HIGHWAYS - Negligence and nuisance - Injuries to user of highways - Liability of highway authority - In respect of what matters
HIGHWAYS - Negligence and nuisance - Injuries to user of highways - Liability of highway authority - Nonfeasance and Misfeasance
DECISION : Appeal allowed
Source
Original judgment source is linked above.
Catchwords
HIGHWAYS - Negligence and nuisance - Injuries to user of highways - Liability of highway authority - In respect of what mattersHIGHWAYS - Negligence and nuisance - Injuries to user of highways - Liability of highway authority - Nonfeasance and Misfeasance
DECISION : Appeal allowed
Judgment (7 paragraphs)
[1]
New South Wales
Court of Appeal
CITATION : SINGLETON SHIRE COUNCIL v. BRODIE & ANOR. [1999] NSWCA 37
FILE NUMBER(S) : CA 40069/97
HEARING DATE(S) : 25 February 1999
JUDGMENT DATE :
16 March 1999
[2]
SINGLETON SHIRE COUNCIL (Appellant)
PARTIES : SCOTT MUNN BRODIE (First Respondent)
LONDAY PTY. LIMITED (Second Respondent)
JUDGMENT OF : Handley JA at 1; Powell JA at 2; Giles JA at 48
COUNSEL : L. King SC/W. Reynolds (Appellant)
R.S. Toner SC/J.P. Berwick (Respondents)
SOLICITORS : Moray & Agnew (Appellant)
Craddock Murray & Neumann (Respondents)
CATCHWORDS : HIGHWAYS - Negligence and nuisance - Injuries to user of highways - Liability of highway authority - In respect of what matters; HIGHWAYS - Negligence and nuisance - Injuries to user of highways - Liability of highway authority - Nonfeasance and Misfeasance
DECISION : Appeal allowed
[5]
31
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
[6]
2 POWELL JA: This is an appeal from a Judgment delivered, and verdict found, by Tapsell A-DCJ on 31 January 1997 in proceedings in which the First Respondent ("Mr. Brodie") and his family company, the Second Respondent, Londay Pty. Limited ("Londay"), sought to recover from the Appellant ("the Council") damages in respect of injuries and losses which, so they alleged, they had sustained as a result of the Council's negligence.
3 Although the history of the proceedings is not entirely clear, it would seem (AB 402-403) that, originally, the Council was the only Defendant to the proceedings, but that, after the proceedings had been commenced, the Council raised a Cross-Claim seeking to recover from Pioneer Concrete (NSW) Pty. Limited ("Pioneer") indemnity against, or contribution toward, any damages for which it (the Council) might be held liable to Mr. Brodie and Londay. That having been done, as it would appear, Mr. Brodie and Londay caused the proceedings to be amended so as to join Pioneer as a second party-Defendant, following which Pioneer, in its turn, raised a Cross-Claim seeking to recover from the Council damages in respect of the destruction of the concrete agitator, which was owned by it, but which was fixed to the truck which was owned by Londay and which was being driven by Mr. Brodie at the time of the accident which gave rise to the proceedings. However, it would appear (AB 90, 402-403) that , during the course of the second day of the trial, the proceedings as between Mr. Brodie and Pioneer and as between the Council and Pioneer were compromised, it being said (AB 402) that "the substance of the settlement (was) that there (was) a verdict for Pioneer in each case and each party (was) to pay its own costs". The proceedings then continued as between Mr. Brodie and Londay on the one hand and the Council on the other.
4 Although it was common ground between the parties that the basis upon which the Respondents sought to found their respective claims for damages was negligence on the part of the Council, the parties were not agreed as to the manner in which the Respondents had conducted their case at trial, Mr. R.S. Toner SC, who appeared on the hearing of the appeal with Mr. J. Berwick for the Respondents, asserting (T. 8-9) that:
"The respondent's (sic) case was and is what was done by the Council was to create a trap. There was abundant evidence that the Council was negligent and all that was left to be determined is whether that negligence was misfeasance or nonfeasance."
an assertion which was disputed by Mr. L. King SC who appeared with Mr. W. Reynolds for the Council.
5 The case which, in their Statement of Claim, the Respondents sought to raise against the Council was as follows (AB 4-5):
"1. The (Council) is and was at all material times a Shire constituted pursuant to the provisions of the Local Government Act 1919.
2. On or about 19 August 1992 at or about 11.40 a.m. (Mr. Brodie) was driving a Ford Louisville truck registered No. RSM-818 on Old Carrowbrook Road and on a bridge on the said road known as Forrester's Bridge.
3. The said road and bridge at and about the said bridge (sic) are owned, managed, controlled and/or maintained by (the Council).
4. Whilst driving on the said bridge (sic) it collapsed beneath the truck then being driven by (Mr. Brodie) causing it to fall approximately ten metres.
5. The said accident was caused by the negligence of the (Council).
6. Particulars of negligence
(a) a failure to maintain the said bridge in any or any proper repair;
(b) a failure to properly provide any or any adequate load limit warning sign at the said bridge;
(c) failure to adequately inspect or inspect at all the bridge so as to ensure that it was safe for traffic such as that constituted by the truck which (Mr. Brodie) was driving;
(d) failure to ensure that the said bridge was constructed so as to allow for the safe progress of traffic such as a truck being driven by (Mr. Brodie).
7. As a result of the said negligence (Mr. Brodie) suffered injury loss and damage.
………
12. At all material times (Londay) was the registered owner of the Ford Louisville truck registered No. RSM-818 being driven by (Mr. Brodie) on 19 August 1992.
13. As a result of the (Council's) negligence particulars of which have been provided (Londay) sustained property damage …"
6 Notwithstanding the form in which the Respondents' claim was pleaded in their Statement of Claim, it is clear that, at trial, the Respondents sought to advance a case, not of mere nonfeasance, but of misfeasance, the basis for which claim - which was founded upon the observations of Samuels JA in Hill v. Commissioner for Main Roads (1989) 9 MVR 45, 52-53; 68 LGRA 173, 180-181 - was that, as, over the years, it had taken steps to replace defective decking planks, the Council became subject to a duty to repair the whole bridge; that, by not doing so, the Council had created a danger in the highway and thus was guilty of misfeasance. That this was so appears from the following passages in the Judgment of Tapsell A-DCJ (AB 406-408):
"The distinction between nonfeasance and misfeasance has attracted its fair share of criticism. It is in many cases quite artificial. It means that if a Council negligently builds a bridge with beams too small for the expected loads, and it falls down, the Council will be liable for those suffering injury from the collapse. On the other hand, if the beams were large enough, but, to the knowledge of the Council they were eaten away by white ants, the Council is not liable.
The distinction is a device applied by the Courts to limit the liability of Local Councils. It is a distinction which is well established in the law and must be applied.
