Reported Decision : 102 LGERA 399 New South Wales Court of Appeal CITATION : GHANTOUS v. HAWKESBURY CITY COUNCIL [1999] NSWCA 51 FILE NUMBER(S) : CA 40744/96 HEARING DATE(S) : 18 February 1999 JUDGMENT DATE : 14 April 1999 PARTIES : CATHERINE GHANTOUS (Appellant/Cross Respondent) HAWKESBURY CITY COUNCIL (Respondent/Cross Appellant)) JUDGMENT OF : Handley JA at 1; Powell JA at 2; Giles JA at 76 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 12157/91 LOWER COURT JUDICIAL OFFICER : Freeman DCJ COUNSEL : A.S. Morrison SC/R. V. Letherbarrow (Appellant/Cross-Respondent) D. L. Davies SC (Respondent/Cross-Appellant) SOLICITORS : Stacks - The Law Firm with Goudkamp Mahony (Appellant/Cross-Respondent) Phillips Fox (Respondent/Cross Appellant) CATCHWORDS : 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 DECISION : Appeal dismissed;; Cross-Appeal allowed. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40744/96 DC 12157/91 HANDLEY JA POWELL JA GILES JA 14 April 1999 GHANTOUS v. HAWKESBURY CITY COUNCIL JUDGMENT 1 HANDLEY JA: I agree with Powell JA. 2 POWELL JA: This is an appeal and cross-appeal from a Judgment delivered and verdict found by Freeman DCJ on 21 November 1996 in the District Court in proceedings in which the Appellant sought to recover from the Respondent damages for injuries which she sustained in July 1990 when she fell while walking on a cement footpath in Kable Street, Windsor. 3 Since the basis upon which the Appellant sought to found her claim for damages, and the bodies from which the Appellant sought to claim damages, varied over the years up to the time when the hearing of the proceedings before Freeman DCJ in June and August 1996, it is convenient that I pause, here, to provide a little more background material than would normally be thought necessary in a case such as this. 4 Windsor lies within the boundaries of the Hawkesbury City Council ("the Respondent"). Its main commercial street is George Street which runs in a direction from North East to South West while, for reasons which will shortly appear, the main traffic street, these days, is Macquarie Street, which is to the South East of, but parallel with, George Street and which diverts traffic away from George Street and carries it to Richmond Road or to South Windsor. Kable Street runs in a North Westerly direction from Macquarie Street across George Street and thence down a hill to The Terrace which runs in a roughly parallel way along the South bank of the Hawkesbury River. 5 In 1984 the Respondent, then known as the Hawkesbury Shire Council, determined to convert part of George Street - between Baker Street - which also runs between Macquarie Street and The Terrace - which is to the North East of Kable Street and Fitzgerald Street - which also runs between Macquarie Street and The Terrace - which is to the South West of Kable Street - into a pedestrian shopping mall, which seems to have come to be known as the Windsor Mall or the George Street Mall ("the Mall"). 6 In connection with that project the Respondent retained the services of a company then known as Environmental Landscapes Pty. Limited, but seemingly later known as Environment and Planning Pty. Limited ("Environment"), a company apparently carrying on a business in landscape design and construction to provide it with design services in relation to the Mall. Environment, in its turn, seems then to have recommended to the Respondent that it retain the services of Ove Arup Consultants Pty. Limited, Ove Arup Pty. Limited, and Arup Partners Pty. Limited, companies apparently carrying on business as consulting engineers under the style of Ove Arup and Partners ("Arup") (inter alia) to design and to provide contract documents for all drainage associated with the Mall and to provide surface levels and structural details for all paving throughout the Mall area. 7 As best as one can judge it from such materials as were before the Court (see, for example, Exhibit "G" - AB 388-389), prior to the construction of the Mall the dimensions of each of George Street and Kable Street - each of which appears to have been kerbed and guttered - were similar. Although the materials which are before the Court do not provide precise dimensions, such materials as there are (see, for example, AB 380-381) suggest that, at the time, the carriageway of each of George Street and Kable Street may have been of the order of 11 metres (approximately 36 feet) and the distance between the kerb line and the building line on each side of each street about 2.75 metres (approximately 9 feet). 8 Although Exhibit "G" (AB 388-389) suggests that George Street may have been fully paved from kerb line to building line on each side of the street, the North Eastern side of Kable Street running down the hill from George Street towards the Terrace - that, for present purposes, being the only side of the street which is relevant - was not so paved; rather, commencing at the edge of what appears to have been the prolongation of the building line on the Northern side of George Street was a cement footpath, about 1.2 metres (approximately 4 feet) wide running in the direction of the Terrace, that footpath being located centrally between the kerb line and the building line on the North Eastern side of Kable Street leaving unsurfaced strips of equal width on each side. 9 Although the materials which were before the Court did not disclose when it was that the footpath was constructed, and although, when the proceedings were commenced, the Appellant appeared to assert that the footpath had, more recently, been reconstructed, by the time the proceedings came on for hearing, it seems to have been accepted that the footpath had been originally constructed in excess of 30 years before, that it had not been reconstructed as had earlier been alleged; and that, at the time when the footpath was constructed, it was of a conventional width and was constructed in accordance with appropriate standards of construction. Nor does it appear to have been in dispute that, at the time of the accident the cement footpath - as opposed to the unsealed strips on each side - was in good condition. 