Tweed Shire Council v Wood-Lightbound [2000] NSWSC 153 | Case summary

1 MASTER: By summons filed 4 May 1999 the appellant claims that the decision given by Magistrate Lindon on 23 December 1998 was erroneous in point of law. The appellant relied on the affidavits of Bede William Lipman sworn 30 April 1999 and 9 June 1999. The appellant was the defendant and the respondent was the plaintiff in the Local Court proceedings. 2 On 23 December 1998, Magistrate Lindon gave judgment in the Local Court at Lismore in respect of an action commenced by Lorna Wood-Lightbound as plaintiff against Tweed Shire Council as defendant seeking damages for personal injuries sustained by her in an accident on 18 April 1995. Lindon LCM gave judgment that the defendant pay to the plaintiff the sum of $35,310.68 with costs. 3 The appellant/defendant submitted that firstly, the Tribunal failed to make findings and give reasons with regard to any contributory negligence on the part of the respondent/plaintiff; secondly, the Tribunal was in error in law in finding that the appellant/defendant owed a duty of care to the respondent/plaintiff to inspect, maintain and repair a levee bank; thirdly, that the Tribunal was in error in law in finding that the appellant/defendant had breached its duty of care to the respondent/plaintiff by unreasonably failing to undertake remedial work at a minimal cost; fourthly, that the Tribunal was in error in law in failing to properly weigh the relative costs of remedial work to avert the possible danger posed by the condition of the walkway as against the risk of injury to the respondent/plaintiff; fifthly, that the Tribunal was in error in law in making a finding of fact that the cost of remedial work was minimal, such finding being improbable when measured against the available evidence regarding the funds available to the appellant/defendant and the number of similarly constructed levees/walkways under the appellant/defendant's control; sixthly, that the Tribunal was in error in law when weighing the risk of injury as against the costs of remedial repair by failing to take into account when considering the risk of injury, the absence of any prior complaint in relation to the accident site; seventhly, that the Tribunal was in error in law in failing to apply the proper legal principle that a body exercising control in respect of a highway, footpath or walkway, is liable for misfeasance but not for nonfeasance (Buckle v Bayswater Road Board (1963) 57 CLR 259, Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232); eighthly, that the Tribunal was in error in finding that the appellant/defendant's failure to construct a post and rail fence was causally related to the circumstances leading to the respondent/plaintiff's injuries and ninthly, that the Tribunal was in error in law in failing to apply the principles in Sutherland Shire Council v Heyman (1985) 157 CLR 424, that no duty of care arises in relation to a decision of a policy nature which involves is dictated by financial, economic, social or political factors or constraints. The Magistrate's assessment of damages is not in dispute. 4 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the appellant/defendant. Section 69(2) of the Local Courts Act (Civil Claims) Act 1970 (NSW) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. Section 69(3) of that Act stipulates that ss101 to 110 Justices Act 1902 apply. According to s 106(1) of the Justices Act, this court shall hear and determine the questions of law arising on a stated case and shall either reverse, affirm, or amend the determination in respect of which the case was stated; remit the matter to the Magistrate with the opinion of the court; or make such other order in relation to the matter as seems fit. 5 The authorities make it clear that the remedy of a stated case provides a limited avenue of appeal. The court has jurisdiction to determine only questions of law and only such questions of law as are submitted to it (Allen v Kerr & Anor (1995) Aust Tort Reports 81-354 and The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126). What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. The facts stated are to be taken as the ultimate facts for whatever purpose the case is stated (Press v Mathers (1927) VLR 326 at p 330). The onus lies on the appellant to demonstrate that there has been an error of law. 6 Before I cover the questions of law raised in the stated case, the plaintiff sought an extension of time pursuant to Part 51B r 5(5) of the Supreme Court Rules (SCR) for leave to appeal the decision which was made on 23 December 1998. The reason for the delay was essentially the time it took for the stated case to be finalised. On 25 January 1999 the appellant/defendant's solicitor received instructions to appeal by way of stated case. On 27 January 1999 a request to state a case was served on the Magistrate and filed in the Local Court at Lismore. On 11 February 1999 the appellant/defendant received a notice from the Local Court requesting that they enter into a recognizance in the amount of $5,000. On 2 March 1999 a recognizance to prosecute the appeal was filed. On 22 February 1999 the plaintiff filed and served a draft stated case on the registrar of Lismore Local Court and the solicitor for the respondent/plaintiff. 