The Council relied on the High Court case of Gorringe v. The Transport Commission (1950) 50 CLR 357. That case has some factual similarities to the present in that the council had repaired the surface of a road which had partly collapsed. Subsequently the culvert collapsed fully because of the rotten timbers holding it up and the plaintiff was killed. The defence of non feasance (sic)succeeded. The High Court drew a distinction between negligently repairing the structure - which would have been misfeasance - and merely filling in a hole in the road.
In Hill v. Commissioner of Main Roads (1989) 9 MVR 45, the NSW Court of Appeal decided that there was misfeasance in another similar fact circumstance. The Council had carried out repairs to the road, but the road deteriorated very quickly again because it had not provided adequate drainage. The Council had only done a band-aid job on something requiring much closer attention. The plaintiff succeeded.
………
Mr. Reynolds, on behalf of the defendant, argued that when the Council replaced the planks on the bridge, it was only repairing the surface of the bridge. It was not affecting its structure. The Council's activities on the bridge in the years before the accident were just like the defendant in Gorringe filling in the potholes.
I cannot accept that submission. From an engineering point of view, the girders and the frames between the girders are the (sic) more important than the planks. The girders and frames hold up the planks. The planks do not support the girders or frames. But one cannot ignore the fact that the planks are part of the overall structure of the bridge. Without the planks, the bridge would be 'impassable', to borrow a word from Samuels J in Hill.
………
When the Council replaced the planks, it was not filling in potholes. It was replacing an essential element for the overall safety of the bridge for all users. If the bridge had a sealed surface over the planks and the Council repaired holes in the sealed surface, and did nothing about either rotten planks or rotten girders, then Gorringe would apply. To use the Gorringe analogy, it had replaced one timber support and left the others rotten.
………
The Council knew that the whole bridge was in poor condition. In a Council document dated 20 May 1978 it is graded '6'. A handwritten note after the collapse says that it is now graded '10'. I can only assume from that document that for 14 years it was still graded '6' despite the fact that during that time it was progressively approaching its ultimate grade of '10' i.e. it had collapsed. The council did a band-aid job on the bridge by simply replacing the planks. It did nothing about the serious condition of the girders which had deteriorated significantly to the point where the bridge was really in the state of collapse. I am therefore satisfied that this is not a case of nonfeasance, but misfeasance, for much the same reasons referred to by Samuels JA in Hill v. The Commissioner for Main Roads .
Further I am satisfied that the Council was negligent in its maintenance of the bridge in that it should have detected the piping and taken adequate steps to replace the girders. It is clear that the Council's own procedures in Exhibit T had not been followed."
7 Having recorded the basis upon which the Respondents sought to advance their case at trial, I proceed now to record what was revealed by the evidence tendered at the trial.
8 Although it was not the subject of formal evidence the fact that the Old Carrowbrook Road in the vicinity of Forresters Bridge - which is, in general terms, some 25 kilometres to the North of the town of Singleton - lies within the boundaries of the Shire of Singleton does not appear at the trial to have been the subject of any dispute between the parties. Although in the immediate vicinity of Forresters Bridge the land appears to be undulating, a map (Exhibit A - AB 106) of the area indicates that there are quite hilly areas nearby.
9 Situated in a roughly northerly direction from Forresters Bridge would appear to be a locality known as St. Clair where, in 1992, there was being built for the Water Resources Commission a dam apparently known as the Glennies Creek Dam. The photographs (Exhibits B, C and D - AB 107-108) would indicate that, in the general area Old Carrowbrook Road is sealed and with gravel shoulders and of a width to permit vehicles travelling in opposite direction to pass without the need to leave the sealed surface and move onto the gravel shoulders. The road in the general area appears to cross one or more water courses, one of which - Fal Brook - is located about one kilometre in a roughly southerly direction from Forresters Bridge - which bridge crosses Carrow Brook. Where the road crosses Fal Brook at that point there is a timber bridge, on the approach to which from the southern side was, in 1992, erected a sign "BRIDGE LOAD LIMITED 15T GROSS".
10 Forresters Bridge, in its turn, was a timber bridge, the span of which appears to have been 38.1 metres (approximately 125 feet) in length, and the decking of which appears to have been 4.86 metres (approximately 16 feet) in width. The bridge span appears to have been carried on five sets of piers, there being three piers in each set, the set of piers at each end being situated on the bank. The bridge decking was carried by four girders, or sets of girders, running longitudinally across the span, the planks forming the bridge decking being set at right angles to the girders. The girders which were of the order of 38 centimetres (approximately 15 inches) in diameter were set at intervals of 1.5 metres (approximately 5 feet). At each side of the decking there was a wooden kerb and a post and rail fence. Adjacent to the set of piers at each end of the bridge span were wooden abutments which appear to have been filled so as to carry the carriageway of the road to the end of the bridge span.
11 Although the evidence did not reveal when it was that the bridge had first been constructed, it appears to have been common ground that the bridge was at least fifty years old and perhaps even older. There was no evidence to suggest that the bridge as constructed did not accord with those standards of bridge construction which were regarded as proper at the time of its construction.
12 Save for the matters which I will shortly record, there is no evidence as to the nature and extent of the traffic which, over the years, has been accustomed to use Old Carrowbrook Road and Fal Bridge and Forresters Bridge. Nor, except to the extent to which I record below, is there any evidence as to the state of repair of the bridge and the work of maintenance carried out on the bridge over the years prior to the accident.
13 Within the Council's records is a memorandum, dated 20 May 1978, recording that, as at that time, Forresters Bridge was regarded as having a grading of "6", which grading indicated that it was then in moderately poor condition (AB 375-376).
14 A letter (Exhibit N - AB 162), written by the Shire Clerk to the Resident Engineer of the Public Works Department at its Singleton office on 17 April 1986, which letter was tendered at trial on behalf of the Respondents, was in the following terms:
"I refer to your recent request for permission to transport up to six loads of pipes across two timber bridges on the Old Carrowbrook Road and advise Council would have no objections provided that:
(i) the gross vehicle mass does not exceed 40 tonnes and distribution complies with the requirements of Ordinance 30(D); and
(ii) your Department agreeing to meet the cost of repairs to either bridge from damage caused solely by the use of bridge by such vehicles."
15 A letter written by the Council's Manager Works on behalf of the General Manager of the Council on 8 March 1993 (Exhibit O - AB 163), which letter was also tendered at trial on behalf of the Respondents, was in the following (inter alia) terms:
"SUBJECT: FORRESTERS BRIDGE
………
Further to your inquiry regarding inspections of the subject bridge I advise the following:
All timber bridges in the Shire are usually inspected by Council's Bridge Gang about four times per year.
The bridge gang consisted of a leading hand bridge carpenter who has had in excess of fifteen years experience with timber bridges and two other bridge carpenters and a labourer/driver who's (sic) combined experience with timber bridges would total more than twenty-five years.
Inspections on this particular bridge would include a visual appraisal of all timber components and the abutments. Any minor components such as decking or hand railing that was defective would be replaced.
