CAMPBELLTOWN CITY COUNCIL v CRAIN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, POWELL JJA and SHEPPARD AJA 9 October 1998, 23 October 1998 [1998] NSWCA 50 Highways — Negligence and nuisance — Injuries to user of highways — Liability of highway authority — In respect of what matters Highways — Negligence and nuisance — Injuries to user of highways — Liability of highway authority Nonfeasance and misfeasance Meagher JA I agree with Powell JA. Powell JA This is an appeal from a verdict found, and judgment entered, by Carling DCJ on 12 February 1997 in proceedings which had been brought by the Respondent to recover damages in respect of injuries which had been sustained by the Respondent when she fell while walking along a footpath in Railway Street, Ingleburn, the title to which street, so it seems to have been accepted, was, at the time, vested in the Respondent as the appropriate roads authority. The Respondent's claim, which was founded in negligence, evidenced a common enough misunderstanding as to the circumstances in which a roads authority, such as the Appellant, may be held liable in damages to a person who has suffered injury in an accident said to have been caused by the condition of a road the title to which is vested in it. The Statement of Claim, which was filed on behalf of the Respondent only a little more than a month after the accident in which she was injured, alleged (inter alia) (AB 4): "3. Whilst the Plaintiff was present upon the said footpath she fell due to the nature of the footpath and consequently suffered injury disability loss and damage. 4. In the circumstances the Defendant was under a duty of care to Plaintiff and was in breach thereof and was negligent. Particulars of negligence a) Failing to take any or any adequate precautions for the Plaintiff's safety; b) Putting the Plaintiff in a position of peril in the circumstances; c) Failing to maintain or adequately maintain the said footpath; d) Allowing the said footpath to fall into disrepair; e) Failing to adequately grade and drain the said footpath area with a result that the area whether the Plaintiff fell had collapsed; f) Failing to warn or adequately worn (sic) the Plaintiff of the condition of the said footpath; g) Failing to prevent by means of ropes, barricades or otherwise persons such as the Plaintiff from walking into the area of the said footpath; h) Failing to devise institute and maintain a proper and safe system of repair of footpaths." 2 UNREPORTED JUDGMENTS Contrary to what appears to have been the understanding of the draftsman of that Statement of Claim, it is not the case that a road authority is liable in damages to those who have suffered injuries in accidents caused by the failure of the road authority to maintain roads in a proper repair. The law, in this regard, was discussed by Dixon J (as he then was) in Buckle v Bayswater Road Board ((1936) 57 CLR 259) where his Honour said ((supra) at 281- 282): "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. 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 it 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 highways. Striking illustrations are to be found in the facts of some of the cases in which such attempts have been defeated. In Cowley v Newmarket Local Board ([1892] AC 345) the road authority had failed to reconstruct a dangerous footpath and had, on the contrary spread its surface. A ramp existed across the footpath into an adjoining owner's premises. It fell to a depth of eighteen inches below the path which was retained by a low wall. Thus pedestrians were confronted with a sheer drop in the footway of a foot and a half. The road authority gravelled the footpath for its whole width and otherwise left the danger. The House of Lords, affirming the Court of Appeal ((1890) 7 TLR 29) and Denman J ((1890) 6 TLR 321) decided that a pedestrian who fell into the trap by dark had no cause of action against the road authority. However, a road authority's immunity from suit exists only in respect of liability for accidents caused by nonfeasance, and does not extend accidents caused by misfeasance. The distinction was dealt with by Dixon J in Buckle v Bayswater Road Board in the following way ((supra) at 283-285): "But while a road authority owes to members of the public using a highway no duty to undertake active measures whether of maintenance, repair, construction or lighting in order to safeguard them from its condition, on the other hand it possesses no immunity from liability for civil wrong. It is, of course, a civil wrong to cause particular damage by obstructing a highway, or by making it unsafe or dangerous. Interferences with a highway which in themselves would be unlawful in a stranger are as a rule authorised acts when done by a road authority. But a road authority in doing them must take care for the safety of those using the highway and is not protected if it creates dangers which reasonable care and skill could avoid. Because the road is under its control, it necessarily has an opportunity denied to others for causing obstructions and dangers in highways. But when it does so, the road authority is liable, not, I think, under any special measure of duty which belongs to it, but upon ordinary principles. These principles include the rule that to render the highway unsafe is to commit a nuisance, and that to execute authorities works without due care and skill for the safety of others leaves an action to anyone who suffers a consequential injury. It URJ CAMPBELLTOWN CITY COUNCIL v CRAIN (Powell JA) 3 is evident that even if what otherwise might be an obstruction or danger is created on the highway, it may be made relatively harmless by the use of some additional precaution, such as guarding or lighting. If the precaution is discontinued, consequences may ensue which up to that time had been intercepted. For these consequences