7 On 8 March 1999 the appellant/defendant was informed that the stated case would be before Magistrate Lindon on 29 March 1999. On 30 March 1999 a redrafted stated case was served in the Local Court for signing by the Magistrate. On 26 April 1999 the appellant/defendant received a copy of the stated case signed and dated by the Magistrate on 8 April 1999. On 27 April 1999 a draft summons was prepared and on 30 April 1999 the appellant/defendant was informed that the summons had been rejected for filing. The summons was ultimately filed on 4 May 1999. 8 The court has a wide discretion when considering whether or not to extend time to appeal. The ultimate test is to do justice between the parties. As a general rule, time will be extended if there is no prejudice to the other party and appropriate orders for costs or the imposition of other terms of the extension adequately protect their position. As the delay occurred while the state case was being prepared, it is my view that in order to do justice between the parties, an extension of time to appeal should be granted. 9 Taking the seventh ground of appeal, first the appellant/defendant submitted that the Magistrate was in error in finding that the Council owed a duty of care to the respondent/plaintiff to inspect, maintain and repair the walkway and failed to apply the principles expounded in Buckle and Hughes. According to the appellant/defendant, the Magistrate in describing the area where the accident occurred as "the levee bank" is referring to the duty, if any, owed by the Council arising out of the nature of the accident site being a footpath or walkway. 10 The respondent/plaintiff submitted that the appellant/defendant should not succeed on this issue because it was contended firstly, this defence was not pleaded at trial and is a matter for specific pleading; secondly, it was admitted on the pleading that the pathway on the levee bank was not classified as a footpath. According to the respondent/plaintiff, the levee bank, which was constructed as a flood levee and followed the edge of a watercourse, was plainly not exclusively used for highway purposes and when the works are undertaken by a public authority for two purposes, the authority's liabilities in its two capacities are "quite distinct". According to the respondent, had the defence been raised before the evidence was complete, there would have been evidence and further cross examination directed at the issue whether the levee bank came within the scope of the rule. The respondent referred to Water Board v Moustakas (1988) 180CLR 491 at 497 where Mason CJ, Wilson, Brennan and Deane JJ stated that "a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below". 11 During the hearing, the plaintiff (respondent in these proceedings) filed an amended statement of claim. Paragraph 1A pleaded that the defendant at all such times was under a general duty of care at common law to take reasonable care to avoid foreseeable risks of injury to the plaintiff in the circumstances. At the hearing it was common ground that the defendant was in control and was the occupier of the walkway. It was also common ground between the parties that members of the public used the area as a footpath and that the Council was aware of this fact. By the defence filed prior to the amended statement of claim, the defendant specifically admitted that the walkway was not classified as a footpath (para 1 defence 20 May 1998). 12 The Magistrate in his opening paragraph of his judgment stated that there were two issues to be decided, one of which was the liability of the Council. 13 However, in the stated case (at p 4) the Magistrate recorded the nonfeasance principle contention made by the appellant/defendant, the respondent/plaintiff objected to this point being raised as it had not been formally pleaded. The judgment does refer to the misfeasance/nonfeasance argument which had been raised in the Council's submissions. There may have been no mention of these principles because it may have been because the defence had pleaded that the walkway was not a footpath and on that basis did not attract the highway immunity principle. 