Any failure of major components such as girders or corbels which meant temporary closure of the bridge to carry out the repairs would be reported to Manager Works.
Major component failures were easily recognised by crushing, breaks or fractures. Fractures were searched for while the bridge was under load. None of the recent inspections of the bridge revealed any crushing, breaks or fractures of any components.
Council was aware of the pipes in the girders but was satisfied that the 15 tonne load limit on the road would protect the bridge from repetitive loading and failure.
In 1991 the bridge was inspected by Manager Works and Council's Overseer for the purpose of determining the possibility of permitting a twenty tonne crane to cross. Approval was granted and the crane crossed in the morning and returned that afternoon without incident."
16 Although, in the course of his Judgment (AB 404), Tapsell A-DCJ wrote:
"Council had carried out rectification work to the planks that run perpendicularly across the girders. These words were carried out in March 1986, December 1988, May 1986, July 1986 and February and July 1991. This is consistent with Mr. Brand's observations that new planks had been installed. This work involved the replacement of a significant number of planks on the bridge."
the diary entries (Exhibit M - AB 156-161), which appear to have been tendered on behalf of the Respondents to show the nature and extent of work carried out on the bridge, do not support his Honour's assertions as to these matters. In the first place, all of the diary entries in question appear in what appears to be a small pocket diary for the calendar year 1986. Although appearing in that pocket diary, the entries - which appear to have been made in a haphazard fashion over a period of years - insofar as they might relate to Forresters Bridge, do not contain any entry for the year 1986. Some examples of the entries are as follows:
on a page in the diary (AB 161) the printed date of which is 27 December 1986 appears a handwritten entry dated "6/87" relating to works carried out on the Monkey Place Creek Bridge - Monkey Place Creek is near the Brokenback Range to the South of the town of Singleton;
on the adjoining page - for 26 December 1986 - appears a handwritten entry, dated "8/12/88", apparently recording observations made as to the state of repair of Franks Bridge and Bowmans Crossing Bridge. The latter notation has under it a further notation "(Done January 1989)". A notation dated "21/3/89" appearing on the page for 1 April 1986 (AB 157) suggests that the repair work the subject of the notation relating to Franks Bridge was carried out on 21 March 1989;
[7]
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.
on the page in the diary for 24 March 1986 appears a handwritten entry, dated "Dec 1988", apparently relating to Forresters Bridge, with a series of figures appearing under a notation "decking". Those figures make not the slightest sense to me, nor did they make any real sense to Mr. Brand, the expert whose report was tendered on behalf of the Respondents and who gave the following evidence (AB 90) in relation to those entries:
"Q. Do those figures make any sense to you? A. It looks like he's talking about decking, four inches by five metres. I'm not too sure what - it's got one twelve inch, one seven inch, one four inch. Four ten inch, one seven inch, one twelve inch. One eight and two sixteen.
Q. What do they mean do you think? A. I'm not too sure what that means because the - it's under the general heading of decking but I wouldn't have expected the thickness to be say twelve inches and ten inches.
Q. Could it be width? A. Unless they're kerb logs or - but coming under - yes, it could be width. I wouldn't have expected to have variable width but that's (sic) possibility."
on the pages of the diary for 22 December and 23 December 1986 appear entries for August 1989 and July 1989 respectively, the entry for August 1989 recording the driving of piles downstream of the Broke Bridge, Herbert Street, and the entry for July 1989 recording the re-decking of one span and the replacement of the outside girder downstream on Franks Bridge;
the page of the diary for 6 May 1986 bears a handwritten notation "Forresters Bridge 4/2/91" accompanied by a series of figures which, while they may relate to timber sizes, are otherwise meaningless to me;
the page of the diary for 16 May 1986 (AB 158) contains a handwritten heading "Forresters Bridge" and a series of figures, which again are meaningless to me. Although that page bears no handwritten date, the adjoining page for 17 May 1986, which apparently relates to "Brosi's Bridge", bears a handwritten date "23 July 1991";
the page of the diary for 27 May 1986 bears another entry apparently relating to Forresters Bridge and accompanied by a number of figures which again are meaningless to me, which notation is again undated.
the page of the diary for 29 May 1986 bears a notation which reads (inter alia) "25 Nov 1992 Riley removed from our gang.";
the pages of the diary relating to 13 June and 14 June 1986 bear notations dated "10/9/93" and "26/10/93" respectively.
16 Nor did Mr. Brand's evidence support his Honour's assertion that "(the) work involved replacement of a significant number of planks on the bridge". In a supplemental report (AB 129-130) dated 18 June 1993 Mr. Brand wrote in this respect no more than that:
"The deck planks on the bridge were in reasonable condition, hence maintenance of deck planks has been carried out during the life of the bridge."
whilst his evidence in chief, in this respect (AB 84), was as follows:
"Q. The other day did you see a video tape apparently taken on the day of the accident or the next day of the accident of the bridge in collapse and the truck and the agitator lying on its side at the bottom of the creek bed? A. I did.
Q. And did you see in that video tape the timbers which had been part of the bridge structure prior to its collapse? A. I did.
Q. And did you see some of the timbers were a lighter colour than those - were lighter in colour? A. I did.
Q. And did you form a view as to the relative age of those timbers compared to those of a darker colour? A. Yes I did.
Q. What was that opinion? A. I was of the opinion that those timbers had been replaced recently.
Q. And did you form a view as to what part of the bridge those new timbers had been in? A. They were deck planks."
17 Immediately following the passage in his Judgment which I have set out above (see para. 6), Tapsell A-DCJ wrote (AB 404):
"At the time this rectification was carried out, the Council staff should have discovered that the girders were substantially affected by piping. This may not be visible to the naked eye, but would be quickly detectible by the action of hitting them with a hammer, or driving a spike into them."
an assertion which, as best as I can judge it, is derived from - but only partly supported by - the extracts from the Department of Main Roads Bridge Maintenance Manual (Exhibit T - AB 343-367) which, so it seems, was produced from among the Council's papers. That manual contains the following (inter alia) (AB 343):
"The Department is responsible for the maintenance of all bridges on Main Roads maintained by the Department (as opposed to main roads maintained by Councils), together with certain other bridges, at one time called 'National Works' for which the State has assumed full responsibility. The Divisional Engineer will instruct the bridge maintenance foreman as to the bridges with which he is concerned.
………
The bridge maintenance foreman is to examine closely every bridge with which he is concerned (see Section 1) at least once each year and furnish the Divisional Engineer with a report on its condition. The report is to indicate, also, whether more detailed examination of the structure is desirable, and to describe or list the repairs or replacements considered by the foreman to be necessary. All timber members will be struck with a hammer with the object of sounding for 'drummy' wood. Where there is any doubt in the foreman's mind as to the soundness of any timber member, it is to be test bored in the manner described later (see Section 7), and the results of boring are to be included in the foreman's report. Particular attention is to be given to signs of white ants which should be immediately treated as set out in Section 4(ii)(a)."