the road authority will be liable in damages. But it will be liable not on the ground that it failed to exercise its power so as to prevent them, but on the ground that it was the active agent in causing an unnecessary danger in the highway. The improper nature of the original act of the road authority must always be the foundation of the complaint against it. Cases in which but for continual subsequent safeguards the work actively done by the road authority would make the highway dangerous must be distinguished from the very different class of case in which the operations of the road authority put the highway in a condition perfectly proper and safe, but liable in the course of time through wear and tear and deterioration to become unsafe. Whenever an artificial road surface is provided, neglect to maintain it is likely to result in its destruction by wear and weather. Its last condition may be expected to be worse than its first. But these considerations do not throw upon the road authority which fails to maintain a road any civil liability for the consequences, although at the time of construction they might have been foreseen. If judged according to the standards of the time and the circumstances then prevailing, the design and execution of the work were not improper or unsafe, the development of a defective or dangerous condition of the highway is to be attributed to the failure to maintain or repair, which involves no civil liability for particular damage. It cannot be regarded as a dangerous condition 'caused by', because necessarily resulting from, the original construction of the roadway." It should, however, be noted that the mere tact that a road authority has done something to a road does not convert a case, which would otherwise be one of nonfeasance, into one of misfeasance, for the execution of superficial repairs, for example, does not attract liability, unless it has in fact increased the risk of accidents. That this is so is shown by the following passage from the Judgement of Latham CJ in Gorringe v The Transport Commission (Tas) ((1950) 80 CLR 357, 363-4): "Tn the second place, the plaintiff contended that in the present case there was misfeasance because the Commission did not simply leave the road alone; it did repair the surface of the road, and it is contended that there was negligence in the repairs so effected. In East Suffolk Rivers Catchment Board v Kent ([{1941] AC 74, 102) Lord Romer stated the law in the following manner: 'Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. If in the exercise of their discretion they embark upon an execution of the power, the only duty they owe to any member of the public is not thereby to add to the damages that he would have suffered had they done nothing.' Thus the Commission was not bound to repair the road, but if it did repair the road it was under a duty to repair it without negligence. If the Commission repaired the road negligently in such a way as to create a danger or to add to danger and damage was thereby caused to persons lawfully using the highway the Commission became liable for that damage. 4 UNREPORTED JUDGMENTS In the Supreme Court and in this Court it was argued that the dip in the road demonstrated the need for radical repair of the culvert and that the Commission only made superficial repairs on the road surface from time to time. This course of action, it was said, was more than nonfeasance and amounted to misfeasance. But the very statement of the argument shows that such a complaint is a complaint that the Commission failed to exercise in full measure the power to repair the road which it possessed. Such a failure is only nonfeasance. (see also Kirk v Culcairn Shire Council (1964) 64 SR 281). Since, in order that it might be charged with misfeasance, a road authority must have been an active agent in creating, or adding to, an unnecessary danger in the highway (Bretherton v Council of the Shire of Hornsby (1963) 63 SR 335; cf Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232) such an authority is not liable for a predecessor's misfeasance (Baxter v Stockton Corporation [1959] 1 QB 441; Florence v Marrickville Municipal Council (1959) 60 SR 562). Given the particulars of negligence relied upon by the Respondent in the Statement of Claim which was filed on her behalf and the principles of law applicable to a case such as this was said to be, it was, in my view, inevitable that the Respondent's claim should fail unless she was able to demonstrate that, by its actions, the Appellant had created a danger where one had not previously existed or had increased the risk of injury to which pedestrians lawfully using the footpath would otherwise have been exposed. This, regrettably for the Respondent, she was, in my view, unable to demonstrate. The description of the accident and the circumstances in which it occurred contained in the Respondent's oral evidence was not extensive. So far as is relevant it was as follows (AB 20-21): "Q. And as you walked along did something happen to you? A. Yes I fell over. Q. Just describe for me please how you fell over. You were walking along? A. I was walking along on the footpath and somehow my foot just over, my ankle. (sic) Q. Did you actually fall to the ground? A. Yes. Q. How did you fall, just describe which bits of your body hit the ground? A. I fell forward onto my hands. Q. Now after you had fallen did you notice something about the state the footpath? A. Yes there was a lot of cracks in it on the side. Q. And I think you returned to the scene did you not within a couple of days? A. Yes. Q. About how many days? A. Three days. Q. And you were there whilst some photographs were taken of the area? A. Yes. Q. Can I show you another photograph. Is that a photograph taken on the same day? A. Yes. URJ CAMPBELLTOWN CITY COUNCIL v CRAIN (Powell JA) 5 Q. And does it show the slab