His Honour pointed out that that was the way in which the case was left to the jury in the trial Judge's summing up.
112 In the Court of Appeal, a further ground was taken by the plaintiff, namely that this was a case in which the evidence of negligence should be found in the occurrence itself, the occurrence being the running of the vehicle off the road, without any concession on the part of the defendant that there had been a prior failure of the steering mechanism. His Honour, at page 502 said:
"The majority of the Supreme Court accepted this ground, set aside the verdict, and ordered a new trial of the action. The reason advanced for the making of so unusual an order - unusual having regard to the course of the trial and the resultant verdict - was that, at the date of the trial, this Court had not decided Anchor Products Ltd v Hedges and that, thinking the relevant law to be settled by the decision of the Supreme Court in Priest v Arcos Enterprises Pty Limited , the respondent's counsel had elected not to seek to put before the jury a case based upon the so-called principle or doctrine of res ipsa loquitur, and to confine the respondent's case to evidence of the respondent's amended and further amended particulars of negligence. It was said that such an election had been "forced upon" the respondent's counsel, and that, having regard to this Court's later decision, he had been wrongfully compelled to exclude from the jury's consideration a case which otherwise would have been available to the respondent".
113 At page 505 his Honour said:
"It is true that the then expressed opinion of the Supreme Court was that he" (the plaintiff) "must choose and could not endeavour to establish a case of negligence against the appellant by relying on the evidence which the occurrence itself provided, whilst at the same time relying on evidence of specific acts or omissions by the appellant. But the respondent was not obliged to accept that decision. He was entitled to press his claims to be lawfully entitled to endeavour to establish his case on the footing that the current decision of the Supreme Court was erroneous. It is true that the trial judge would have been bound to reject his submission: but the propriety in law as distinct from the propriety in point of precedent of that course on the part of the trial judge could then have been challenged. As the decisions of this Court have shown, it could have been successfully challenged".
114 At p 506 he continued:
"In this case, the choice of the respondent's counsel not to press the evidence of the occurrence in support of the respondent's case of negligence was, in my opinion, in every relevant sense voluntary, and ought to be attended with the same consequences of responsibility as other voluntary decisions in the conduct of litigation".
115 That case, in my respectful opinion, differs from the present. The pleadings in the present case raised the question of negligence on the part of the respondent on which the appellants sought to rely. The appellants, for reasons to which I shall refer, established the negligence they had pleaded. The pleading of negligence against the respondent was obviously enough a challenge to the highway immunity rule. Unlike Piening v Wanless, the precise allegations necessary to challenge that rule were pleaded. There was pleaded back against the appellants the highway immunity rule. The questions therefore were whether there was negligence, and, if there was, whether the defence of the highway immunity rule exculpated the respondent.
116 In Papatonakis v Australian Telecommunications Commission & Anor (1985) 156 CLR 7, the High Court held that the duty owed by an occupier of land to a person lawfully on the land was no longer to be governed by the "special duties", which had applied previously, but by having regard to the ordinary duty of reasonable care. In that way the appellants challenged the law, as it then was.
117 The consequences of this was considered by this Court in Eggins v Brooms Head Bowling and Recreational Club Ltd (1984) 5 NSWLR 521, judgment in which was delivered on 12 August 1986. The defendant was the occupier of premises, which were used as a bowling and recreation club. In June 1979, the plaintiff sustained serious injuries on those premises when he slipped and fell as he went to leave them. His statement of claim alleged the breach of duty owed by the occupier of premises to an invitee. The action was heard by a jury and, at the conclusion of the evidence, the trial Judge directed the jury to return a verdict for the defendant on the ground that the premises did not constitute an unusual danger, and there was no evidence that the defendant knew, or ought to have known, of any danger in the use of the premises. During the course of submissions on appeal, counsel for the plaintiff sought leave to amend the statement of claim by substituting for the cause of action based on an occupier-invitee count, a cause of action based on a breach of a general duty of care owed by the defendant to a plaintiff. This application was made on the basis that the decision in Papatonakis and of this Court in Gorman v Williams (1985) 2 NSWLR 662 had made it clear "that the doctrine of dual duties is reinstated".
