THE COUNCIL OF THE CITY OF WAGGA WAGGA v FULLER

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41056/98 DC 98/97 MEAGHER JA HANDLEY JA HODGSON CJinEq

THE COUNCIL OF THE CITY OF WAGGA WAGGA v DAWN (aka Dee) FULLER NEGLIGENCE - personal injury - tripping over broken pipe in footpath - Council sued as statutory authority and as owner of pipe - whether Council responsible for installation of pipe

The respondent was injured when she tripped on a broken drainage pipe in the footpath on Fitzmaurice Street, Wagga Wagga. The appellant Council was found liable for negligence as the owner of the footpath and as the statutory authority responsible for the maintenance of the footpath and drainage system. The Council sought leave to appeal on the ground that there was no evidence that the Council was responsible for the installation of the pipe. The evidence supported the inference that the pipe was installed for the drainage of stormwater from an adjoining property prior to the construction of the footpath.

HELD , granting leave and allowing the appeal: The Council was not liable for a dangerous situation created on a footpath as a result of the construction of a drain to convey stormwater from private property. Sisson v North Sydney Municipal Council [1966] 1 NSWR 580, Yass Shire Council v Burnett (NSWCA 19/2/99, unrep) applied. ORDERS (1) Leave to appeal granted;

(2) Subject to counsel giving an undertaking that the notice of appeal will be filed and the appropriate fee paid, appeal allowed with costs;

(3) Set aside the judgment of the District Court including the Bullock order in favour of the plaintiff, and in lieu thereof order that there be judgment entered in the action for the first defendant with costs to be paid by the plaintiff. The opponent in this Court is to have a certificate under the Suitors Fund Act.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41056/98 DC 98/97 MEAGHER JA HANDLEY JA HODGSON CJinEq

THE COUNCIL OF THE CITY OF WAGGA WAGGA v DAWN (aka Dee) FULLER JUDGMENT

1 HANDLEY JA: This is an appeal by the Wagga Council from a judgment of Delaney DCJ in a case where the plaintiff was injured when she stepped into a hole or subsidence over a broken drainage pipe in Fitzmaurice Street, Wagga. There were additional parties at the trial, but the only parties involved in this appeal are the Council as the appellant and the plaintiff as respondent. 2 Fitzmaurice Street is the principal street in Wagga, and the plaintiff, having got out of her car, stepped onto the footpath and lost her balance, and suffered personal injury in the manner I have described. The Council was sued along with the owner of the adjoining property as being, in the case of the Council, the owner of the footpath and responsible for its maintenance and upkeep. It was also sued as the owner of the pipe. 3 The evidence about the pipe and its history is sketchy, but it appears from the cross-examination of the plaintiff at the trial that it was a stormwater pipe which was connected to one of the adjoining private properties fronting Fitzmaurice Street, and the case has been conducted on that basis. 4 The Judge found that the first defendant was the statutory authority which had the care, control, maintenance and duty to repair and replace the relevant portion of the footpath and drainage system in the area where the plaintiff fell and was injured. He also found that the Council had repaired the area of the footpath after the accident and replaced part of the previous earthenware pipe with a new plastic PVC pipe. The Judge concluded that the Council had only performed this work because it acknowledged that it had a duty to do so and was responsible for the maintenance and good order of the footpath in that area. He also said that he was satisfied that the Council had failed in its duty to keep the area of the footpath in proper repair, including the pipe, and that it was because of the condition left as a result of that failure to maintain that the plaintiff subsequently suffered the injury for which she had sued. 5 The Judge found a verdict for the plaintiff for $61,947.98 and so the case is one where leave to appeal is required. The case has been listed and heard on the basis that if this Court were minded to grant leave, it could hear and determine the appeal at a single hearing. 6 Mr D L Williams, who appeared for the claimant, submitted that there was no evidence that the Council was responsible for the original installation of the drainage pipe, and on this basis the judgment against it should be set aside. He relied in support of this submission on the earlier decisions of this Court in Sisson v North Sydney Municipal Council [1966] 1 NSWR 580 and Yass Shire Council v Burnett (19/2/99 unrep). 7 Mr Hislop QC who appeared for the opponent submitted that the points taken by Mr Williams were not open on appeal in this Court because of the way in which the case had been pleaded and conducted in the District Court. The plaintiff sued the Council as the owner of the footpath and responsible for its maintenance and upkeep. In the alternative, the Council was sued as the owner of the drainage pipe. 8 The particulars of negligence against the Council need not be referred to in detail, other than particular (viii) which was that the Council had been negligent in that - and the grammar is not perfect - by installing or permitting the installation of the pipe and thereafter failing to ensure that the pipe and footpath did not create a hazard to pedestrians. The Council, in its defence, admitted that it was the owner of the footpath and appears to have admitted that it was the owner of the pipe, but denied that it was responsible for the maintenance and upkeep of the footpath area. It also denied negligence. In my view, there is nothing in the pleadings which would prevent the Council from relying in this Court on the decisions earlier referred to. 9 Insofar as the plaintiff's statement of claim relied on the Council's ownership of the footpath, it was faced with the ordinary misfeasance rule. Insofar as the plaintiff relied upon the ownership of the pipe, this took the case no further unless the Council was responsible for its installation. It is possible that fixtures such as pipes installed by private owners to drain stormwater from their property become the property of the Council as the owner of the footpath. It is also possible that they do not, but in my view nothing turns on this in the present case. The question is whether the Council was responsible for the installation of the pipe. 10 Mr Hislop also contended that the case had been conducted in the District Court on a basis which prevented the Council from arguing that it was not responsible for the installation of the drainage pipe and therefore not responsible for its condition when the plaintiff suffered her injuries. We have been referred to the transcript of the argument before the trial Judge in support of that submission. It is evident that the learned trial Judge was not referred to the decision in Sisson v North Sydney Municipal Council but only to Urban Transit Authority v Purcell (1994) 82 LGERA 284. However it is clear that the nonfeasance rule was in the minds of counsel and the trial Judge as part of the background to the case. 11 The trial was conducted, and properly so, on the basis that the pipe was an artificial structure, not installed for the drainage of the road or the footpath, and as such a different regime of liability was attracted. The party installing the pipe as an artificial structure in the highway and his or their successors would have certain responsibilities for that artificial structure. If that party was the Council itself, then it was subject to the more stringent regime of liability which applies to artificial structures installed in the highway. 12 The case therefore turned on whether the Council was responsible for the installation of this pipe. Mr Hislop particularly relied upon a statement by Mr Curtin, counsel for the Council, at p 2 of the transcript of argument where he said: "So if it is our artificial structure, we have difficulties"

