SQUILLACIOTI v RTA & ANOR [2002] NSWCA 133 | Case summary

A sign belonging to the RTA was removed from a nature strip on the Hume Highway at Casula. The supporting steel pipe was cut at ground level leaving a 10 inch hole. In January 1996 the plaintiff stepped into the hole in the dark and was injured. She brought proceedings in the District Court claiming damages from the RTA and the Council. The trial Judge found that the Council had not removed the sign and had not been negligent in failing to discover the danger and that the plaintiff had not established that the RTA had removed the sign. Accordingly she entered judgment for the defendants. The appeal turned on whether the plaintiff had established that the RTA had removed the sign, and whether the Council should have been aware of the danger. HELD: (1) The appellant had failed to establish that the Council knew or should have known of the danger. (2) The inference that the sign was removed by the RTA could not be excluded, and the only other suggested explanation that it had been removed by vandals was far fetched and fanciful. The Court should therefore infer that the sign had been removed by the RTA. Luxton v Vines (1952) 85 CLR 352, 358 applied.

Judgment 1 HANDLEY JA: On 17 January 1996 the appellant and her husband purchased a meal from Mr Raiti's pizza shop at 606-8 Hume Highway, Casula. They ate it at a table outside the shop and then walked across the drive-in section to the footpath. It was about 8 pm. Their car was parked on the other side of the Highway and while they were waiting on the grass nature strip (there was no concrete footpath at this point) the appellant stepped into a hole and was injured. 2 The hole, which was about 10" across, was formed by the stump of a steel pipe, which had been cut off just above the level of the soil. 3 The Roads Act 1993 vested the fee simple of the footpath in the Liverpool Council, and the carriageway of the Hume Highway in the Roads and Traffic Authority (RTA). In 1997 the plaintiff brought proceedings in the District Court claiming damages from the RTA and the Council based on negligence or nuisance in leaving this section of the pipe in the ground so as to create a foreseeable danger to pedestrians. The action was heard by Balla ADCJ who, in her reserved judgment delivered on 30 October 1998, found in favour of both defendants. 4 The plaintiff appealed to this Court by leave granted on 9 August 1999. The parties and the Court agreed to defer the hearing pending the judgment of the High Court in Brodie v Singleton Shire Council (2001) 75 ALJR 992. 5 The Judge did not find in terms that the pole had been installed by the RTA or its predecessor, but on the hearing of the leave application senior counsel then appearing for the RTA conceded that this was the case, and Mr Maconachie QC, who appeared for the RTA on the appeal, maintained this concession. In my judgment the admission was properly made and anticipated the inevitable. 6 Mr Raiti, who owned the pizza shop, had lived in the premises all his life. He said that a large green road sign supported by a steel pipe had been erected on the spot. This occurred over 5 years before the sign was removed at some stage in or around January 1995. He said that the sign was about 3 metres x 2 metres and carried the words "Goulburn Campbelltown". The purpose of the sign was to direct traffic to the start of the freeway. When the post and sign were removed, the metal stump was left in the ground, standing a little above the level of the soil in the grass nature strip. He knew about the stump because he mowed the nature strip opposite the shop about once a fortnight and on one occasion had damaged his mower blades on the stump. 7 Mr Raiti, who was a panel beater by trade, said that the pipe had been cut with an oxy-acetylene torch which had left a stump with a jagged edge. Mr Brookfield, the Risk Manager of the Council, said that the Council did not erect signs of the kind described by Mr Raiti, and that this was done by the RTA. Such signs were looked after by the RTA, which also arranged for their removal when this was appropriate. The RTA's signs on this part of the Hume Highway were looked after by the Authority's workshop at Yennora. He said: "our investigations indicated that it was the RTA's sign" (Black 42). 8 When the Council received a letter of demand from the plaintiff's solicitors, the complaint was referred to the RTA's Manager Signage at Yennora (Ex 2 D/3, dated 15 March 1996). Mr Sly, a network Inspector for the RTA, was not asked to go to the site until 4 February 1997 (82). When he did he reported the matter to the Council because it was on the nature strip in their area of responsibility and the hole was fixed by the Council the same afternoon (94, 104). 9 Photographs of the sign viewed from the back or southern side taken before its removal became Ex G. They showed a substantial road sign erected on the site supported by a pole. 10 The hole inside the stump was quite deep. It was clearly dangerous to pedestrians, and the risk was increased by the jagged circumference of the pipe and by the grass which tended to cover the hole and conceal its existence. The danger would be even greater at night. The respondents did not contend that the pipe was not dangerous, or that the person or persons responsible for cutting and removing the rest of the pipe had not been negligent. 