14 After summarising the plaintiff and defendant's case the Magistrate gave judgment on liability which is as follows: As indicated previously the evidence tendered through the plaintiffs' husband namely the video evidence and photographs provided a great assistance in understanding the circumstances of the accident that befell the plaintiff. I am satisfied that the plaintiff was walking on the relevant day on the well-used track and placed her foot in an indentation on that track. I am satisfied that as a result of her foot entering upon that indentation, which was not readily apparent to the plaintiff, that her foot skewed to the right, causing it to travel on the gravel downhill slope of the levee bank. I am satisfied in turn that she followed in that direction, sliding down the levee, striking a rock and causing the injuries described later. I note that the video displayed in Court (Exhibit 9) clearly showed an uneven surface at or about the position that the plaintiff was walking that was effectively on the used track. I am satisfied that there was no clear definition of where the walking part concluded and where the slope of the levee bank commenced. That coupled with the inherently dangerous nature of the material on the levee caused her, once her footing was lost, to slip and to continue slipping until striking the rock. I am satisfied that the defendant Council was well aware that the area was not only used but in fact well used by pedestrians and others for recreational purposes. On the Council's own evidence I am satisfied that there was a plan in place that saw no regular maintenance of these types of facilities, that maintenance only being undertaken in the event of some complaint etc. The question of the liability of public authorities was exhaustively canvassed in Romeo v Conservation Commission of the Northern Territory HCA 2/2/98…" 15 The Magistrate did not make a specific finding as to whether the well used track was part of the roadway. 16 The Magistrate had previously summarised evidence of Robert Missingham the Manager of Works and John Henley the Manager of Water with the defendant as follows: "…at the date of the accident, the defendant Council had adopted a policy that no inspection of "footpath assets under its custody, care and control" is to be undertaken except when a complaint, work request or notification has been made to Council. In theory the area in which the levee is contained is classified as a Road Reserve which contains an earthen levee bank. It is not a designated footpath. Notwithstanding the theoretical exercise the practical situation was that the defendant Council was well aware that the area was well frequented Indeed it had been approached by the Twin Towns Skillshare Group in 1995 with a proposal to help fund and construct a paved footpath on the levee bank in Dry Dock Road in the position the subject of this claim. Council conceded that Skillshare had prior involvement with the Council in developing other walkways in the Tweed Shire adjacent to waterways. The Council's own minutes of the 16th August, 1995 (Exhibit 12) are in these terms 'Twin Towns Skillshare is undertaking the creation of a paved walkway on the top of the flood levee on Dry Dock Road. This walkway will formalise and enhance a well-used (his emphasis) river front pedestrian Link'. There was nothing in the evidence produced or adduced by Council to indicate that this was other than a well-used river front pedestrian link. This is addition was in accordance with the general tenure of the Terranora-Broadwater Management Plan which was to encourage public use of these types of facilities." 17 In Buckle, Sir Owen Dixon referred to the nonfeasance rule in its application to footpaths and other areas over which the public has a right of passage (pp 281, 282, 285 and 286). In Buckle Dixon J stated: "The purpose of giving the road authority property the discussion of the law is to enable it to execute its powers in relation to the highway, not to impose upon its 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 road work 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 is has allowed to fall into disrepair, or to exercise any other power belonging to it as a highway authority. It is not surprising that attempts to escape the application of this doctrine should be made and renewed from time to time on behalf of persons suffering personal injury through the defective condition of public highway. Striking illustrations are to be found in the facts of some of the cases in which such attempts have been defeated." 18 This principle has recently been affirmed in Campbelltown City Council v Crain (NSWCA, 23 October 1998 unreported), Threadgate v. Tamworth City Council (NSWCA, 24 February 1998 unreported), Lake Macquarie City Council v Bottomley [1999] NSWCA 28, Singleton Shire Council v Brodie [1999] NSWCA 37 and Ghantous v Hawkesbury City Council [1999] NSWCA 51. 19 The respondent/plaintiff referred to another passage in Buckle namely where Latham CJ stated at p 272: "The same body may be both a highway authority and a drainage authority. Its liabilities in these two capacities are quite distinct: White v Hindley Local Board (1985) LR 10 QB 219; Thompson v Major e c. of Brighton (1898) 1 QB 332 - cases which are set forth in my brother Dixon's judgment. The former case is, in my opinion, particularly important. The local board were surveyors of the highway and also the sewer authority. A grid was placed in the highway over an opening in a sewer which was under the board's control. The grid was defective and a horse's leg was injured. It was held that the board was liable for damages. Blackburn J says: 'Now the placing of this grid over the opening from the road into the sewer