but with respect I do not read this as an admission that ownership alone created problems for the Council. I would read it as an acknowledgment which would be soundly based in law that if the Council had installed the pipe in the footpath so that it was in that sense "our artificial structure", the Council would have difficulties as indeed it would. I conclude therefore that there is nothing in either the pleadings or in the conduct of the case at the trial which would prevent the claimant from pressing the submission in this Court that it is not liable for the injuries to this plaintiff because it was not responsible for the installation of the pipe in the footpath. 13 Exhibit G, tendered by the plaintiff at the trial, included a plan prepared by the Department of Main Roads relating to the reconstruction of Fitzmaurice Street and the footpaths to that street in 1949-1950. The plan does not refer to any stormwater drainage connecting adjoining properties to the gutter, but it was submitted by counsel for the plaintiff at the trial that the proper inference from a view of the site was that the pipe had been laid at or before the construction of the footpath. 14 Since the evidence supports the inference that the pipe was installed for the drainage of stormwater from adjoining property, the case falls within the authorities already referred to where this Court has held that a council is not liable for a dangerous situation created on a footpath as a result of the construction of a drain to convey stormwater from private property. 15 Accordingly I would propose the following orders:

(2) Subject to counsel giving an undertaking that the notice of appeal will be filed and the appropriate fee paid, appeal allowed with costs;

(3) Set aside the judgment of the District Court including the Bullock order in favour of the plaintiff, and in lieu thereof order that there be judgment entered in the action for the first defendant with costs to be paid by the plaintiff. The opponent in this Court is to have a certificate under the Suitors Fund Act. 16 MEAGHER JA: I agree, and I only wish to add one thing. In Purcell's case, to which reference has already been made, I said the following sentence: "Modern cases seem to make it clear that the highway authority's immunity from liability for nonfeasance does not extend to liability relating to artificial structures". 17 Mr D L Williams, in his submissions, has said that this is an inaccurate statement of the law. I must confess, on further consideration, I must agree with him. It is only accurate if it were limited so that it applied only to artificial structures erected by the highway authority itself. 18 HODGSON CJinEq: I agree with Justice Handley.

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