Wednesday 1 December 2004
NEWCASTLE CITY COUNCIL v McSHANE
Judgment
1 MASON P: I agree with Giles JA.
2 SHELLER JA: I have had the benefit of reading in draft the reasons for judgment prepared by Giles JA. His Honour has set out the facts which I need not repeat. I agree with the conclusion that the respondent was entitled to recover from the appellant Council damages for the injuries he suffered on the evening of New Year's Eve 1999. I would, however, approach the plaintiff's claim differently.
3 The appellant Council was responsible for the care and maintenance of a public footpath which ran from a public street to the public precinct of a railway station. The footpath crossed by way of a bridge, a watercourse. In October 1999, the posts and rail on one side of the footbridge were damaged and the Council caused plastic orange mesh or webbing to be placed around the footbridge to guard against its use. This mesh was, and was intended to be, an obstacle to any pedestrian following the path either way from or to the public road to or from the railway station. As a result a pedestrian was prevented, as was intended, or inhibited, from following this route without, by some other means, crossing the watercourse. No other practical means of doing so was suggested. As one might expect, people using the footpath tried to push down the mesh so that they could use the bridge. Whatever the success of such people in making the bridge more accessible, the obstacle, though lowered, remained.
4 A good deal of attention was directed to whether or not at night time, with such artificial lighting as there was in place, the mesh was visible to the plaintiff before he fell on to it. However, on any view, the lighting was poor and it was not surprising that the plaintiff did not see the obstacle until it was too late to avoid it. The trial Judge described the plaintiff as one who appeared to be a level-headed sensible person who gave his evidence honestly and accurately as best as he could. The respondent said that he did not see the webbing before he hit it and denied that this was because he was not looking where he was going. He was running for a train that was approaching the railway station, something that a great many train travellers must do every day on public thoroughfares near railway stations. Such people so acting at night, do not expect, in the absence of any proper warning or proper lighting, to run into obstacles constructed over the public way and unavoidable if they are to follow the route down the pathway for the care and maintenance of which the authority, in this case the appellant, was responsible.
5 By constructing such a barricade without proper notice or lighting, the Council acted with reckless indifference to those who used the footpath. Whether in the Borough of Bathurst v Macpherson (1879) LR 4 App Cas 256 the Privy Council correctly categorised neglect to repair a newly constructed drain as misfeasance, as to which see p265-7 and Municipality of Pictou v Geldert [1893] AC 524 at 531, in Stoddart v Ashburton County [1926] NZLR 399, the Full New Zealand Supreme Court comprising five members, held that the County was liable to compensate a plaintiff under the Deaths by Accident Compensation Act 1908 for the death of his wife caused by the County's negligence in erecting a fence upon a public highway and failing to take reasonable precautions to warn members of the public using the road of the danger it created by such a fence. It made no difference that the fence had been erected to prevent people from falling into a hole in the road caused by flood erosion. The wife of the plaintiff died while driving a horse and gig which became entangled in the wire netting of the fence. The Court at 405 referred to the judgment of Lush J in McClelland v Manchester Corporation [1912] 1 KB 118 at 127:
"Once established that the local authority did something to the road, and the case is removed from the category of non-feasance. If the work was imperfect and incomplete it becomes a case of misfeasance although the danger was caused by an omission to do something that ought to have been done. The omission to take precautions to do something that ought to have been done to finish the work is precisely the same thing, in its legal consequences, as the commission of something that ought not to have been done, and there is no similarity between such a case and a case where the local authority has chosen to do nothing at all."
6 Meurs v Taieri County (1954) NZLR 1081 is another case where a plaintiff recovered damages where the County had made a deep excavation across a highway for the purpose of replacing a bridge with a culvert. The County had erected a barrier with a sign "Road Closed" and an arrow marked detour which was not lit. The plaintiff, driving a car, collided with the barricade and crashed into the excavation. In the course of his judgment, Justice McGregor reviewed the authorities. Having referred to the judgment of Lord Greene in Fisher v Ruislip-Northwood Urban District Council [1945] KB 58 his Honour said at 1086 that the principle was
"that a corporation exercising its statutory powers is not empowered to exercise such powers without regard to the safety of persons who may be affected. It had a duty in such cases to take adequate and effective precautions to prevent its acts constituting a danger to others. This is a particular example of the duty to take care. But while the absence of lighting may, and in many cases must be, in the case of an obstruction on a highway, an example of failure to exercise the standard of care required, each case must be examined in the light of all circumstances existing at the time and place, and it is a matter always for determination by the jury on the facts of the particular case."
