Anderson carried out a site inspection. Then went back to the office, looked up maps and did a water calculation for the site and then advised me that it may be possible to be subject to an overflow in a heavy rain event.
Q. That's why the larger diameter pipes were included. Correct?
A. Yes."
The detail of the calculation undertaken by Mr Anderson was not obtained. Nor could the trial judge find the actual rainfall in the period from 3 September 2009 to 31 December 2009. Accordingly, nothing turned on this last exchange.
In addressing the challenged findings made by the trial judge, it is convenient to identify more precisely the statutory basis on which the judge rejected the claim against the Council.
[2]
(a) failure to exercise a special statutory power
The primary finding of the trial judge was based on s 43A of the Civil Liability Act which provides:
43A Proceedings against public or other authorities for the exercise of special statutory powers
(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority.
(2) A special statutory power is a power:
(a) that is conferred by or under a statute, and
(b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.
(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.
(4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.
Although the written submissions for the appellant challenged the engagement of s 43A, the submission was not pursued in the course of oral argument, the emphasis being, rather, on whether the standard was satisfied.
As the trial judge correctly noted, the respondent Council, as the roads authority for Greens Crossing Road, was empowered to carry out "road work" pursuant to s 71 of the Roads Act. The concept of "road work" is broadly defined in the Dictionary to the Roads Act to include "any kind of work, building or structure (such as a roadway… bridge…) that is constructed, installed or relocated on or in the vicinity of a road for the purpose of facilitating the use of the road as a road… and carry out road work includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a road work." Putting aside the question of signage, the plaintiff's claim was based on the failure of the Council to build a sufficiently large culvert with head walls, which would have prevented the erosion and collapse of the embankment over the watercourse. That activity was squarely within the concept of "road work" in the Roads Act.
There was therefore a failure to exercise a statutory power, being a power conferred by a statute, which thus fell within par (a) of the definition of "special statutory power" in s 43A(2). Further, it was an offence to "carry out a work in, on or over a public road", without the consent of the roads authority; the power was thus within par (b) of the definition of "special statutory power".
The issue in dispute therefore resolved itself into a question whether the omission was "so unreasonable" that no roads authority could properly consider the omission to be a reasonable exercise of, or failure to exercise, its statutory powers. [23]
The standard of unreasonableness incorporated into s 43A derives from the ground of judicial review of administrative action which allows, in extreme and unusual circumstances, a qualitative review of the decision of the administrator, in circumstances where no relevant legal error can be identified. [24] Such an approach was accepted by Lord Hoffmann in Stovin v Wise, [25] a view from which he partly recanted in Gorringe v Calderdale Metropolitan Borough Council, [26] in passages discussed in Curtis. [27] The justification for adopting such a standard may have been in part that there was seen to be an inconsistency between the conferral, by statute, of a discretionary power on a statutory authority and the imposition, by the general law, of a duty to exercise that power. In the language used by Gummow J in Pyrenees Shire Council v Day [28] a claimant in tort seeks "to translate the public law 'may' into the common law 'ought'." The effect of s 43A is that a statutory power to act will be coupled with a duty to act for the purposes of civil liability in tort [29] by adopting broadly analogous principles from public law.
The trial judge found that the plaintiff failed to satisfy the high hurdle created by s 43A in circumstances where it had proffered no evidence to demonstrate that no roads authority acting reasonably would have failed to undertake the replacement of the culvert prior to 1 January 2010. The appellant submitted that this was an erroneous approach, because the test was objective and the relevant inference could be drawn from the evidence in fact adduced at trial.
Although not clearly identified in the appellant's submissions, there were in effect two limbs to the exercise upon which it relied. First, the circumstances in which the omission occurred involved, on one view, ignorance on the part of the Council as to factors which would have required it to act. If that were correct, the appellant needed to establish that the ignorance of the Council was itself so manifestly unreasonable that no council acting properly could have failed to identify the circumstances calling for action. The second limb of the exercise was to establish that, given the knowledge which it ought to have had on that standard, the Council could not have failed to act.