11 The principal question argued on appeal was whether the plaintiff had established the identity of the person or persons responsible for the removal of the pole, and if the respondents were not responsible, whether either or both knew or should have known of the dangerous condition of the stump. 12 The Judge found that the pole had not been removed by the Council and this finding was not challenged. However the plaintiff attempted to sheet home liability to the Council on another basis. The Council arranged for the mowing of the nature strips and median strips along its section of the Highway. The mowing of the median strips took place by arrangement with the RTA, which reimbursed the Council. The mowing of the nature strips, which were vested in the Council, was its own responsibility. 13 The plaintiff argued at the trial that the driver of the motor mower which mowed the nature strips would have seen the steel stump, or become aware of it as a result of its contact with the cutter blades, and he should have reported its existence to the Council. Grass cutting took place 9 times a year (Black 193) and on the evidence of Mr Raiti about a year elapsed between the removal of the pole and the plaintiff's accident. 14 The trial Judge was not persuaded that the hole could be seen from a tractor engaged in mowing the nature strip. The hole was close to an electric light pole located in the nature strip at about the same distance from the kerb which would have made mowing by tractor in the immediate area difficult if not impossible. The hole was also quite close to a low brick fence which would have had the same effect. The Court was not persuaded that this finding was wrong and we did not call upon counsel for the respondents on this question. The appeal against the judgment entered in favour of the Council therefore fails, and must be dismissed with costs. 15 The Judge was not prepared to find on the balance of probabilities that the sign was removed by the RTA. She said that Mr Sly from the RTA was the responsible officer in January 1995 when the sign was removed, that the RTA did not use oxy-acetylene cutting to remove signs, that the RTA would not have left a steel stump in the ground with a jagged edge, there was nothing in its records to support the conclusion that it had removed the sign, and there was evidence from Mr Sly that signs were sometimes stolen by vandals. 16 Mr Maconachie, correctly, did not suggest that any inference other than removal by the RTA or by vandals was reasonably open on the evidence. The plaintiff carried the onus of proof but, in considering whether the burden has been discharged, the Court is bound to consider the number of inferences that are open on the evidence. In this case, unlike The Popi M [1985] 1 WLR 948 HL only two possible inferences were available. 17 The inference that the sign may have been stolen by vandals was, at first sight, implausible. It was located in a built-up area on the Hume Highway immediately outside some shops, which included a drive-in pizza restaurant. Its removal required the use of oxy-acetylene equipment over an appreciable time, although there was no evidence of just how long this would have been. 18 The photographs in evidence show that the pole was located close to what appears to be an electric light pole with wires stretching across the Highway, into the shops, and south along the nature strip. The removal of the sign could not have been safely undertaken by one man. It would have been necessary to lower the pole onto the nature strip to the south to avoid blocking the Highway and the driveway. The sign appears to have been below the electrical wires. 19 There is no evidence that a crane would be needed, although witnesses could have been asked this question, and despite the submission of Mr G B Hall QC, who appeared for the appellant, the matter is outside the limits of judicial notice. However, if a crane was not used it would have been necessary to use some other means to control the fall of the sign, and it is reasonable to suppose that two men at least would have been required for this purpose. 20 The person organising this enterprise would have needed a light truck to transport the people and the cutting equipment, and to carry away the sign. A significant degree of planning and preparation would thus have been required which excludes the possibility that removal could be due to casual or spontaneous vandalism, or vandalism by persons other than those who had the use of expensive capital equipment. It would be odd to say the least if the people concerned went to all that trouble to steal just one sign. The work would almost certainly have had to be done in daylight, in full view of the passing traffic, which at any time could include police, Council employees or RTA employees. 