7 In Brodie v Singleton Shire Council (2001) 206 CLR 512 at 540 [54] and [55], Gaudron, McHugh and Gummow JJ said:
"[54] … That treatment of the content of the duty of care was consistent with the well-known passage in the judgment of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8 . However, on existing authority, the general considerations respecting the tort of negligence to which Mason, Brennan and Deane JJ referred only applied because the false kerb (into the gap between which and the permanent kerb the plaintiff took his faux pas) was an 'artificial construction'; otherwise the 'immunity' would have applied to the exclusion of any liability to an action in negligence. The applicants seek the removal from the corpus of the common law in Australia of such restrictions upon what otherwise would be the operation of the tort of negligence.
[55] In our opinion, various considerations, taken together, favour the following conclusions. In cases such as those giving rise to the present applications, the liability of the respondents does not turn upon the application of an 'immunity' provided by the 'highway rule'. In so far as Buckle and Gorringe require the contrary and exclude what otherwise would be the operation of the tort of negligence, they should no longer be followed. Further, it is the law of negligence which supplies the criterion of liability in such cases; the tort of public nuisance in highway cases has been subsumed by the law of negligence."
8 At 577 their Honours said under the heading "Content and breach of the duty of care":
"[150] The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the [Local Government Act 1919 (NSW)] upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist."
9 There follows a division under headings "Construction and design" [153] - [157] and "Repair, maintenance and works" [158] - [162]. Under the first heading this is said in [155]:
"[155] The question whether 'due care and skill' was taken in design and construction will require consideration of all the circumstances of the case. The circumstances will include the type and volume of traffic expected. Different roads will serve different purposes and need not be constructed to the same standard. Thus, one would not expect all country roads to be sealed. The cost and practicality of an alternative and safer design, if one be available, may be weighed against the funds available to the construction authority. This may involve striking a balance between competing designs or methods of construction."
10 Under the second heading identified above this is said:
"[158] A rejection of the 'immunity' for 'highway authorities' and the recognition of a duty of care in terms expressed above with reference to Wyong Shire Council v Shirt does not necessarily involve the imposition of an obligation in all cases to exercise powers to repair roads or to ensure they are kept in repair. An authority may have various statutory powers invested in it and would be under a duty not to use, misuse or fail to use those powers to create a situation of danger which creates a reasonably foreseeable risk of injury to a user of the road .
[159] The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works, from a failure to remove unsafe items in or near a road, or from the placing of items upon a road which create a danger , or the removal of items which protect against danger.
[160] In dealing with questions of breach of duty, whilst there is to be taken into account as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness', a proper starting point may be the proposition that the persons using the road will themselves take ordinary care ." [emphasis added]
11 In my opinion, a person, proceeding along a public pathway through a park at night, clearly intended, as evidenced by the presence of lighting, for use at night, cannot be said not to be taking ordinary care because that person happens to be running. It is quite another thing that the person was running holding a glass bottle in one hand
12 Neither the trial Judge nor counsel for the respondent put the respondent's case in the way which, with the greatest respect, it should have been put. However, the same result flows approaching the claim in the way the respondent argued it, as the reasons for judgment of Giles JA demonstrate. Even so, in my opinion, it needs to be stressed that this case was a misfeasance case and should have been determined by the principles applicable to such a case.
13 Leave to appeal should be granted but the appeal dismissed. I would refuse leave to cross-appeal. I agree with the order for costs proposed.
14 GILES JA: The plaintiff was injured on New Year's Eve 1999 when he fell and badly cut his left hand. He claimed damages from the defendant for negligence in creating a hazard which caused him to fall. Robison DCJ found the defendant liable and assessed damages of $62,300, being non-economic loss of $88,500 plus $500 for future out of pocket expenses less 30 per cent for contributory negligence.
15 These were an application for leave to appeal and a contingent application for leave to cross-appeal, heard on full submissions so that, if leave were granted, the appeals could be determined without a further hearing. The defendant wished to appeal against the finding of liability. The plaintiff wished to cross-appeal, contingently upon leave being granted to the defendant, against the finding of contributory negligence and against the failure to award damages for future economic loss.
16 For the reasons which follow, in my opinion leave to appeal should be granted but the appeal should be dismissed and leave to cross-appeal should be refused.