So far as knowledge was concerned, the appellant needed to establish that the inspections carried out by Mr Margery were so manifestly defective that no roads authority could properly have thought them adequate. Whether or not it was necessary to put a proposition in those terms to Mr Margery need not be determined; it is sufficient that the cross-examination of Mr Margery, passages of which have been set out above, failed to seek, let alone elicit, any concession that his conduct was inadequate, let alone grossly inadequate. As to the affirmative evidence, the expert report of Mr Jamieson went no further than to state that from an engineering point of view, the result was "foreseeable". [30] Mr Jamieson expressed no opinion to support a conclusion of manifest unreasonableness for the purposes of s 43A.
Finally, there was at least implicit reliance upon the steps taken to replace the culvert after the accident. However, it appears that that conduct was taken on the basis of calculations as to possible rain events, the precise elements of which are not known. In particular, there was no evidence that the rain event relied upon by the engineer, Mr Anderson, reflected the level of rain which had occurred between September and December 2009.
On the material before him, the trial judge was correct not to be satisfied that the failure of the Council to replace the culvert with a larger pipe and a head wall, was an omission which, in the circumstances, was so unreasonable that no roads authority could properly have considered it to be a reasonable failure to exercise its power.
[3]
(b) failure to erect signage
The warning signs proposed by the appellant in the further amended statement of claim filed at trial, included (a) a sign to the effect that the culvert was narrower than the rest of the road and (b) a sign imposing a load limit, or a warning to drivers of heavy vehicles not to traverse the culvert. Although the matter was not explored for the purposes of the claim, it is likely that the proposed signs would have fallen within the special statutory powers with respect to traffic control facilities. The reason why that matter was not addressed was that the Council's defence, in relying on s 43A, referred only to the concept of "road work" within the meaning of the Roads Act; that definition excluded a "traffic control facility", the meaning of which was adopted from Pt 6 of the Transport Administration Act 1988 (NSW). [31] Accordingly, as the trial judge accepted, the pleading of s 43A did not extend to traffic control facilities.
As the judge noted, by the end of the case the claimant submitted that the signs required would indicate that the road was "unsuitable for heavy vehicles". By an amended submission, it was contended that there should have been a "weight restriction." [32] The trial judge further noted that the claimant did not articulate the precise terms of the proposed sign and did not identify the basis on which he said that the sign would have prevented him using the road on the day in question. Thus, the claimant knew the road, having used it on at least one prior occasion. Further, the road was, as the judge noted, "a necessary access for service vehicles and rural land holders and was the access road for a pump station". [33] Indeed, the Council itself took heavy and wide vehicles over the road when it undertook maintenance, using a grader, roller and water truck. [34]
So far as a "narrow road" sign was concerned, the judge was not satisfied that it would be effective either. The appellant had said that there "appeared to be plenty of room" between the white posts and, as already noted, there was ample evidence of vehicles of a similar dimension using the roadway in the months prior to the accident. The likelihood that the appellant would have continued with his trip in the face of such a sign was uncontested.
Although the judge said he was not satisfied on the issue of causation, [35] he also gave express consideration to the elements of s 5B of the Civil Liability Act, concluding that he was not satisfied that the weight restriction sign was a precaution which would have been taken by a reasonable person in the position of the Council, for the purposes of s 5B(1)(c). No basis was raised on the appeal to doubt the correctness of that conclusion.
[4]
(c) non-feasance of road authorities
Although it was not necessary in the light of the findings set out above, the trial judge also dealt with the reliance by the Council on s 45 of the Civil Liability Act. That provision is in the following terms:
45 Special non-feasance protection for roads authorities
(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.
(2) This section does not operate:
(a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or
(b) to affect any standard of care that would otherwise be applicable in respect of a risk.
(3) In this section:
carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993.
roads authority has the same meaning as in the Roads Act 1993.
This provision has given rise to differing views in this Court as to the relevant officer or officers within a roads authority who must have "actual knowledge" for the purposes of s 45(1). [36] These differences need not, however, be addressed in the present case. There were only two officers of the Council who, on the evidence, had actual knowledge of any risks associated with Greens Crossing Road. One was Ms Kathy Dennis, to whom Ms Shoobridge said she had made complaints on more than one occasion. However, it was not established on the basis of Ms Shoobridge's evidence that Ms Dennis had knowledge of "the particular risk the materialisation of which resulted in the harm." Further, Ms Dennis apparently worked on the front desk at the Council offices. If it were necessary to consider whether she fell within the class of officers whose knowledge might constitute knowledge of the authority for this purpose, on the broadest view of the class she would not qualify.
