HOLROYD MUNICIPAL COUNCIL v S FRYC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, SHELLER and CRIPPS JJA 3 December 1992, 15 December 1992 [1992] NSWCA 109 NEGLIGENCE — COUNCIL — NON-FEASANCE — MISFEASANCE — DIRECTIONS TO JURY Road negligently constructed — road vested in Council — no evidence as to who constructed road — whether Council liable for non-feasance — whether sufficient evidence for a jury to make a finding of misfeasance, Held: Council not liable for non-feasance — sufficient evidence to support jury finding of misfeasance. Directions to jury — whether trial judge erroneously described non-feasance as misfeasance. Held: judge in error — while evidence sufficient for jury to make finding of misfeasance summing-up left it open to the jury to make a finding on no more than non-feasance. ORDERS (1)Appeal allowed; (2) Judgment at first instance set aside and in lieu thereof order a new trial of the action; (3) Costs of the trial are to abide the result of the second trial subject to the discretion of the trial judge to make a different order; (4) The respondent should pay the appellant's costs of the appeal and is to have a certificate under the Suitors and Act in respect of those costs. Clarke JA Shortly after 7 pm on 8 March 1986 Solange Fryc (the respondent), who was then 71, fell when she stepped into a pot-hole in an unnamed street (which was described on a plan drawn in 1947 as Hawkesbury (Inner) Road) near the community shopping centre at Westmead. She suffered significant injuries and as a consequence sued the Holroyd Municipal Council (the appellant) alleging that her injuries had been caused by its negligence. The appellant admitted that the road was vested in it but denied that it had been negligent. In her statement of claim the respondent set out the particulars of negligence on which she relied in terms which, omitting particulars so general as to be of no practical use, included the following: "(iii) failed to construct in a proper and workmanlike manner the roadway so as to ensure that it would not collapse causing holes; (iv) failed to properly or adequately compact the road base when constructing the said roadway; (v) failed to inspect the said roadway in order to ensure that it had been properly constructed and had not subsided thereby causing a danger to pedestrians walking on the roadway; (vi) failed to repair the hole in the said roadway; (vii) failed to warn the Plaintiff of the danger of the pot-hole." At the trial the respondent proved beyond any shadow of doubt that there was a large pot-hole in the road close to the footpath and it was not in issue that the respondent fell because she stepped into the hole. What was in issue was whether the facts proved by the respondent established negligence on the part of the appellant. 2 UNREPORTED JUDGMENTS The appellant admitted that the road was vested in it, as the relevant local government authority, but there was no evidence that the road had been constructed by it. Not only did the evidence fail to disclose who had constructed the road but the absence of any evidence on this issue was conceded by the respondent. In those circumstances it is difficult to see how the respondent could have supported a case that the appellant failed to construct the road in a proper and workmanlike manner. Notwithstanding, the respondent did embark upon the task of establishing the negligent construction of the road. Indeed, subject to one matter which I will mention later, that was the only case she sought to make at the outset of the hearing. In order to establish that case she called a Mr Stephens who gave evidence to the effect that the pot-hole had been caused by inadequate or insufficient compaction of road base at the time of the construction of the road. It cannot be doubted that his evidence provided a firm foundation for a conclusion that the road had been negligently constructed. The problem from the respondent's point of view was that she was quite unable to prove that the appellant was the party responsible for that construction. No doubt because of this difficulty the respondent also sought to establish a case against the appellant upon the grounds set out in subpara(v)-(vii) of her particulars. These paragraphs raise a classical case of non-feasance. The difficulty with this case is that the established principle is that a body in the position of the appellant is, in respect of a highway, not liable for non-feasance (see Buckle v Bayswater Road Board (1937) CLR 259; Gorringe v Transport Commission (Tasmania) (1950) 80 CLR 357) and that principle has been applied frequently in this State (see, eg, Grafton City Council v Riley Dodds (Australia) Ltd (1956) SR 53; Florence v Marrickville Municipal Council (1960) SR 562; Bretherton v Hornsby Shire Council (1963) 63 SR 334.). Counsel for the respondent sought to overcome this principle by contending that since the decision of the High Court in Sutherland Shire Council v Heyman (1984-1985) 157 CLR 424 the distinction between misfeasance and non-feasance was no longer valid and it is open to an injured pedestrian to rely upon what counsel described as a breach of a general duty of care. The proceedings were heard by Conomos DCJ and a jury of four. At the end of the evidence the appellant sought a verdict by direction upon the grounds that there was no evidence of negligence. His Honour rejected the submission and ruled that there was evidence fit for submission to the jury. In the course of his reasons his Honour noted that the respondent had put forward an argument based on Heyman and in following the decision of this Court in Hill v The Commissioner for Main Roads ((1989) Aust Torts Reports 80-260) he rejected that argument. In Hill Samuels JA, in delivering the majority judgment, identified the proposition being advanced in these terms: "The first is that the doctrine of immunity for non-feasance can no longer be availed of by a highway authority, having been overtaken by more recent developments in the law of negligence and particularly by the decision of the High Court in Council of the Shire of Sutherland v Heyman and Anor (supra)" (at 68-785) Having identified the argument his Honour had this to say about it: " The first argument cannot, in my opinion, be sustained. I