21 Mr Sly gave the following evidence in re-examination, in answer to the question: "Who else in your experience removes signs?" (104-5): "We have a lot of problem[s] with vandalism and a lot of removal of signs by people that use or construct things out of pipes. In a rural area, this is not necessarily the Hume Highway, but all over the State we have people that remove, I'll call them stems or pipes if you'd like to, as a building medium for fences, sheds and so forth and the aluminium signs themselves, the sign face themselves make excellent trailer bodies because they're aluminium, they're hard faced aluminium and they don't rust". 22 No evidence to this effect had been given by Mr Sly in chief, and the RTA had no positive case on this issue. Mr Sly did not suggest that vandalism was a possible explanation for the removal of this particular sign. If anything his evidence indicated that the problem with vandalism was confined to rural areas and did not exist on the Hume Highway, in places such as Casula. On the basis of this evidence, the possibility that this particular sign was removed by vandals could fairly be regarded as theoretical. 23 Mr Sly gave other evidence for the purpose of establishing that this pole had neither been erected nor removed by the RTA. He did not believe that the RTA would have erected a sign at this point because it was too far north of the cross roads (82). He said that the type of pipe he observed in the hole would not have been used by the RTA (83-4), although his experience only went back to 1990 (87-8), and the sign may have been installed when the freeway was first opened to Goulburn some time in the last 30 years (88). He said that the RTA did not use oxy-acetylene when removing traffic control signs (84), and that his search of the RTA's records had revealed no record of the installation or removal of this sign (84-6, 87). He said that the RTA's system was to inspect the work before payment and a contractor who removed a sign would not be paid if the stump was left as this one was. 24 Cross-examination revealed a somewhat different picture. The RTA did not have a current sign register. Such a register had been prepared "quite a few years ago by a contractor" which had no record of this sign (86). He said there was no document which showed where all the RTA signs were on the Hume Highway within 3 kms of Liverpool as of January 1991 and the RTA had no document which showed where it had put its signs on the Highway between Liverpool and Casula in the last 30 years (97). His evidence revealed some lack of confidence in the RTA's record-keeping system (87): "Have you satisfied yourself or are you confident that there are no other documents, or is it just that you couldn't find any? A. I don't know, that's right. I don't know". 25 To his knowledge there was no document that recorded every single sign installed by the RTA over the last 20 years (87). He conducted the record search at the RTA's headquarters at Blacktown (88), but not at Yennora, which was the supervising depot for Casula (88). He asked others to search at Yennora. 26 Mr Sly's search at Blacktown was confined to "the current records" and he did not look for records relating to the erection of this sign (89). He agreed that following the opening of the new expressway, which bypassed Liverpool, any signs at Casula, such as that described by Mr Raiti, would have become redundant (89), and would have been removed in 1994-5 (90). When asked whether the sign described by Mr Raiti would have been erected by the RTA or its predecessor, he said "could well have been" (88). He agreed that if the front of the sign shown on Ex G was green and had the words "Goulburn Campbelltown" on it, it was an RTA sign (91). 27 Between 1993 and January 1996 the RTA signs along the Hume Highway at Casula within 2 kms of the crossroads were looked after by an RTA contractor (94-5). The RTA later took over this responsibility, together with the contractor's records, which were transferred to the RTA at Blacktown. Mr Sly searched those records (94-5). They did not contain any documents relating to the removal of signs on the Hume Highway between 1993 and 1996 (94). He did not know how reliable their records were (98). If the sign was removed at the instigation of the RTA, the work could have been done by either the RTA or a contractor (99). If the RTA did the work, the relevant records would be at Yennora (99-100). The search at Yennora did not reveal the Council's letter to the RTA of 15 March 1996 (Ex 2 D3 - 99). 28 The search at Yennora revealed records relating to the removal in August-September 1995 of two other signs on this section of the Hume Highway, 800 metres and 900 metres to the south (100-2, 195-9). 29 This evidence, taken at face value, and accepting Mr Sly as a witness of truth, does not establish that the RTA had no records covering the erection and removal of a road sign at this point on the Hume Highway. The person or persons who conducted the search at Yennora were not called, and there is no evidence as to the quality of the record keeping of the RTA's contractor, who was responsible for this section of the Highway in 1994 and 1995 when, according to Mr Raiti, the sign was removed. 