Even if it might be inferred that Ms Dennis passed on the complaint made to her, the lack of particularity would have remained fatal to the submission. In any event, it is by no means clear that formal steps were taken to pass on any complaint made after July 2009, because, according to Mr Margery's evidence, the practice undertaken for dealing with such complaints would have seen it land on his desk within a matter of one or two days.
Because what was required of someone in the Council was actual knowledge of "the particular risk" which materialised, the only person in the Council who potentially had such knowledge was Mr Margery. The risk was the erosion of the batter walls of the embankment, leaving the edge of the roadway susceptible to collapse under a heavy load. The most promising evidence in this regard was that Mr Margery had prepared an inspection report on 2 September 2009 which identified the culvert as defective. However, as noted above, [37] Mr Margery explained that his concern was that the road curved slightly over the culvert and needed to be straightened. He said it was "not a safety issue". That reasoning was supported by the "medium" priority noted on the worksheet.
Although Mr Margery was questioned at some length about his understanding of the risks which could arise from erosion following a "high intensity water flow" and was also cross-examined about the nature and extent of his inspection, it was never squarely put to him that he knew of the risk which materialised.
There was also a suggestion that the driver of the grader undertaking the annual maintenance, Mr Mumford, would have perceived the risk if the culvert embankment had been showing signs of erosion, a proposition which went nowhere because Mr Margery did not agree that Mr Mumford would have been concerned with the embankments. [38]
The remaining basis for a suggestion of knowledge on the part of Mr Margery, or possibly some other officer in the Council, was the insertion of a culvert with twice the capacity proposed by Mr Margery, together with a head wall, immediately following the accident. However, Mr Margery's evidence that the decision to enlarge the culvert was the result of calculations undertaken by a Council engineer after the accident removed the basis for any suggestion that Mr Margery had the relevant knowledge before the accident occurred. [39]
Mr Margery's evidence in chief did not support the conclusion that he had actual knowledge of the risk which materialised; the cross-examination failed to establish a basis upon which such an inference could be drawn. Indeed, the thrust of the cross-examination appeared to be directed to establishing a lack of reasonable care, particularly in carrying out the inspections, rather than actual knowledge. It follows that the trial judge was correct in concluding that, with respect to the failure of the Council to carry out road works, or even to consider carrying out road works, s 45 was engaged and the Council was not liable for the resulting harm.
The application of s 45 did not, however, apply with respect to the claim based on lack of signage. That was not, as with s 43A, because of a failure of the Council to plead the section, but because s 45 adopts the definition of "road work" from the Roads Act, which excludes erecting or installing traffic control devices. However, for reasons already noted, the trial judge was correct to reject the appellant's claims based on a lack of signage.
[5]
(d) negligent inspection
It remains to note a submission for the appellant that the protective provisions in s 45 of the Civil Liability Act did not prevent a claim based on negligent inspection.
The trial judge noted the submission and accepted that "[a]lthough a failure to inspect is covered by the s 45 immunity, a failure to discover a defect because of a negligently conducted inspection does not fall within that immunity." [40] He nevertheless concluded that the immunity protected the Council from the failure to carry out the road works in the absence of actual knowledge of the particular risk. Arguably there were steps missing from the reasoning, probably because of the manner in which the argument was presented at trial. Nevertheless the conclusion is correct.
A similar submission was addressed in Nightingale v Blacktown City Council. [41] In that case, the claimant had argued that, whilst the definition of "carry out road work" in s 45(3) included activity in connection with "inspection", the immunity itself only extended to a failure to carry out road works and not to the negligent carrying out of road work. [42] I rejected the submission as a matter of construction on the following basis: [43]
"If the construction of the section adopted by this Court in Roman is said to put a premium on ignorance, the proposed construction raises the premium to another level by discouraging any attempt to carry out inspection of roads. More importantly, by removing the immunity in a circumstance where the authority does not have actual knowledge, not because it has failed to carry out an inspection (which would be protected) but because it has carried out an inspection without reasonable care is to undermine the primary purpose of the provision. Such a construction does not 'promote the purpose or object underlying' the section; a construction which would promote the statutory purpose is to be preferred. [44] The appellant's construction should not be accepted.