evidently was done with two objects, the one to prevent the hole from being dangerous, the other, that while allowing the water to flow from the road into the sewer, the grating might prevent the stone and other matters from passing through; one purpose was, therefore a road purpose, the other a sewer purpose. And the grid being there for both purposes, the defendants have at least a joint liability with themselves as surveyors in their capacity of owners…'" 20 The public has a right of passage on this track. The Magistrate made a finding that the walkway was not a designated footpath and was part of a well used river front pedestrian link. Thus it was open to the Magistrate to find that the Council was both a highway authority and an occupier of the land in which the highway immunity principle does not apply. The respondent/plaintiff has not discharged its onus and demonstrated that the Magistrate erred in law. 21 In relation to the finding that the appellant/defendant had breached its duty of care to the respondent/plaintiff by unreasonably failing to undertake the remedial work at minimal cost, there was conflicting evidence tendered from two experts. The Magistrate was entitled to accept the opinion of Dr Coyle that a reasonable standard of safety management would have been to incorporate a path along the northern side of Dry Dock Road. Dr Coyle noted that this was in fact being done at the time of his inspection. Alternatively, Dr Coyle suggested that at a minimum, if a post and rail fence had been erected in the area where the land slopes to the river it would have assisted the respondent/plaintiff. The Magistrate found that the area of danger was extremely small but the risk of danger was high. He accepted the opinion of Dr Coyle that the costs of remedial work to avert the danger was minimal. The Magistrate was entitled to accept this opinion. 22 The Magistrate referred to a passage by Hayne J in Romeo where it stated "What is reasonable must be judged on all circumstances. Usually the gravity of the injury that might be sustained, the likelihood of such an injury occurring and the difficulty and costs of averting the danger will loom large in that consideration". According to the Magistrate in the case before him, the area of "danger" was extremely small but the risk of danger, due to topographical and physical aspects (as detailed by Dr Coyle) was high and the costs of remedial work to avert the danger was minimal. From the reasons given, as the risk of danger was high and the costs remedial work was minimal, the Magistrate was not in error in finding that the defendant has breached the duty of care it owed to the plaintiff. The Magistrate did not err in concluding that the defendant has been negligent. It was also open to the Magistrate to find that as the track was a well used river front pedestrian link the Council owed a duty of care to inspect and repair the levee bank. 23 The judgment is silent in relation to the issue of contributory negligence. In considering the question of appointment the court is required to reduce damages recoverable to such an extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for damage. The plaintiff was familiar with the track and may not have kept a proper lookout. The indentation was not readily apparent to the plaintiff and the track was not uneven and clearly defined. In these circumstances, there may be a reduction for contributory negligence but the Magistrate is in a better position than this court to make such an assessment. The matter should be remitted to the learned Magistrate to be dealt with according to law. 24 If the principle of road immunity did not apply, the appellant/defendant submitted that the Tribunal was in error in failing to apply the principle in Heyman, namely that no duty of care arises in relation to decisions of a policy nature which involve or are dictated by financial, economic, social or political factors or constraints. The respondent/plaintiff submitted that the installation of a post and rail fence, at minimal cost, would have been an operational or administrative decision, and not a policy or discretionary decision. It is noted in his judgment that the Magistrate referred to a proposal by Twin Town skillshare to fund and construct a paved footpath on the levee bank in the Dry Dock Road. As the matter has been remitted for the Magistrate to consider the issue of contributory negligence, he should give consideration as to whether the construction of the footpath (if that was in fact the alternative that the Magistrate considered was of minimal cost) was an operational or administrative decision rather than a policy or discretionary decision. 25 Costs are discretionary. It is my view that the appropriate order for costs is that costs should follow the event. The respondent/plaintiff is to pay the appellant/defendant's costs. 26 The orders I make are:

Tweed Shire Council v Wood-Lightbound

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Judgment (12 paragraphs)

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Cases Cited (8)