10 As best as I can judge it, the work of construction of the Mall at and near the intersection of George Street and Kable Street included the removal of the kerbing and guttering in George Street, and the removal of the kerbing and guttering on each side of Kable Street for a distance of about 8.25 metres (about 27 feet) both to the North and the South of the intersection of George Street and Kable Street. Where the kerbing and guttering in Kable Street was removed, there was installed what might be called a planter box about 2.2 metres (approximately 7 feet) wide thus narrowing the carriageway of Kable Street in the area of the intersection by about 4.4 metres (approximately 14 feet). What had previously been the carriageway of George Street was paved with brick paving which was carried out into the carriageway of Kable Street to a line representing the prolongation of the outer edge of each set of planter boxes. Adjacent to each set of planter boxes appears to have been installed what is described as a pram ramp and there appears to have been installed, as well, on each side of Kable Street a ramp to permit the entry to and egress from the Mall of vehicles servicing the various commercial establishments fronting the Mall. The brick paving appears to have been carried from George Street for a short distance - it is suggested, about 3 metres (about 10 feet) into Kable Street, to enable which to be done part of the original cement footpath on the North Eastern side of Kable Street near what had been the building line in George Street was removed. Associated with the works which I have just described, there were installed extensive drainage works intended to collect storm water draining from the various commercial establishments fronting the Mall and storm waters falling on the Mall itself and carrying them to a storm water pit and thence by a 300 mm pipe to the drainage line in Kable Street. 11 There is not the slightest evidence that any of the works which I have described was carried out in other than a proper and workmanlike manner. 12 Despite the fact that Associate Professor Yandell - whose evidence was tendered at trial on behalf of the Appellant - asserted that the design of the drainage from the Mall was inadequate and that, upon the installation of the Mall, water would have been collected and discharged down the unsealed strips adjacent to the cement footpath on the North Eastern side of Kable Street so as to cause the scouring of those strips, other evidence which was tendered at the trial, which evidence was accepted by Freeman DCJ, demonstrated that that opinion was untenable. 13 Although it seems (AB 422) that, prior to the construction of the Mall, the Respondent had developed off-street car parks adjoining Kable Street and Baker Street at the Northern end of each such street, it would seem that those car parks were not developed in association with any development of shops on the Eastern side of Kable Street between the Mall and the Terrace. However, it would seem that, after the completion of the Mall, and in about 1985 the Council granted development approval for the construction on a site facing Kable Street of a supermarket, the Southern boundary of the site upon which the supermarket was to be constructed being about 50 metres North of the Northern building line in the George Street Mall - although it is not clear that this was so, it seems likely (AB 430) that, by the time the proceedings came on for hearing before Freeman DCJ, the supermarket had been extended. It would appear that either at the time when the initial stage of the supermarket was constructed, or later, provision had been made for off-street parking - both on the apron around, and under, the building - on the supermarket site. 14 Although both Associate Professor Yandell (see AB 379, 387) and Mr. Buckland, a consulting engineer whose evidence was also tendered on the hearing on behalf of the Appellant (AB 391-398), appeared to assert that the Council's actions in constructing the Mall and in approving the supermarket development greatly increased pedestrian and shopping trolley traffic in Kable Street and placed excessive demands on the cement footpath on the North Eastern side of Kable Street, other evidence (see AB 427), which evidence was accepted by Freeman DCJ (AB 552, 559-560), was to the effect that the development of the Mall had a minimal impact on pedestrian movement; that the Eastern footpath in Kable Street at the time was adequate for the pedestrian movement generated from the Mall; and, further, that, although the development of the supermarket increased the pedestrian movement on the Eastern footpath of Kable Street, the increase was well within the acceptable level of service criteria for pedestrian pathways. 15 Although, as I have earlier recorded, it does not appear to have been disputed on the hearing before Freeman DCJ that, at the time when the Appellant had her accident, the cement footpath in Kable Street was still in good condition, it is clear that, at that time, the unsealed strips on each side of the footpath had become degraded, the strips being virtually denuded of grass, the surface of the strips being about 30 mm or so below the level of the cement, and the soil within each strip being uneven (see, for example, Exhibit J, AB 399-401, Exhibit 2, AB 402) that, so the Appellant said (AB 179), having been the position for some years or so prior to the accident. 