do not think it possible to deploy the reasoning in Council of the Shire of Sutherland v Heyman and Anor (supra) or in Parramatta City Council v Lutz (1988) 12 NSWLR 293 to construct an argument capable of abolishing a rule of law which is now so deeply entrenched." URJ HOLROYD MUNICIPAL COUNCIL v S FRYC (Clarke JA) 3 Having rejected this argument Conomos DCJ concluded that there was evidence to support a case of misfeasance which the respondent was entitled to have considered by the jury. His Honour's words were: "T propose to leave to the jury a case of misfeasance on behalf of the plaintiff, that is negligence in the defendant Council in not inspecting the hot mix surface from time to time and ensuring that any compaction which took place was quickly remedied. I do so on the basis, not of non-feasance, but of misfeasance. The Council having undertaken positive work on this roadway by resurfacing and its servants and agents knowing that compaction could take place and that cracking of the surface can take place was on notice that perhaps after the expiration of a period of 15 to 20 years, which is said to be the life of a surface of a hot mix bitumenous surface. Some repairs would be necessary". Following this ruling his Honour summed up to the jury and, after a period of deliberation, the jury found that the appellant had been negligent and awarded the respondent damages of $25,867.73. In its further supplementary notice of appeal the appellant raised eight grounds, six of which would, if successful, lead to a new trial. The other two grounds were, in essence, different ways of stating the same proposition, viz that there was no evidence of negligence upon which the jury could have found the appellant negligent. If these two grounds are sustained then the appropriate order is a verdict for the appellant in the action. The primary argument advanced by the appellant was that the absence of proof that the appellant had constructed the road was fatal to any claim of misfeasance. This is undoubtedly a compelling argument because the whole thrust of the evidence of Mr Stephens, the respondent's expert, was that the pot-hole resulted from negligent construction. Nonetheless, and for reasons somewhat different from those articulated by the trial judge, I have concluded that there was evidentiary material upon which the jury would have been entitled to find that the appellant was liable upon the basis of misfeasance. That evidence can be shortly stated and involves acceptance of parts of the evidence of Mr Stephens, the rejection of other parts of his evidence and the acceptance of part of the evidence which emerged in the appellant's case. Broadly speaking it was, in my opinion, open to the jury to conclude that: (1) The pot-hole resulted from inadequate compaction of roadbase. (2) That in 1967 the appellant had resealed the roadway by applying hot mix. The evidence of this appeared in a note extracted from the appellant's files which read "At shops - re seal: 1967 - hot mix - Note: This is road near shops Hawkesbury Lane". (3) Although there was little evidence as to what was involved in a reseal with hot mix there was evidence that if at the time of resealing there had been holes in the road it would have been necessary for those holes to be filled and the filling compacted before the new surface was applied. (4) That if filling had not been properly compacted pot-holes were likely to occur. (5) The Council records did not descend to the detail of describing the work actually carried out in the resealing nor did they record the filling of any existing holes or pot-holes. In my opinion those facts enabled the jury to conclude as a matter of probability that if the work done in 1967 had been done properly the pot-hole would not have appeared and, as a consequence, that the appellant had been negligent in performing the work at that time. Senior counsel for the appellant 4 UNREPORTED JUDGMENTS raised a number of arguments why this conclusion was not open. He contended that Mr Stephens had given evidence that the cause of the pot-hole developing was unrelated to the hot mix resealing and that that was the only relevant evidence on the subject. However, I would understand Mr Stephens to have been saying that the actual re-sealing did not cause the pot-hole to develop. I do not think he was expressing any opinion on the prospect that the failure properly to carry out compaction work that might have been required at the time of resealing might have led to the development of the pot-hole. In any event it was open to a jury to reject that part of Mr Stephens' evidence and to accept his opinion that the pot-hole was caused by insufficient compaction and, in conjunction with the other evidence to which I have referred, conclude that negligence had been established. While I would accept that the evidence of negligence was slight I think it was sufficient to enable a jury to reach that conclusion. The other grounds of appeal asserted a perversity on the part of the jury and misdirections by his Honour. In my opinion the appellant has made out one of its grounds of misdirection and in these circumstances it is unnecessary to consider the other grounds. I have already recorded a portion of his Honour's judgment on the application for a verdict by direction. The complaint made by the appellant in regard to the statement I have recorded was that his Honour erroneously described what was, in essence, non-feasance as misfeasance. That submission was, in my opinion, sound. In Buckle v Bayswater Road Board (supra) Dixon J (as he then was) said (at 281-2): "Tt is well settled that no civil liability is incurred by a road authority by reason of any neglect on its part to construct, repair or maintain a road or other highway. Such a liability may, of course, be imposed by statute. But to do so a legislative intention must appear to impose an absolute, as distinguished from a discretionary, duty of repair and to confer a correlative private right... The purpose of giving the road authority property in and control over the road is to enable it to execute its powers in relation to the highway, not to impose upon it 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." What the trial judge found in this case was that