18 Nor did Mr. Brand in either of his reports or in his oral evidence support his Honour's assertion. Thus, in his supplemental report, Mr. Brand wrote (inter alia) (AB 130):
It is well known that the Australian hardwood species used in the construction of these bridges is subject to piping and the officers responsible for the maintenance of the bridge would be aware that checks for piping is (sic) an essential maintenance check requirement. During annual visual examination, tapping the timber girders to check for hollow rings and decayed sapwood as well as observing the girders for excessive deflection under traffic, should have been carried out on this bridge.
………
The visual maintenance inspection of bridge girders in an old bridge should occur annually and drilling holes into the girder to check for piping should occur at three to five year intervals. More frequent drill holes would be required if the bridge shows excessive deflection under load. The visual check on deflection should be carried out annually."
19 Mr. Brand's evidence in chief contained the following (inter alia) (AB 84-85):
"Q. How are deck planks - what method does one employ to attach deck planks to timber bridges such as this? A. A common method of attaching deck planks is to use deck spikes to attach them to the girders that support the deck planks, the girders that span from - across the creek or across the ravine.
Q. In your examination of the structural members of this particular bridge and as you recorded in your report you found piping in those members did you not? A. I found excessive piping in the members.
………
Q. What is piping? A. Piping is due to the decomposition of the inside of the timber. The timber itself is breaking down in its structural strength.
Q. If you have hit those members with a hammer what effect would you get? A. I would have expected that you would have been able to detect the piping from hitting them with a hammer.
Q. And would you have expected it to have been easily determined or with some difficulty? A. Easily determined subject to the amount of piping that I observed.
Q. Yes well subject to that would you have found it easy to observe given the amount of piping that you saw in those members? A. Easy
Q. And if one had attached or driven spikes through new deck planks into the members would it have been possible for the person driving those spikes in to detect the piping of those structural members? A. Yes I believe that's so.
………
Q. What does one - if you suspect piping what do you do then. After you've hit it with a hammer if you suspect piping what do you do then? A. You have to use an auger to drill into the timber and check to see if there is any internal defects.
Q. And if an auger had have been utilised on these particular members that you examined, would the piping have been readily revealed? A. It would have been."
20 As I have previously recorded (para. 8), in August 1992 the Glennies Creek Dam was in the process of being constructed for the Water Resources Commission.
21 Although it would appear (AB 48-49; 99; Exhibit F - AB 114-115) that the dam site could be reached by an alternative route over a rough track, access to which track seems normally to be have been barred by a locked gate apparently erected on behalf of the Water Resources Commission, the conventional route to be taken by vehicles wishing to reach the dam site was along Old Carrowbrook Road and across Franks Bridge and Forresters Bridge. Old Carrowbrook Road terminated at the dam site (AB 65).
22 Although the evidence is not entirely clear, it would seem that, prior to 18 August 1992, concrete to be used in the construction of the dam was being supplied to the site by an organisation described in the evidence only as "Boral" - which I take to mean Boral Limited - the trucks used by which - or used by its contract drivers - were larger than that owned by Londay and, when fully loaded, weighed 28-30 tonnes. Although the evidence which was tendered at the trial does not clearly demonstrate that this was so, it seems to have been accepted that, notwithstanding the load limit on the Franks Bridge, trucks used by Boral or its contract drivers when delivering concrete to the dam site were accustomed to use Old Carrowbrook Road and pass over Franks Bridge and Forresters Bridge on their way to and from the dam site. There is no evidence to suggest that the Council was aware of such use of the Old Carrowbrook Road by Boral or its contract drivers; still less is there any evidence that the Council was approached for, or that it gave, approval to such use.
23 It would, however, seem that, by 18 August 1992, works involved in, or associated with, the construction of the dam were being carried out in a location which, by virtue of their size, trucks used by Boral or its contract drivers, were unable to reach, and that, by reason of that fact, the constructor placed an order for concrete with Pioneer - which operated a concrete batching plant at its depot at Singleton - for the delivery of concrete to the site.
24 Although the evidence does not clearly demonstrate that this was so, it would seem (AB 25-26) that Pioneer did not itself own a fleet of delivery trucks, but that it retained contract drivers who provided their own trucks to which there were fitted agitators owned by Pioneer, the available work being allocated to the contract drivers working out of Pioneer's depot at Singleton on a broad system of rotation intended, as far as was possible, to equalise the work among the drivers. As will be apparent from what I have earlier written (see para. 2) either Mr. Brodie or Londay was among those contracted by Pioneer to deliver concrete ordered from Pioneer's Singleton depot.
25 It is said that the tare weight of Londay's truck was 10.2 tonnes (AB 135) and that when carrying - as it was said to be carrying at the time of the accident - 5 m3 of concrete - the weight of which is 12 tonnes - the total loaded weight of the truck would be 22.2 tonnes.
26 The order for concrete which was placed with the Pioneer depot at Singleton on 18 August 1992, and which appears to have called for delivery on the following day, was such as required delivery by a number of trucks, seemingly of the same size and capacity as that operated by Londay.
27 On 19 August 1992, the task of delivering to the Glennies Creek Dam site the concrete which had been ordered the previous day was allotted, in the first place, to a Mr. Scutt, a Ms. Martin, a Mr. Keaton and Mr. Brodie. The first of those to drive off from the Pioneer depot was Mr. Scutt, followed at an interval of about fifteen minutes - that, seemingly, being the time taken to load each of the trucks - by Ms. Martin and then - again at fifteen minute intervals - Mr. Keaton and Mr. Brodie. Each of the trucks, so it would seem, was fitted with a two-way radio which enabled communication not only between each truck and Pioneer's Singleton depot but also between each of the trucks in the network. There is no evidence that the Council was approached for, or that it gave, approval to the use by Pioneer's contract drivers of the Old Carrowbrook Road - that being the route which they were instructed to take (AB 27,98) - for that purpose.
28 Shortly before he turned on to the Old Carrowbrook Road, Mr. Brodie was passed by Mr. Scutt driving in the opposite direction and toward Singleton (AB 29-30), Mr. Scutt waving as the trucks passed each other. Shortly thereafter, Mr. Brodie approached the Southern end of Franks Bridge. As he did so, his attention was distracted by a small white car approaching him from the other direction, a fact which, so he suggests (AB29), led to his not seeing the load restriction sign at the edge of the road. Mr. Brodie crossed Franks Bridge without any difficulty (AB 30). As he proceeded from Franks Bridge in the direction of Forresters Bridge Mr. Brodie was passed by Ms. Martin, who was driving in the direction of Singleton, and who waved as she passed (AB 30).