16 Although the evidence which was given by the Appellant (AB 107, 122) was rather cryptic, it would appear that, on the day in question, the Appellant, whose home was - and perhaps still is - in Anschau Crescent, a short distance to the South of Macquarie Street and very close to Kable Street was, as she seems to have been accustomed to do (AB 104), walking along the North Eastern side of Kable Street to go shopping at the supermarket - at the time the Appellant had reached a point beyond where the paved brick return from the Mall extended into Kable Street (see Exhibit 9 ab 445,451), and was walking on the cement footpath toward the edge of the footpath on her right hand side. At the time, so the Appellant said (AB 107) she noticed two women approaching her on the footpath from the direction of the supermarket and, having done so, she moved a little to her right and "(her) feet actually come half on the dirt and half on the concrete and it twist, when (she) twist (she) went down and fall over … (she) land on (her) face and concrete, (her) head, (her) arm underneath (her), (she) saw the right arm broke and the left was very sore and (she) couldn't move 17 As a result of her fall the Appellant, so she said (AB 4-5), suffered a crush injury to her right upper arm, a full thickness tear of the rotator cuff muscle of the right shoulder, fracture of the bone at the base of the nose, injuries to her teeth and gums, multiple soft tissue injuries to her teeth and gums, multiple soft tissue contusions, bruising and abrasions, the detail of which are not necessary to record here. 18 The proceedings were commenced on 10 October 1991 at which time only the Respondent was joined as a party-Defendant. In the Statement of Claim which was then filed on behalf of the Appellant, it was asserted (inter alia) (AB 2-4): "2. At all material times the defendant had the due care and control of the footpath adjacent and parallel to Kable Street, Windsor in the said State and next to the offices of Paine, John J. Ross & Co. (sic) ('the footpath'). 3. The footpath was originally constructed by or at the direction of the defendant in a manner to ensure that the footpath was level between the gutter adjacent to Kable Street ('the gutter') and the wall of the offices of Paine John J. Ross & Co. (sic) ('the wall'). 4. At some date later to its original construction and before 10 July 1990 the footpath was reconstructed by or at the direction of the defendant in such a form that the reconstructed footpath was unlevel (sic). Particulars The reconstructed footpath comprised the following: (a) a level cement path, the width of which is approximately half of the distance between the gutter and the wall; and (b) dirt, approximately one (1) inch lower than the cement path between the cement path and the gutter and between the cement path and the wall. 5. On 10 July 1990, the plaintiff was walking on the cement path from George Street, Windsor towards the Hawkesbury River when she was occasioned (sic) to walk on the right side of the cement path due to other people walking on the cement path in the opposite direction. 6. At this time, her right or left foot stepped onto the edge of the cement path and the air directly above the dirt between the cement footpath and the wall causing the plaintiff to fall and to be injured. 7. The defendant owed a duty to the plaintiff to properly design, construct, repair and reconstruct the footpath. 8. The defendant was at all material times under a duty of care to the plaintiff to provide a safe means of access on the cement footpath. 9. The defendant breached its duty of care to the plaintiff in that it failed to properly design, construct, repair and/or reconstruct the footpath. Particulars pursuant to Part 9 r 22 The defendant by its servants or agents was negligent in that it (a) Failed to properly design the footpath; (b) Failed to properly repair the footpath; (c) Failed to properly construct the footpath; (d) Failed to properly reconstruct the footpath; (e) Created a hazard and unseen danger; (f) Failed to take any or any adequate or effective precautions for the safety of the plaintiff; (g) Exposed the plaintiff to a risk of injury which could have been avoided by the exercise of reasonable are (sic) and due diligence. (h) Caused or permitted the footpath to be or to become or to remain a danger and a trap to persons lawfully using the same; (i) Failed to give the plaintiff any or any adequate or effective warning of the presence of the danger and trap; (j) Permitted the plaintiff to walk along the footpath when it knew or ought to have known that it was unsafe and dangerous for it to do so; (k) In the premises failed to discharge the common duty of care to the plaintiff; (l) Failed to employ or sub-contract competent persons to supervise the design, construction, repair or reconstruction of the footpath; 10. Further or in the alternative the matters complained of constitute a nuisance by the defendant." 19 I pause here to observe that the form of the Statement of Claim reflects not only the draftsman's misapprehension as to the factual situation relating to the construction of the cement footpath but also his lack of understanding as to the legal principles applicable to road authorities such as the Respondent. In this respect it is sufficient to note that it is not the case that a road authority is liable in damages to those who have suffered injury in accidents caused by the failure of the road authority to maintain roads in proper repair. The immunity of a road authority in this respect negates both a general duty to repair (sounding in nuisance) and any specific obligation to exercise care in control and management even with respect to known dangers (negligence). 