of concrete on which you fell? A. Yes. Q. You can see the cracks in that slab of concrete, is that right? A. Yes. Q. On the day you attended you had a look at what was in those crack? A. Yes. Q. And what was there? A. There's concrete. Q. I would like you please to put a cross on that photograph showing the place where you fell? Q. Now can you just describe for me please what happened to your foot, just before your fell. You were walking along. What happened to it? A. Walking along and my foot just went over the side. Q. And the point at which it went over to the side that you have drawn on with the X are you able to say anything about the height of the concrete in that area compared to the earth on the side? A. It was lower down. Q. Which was lower down? A. The dirt part." (The cross placed by the Respondent on the photograph referred to in this part of the evidence is right on the edge of the footpath on the side nearest the carriageway) Even if it is open to treat the Respondent's evidence as indicating that her fall was brought about by the deteriorated condition of the footpath rather than that her fall was caused when she placed her foot on the edge of the footpath and turned her ankle, there is, in my view, nothing in the Respondent's evidence to indicate that any repair work had been carried out to the footpath; that, even if there had been repair work carried out to the footpath, it had been carried out by the Appellant's employees; that, even if there had been repair work to the footpath carried out by the Appellant's employees, that repair work had created a danger or had increased a danger which already existed; or that the condition of the footpath had been the cause of the plaintiffs accident. Despite this, when he came to deliver Judgment, Garling DCJ said (AB 29-31): "T find that as she walked along the footpath, her foot got in an area which was cracked and which had been repaired in such a way that it was not safe. There is no direct evidence in this case of that repair and indeed it would be very difficult, I suppose, for the plaintiff to produce such evidence. But there is the clearest of inferences that what has happened is that this area has broken up and that those who have control of it have attempted to repair it. It was very significant in this case that the defendant elected to call no evidence. The defendant was a council and there could be no doubt that they had records which would have indicated what had happened in this area and that they could have called, if they wished to, witness (sic) or witnesses concerning this area. As a result of their failure to call those witnesses when I would expect that they would have been called, I am entitled to assume that they did not have witnesses who could have taken their case any further. 6 UNREPORTED JUDGMENTS There was at the end of the case an argument about nonfeasance and misfeasance. I am not satisfied that this is such a case. It is one of those cases where the council, in my view, elected to repair the footpath. It was their repairs which caused the accident and therefore the plaintiff is entitled to succeed. I find that the council was negligent in the way they repaired the footpath and they were negligent in not ensuring after such repairs that this area was safe for ordinary people to walk along. I should add it is unusual, to say the least, that someone walking along a footpath would suddenly go forward in such a way that they have no control over their body. I can understand that if they tripped on some object, but that is not the evidence here. The evidence here is that it is caused by the way the footpath was either constructed or repaired. For that to happen, in my view there has to be something seriously wrong." In dealing with the matter in this way Garling DCJ, in my view, misdirected himself. Far from giving rise to a legitimate inference that the Respondent's accident had been caused as the result of some danger created by the Appellant that evidence was left in such a state that one could but speculate as to how it was that the accident occurred and what it was which had caused it. This being so, the fact that the Respondent did not tender evidence was irrelevant, for it is clear law that "no person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against them, in the absence of explanation or contradiction" (R v Burdett (1820) 4 B and Ald 95, 161; 106 ER 873, 898 per Abbott CJ). Far from this being a case in which it was open to Garling DCJ to find a verdict and enter judgment in favour of the Respondent, the case was one in which his Honour should have found a verdict and entered judgment in favour of the Appellant. The Orders which I propose are as follows: 1. ORDER that the appeal be upheld. 2. ORDER that the verdict and judgment in the District Court be set aside and that, in lieu thereof, judgment be entered in favour of the Appellant. 3. ORDER that the Respondent pay the Appellant's costs of the trial at first instance and of the appeal but, if qualified, have a Certificate under the Suitors Fund Act 1951. Sheppard AJA In this matter I have had the advantage of reading the judgment to be delivered by Powell JA. I am in agreement with his Honour's reasons and conclusions, and with the orders which he proposes. 1. ORDER that the appeal be upheld. 2. ORDER that the verdict and judgment in the District Court be set aside and that, in lieu thereof, judgment be entered in favour of the Appellant. 3. ORDER that the Respondent pay the Appellant's costs of the trial at first instance and of the appeal but, if qualified, have a Certificate under the Suitors Fund Act 1951. Counsel for the appellant: L J Ellison Solicitors for the appellant: Paul Ward-Harvey & Co Counsel for the respondent: W Baffsky URJ CAMPBELLTOWN CITY COUNCIL v CRAIN (Sheppard AJA) Solicitors for the respondent: Brydens Law Office (Liverpool)