29 Although it is not entirely clear, the evidence which was given by Mr. Brodie (AB 30) suggests that, at about the time he and Ms. Martin passed, Mr. Brodie heard some muffled and, static - affected talk - the speaker seemingly being Ms. Martin (AB 63) - on the two-way radio to the effect that a bridge was "rickety", talk to which he apparently paid no great attention as "all the (wooden) bridges in Singleton that (he had) been over (were) rickety to some extent" (AB 30), and as the word "rickety", to him, meant only that some of the decking was a little loose and inclined to rattle as traffic passed over it (AB 64).
30 Mr. Brodie's evidence (AB 31) seems to suggest that, as he approached Forresters Bridge he braked so as to slow the speed of the truck to about 10 or 15 kph and, then, as the truck moved onto the bridge he heard a crack and the truck started to fall to the right and, so he said (AB 31), "then the whole bridge gave way and collapsed into the creek bed" - in fact what had collapsed was, not the whole bridge, but span 1, that is the Southernmost span of the bridge between the first set of piers at the edge of the Southern abutment and the second set of piers. In the result, Mr. Brodie and the truck fell - it has been suggested (see para. 4), 10 metres, but the plan and elevation (AB 139) suggest the correct distance is about 5 metres - to the bank on the Southern side of Carrow Brook - not into the water - as the result of which fall Mr. Brodie, so he says, sustained the injuries in respect of which he sought to recover damages and the truck sustained the damage in respect of which Londay sought to recover damage.
31 After he had climbed out of the truck, and clambered back to the level of the road, Mr. Brodie saw Mr. Keaton's truck approaching the bridge from the Northern side (AB 33) and he waved Mr. Keaton down so as to stop him going onto the bridge decking. After he had done so, Mr. Keaton attempted to contact Pioneer's Singleton depot so as to obtain help but he was unable to do so directly, and, accordingly, he spoke on his two-way radio to Pioneer's depot at Muswellbrook for that purpose. Those at the Muswellbrook depot appear then to have relayed a message to Mr. Cullen, the batcher at the Singleton depot, following which Mr. Cullen spoke to some officer of the Water Resources Commission at the dam site with a view to ascertaining an alternative route from the dam site back to the main road - that having been done, Mr. Cullen seems then to have relayed a message to Mr. Keaton through the Muswellbrook depot to advise him of the alternative route back to Singleton (AB 98-101). Subsequent deliveries of concrete to the dam site were made via the alternative route (AB 99-100).
32 Thereafter, Londay appears to have lodged with its insurers, MMI Insurance ("MMI") a claim in respect of either or both of the injuries sustained by Mr. Brodie and the damage to the truck. That having been done, MMI's solicitors, so it would seem, retained Gutteridge Haskins & Davey Pty. Limited to inspect the bridge, to report on its condition, and, so it seems to express a view as to the Council's responsibility, or otherwise, for the collapse of the bridge.
33 That inspection was carried out, and that report was made, by Mr. Brand, to whom I have earlier (see para. 15(3)) referred. In his report of his inspection Mr. Brand wrote (at AB 134):
"The truck, as shown in the photographs included with Mr. Brodie's claim form, fell through the bridge and landed on its right side on the right (southern) side of Span 1 of the bridge. It is apparent that the timber girders, particularly Girders 2, 3 and 4 collapsed under the load of the truck.
A detailed inspection of the girders, numbered 1,2,3 and 4, north to south, indicates that the hard wood girders had severe piping in the centre of each girder. This piping reduces the cross-sectional area of the girder and its strength in both bending and in shear. The size of the girders and degree of piping was difficult to measure in Girders 3 and 4 as they had completely split and were crushed out of shape.
The piping in Girder 2 which measured 330 mm in depth was 216 mm. Girder 1 was 380 mm wide and also contained piping of similar diameter, the depth of the girder being about 355 mm as the top of the girder had been levelled to provide seating for the deck planks."
and later (AB 137):
"The bridge inspection and investigation show that the bridge collapsed due to overloading of the timber bridge girders.
No load limit sign was posted on either side of the approaches to the bridge.
The sign posted on a bridge about 1 km away on the same road and showing a load limit of 15 tonnes is not considered an adequate warning to drivers of heavy vehicles. Based on the design check referred to in this report, a load limit of 15 tonnes would have been too high a limit for Forster (sic) Bridge because, under a 15 tonne truck load and including and impact factor of 30%, the bridge girders would have experienced a stress of 1.53 times the recommended design working stress.
It should be noted that with normal factors of safety between allowable working stresses and ultimate strength of the girder, a 15 tonne truck may not cause failure."
(It should be noted that "the design check" referred to by Mr. Brand was not based upon any standard for construction which existed at the time when the bridge was constructed, but was based upon what was described as the 1976 NAASRA Code and Australian Standard 1720-1975 SAA Timber Engineering Code, the details of which are nowhere revealed by the evidence).
34 In the light of the facts, first, that, during the course of his evidence in chief (AB 84), Mr. Brand described the piping as "extremely excessive"; second, that, during the course of his submissions on the hearing of the appeal, Mr. Toner, on a number of occasions (see, for example, T. 11), asserted that "the substructure of the bridge was rotten"; and, third, that, in the course of his Judgment (AB 408), Tapsell A-DCJ wrote "The Council did a band aid job on the bridge by simply replacing planks. It did nothing about the serious condition of the girders which had deteriorated significantly to the point where the bridge was really in a state of collapse.", it is as well that I record that, in a supplementary report, Mr. Brand wrote (AB 129):
"The load limit of the bridge depends on the quality of the timber used in the construction of the bridge. In my original reports I considered that the timber was Strength Group S2 with a stress grade of F22. The NAASRA Bridge Design Specification allows for one higher strength grade timber, strength Group S1 with a corresponding stress grade of F27.
I have calculated the load limit of the bridge using both F22 and F27 stress grade timbers, and both solid timber girders and girders with piping as allowed in my previous reports.
The results of my calculations, based on working stress theory in accordance with the SAA Timber Engineering Code AS 1720-1975 are tabulated below:
Load Limit is 10.6 tonnes assuming a solid girder 380 mm diameter of stress grade F22
Load Limit increased to 13.5 tonnes assuming a solid girder 380 mm diameter and a stress grade of F27
Load Limit is 9.3 tonnes assuming 380 mm diameter girder has concentric piping 216 mm diameter, and a stress grade of F22
Load Limit increases to 11.9 tonnes assuming 380 mm diameter girder has concentric piping 216 mm diameter and a stress grade of F27
The above calculation allowed for impact forces on the bridge of 30% which increases the load transferred by the truck to the bridge and the effect of the increase in load was modified in accordance with a temporary load factor of 1.8 from the timber engineering code AS1720-1975. A temporary load factor more than compensates for the impact factor, as it modifies the permissible stresses in the Code upwards by 80%."
35 In the light of this, to assert, as did Mr. Toner that "the substructure of the bridge was rotten" or to assert, as did Tapsell A-DCJ, that "the bridge was really in a state of collapse" is, in my view, to indulge in hyperbole.