there was misfeasance on the part of the appellant in not inspecting the hot mix surface from time to time and ensuring that any compaction (failure) which took place was quickly remedied. That is a clear statement of non-feasance and was, in my opinion, erroneous. That error is not of great consequence upon the question whether there was evidence fit for submission to the jury but if it had intruded into the summing-up would clearly have led to misdirection of the jury. In many respects, however, the summing-up proceeded upon the basis that the respondent's case was that the appellant had been negligent in failing to ensure that when it undertook the resealing in 1967 it had properly compacted the surface of the roadway. If the directions had been restricted to this case then I would not consider that there had been any misdirection. Unfortunately, his Honour expanded his explanation of the case made by the respondent to include an allegation that there had been a failure properly to maintain the road. Having said that the respondent alleged a failure properly to compact the surface at the time of the laying of the hot mix his Honour proceeded: URJ HOLROYD MUNICIPAL COUNCIL v S FRYC (Clarke JA) 5 "Then concomitant with that twin duty, both before and after the application of the hot mix bitumen, because of the aging process of bitumen surfaces, to ensure that through compaction pot-holes did not appear. She maintained that the underlying basis which caused the pot-hole in question was poor compaction AND THAT WHEN YOU COUPLE THAT WITH A FAILURE TO SUPERVISE PROPERLY BY THE DEFENDANT, THROUGH ITS SERVANTS AND AGENTS, NEGLIGENCE IS ESTABLISHED." (my underlining) It was argued that this direction referred to a failure to supervise at the time of the laying of the hot mix surface in 1967. Superficially, that appears to be an attractive argument despite the fact that his Honour referred to the periods before and after the application of the hot mix bitumen. However, I do not think it is correct. Having made the statement I have set out his Honour defined negligence in fairly conventional terms as the failure "to do what one would expect a reasonable person to do in all of the circumstances or the doing of an act which a reasonable person would not do in all of the circumstances" and then referred to the appellant's case. The way his Honour put that case was that the appellant was contending that it would be unreal to expect it to exercise a supervisory jurisdiction to ensure that it covers every pot-hole or every other fracture in surfaces within the municipality. It seems to me that in the way his Honour described the issue between the parties he was leaving it open to the jury to find for the plaintiff upon the basis that the appellant had failed to ensure that if pot-holes appeared they were quickly remedied. I do not suggest that the direction is entirely clear but I have come to the conclusion that the better view is that his Honour was leaving it open to the jury to find for the respondent even though it could find no more than a case of non-feasance. Whether or not the matter is free from doubt there remains the fact that at no stage did the learned trial judge direct the jury that in order to find for the respondent it had to be satisfied that the appellant had been negligent in the re-sealing procedure which took place in 1967 and that any failure on the part of the appellant to detect and rectify pot-holes after that time would constitute non-feasance for which the appellant was not liable. In short there was no clear direction to the jury that the appellant was liable only for misfeasance, nor a description of the misfeasance for which it could be liable, nor a clear direction that it could not be liable for non-feasance. In the circumstances, and with some regret, I am bound to conclude that the trial judge's misconception of the distinction between non-feasance and misfeasance led him to misdirect the jury. The respondent has argued that nonetheless there should not be a new trial because the appellant failed to seek a redirection in clear terms and the court could not be satisfied that there had been any miscarriage of justice (see SCR R16). I am unable to uphold the submission for counsel for the appellant clearly took the position, both prior to the summing-up and after it, that the appellant could not be liable for a failure to maintain the roads. Indeed when counsel for the appellant informed his Honour at the conclusion of the summing-up that he maintained the submission that the case was one of non-feasance and not misfeasance his Honour indicated in terms which I think are clear enough that he would not redirect the jury and added "Your position is protected in that regard". In my opinion it is unrealistic to have expected the appellant's counsel to have sought any further redirection and the terms of his Honour's summing-up led, in my respectful opinion, to the miscarriage of which the rule speaks. In these circumstances the following orders should be made: 6 UNREPORTED JUDGMENTS (1) Appeal allowed; (2) Judgment at first instance set aside and in lieu thereof order a new trial of the action; (3) Costs of the trial are to abide the result of the second trial subject to the 5 discretion of the trial judge to make a different order; (4) The respondent should pay the appellant's costs of the appeal and is to have a certificate under the Suitors Fund Act in respect of those costs. Sheller JA I have had the benefit of reading the judgment prepared by Clarke 10 JA. I agree with the orders proposed and the reasons for them. Cripps JA I agree with the orders of Clarke JA and with his reasons. (1) Appeal allowed; (2) Judgment at first instance set aside and in lieu thereof order a new trial 15 of the action; (3) Costs of the trial are to abide the result of the second trial subject to the discretion of the trial judge to make a different order; (4) The respondent should pay the appellant's costs of the appeal and is to have a certificate under the Suitors and Act in respect of those costs. Counsel for the appellant: P Deakin QC and DS Wilkins Solicitors for the appellant: Audrey Lee 25 Counsel for the respondent: JE Rowe Solicitors for the respondent: Coleman and Greig, Parramatta3545