Macfarlan JA (with whose reasons I agreed) also rejected the construction proposed by the appellant, on the basis that the injury to the appellant was not caused by the allegedly negligent inspection, but on the failure to carry out repairs. [45] Meagher JA came to a similar conclusion. [46] The other member of the majority, Beazley P, found it unnecessary to address the construction issue because the argument based on negligence failed in any event, there being "no evidence as to what an adequate system of inspection involved." [47]
The Council submitted that the claim could be rejected in this case on the same approach as was adopted by the President in Nightingale, namely the lack of evidence from which negligence could be inferred. That alternative approach should also be accepted. However, consideration of the submission demonstrates why, as a matter of construction, the suggestion that a claim could arise based on a negligent inspection which resulted in the Council not having actual knowledge of the defect would be inconsistent with the statutory scheme.
The distinctions between action and omission, and between misfeasance and nonfeasance, rarely provide a watertight dichotomy. It may depend on how an "inspection" should be defined. For example, the inspection of the roadway of a bridge would not reveal a rotting girder under the bridge. Should an inspection of the roadway constitute an inadequate inspection of the whole of the bridge, or a failure to inspect the girders under the bridge? Similarly, the question would arise in the present case as to whether the inspection carried out by Mr Margery, undertaken from a car travelling at 20-30kph, was an inadequate inspection of the culvert (assuming that erosion could not be seen without stopping and getting out of the car) or whether it was a failure to inspect the culvert. This was not an exercise assayed by the appellant.
Similar problems can arise in respect of the carrying out of inadequate repairs in respect of a known hazard. However, inspections raise a different issue because they may form the basis of the authority having (or not having) actual knowledge of the particular risk. The purpose of an inspection is to identify a risk. Accordingly, to treat a system of inspection which fails to identify the particular risk (and thus leaves the council without actual knowledge of the risk) as a negligent inspection for which the authority is liable tends to undermine the purpose of the requirement of actual knowledge, in the way explained in Nightingale. In any event, it is sufficient for present purposes to say that the appellant did not advance any submission which invited a reconsideration of the reasoning in Nightingale.
[6]
Conclusions
The appellant's challenge to the judgment in the District Court must be rejected. The appellant's challenge to the contingent assessment of damages need not be addressed. The Council's cross-appeal, which was limited to the assessment of damages, should be dismissed, with no order as to costs.
The Court should make the following orders:
1. Dismiss the appeal against the judgment of the District Court given on 6 February 2015.
2. Order that the appellant pay the respondent's costs of the appeal.
3. Dismiss the cross-appeal.
LEEMING JA: I agree with Basten JA.
[7]
Endnotes
Mansfield v Great Lakes Council [2015] NSWDC 5 ("Judgment").
Judgment at [139] and [141].
Judgment at [122].
Report, 3 November 2011, p 12.
Report, p 13.
Judgment at [129].
Judgment at [106].
Judgment at [70] and [71].
Judgment at [73]-[81] and [157].
Tcpt, CA 17/06/16, p 8(8)-(13).
Tcpt, 05/11/14, pp 55(48)-56(4).
Tcpt, 07/11/14, p 174(38).
Tcpt, p 175(5).
Tcpt, p 175(25).
Tcpt, p 175(35)-(40).
Tcpt, p 178.
Tcpt, pp 175-176.
Tcpt, p 182(35).
Tcpt, pp 195-196.
Tcpt, p 196(25)-(35).
Tcpt, p 197(30)-(40).
Tcpt, p 206.
Curtis v Harden Shire Council (2014) 88 NSWLR 10 at [221]-[224] (Beazley P); [277]-[279] (in my reasons); cf [5]-[6] (Bathurst CJ).
Curtis at [221]-[223] (Beazley P); [257]-[260] (in my reasons).
[1996] AC 923.
[2004] 1 WLR 1057 at [26].
Curtis at [265]-[272].
(1998) 192 CLR 330; [1998] HCA 3 at [122].
Civil Liability Act, s 40(1).
See at [13] above.
Roads Act, Dictionary, traffic control facility; Transport Administration Act, s 45E.
Judgment at [133].
Judgment at [135].
See at [20] above.
Judgment at [138] and [139].