36 All this notwithstanding, Tapsell A-DCJ, as I have earlier recorded (para. 5), held that the present was not a case of nonfeasance but of misfeasance "for much the same reasons referred to by Samuels JA in Hill v. The Commissioner for Main Roads", and, on that basis, found a verdict for Mr. Brodie in the sum of $354,316.50 and a verdict for Londay in the sum of $43,880.30, the latter sum seemingly representing the agreed value of Londay's truck ($29,341.00) (AB 103) together with interest thereon until the date of Judgment.
37 In its Notice of Appeal, the Council sought to challenge both Tapsell A-DCJ's finding as to liability and his Honour's award as to damages in favour of Mr. Brodie. However, on the hearing of the appeal (T.8, 36-37), the Court proceeded to hear argument only on the question of liability, deferring, until that question had been determined, the question of damages. That being so, I record only the grounds of appeal insofar as they related to liability. They were as follows (AB 413-414):
"1. His Honour erred in finding that the Appellant's act/acts of replacing planks on the bridge constituted an act/acts of misfeasance on the part of the Appellant.
His Honour erred in finding the Appellant was under a duty to detect piping in the girders of the bridge and to have taken steps to replace those girders.
His Honour erred in finding that the Appellant's decision to repair and acting in repairing one part of the bridge (namely the carriageway planking) required the Appellant to inspect and repair the girders, the failure of which caused the First Respondent's injury and the Second Respondent's loss.
His Honour erred in finding a causal or connection (sic) between the Appellants' acts in respect of the bridge and the First Respondent's injuries and damage and the Second Respondent's damage."
38 Notwithstanding that no Notice of Contention had been filed on behalf of the Respondents, as I have earlier (para. 3) noted, on the hearing of the appeal Mr. Toner sought to assert (T.8-9):
"The respondent's (sic) case was and is what was done by the council was to create a trap. There was abundant evidence that the council was negligent and all that was left to be determined is whether that negligence was misfeasance or nonfeasance."
an assertion which was disputed by Mr. King. The passages from Tapsall A-DCJ's Judgment which I have set out in para. 5 do not, in my view, support Mr. Toner's submission; nor, in my view, do the Written Submissions, which were provided by Mr. Toner to Tapsell A-DCJ at the time of the trial, support the view that such was the Respondents' case at trial. Thus, those submissions - copies of which were provided to us on the hearing of the appeal - conclude with the following:
"To put it anotherway (sic), and to paraphrase the words of Samuel (sic) JA, once the Council had committed itself to active maintenance of the bridge to make it trafficable its obligation was to do that with due care and skill to ensure that the bridge was in fact trafficable. Superficial maintenance of the bridge was insufficient to make it safe for the purpose.
It is further submitted that as part of the Council's positive duty to put a weight limiting sign on this bridge, it is no answer to the Council's obligation that there was a weight limit on the preceding bridge. In fact, the fact that there was a weight warning limit on the previous bridge reinforces the proposition that the Council's positive obligation was to warn motorists of the weight limit of the bridge, particularly given the rating ascribed to it in Exhibit ' ' (sic). It is notable that this bridge was known by the Council to be in a significantly poorer condition that (sic) the Franks Bridge which preceded it on this road."
39 My view that the Respondents' case, from first to last, was, in reliance upon what was said by Samuels JA in Hill v. The Commissioner of Main Roads, that the Council had been guilty of misfeasance, is confirmed by the document entitled "Respondent's (sic) Supplemental Submissions with Indulgence" which was, without leave being granted by the Court, filed after the conclusion of the hearing of the appeal and while I was in the course of preparing this Judgment. That document was in the following terms:
"During the course of argument the Court directed the respondent's attention to whether the appellants knowledge had to be actual rather than constructive. Some submissions were put in relation to this, however, on reflection they can be put more succinctly as follows:
Once the appellant knew of the condition (the piping) and the fact that it would deteriorate to the point of danger of collapse that result was clearly foreseeable.
In that knowledge where they embark upon repair without addressing foreseeable and obvious risk then the Council is guilty of misfeasance.
In Hill v. The Commissioner of Main Roads this proposition is expressed succinctly as follows at page 52, line 30 ff and by analogy:
'The consequence was entirely are (sic) predictable and thus wholly foreseeable. Thus the patching did no more than, to borrow the words of Dixon J (in Gorringe) throw open an unsafe road to traffic afresh. The patching was therefore negligent because it failed to remedy a foreseeable risk which was, and as the respondent knew, certain to reappear at some stage in the future with predictable and hazardous consequences to the users of the highway.
It seems to me that this amounts to a misfeasance. The essence of the active intervention, negligent in character, was the conversion of an unsafe carriageway to an apparently safe carriageway - one which would remain safely negotiable for a period but which would inevitably deteriorate into danger.'
4. It is submitted that this is on all fours with this case, namely that it was both inevitable and foreseeable that the piping of which the Council knew well before this accident happened, would deteriorate to the point of danger and that being the danger that this bridge would collapse under the weight of traffic."
40 In these circumstances, it seems to me that the only question for determination by the Court on this aspect of the appeal is whether or not, in all the circumstances, the Council is to be regarded as having been guilty of misfeasance and liable to the Respondents for any damage which they have or either of them has sustained in consequence thereof.
41 Contrary to what appears to have been the understanding of the draftsman of the Statement of Claim which was filed on behalf of the Respondents, it is not the case that a road authority - such as the Council - is liable in damages to those who have suffered injury in accident caused by the failure of the road authority to maintain roads - included in which description are structures intended for the passage of traffic along a roadway - in proper repair. The immunity of a road authority in this respect negates both a general duty to repair (sounding in nuisance) and any specific obligation to exercise care in control and management even with respect to known dangers (negligence). That immunity is reinforced by the authorities which demonstrate that, even if a duty to repair or to keep in repair a highway or highways is imposed by statute on a road authority, that duty is not enforceable by action at the suit of any person injured as the result of the failure to repair the highway or to keep it in repair, unless the statute makes it clear by express provision or necessary implication that that duty is to be enforceable by action at the suit of such a person.
42 If authority for that statement be thought necessary it is readily to be found in the Judgment of Dixon J, as he then was, in Buckle v. Bayswater Road Board (1936) 57 CLR 259, 281-282 where his Honour said:
"It is well settled that no civil liability is incurred by a road authority by reason of any neglect on its part to construct, repair or maintain a road or other highway. Such a liability may, of course, be imposed by statute. But to do so a legislative intention must appear to impose an absolute, as distinct from a discretionary, duty of repair and to confer a correlative private right (cf City of Vancouver v. McPhalen (1911) 45 SCR (Can) 194).
No civil liability arises from the incorporated character of the road authority, or from the fact that it is expressly made liable to be sued (Gibson v. Mayor of Preston (1870) LR 5 QB 218). Nor is its responsibility affected by statutory provisions vesting the soil of the highway in it, or placing the highway under its management and control (Cowley v. Newmarket Local Board [1892] AC 345; Municipal Council of Sydney v. Bourke [1895] AC 433).
