RTA v McGUINNESS

For the reasons given by Handley JA, I do not regard his later reference to this danger in his judgment as containing any inconsistency. 47 In my opinion, the considerations raised in Ghantous do not require a finding of appellable error in this part of his Honour's reasons. The facts are significantly different from those in Ghantous, where the potential danger was reasonably obvious to any pedestrian taking ordinary care. In my view, the finding by his Honour that the protrusion of the corner of the pit constituted a tripping hazard which was not "readily obvious" was available on the facts and should not be disturbed. The pit with its cover plate had been in place for a substantial period of time. It was not situated in an area of footpath involving obvious hazards "such as uneven paving stones, tree roots or holes". It was established in a reasonably flat bituminised surface, which also contained other plates and pits of a similar kind, in fairly close proximity to it.. In these circumstances, in my view, there was nothing which would call for particular care on the part of a pedestrian when approaching this pit and cover, in the course of ordinary use of the footpath. The protrusion in the corner could reasonably be regarded as a "trap" for a person exercising reasonable care for his or her own safety. Because there would be no reason to approach the metal surface with any particular care or at reduced walking speed, a trip over this hazard could well produce more than a mere stumble and recovery; it could result in a heavy and dangerous fall. 48 In the third place, I am, with respect, not prepared to regard the decision in Urban Transit Authority v Purcell (1994) 82 LGERA 284, as authority for a general principle that a statutory authority in the position of the appellant is not under any duty to carry out inspections of artificial structures which it has placed in road surfaces, in order to determine whether they have become a risk to the public. It is clear that in Purcell, the Court had evidence from the relevant authority of an estimated cost of the carrying out of inspections of its works erected on public highways. The estimate was not a carefully prepared one, but would have clearly raised the question whether the undertaking of regular inspections would have been a reasonable response to a foreseeable risk that the installations might have become defective and dangerous to the public. Although, it must be recognised that the cost of such inspections could well produce the result that, in the majority of cases, an obligation to inspect would not arise, I do not consider that Purcell elevates this question into the area of principle rather than fact. In any event, I would regard the question as one which now calls for determination in accordance with the reasons of the High Court in Brodie. Accordingly, I now turn to that decision. 49 In Brodie, in their joint judgment, Gaudron, McHugh and Gummow JJ, after extensive consideration of earlier authority, determined what was the duty of care of a highway authority, in the context of such an authority being no longer entitled to the immunity conferred by "the highway rule". Their Honours said, (at page 577):- "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 LG Act 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. The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt, a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case." (Reference to authority omitted). 50 Later their Honours considered the obligations of a statutory authority to conduct inspections for dangerous conditions. They said (at page 582):- "Where the danger could not reasonably be suspected to exist, or could not be found except by taking unreasonable measures, generally there will be no breach of duty by the authority. On the other hand, there will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, or of which the authority has been informed or made aware, and, if they are found, fails to take reasonable steps to correct them." (Reference to authority omitted). 51 In the present case I agree, with respect, with Handley JA that the facts cannot support a finding of actual knowledge on the part of the appellant of the danger in question. Although the documentary evidence indicates that employees of the appellant and its predecessor worked in the general area of the pit, the work did not involve the pit itself which was out of use from 1965. The danger, if, in fact, it were in existence, at the various times when the employees were in the area, would only have been observable on close inspection. It would not have been so, on casual inspection from the distances referred to in the evidence. 52 In these circumstances, the question of need for inspections by or on behalf of the appellant necessarily arises. The appellant was authorised by s 27 of the State Roads Act 1986 "to maintain, repair, alter, operate or remove traffic lights and associated equipment installed by its predecessor". The pit and its cover had been in position, unused, since 1965. There was no evidence that it had ever been inspected by the appellant prior to the plaintiff's accident, or, indeed, thereafter, until its removal in 1995. As it was not in use, the appellant could have exercised its power to remove it. On behalf of the respondent it was submitted that this would have been a relatively simple task involving little expense. There was no evidence in relation to those matters, but, it may be assumed, that, if the appellant, in compliance with its duty of care, undertook the removal it could have been done with little inconvenience or expense. However, it is plain that such pits and covers form a regular feature of public footpaths in Sydney. They are regularly walked upon. Their removal by the statutory authority which put them in place would, reasonably, be required only when there was a need to do so occasioned by their having become unsafe or by a decision on the part of the Council in whom the footpath was vested, to undertake its "beautification", as occurred in the present case, in 1995. I can see nothing, in the present case, which could be said to have triggered any obligation on the part of the Council to remove the pit and its cover, prior to the plaintiff's accident. 53 Whilst it is true that no evidence was given in the present case, on behalf of the appellant, to negative any obligation on its part to conduct inspections of the pit, either at routine regular intervals, or on occasions when its employees were doing other work in relation to the traffic lights in the area, that cannot have a significant effect upon the result. It may well be that the cost of conducting regular inspections would have been prohibitive or the arranging of them in conjunction with other work administratively too difficult. There was, however, no evidence directed to these matters. However, the major questions remain, whether the circumstances obliged the appellant to carry out inspections and whether such inspections, if carried out, would, on the facts of the case, have had any effect in preventing the plaintiff's accident. These were issues in respect of which, in my opinion, the plaintiff necessarily carried the onus of proof. 54 In considering these questions, it is necessary to have regard to the nature of the danger. It is clear that there was no significant deterioration in the pit or its cover. The hazard consisted in its protrusion approximately half an inch above the surrounding asphalt surface of the footpath. The footpath and its surface was the responsibility of the Council, not the appellant. It was under no obligation to conduct inspections, regular or otherwise, of the surface of the footpath. There is nothing in the case to suggest that deterioration, to a dangerous extent, in pits and covers of the type in question in this case, was so likely to occur over time as to require that inspections by the appellant be carried out. Indeed, if such an inspection had been carried out it would have revealed, so far as the evidence indicates, nothing untoward about the condition of the appellant's structure. 55 Moreover, the evidence is, in my view, incapable of indicating whether any inspection was reasonably likely to have revealed the danger which occasioned the plaintiff's accident. It is simply not established how, or when, the pit and its cover ceased to be flush with the surrounding footpath. 56 In these circumstances, in my opinion, the respondent necessarily failed to establish circumstances leading to an obligation on the part of the appellant to inspect the pit. Also, it was not proved that, had any inspection been carried out, it would reasonably have obviated the danger to the respondent. 57 In these circumstances, I agree that the appeal should be upheld and orders made as proposed by Handley JA. ******************