118 The principal judgment of this Court was given by McHugh JA and, at page 524, his Honour said:
"The issues at a trial are decided on the basis of the 'law' which applies to them at the date of the trial. If a party believes that the current state of the law is erroneous, he must object to its application to his case or be bound by it. If he fails to raise the point at the trial, he cannot be allowed to raise it on appeal because of the accident that he has lodged an appeal and that, before the hearing of the appeal, a superior court has decided that the law is different from what it was conceived to be at the date of the trial. If the unsuccessful party succeeds in obtaining a new trial for a reason unconnected with any change in the law, then he may apply to amend his pleadings, if necessary, so that the new trial can be governed by the changed state of the law. But in my opinion he cannot seek to have a verdict, based on an accepted state of law, set aside on the ground that the law is later held to be different from what the parties accepted it to be. No one suggests that, where appellate proceedings are concluded or no appeal has been lodged, a party is entitled to have a verdict set aside on the ground that the law is later declared to be different from what it was at the date of the trial or the appeal. The accident of filing an appeal cannot alter this situation. Ex hypothesi the unsuccessful party, who cannot point to an error in the trial conducted in accordance with an accepted state of the law, has no appeal. It would be extraordinary if an unsuccessful party who had filed an appeal could have a verdict set aside because of a subsequent change in the state of the law while a party who recognised that he had no right of appeal could not get a new trial because he had failed to lodge a notice of appeal".
119 In my opinion, the appellants challenged the "highway immunity" rule by seeking to have the respondent found liable for its negligence in the particular circumstances of this case. As I have said, the issue clearly was whether, as the appellants alleged, the respondent was negligent and could be held liable for such negligence. The pleadings make that clear. The case was decided on the basis of the then existing law, but the challenge to the then existing law, which, in my view, emerges from the statement of claim, amounted to an objection or non-acceptance of the application of it, or its binding effect upon the appellants. Therefore, contrary to what happened in Eggins, there was no failure by the appellant to raise the point at the trial.
120 In Western Suburbs Hospital v Currie (1987) 9 NSWLR 511, the plaintiff sustained personal injuries as a result of a fall on hospital premises. The trial proceeded on the basis that the occupier's duty of care to an invitee was that laid down in Indermaur v Dames (1866) LR 1 CP 274. By the time the appeal was heard, the High Court had decided Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 on 10 March 1987. In that case, building upon Papatonakis and Gorman v Williams, the High Court terminated the distinction, which, was formerly taken to exist in law between the static condition of land and the dynamic situations affecting it, as a basis for deciding whether a duty of care existed in respect of a lawful entrant upon the land, and defined the new principle. At page 515, in Currie, Kirby P said:
"In the present case, although the trial proceeded, and the judgment below was written, by the standard established by Willes J in Indermaur v Dames, it was agreed that there was no reason why this Court should not now proceed, on the appeal, to apply the law as re-stated in Australian Safeway Stores Pty Limited v Zaluzna: cf Eggins v Brooms Head Bowling and Recreational Club Limited … A general duty of care had been pleaded below. All of the matters of fact relevant to the new, simplified test of Australian Safeway Stores … had been proved, even though done so at the time for the purpose of attracting the principles in Indermaur v Dames. Applying Australian Safeway Stores … to the present case there can be no doubt that, in the relevant circumstances, having regard to the nature of the premises as a public hospital and Mrs Currie's entry on them as a visitor, that the hospital owed her a duty of care under the ordinary principles of negligence".
121 Importantly, in my opinion for the present case, is the statement by the President that the plaintiff in that case had pleaded a general duty of care.
122 McHugh JA, at page 520, said:
"In the present case, the pleadings were wide enough to cover a case of breach of duty based on a general duty of care in addition to a special duty which until Australian Safeway Stores Pty Limited, was thought to be owed by an occupier to an invitee. Since the Hospital is not prejudiced, I think that this Court should decide the case on the basis that the Hospital owed Mrs Currie a general duty to take reasonable care for her safety".
123 His Honour continued that nothing in Eggins prevented the plaintiff relying on the change of the law in that case. He explained Eggins thus:
"However, Eggins was a case in which the appellant sought a new trial. An application for a new trial is distinguishable from an appeal where the Court is asked to enter a verdict for the appellant on the basis of the evidence given at the trial and where the respondent will suffer no prejudice by reason of the application of a different set of principles. If no evidence could have been given which could have prevented the new point from succeeding at the trial, and if the appellate Court can decide the issue without 'deciding nice questions of fact, in considering which the Court of ultimate review is placed in a much less advantageous position than the Courts below', it is open to an appellate Court to entertain a new point: Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480 and Suttor v Gundowda Pty Limited (1950) 81 CLR 418 at 438".
124 Against this background, it is necessary to consider whether, notwithstanding that the decisions in Brodie and Ghantous had not been given when Windeyer J gave his decision, nonetheless the appellants are entitled to rely upon those decisions.