The purpose of giving the road authority property in and control over the road is to enable it to execute its powers in relation to the highway, not to impose upon it new duties analogous to those of an occupier of property. The body remains a public authority charged with an administrative responsibility. It must decide upon what roadway it will expend the funds available for the purpose, what are the needs of the various streets and how it will meet them. A failure to act, to whatever it may be ascribed, cannot give a cause of action. No civil liability arises from an omission on its part to construct a road, to maintain a road which it has constructed, to repair a road which it has allowed to fall into disrepair, or to exercise an other power belonging to it as a highway authority."
43 If further support for what I have written be found necessary it may be found, first, in the following passage in the Judgment of Latham CJ in Gorringe v. The Transport Commission (Tas.) (1950) 80 CLR 357, 363-364:
"In the second place, the plaintiff contended that in the present case there was misfeasance because the Commission did not simply leave the road alone; it did repair the surface of the road, and it is contended that there was negligence in the repairs so effected. In East Suffolk Rivers Catchment Board v. Kent ([1941] AC 74, 102) Lord Romer stated the law in the following manner: 'Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. If in the exercise of their discretion they embark upon an execution of the power, the only duty they owe to any member of the public is not thereby to add to the damages that he would have suffered had they done nothing.' Thus the Commission was not bound to repair the road, but if it did repair the road it was under a duty to repair it without negligence. If the Commission repaired the road negligently in such a way as to create a danger or to add to danger and damage was thereby caused to persons lawfully using the highway the Commission became liable for that damage.
In the Supreme Court and in this Court it was argued that the dip in the road demonstrated the need for radical repair of the culvert and that the Commission only made superficial repairs on the road surface from time to time. This course of action, it was said, was more than nonfeasance and amounted to misfeasance. But the very statement of the argument shows that such a complaint is a complaint that the Commission failed to exercise in full measure the power to repair the road which it possessed. Such a failure is only nonfeasance."
and by the following passage in the Judgment of Dixon J in the same case supra at 370-372:
"The second ground upon which the plaintiff's appeal was supported amounts to an assertion that there was more than a failure upon the part of the defendant Transport Commission to maintain or repair the culvert and the superincumbent filling or embankment and surface constituting the highway; that the Commission entered upon or undertook the exercise of its powers or fulfilment of its general duty to remedy the dangerous or improper condition of the highway at that place and negligently performed the function by doing no more than repeatedly placing gravel or the like in the depression in the travelled surface.
………
Here what was left undone and what was done are not only severable, they are in my opinion unconnected. The caving in of the road so as to form the pit into which the truck fell was caused by the action of water from beneath, rendered possible, as the jury might find, by the decay and failure of the decking of the culvert and perhaps by some additional weakening of the bank. The repairs effected by filling in the depression concerned only the running surface of the road. The question whether it is possible that any consequential effect was produced upon the stability of the bank by moisture which the filling of the depression retained is the subject of the third contention and that question is yet to be dealt with. But plainly enough the placing of the gravel &c in the depression was not in the least directed to the security of the embankment or the condition or sufficiency of the culvert or the safety of that part of the roadway. It was directed only to the levelling of the travelled surface. Even if the proper inference for the patrolman or the engineer to draw from the existence of the depression was that a collapse of part of the culvert had occurred, it would still be true that the patrolman on behalf of the Commission took no positive or active step in the matter. The levelling of the surface was not in any way connected with it. To fill in the depression with earth or gravel did not mean that traffic could pass over the culvert while without the filling it could not. With or without it the road was passable. It meant only a more level surface. I do not say that the result would have been different had it been otherwise. But it cannot be said that the Commission's employees did anything that would amount to throwing an unsafe road open to traffic afresh or providing a place for traffic not otherwise available that was unsafe."
44 The approach revealed by the passages from the Judgements of Latham CJ and Dixon J in Gorringe v. The Transport Commission supra which I have set out above were applied by the Full Court in Kirk v. Culcairn Shire Council (1964) 64 SR 281, a case involving damage sustained by a heavy truck when using a wooden bridge. In that case the Shire Council had repaired the central longitudinal tracks of a wooden bridge leaving the transverse decking unrepaired. A heavy truck was being driven across the bridge when one of its rear wheels left the longitudinal tracks and fell through the transverse decking as a result of which it was damaged. It was held that, at all times, the bridge was safe for the passage of heavy vehicles only if they remained on the longitudinal tracks and the repair work which was done merely maintained that situation; and, further, that the Council did not, by carrying out such repair work, assume an obligation to make every part of the bridge safe. In the course of his Judgment Sugerman J (as he then was) with whom Maguire J and Nagle J (as he then was) agreed, said supra at 288-289:
"By such work as at one time or another it did on this bridge by way of keeping the longitudinal tracks in a good state of repair, or - I should be prepared to add if that was the fact - by way, at some past time, of adding longitudinal tracks where there been previously none, the Appellant Council decreased the danger on the road, although they did not make it a completely safe road for use in all circumstances and under all conditions. They did not, for instance, make it a completely safe bridge for the driver of an eleven or twelve ton truck, who rounding the bend and approaching it at the rate of between twenty-five and thirty miles per hour, through some miscalculation in his driving succeeding in running one of his rear wheels off a longitudinal track three feet four inches wide on the transverse decking. They had done nothing improper and they have brought no dangers to users of the road which were not there before. In fact, by keeping the longitudinal tracks in repair, they have made the bridge safer for its users including, in particular, the drivers of heavy trucks. And I would agree with Upjohn LJ" (see Burton v. West Suffolk County Council[1960] 2 QB 72, 85) "that it would be the most extraordinary situation if this Council, by thus improving what otherwise might have been, or had degenerated into, a dangerous condition on the bridge resulting from wear and care on the existing longitudinal track or even from the absence of a longitudinal track, if it was in fact put there as a later addition, thereby assumed an obligation to make every part of the bridge completely safe under all conditions and in all circumstances. The facts of the present case are altogether different from those in McClelland's Case ([1912] 1 KB 118) and Tickle's Case ((1954) 19 LGR (NSW) 256). No trap was created here in the sense in which it may be said that that was so in those cases. Throughout the bridge was safe for the passage of heavy vehicles only if they remained on the longitudinal tracks. The repair work which was done merely maintained this situation.
That being, in my opinion, the true principle, I am unable to find that the evidence brought before his Honour in this action was such as would support a claim that by the application of that principle the appellant council had been guilty of mis-feasance, and thereby became responsible for the damage caused to the respondent's truck in the manner in which I have earlier indicated. At most there was, if anything, a non-actionable non-feasance on the part of the council in failing to repair also the transverse decking of the bridge and leaving it in the condition which the loss assessor witness described in evidence which the learned trial judge accepted."