30 The failure of the search at Yennora to discover the RTA's copy of the facsimile from the Council of 15 March 1996 does not inspire confidence. If the records were kept on an individual sign basis, this letter should have been in the file, either by itself or with other documents. Documents were produced for a sign which was only 800 metres away to the south, but no file for the nearest sign to the north. The nature of the searches of the RTA's records was not disclosed. The Court does not know how the RTA's records are kept. They could be kept on the basis of the month or year the work was done, or by geographical section, by individual sign, by project, or by contractor, if any. Proving a negative is never easy, and without knowing a great deal more than we do about the RTA's records - how they were kept, and the searches that were undertaken, the Court cannot find that the RTA does not have and never did have any records relating to a road sign installed by it at this point on the Highway. 31 However in my judgment the decisive factor is the RTA's concession that one of its road signs had been erected at this point. I have already expressed the view that, in the light of the evidence, a finding to that effect was inevitable. If one starts, as one must, with the fact that there was an RTA road sign at this point which was removed some time around January 1995, the fact that records were not found dealing with its erection and removal establishes nothing of relevance for the purposes of this case. It cannot establish that this was not an RTA sign, and it cannot establish that the RTA did not arrange for its removal, either by its own staff, or by a contractor. 32 Any RTA sign at this point should have been removed some time around January 1995 when, according to Mr Raiti, it was in fact removed. In these circumstances the inability of Mr Sly and his assistants to discover any records relating to the installation and removal of this sign cannot exclude the clear and obvious inference, from the rest of the evidence, that the sign was removed at the instigation of the RTA. In comparison, the only competing inference, that of vandalism, is farfetched and fanciful. It cannot be said that the evidence in this case does no more than "give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture". See Luxton v Vines (1952) 85 CLR 352, 358 per Dixon, Fullagar and Kitto JJ. In my judgment therefore the plaintiff's appeal against the judgment in favour of the RTA succeeds. 33 The trial Judge did not assess the appellant's damages, and counsel for the appellant and for the RTA agreed that this Court was not in a position to assess those damages. In view of some of the Judge's findings of fact there was never any prospect of the Court undertaking this task. The plaintiff's notice of appeal sought an order remitting the proceedings to the District Court for this purpose. In these circumstances there was no possible justification for including in the appeal book the medical evidence (106-132) and the evidence relating to the plaintiff's economic loss (160-185), and the successful appellant should not recover the costs of including this material. The proceedings against the RTA should be remitted to the District Court for the assessment of the plaintiff's damages. There is no reason why this should not be undertaken by Balla DCJ, and if she is available the order remitting the proceedings is not intended to re-open the trial and enable the parties to call further evidence as of right. 34 The trial Judge ordered the plaintiff to pay the costs of both defendants. The plaintiff appealed against both judgments and has succeeded against the RTA but failed against the Council. A new trial on liability was not sought and the grounds of appeal provided no basis for seeking such an order. The appeal against the judgment in favour of the Council was not justified by anything done by the RTA in the conduct of the appeal, particularly after it had formally admitted during the leave application that it had installed the relevant pole. In these circumstances there are no grounds for making a Sanderson order in favour of the appellant in relation to the costs in this Court. 35 The relief sought by the appellant in her notice of appeal did not include a Sanderson order in respect of the costs of the trial, and that question was not dealt with in any of the written submissions filed in the appeal on her behalf. The matter was only mentioned in oral argument immediately before the Court reserved its decision and adjourned. If a claim for a Sanderson order for the costs of the trial had been raised in the notice of appeal, or in the appellant's written submissions, the parties would have had an opportunity of tendering any correspondence passing between the solicitors which was relevant to such an application. In my judgment the Court should not entertain the belated suggestion that the plaintiff should have the benefit of a Sanderson order for the costs of the trial. 36 The following orders should be made: (1) Appeal against the judgment in favour of Roads and Traffic Authority allowed. Judgment for the Authority in the action set aside and in lieu thereof enter judgment for the plaintiff for damages to be assessed.

SQUILLACIOTI v RTA & ANOR

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Judgment (25 paragraphs)

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