North Sydney Council v Roman (2007) 69 NSWLR 240; [2007] NSWCA 27; Nightingale v Blacktown City Council [2015] NSWCA 423.
See [22] above.
Tcpt, pp 205-206.
See [27] above.
Judgment at [122].
Above, fn 36.
Nightingale at [50].
Nightingale at [51].
Interpretation Act 1987 (NSW), s 33; see also Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-321 (Mason and Wilson JJ).
Nightingale at [83].
Nightingale at [85].
Nightingale at [9] and [11].
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 11 August 2016
Parties
Applicant/Plaintiff:
Mansfield
Respondent/Defendant:
Great Lakes Council
Legislation Cited (5)
Road Transport (Safety and Traffic Management) Act 1999(NSW)
Solicitors:
CMC Lawyers (Appellant/Cross-Respondent)
Mills Oakley Lawyers (Respondent/Cross-Appellant)
File Number(s): 2015/52030
Decision under appeal Court or tribunal: District Court
Jurisdiction: Civil
Citation: [2015] NSWDC 5
Date of Decision: 6 February 2015
Before: Hatzistergos DCJ
File Number(s): 2011/171609
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 1 January 2010, the appellant, John Douglas Mansfield, drove his fully laden water truck along the single lane track of Greens Crossing Road, just south of Stroud. On crossing over a culvert, the left hand side of the bank gave way, resulting in his truck rolling over into the water course injuring him. The Great Lakes Council was the roads authority responsible for the care and maintenance of Greens Crossing Road, empowered to carry out road work pursuant to s 71 Roads Act 1993 (NSW).
At trial in the District Court in November 2014, Mr Mansfield claimed that the harm he had suffered was a result of the negligence of the Council as the responsible authority. He claimed that the Council had failed to build a sufficiently large culvert with head walls which could have prevented the erosion and collapse of the embankment. The Council relied on ss 43A and 45 of the Civil Liability Act 2002 (NSW) as providing immunity from liability. The trial judge held that the appellant failed to establish liability on the part of the Council. Mr Mansfield appealed.
The issues for determination on appeal were:
(i) whether the failure to carry out the road works was "so unreasonable" that no roads authority could consider the omission to be a proper exercise of, or failure to exercise, its statutory powers, pursuant to s 43A Civil Liability Act 2002;
(ii) whether the Council was immune from liability resulting from a failure to carry out road works, in the absence of "actual knowledge" of its officers as to the particular risk which materialised and which resulted in the harm, pursuant to s 45 Civil Liability Act 2002;
(iii) whether appropriate road signage could have prevented the resulting harm.
The Court held (per Basten JA, Beazley P and Leeming JA agreeing) in dismissing the appeal.
In relation to (i)
The standard of manifest unreasonableness incorporated into s 43A derives from the adoption of broadly analogous principles from public law. The evidence did not satisfy the court that the failure of the Council to replace the culvert with a larger pipe and head wall was an omission "so unreasonable" that no roads authority could properly consider the omission to be a reasonable failure to exercise its statutory powers, pursuant to s 43A Civil Liability Act 2002: [34]-[36], [40].
Where the Council's omission involved ignorance as to the factors which would have required it to act, the appellant was required to establish that the ignorance was itself so manifestly unreasonable that no council acting properly could have failed to identify the circumstances calling for action. That he failed to do: [37].
In relation to (ii)
Section 45 has given rise to differing views as to the relevant officer(s) who must have "actual knowledge" of the particular risk the materialisation of which results in harm. The evidence failed to establish that any officer who arguably had the requisite authority within the Council had actual knowledge of the particular risk which materialised: [46]-[52].
A claim against an authority based on a negligent inspection which results in it not having "actual knowledge" of the risk which materialises would be inconsistent with the statutory scheme. Further, it is not the negligent inspection which causes the harm, but the failure to carry out the road works. Finally, there was no evidence that the inspection actually carried out was negligent: [55]-[60].
Nightingale v Blacktown City Council [2015] NSWCA 423 discussed
In relation to (iii)
No basis was raised on appeal to disturb the finding at trial that it was unlikely that a sign indicating the narrowness of the culvert or warning of a weight limit would have deterred the appellant from using the road and so prevented the harm which materialised: [41]-[44].