45 The decisions of the High Court in Gorringe v. Transport Commission (Tas.) supra and of the Full Court in Kirk v. Culcairn Shire Council supra provide no support for the submission, to which I have earlier (see para. 5) referred, which was advanced by Mr. Toner at the trial on behalf of the Respondents, which submission he repeated on the hearing of the appeal, and which submission appears to have been accepted by Tapsell A-DCJ and to have formed the basis of his Honour's Judgment on the appeal (see para. 5). Nor, if I may with respect say so, does the decision of this Court in Hill v. Commissioner for Main Roads supra - upon which Mr. Toner has sought to lay so much stress - when properly understood provide support for that submission. In his Judgment - with which Judgment Kirby P (as he then was) and Priestley JA agreed - Samuels JA, after referring to the passage of Dixon J in Gorringe v. The Transport Commission (Tas.) to which I have earlier (para. 45) referred said MVR 9 at 52-53; LGRA179-180:
"I have set out this passage at length because it analyses a set of facts which are at least similar to those in the instant case. Of course I take it that I am not bound by any particular view of different facts, however similar they may be, in a prior decision of the High Court. But if a conclusion of law is expressed based upon facts which are not significantly distinguishable from the facts found in the case before me, I would take it that I was bound to apply that view of the law to the case I had in hand. However, there is, to my mind, a significant difference between the circumstances in Gorringe and those before me. It is true that in neither case did the highway authority endeavour to grapple with the root cause of the problem. In Gorringe no attempt was made to investigate the state of the decking of the culvert; and in this case no attempt was made to rectify the problem created by altering a drainage system which was known to be defective. There is a shade of distinction between those two states of fact which however I need not pursue. The material difference is that in Gorringe the work done was designed merely to improve the surface of the road and not to render passable a traffic way which was otherwise impossible to traverse. I conclude further, from what was said in Gorringe that the depression did not represent danger, it was obvious and could be negotiated without risk. It did not render the road inherently unsafe. Hence the concluding sentence in the passage which I have quoted. In the present case, the sequence of events which recurred consistently was that after a time the defective drainage caused the shoving to reappear and the shoving was a danger to traffic as the accident and the evidence of Professor Orchard have established. That was the learned Judge's findings. The deformation would undoubtedly occur and achieve the dimensions of a danger at some time quite soon after patching had taken place; that is to say the inadequate drainage would inevitably produce its effect upon the road surface which required the "frequent" patching of this bend as Mr. Walker agreed. The patching did no more than, to borrow the words of Dixon J, throw open an unsafe road to traffic afresh. The patching was therefore negligent because it failed to remedy a foreseeable risk which was, as the respondent knew, certain to reappear at some stage in the future with predictable and hazardous consequences to the users of the highway.
It seems to me that this amounts to misfeasance. The essence of the active intervention, negligent in character, was the conversion of an unsafe carriageway into an apparently safe carriageway - one which would remain safely negotiable for a period but which would inevitably deteriorate into danger."
Then, after a reference to the observation of Sugerman J in Kirk v. Culcairn Shire Council supra at 286:
"The principle which emerges from the consideration of Lush J's observations" (in McClelland v. Manchester Corporation ({1912] 1 KB 118, 127) "in these later cases is that, while a repair of part only of a highway leaving the remainder unrepaired is not ordinarily to be considered a misfeasance, it may be so considered if it creates for users of the highway a new danger which did not exist on the highway prior to its being effected."
His Honour continued:
"With all respect I am not wholly persuaded that this represents an accurate summary of the way in which the Judgment of Lush J in McClelland v. Manchester Corporation([1912] 1 KB 118 esp. 127) has been treated in the cases referred to. But assuming that it does, it merely establishes a normative proposition together with one identified exception. It is not necessary, however, to establish that the consequence of the event alleged to be misfeasance is the creation of a new danger if in other respects what might ordinarily amount to nonfeasance in the particular circumstances - as in the circumstances here, in my judgment - amounts to active and therefore actionable intervention. I am very much heartened in the view I take by Dixon J's disclaimer toward the end of the passage I have quoted. I venture to think that if in Gorringe the road had been impassable because of a depression which was fundamentally caused by deterioration in the culvert and the respondent had dealt with the situation merely by filling in the depression; and if then the whole structure had collapsed, Dixon J might well have concluded that this amounted to a misfeasance. So it is, in my opinion, in the instant case. What faced the respondent here was not merely some roughness in the surface of the carriageway but a danger in the highway. It certainly could have refrained entirely from acting in any way. However, once committed to intervention, its duty was to perform the task it had undertaken with proper care and skill. That task was to repair the highway in order to remove the danger. In order to achieve that purpose it was necessary to identify and rectify the fundamental cause of the manifest condition. That cause was identified; the respondent knew all about it. It could have been rectified by taking the steps which were taken in March 1981, two months after the accident. This is, in my view, what ought to have been done during 1980 when time and money was devoted on more than one occasion, according to the evidence, to the superficial patching of the roadway. That however was not undertaken and the respondent, having acted without grappling with or remedying the essential problem, is guilty of an actionable misfeasance."
46 Such evidence as was tendered on behalf of the Respondents at trial, in my view, fell far short of establishing such a situation as was described by Samuels JA in the passage from his Judgment which I have just set out. At best, the evidence, insofar as it was relevant, demonstrated that, from time to time over the years, the Council replaced decking boards which appeared to require replacement. There is not the slightest evidence that, before any such boards were replaced, the bridge had become impassable. Given the unqualified evidence of Mr. Brand (AB 87) that the bridge decking in no way affected the structural integrity of the bridge itself; the absence of any evidence indicating when, if at all, the Council had carried out work on the structural members of the bridge; the absence of any evidence as to the state of the bridge at any time when decking planks may have been replaced; the evidence of Mr. Brand to which I have earlier (para. 36) referred as to the weight carrying capacity of the bridge even in the state in which it was immediately prior to the accident; and such evidence as there was as to the user of the bridge both prior to and on the day of the accident; it seems to me that to attempt, as Tapsell A-DCJ did, to describe the bridge as "impassable", and, having done so, to apply by analogy the observations of Dixon J in the passage from his Judgment in Gorringe v. The Transport Commission (Tas.) to which I have earlier (para. 45) referred was totally insupportable. With respect to those who may be of another view, it seems to me that such actions as the Council may, from time to time, have taken in replacing defective decking planks are to be regarded as no more than superficial repairs to the road surface and thus - since they did not increase the risks of accidents - did not subject the Council to liability.
47 For these reasons I would propose the following Orders:
ORDER that the appeal be upheld.
ORDER that the verdicts entered in favour of the Respondents in the District Court be set aside and that in lieu thereof Judgment be entered for the Appellant.
ORDER that the Respondents pay the Appellant's costs of the trial and of the appeal but, if qualified, have a Certificate under the Suitors Fund Act 1951.