1 HANDLEY JA: This is an appeal by the Yass Shire Council from judgment entered against it by Sinclair DCJ on 28 August 1997. The plaintiff was injured when he tripped and lost his balance in a stormwater drain on the footpath of Meehan Street, Yass, on the evening of 5 December 1992. He tripped and fell at a point in the footpath outside the ambulance station close to the point at which a lane enters Meehan Street, the lane marking the north-western corner of the ambulance station property.
2 The trial Judge found the case one of some difficulty, but eventually concluded that a drain in question had been constructed in the footpath by the Council and, on that basis, found a verdict for the plaintiff.
3 The objective facts were not in dispute and the Judge found that the construction of the drain, as shown in the photographs in evidence, was a positive act, that the drain had been constructed negligently and created a real source of danger to pedestrians. These findings were not challenged.
4 The difficulty in the case is that there was no direct evidence that the Council had constructed the drain. The Judge said (p 26):
"I have come to the conclusion that it is unlikely the drain originated in the premises of the ambulance station, certainly within the brick building. I think it is more likely and probable that the drain commenced - unfortunately not shown in the photographs tendered - between the brick wall of the left-hand side of the ambulance station as you look at the photograph and the low concrete wall to the left.
What one does not know, and on which I cannot make any finding of fact, is whether or not that area between the concrete wall and the brick wall of the ambulance station is a part of the lane shown in the photograph or part of the property of the ambulance station (that is something about which the evidence is quite silent)".
5 With respect to a senior and very experienced Judge, it seems to me, on the contrary, that the evidence does support a finding that this area was part of the title of the New South Wales Ambulance Services Board.
6 The survey by Hogan & Smith Surveys Pty Ltd of Yass on 9 July 1997 was in evidence. The primary purpose of the survey was to determine the ownership of the footpath between the ambulance station and the carriageway in Meehan Street. The survey and the Certificate of Title established that the title to the footpath was vested in the Council.
7 However, the survey also appears to outline the boundaries of the ambulance station title running at right-angles to the footpath in Meehan Street. On that basis the low concrete wall appears to fall within the title of the Ambulance Board. The survey certainly shows that the return of this wall parallel to the footpath was within that title.
8 The survey outlines the external wall of the ambulance station and, for that reason, it seems to me the other lines at right-angles to the footpath indicate the external boundaries of the land to which the Board had title.
9 I would therefore draw the inference that the area between the external face of the low wall and the external face of the ambulance station facing the lane were within the title of the Ambulance Board.
10 The photographs in evidence, which show the outlet of the pipe and the open drain between the outlet and the gutter, also show a crack running back from the outlet towards the building. It seems reasonably clear on the photographs that if one were to project the general line of the outlet and the crack towards the building the line would come, as the Judge found, to a point between the low wall and the external wall of the ambulance station. This tends to establish that the drain was installed to carry stormwater taken by downpipe from the roof of the ambulance station to a sub surface drain running along the side of the building and thence to the gutter in Meehan Street.
11 Mr Mahony drew attention to the drainage hole or weephole in the low wall shown on one of the photographs as tending against this inference. But, with respect to his argument, this drainage hole or weephole appears to be directed to removing surface stormwater which may have accumulated between the wall and the building, and not to be concerned with the removal of stormwater from a drain below the surface.
12 These conclusions lead to a further conclusion, that the drain in question was installed for the purposes of the ambulance station and not for any purpose of the Council, either as a road authority or as a drainage authority. The trial Judge drew the inference that the drain was installed by the Council relying on a number of matters and in particular the fact that it was on Council land and the statutory functions which the Council had with respect to roads under the Local Government Act.
13 He considered that, as a matter of common sense, one should assume that footpaths are built by councils and that the drain was either put in at the time the footpath was constructed, or at some time later by or with the consent of the Council. This finding depended on his earlier finding that "on the probabilities the drain was laid to drain water not from the premises of the ambulance but from the area adjoining the lane to the left of the ambulance".
14 I have already concluded that the inference that the drain was for surface water should not be drawn, and that the better inference was that it was installed to remove stormwater from the roof of the building which had been taken by downpipe to a sub surface drain running along the north-eastern side of the building between it and the lane.
15 These findings, in my judgment, bring the case squarely within the decision of this Court in Sisson v North Sydney Municipal Council (1966) 1 NSWR 80. There, in a reserved judgment, this Court held that the council was not liable for a dangerous situation created on a footpath within its area as a result of the construction in the footpath of a drain to convey stormwater from private property to the council gutter.
16 Their Honours considered the statutory framework under which highways, including footpaths, are vested in local authorities, the powers of such authorities under the Local Government Act 1919 with respect to such areas, the construction of private drains in them for the benefit of adjoining land-owners, and the liability of a council for a dangerous situation arising from a defective drain of this character.
17 The Court held that the council was not liable at common law as a highway authority, or because it had given permission for a private owner to construct the stormwater drain for his own purposes through a footpath to the carriageway, or because of the statutory framework under which it had the care, control and management of the footpath and statutory powers and functions with respect to such areas.
18 This decision was drawn to the attention of the learned trial Judge who felt able to distinguish it having regard to his finding that this drain had been constructed by the council. Having, for reasons already given, reached the conclusion that that finding was not reasonably open, it seems to me that this case is squarely covered by the decision in Sisson v North Sydney Municipal Council and the appeal must therefore succeed.
19 Searches have been made to determine whether Sisson's case has been considered by this or any other Australian Court and it appears that it has not. As I have said, on the findings of fact, which in my judgment should be made, that decision is directly in point. Having stood so long without being questioned it should be followed by this Court leaving the High Court, if so advised, to consider whether it should be overruled.
20 I therefore propose that the appeal be allowed with costs and the judgment of the District Court set aside. There should be consequential orders, including a certificate under the Suitors Fund Act, for the unsuccessful respondent.
21 The formal orders will be made after the other Judges have indicated their views.
22 POWELL JA: I agree to the orders proposed by Handley JA.
23 GILES JA: I also agree.
24 HANDLEY JA: The orders of the Court are:
(1) Appeal allowed with costs.
(2) Set aside the judgment of the District Court and in lieu thereof order that there be judgment for the defendant in the action.
(3) The plaintiff is to pay the defendant's costs of the action and of the appeal but is to have a certificate under the Suitors Fund Act in respect of the costs of the appeal.