125 In Brodie, the Chief Justice, in considering non-feasance, said that the manner in which the case was conducted and decided at first instance and in the Court of Appeal was to be understood in the light of the law originally developed by English courts and declared for Australia by the decisions of the High Court in Buckle v Bayswater Road Board and Gorringe v Transport Commission, the latter case being followed by the Full Court of the Supreme Court of New South Wales in Kirk v Culcairn Shire Council (1964) 64 SR (NSW) 281. After a detailed consideration of the matter, his Honour was of the view that special leave to appeal should be granted, but that the appeal should be dismissed.
126 In the joint judgment of Gaudron, McHugh and Gummow JJ, their Honours referred to the fact that in Ghantous the plaintiff sued both in negligence and nuisance, but failed in the District Court because of a finding, which was upheld in this Court, that the case was one of non-feasance.
127 In Brodie, the action was brought in negligence and, at the trial, the case was held to be one of misfeasance, resulting in a verdict in favour of the plaintiffs. An appeal by the Council to this Court was successful on the basis that such work as the Council had undertaken, in replacing defective decking planks, amounted to no more than superficial repairs and did not remove the case from the category of non-feasance.
128 The essential argument in the High Court was that the decisions in Buckle and Gorringe prevented the applicants from succeeding.
129 There was no doubt that in both cases the applicants had sued, inter alia, in negligence. After a detailed consideration of the matter, their Honours said, paragraph 150:
"The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist".
130 In relation to repair, maintenance and works, their Honours said, paragraph 159:
"The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from the creation of conditions during or as a result of repairs or works, from a failure to remove unsafe items in or near a road or from the placing of items upon a road which create a danger, or the removal of items which protect against danger".
131 Their Honours pointed out not all failures to repair would create risks to road users. They then discussed various alternatives.
132 At paragraph 162, their Honours said:
"The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authorities. In the circumstances of the given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations. The resources available to a road authority, including the availability of material and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made. It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform after more pressing dangers are first addressed. Even so, it may well be reasonable for the authority to exercise other powers including, for example, by erecting warning signs, by restricting road usage or, in extreme cases by closing the road in question".
133 Whilst their Honours formulated the duty in relation to road users, there seems to me to be no reason why the same duty does not apply to the respondent in relation to negligent acts causing foreseeable damage to people adjacent to the road. It would seem a very strange result if, for example, the root of a tree caused damage to a person using the footpath, such that that person was entitled to recover, but also caused damage to an adjoining landholder, but that person, notwithstanding that the same negligence was applicable, could not recover. The duty of care or, perhaps more correctly, the content of the duty of care, depends upon it being reasonably foreseeable that the failure of a council to act reasonably may well lead to foreseeable damage to others. There is no suggestion in the present case that the performance by the respondent would have involved such content or scope or manner of exercise to make it unreasonable for the respondent to have avoided the consequences of the activities of the roots: Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431.
134 At paragraph 226 Kirby J said:
"However, in my view the Court should now remove the anomalous immunity, re-express the common law in Australia and subsume the liability of highway authorities in negligence and nuisance within the general law governing all statutory bodies".
135 At paragraphs 239 and 240, his Honour said:
"239. These conclusions leave the liability of the respondents to be determined by the ordinary principles of negligence law as applied to a statutory authority with relevant duties and powers. Because this represents a shift in the understanding of the law from that which prevailed at the time of the trials of the respective actions now before this Court, the question arises as to whether fairness requires that the proceedings be returned for re-trial in accordance with the law as so expressed.
240. In my opinion, this course is not required. In each proceeding, the applicants recorded their intentions to rely on ordinary principles of negligence (and, in the case of Mrs Ghantous's action, the law of nuisance) freed from the immunity. In such circumstances, the respondents were obliged to consider the eventuality that has now occurred. They elected to call no evidence to justify their respective failures to attend to the suggested defects in the surface and the surrounds of the road, bridge and path in question in their cases . Re-trial would obviously be expensive and inconvenient. In my opinion, it is open to this Court, in each case, to reconsider the evidence at trial, judging it by reference to the ordinary principles but governing the existence and scope of a duty of care of a statutory body having the powers respectively enjoyed by the present respondents". (My emphasis)
136 The fact that the respondent did not seek to call any evidence of the priority in which the work should be carried out or undue expense in this case, when confronted with a direct challenge to the highway immunity rule, would suggest, conformably with the authorities to which I previously referred, that it should not be entitled to a new trial. Gummow J had referred to a statutory authority taking such a course in Pyrenees Shire Council v Day (1998) 192 CLR 330 at para 184, where he quoted at length from Canadian authority pointing to the type of evidence a council should call. Judgment was delivered on 23 January 1998, some two years before the present action was heard. But the respondent did not call any such evidence. Rather the evidence was that it had attended to the matter on several occasions, but in a quite ineffectual way.