20 That immunity is reinforced by the authorities which demonstrate that, even if a duty to repair or to keep in repair a highway or highways is imposed by statute on a road authority, that duty is not enforceable by action at the suit of any person injured as the result of the failure to repair the highway or to keep it in repair until the statute makes it clear by express provision or necessary implication that that duty is to be enforceable by action at the suit of such person. 21 In December 1991, the Respondent's solicitors having first sought and been given further and better particulars of the Appellant's Statement of Claim, wrote to the Appellant's then solicitors a letter (AB 495-496) which concluded (AB 496): "Having had further time to consider the allegations made and your particulars we are of the opinion that your client cannot succeed in this action, there having been nothing negligent in the initial design or construction of the footpath. As a result our client owes no duty to your client to maintain or repair the footpath. Would you please obtain instructions on discontinuing the claim and advise us of those." 22 The Respondent's solicitors wrote to the Appellants then solicitors again on 18 May 1992, that letter (AB 500-501) being as follows: "We refer to our letter dated 16 April 1992. We note that in your letter dated 29 January you confirmed that you were seeking the opinion of an engineer in respect of the issues raised in our letter dated 23 December 1991. We have not received a copy of the engineer's opinion supporting your client's allegations. In the circumstances we are of the opinion that your client cannot succeed in this action, there having been nothing negligent in the initial design or construction of the footpath. We consider that our client owes no duty to maintain or repair the footpath. Accordingly, we request that your client discontinue its proceedings against our client. In the event that your client does not discontinue its proceedings against our client and our client successfully defends those proceedings on hearing, our client will be seeking an order for costs on the basis of a complete indemnity. We look forward to hearing from you." 23 In November 1992 the Appellant's then solicitors received a report which had been prepared by Associate Professor Yandell to whom I have earlier (para. 11) referred. So far as is relevant, that report was as follows (AB 368-369): "2. ALTERED DRAINAGE BEHAVIOUR (i) Prior to Construction of Plaza Photo 3 shows the original arrangement for drainage. George Street carriageway was drained into Kable Street where the water would rapidly flow down hill. Most of the water from the footpath would flow into the George Street gutter and not flow down the Kable Street footpath. (ii) After Construction of Plaza Two arrangements were available for drainage of the bricked plaza. (a) a drainage inlet (photo 4) was provided where the George Street gutter would have been and an underground pipe running under the plant box discharged from under the plant box into the Kable Street gutter where a metal grill was provided. (b) the remainder of the surface water or overflow may have been intended to run along George Street directly into the Kable Street gutter. 3. SCOURING OF THE UNPATHED SECTION OF THE KABLE STREET FOOTPATH As mentioned in 2(i) excess rain water would not have flowed down the Kable Street footpath prior to the installation of the plaza. In that case it is unlikely that soil loss would have occurred and the paved and unpaved section would have been level. However upon the installation of the plaza it is my opinion that more water would have flowed down the unpaved section of the Kable Street footpath for the following reasons: (i) the contour of the brick paving is such that much of the drainage from the plaza would have flowed along the brick paving down the Kable Street footpath. The plant box would act as a training wall for this water as shown by arrows in photo 5. If the drain mentioned in section 2(ii) was to become blocked the tendency would be aggravated. In fact when the visited the site on November 24, 1992 it did appear to be blocked. 4. CONCLUSION It is my opinion that the scouring of the soil on each side of the footpath in Kable Street would not have occurred if - (a) The George Street Plaza had not been constructed or (b) care had been exercised in planning for the drainage of the plaza. It is also clear that if the footpath have been level the accident would not have occurred. It is also irregular that the Hawkesbury Council did not erect a warning sign." 24 It is clear enough that it was on the basis of Associate Professor Yandell's report that there was filed in February 1993 an Amended Statement of Claim, in which Amended Statement of Claim the Appellant - while retaining a claim based in nuisance - sought to found her claim in negligence upon the alleged breach by the Respondent of a duty "to properly design and construct the George Street Mall and to design, repair and reconstruct the George Street footpath and guttering to prevent soil erosion". Among the particulars of negligence alleged in this respect were (AB 10-11): "The Defendant by its servants or agents was negligent in the design and construction of the George Street Mall and the design and reconstruction of the George Street Footpath and Guttering in that it: (a) removed the George Street Footpath and Gutter which was designed to and performed the function of ensuring that: (i) surface drainage from the George Street Mall did not flow down the Footpath; and (ii) surface drainage from where the George Street Footpath was previously constructed would flow into the Kable Street Gutter and not down the Footpath. (b) failed to design and construct any adequate or effective surface drainage system to ensure that surface drainage from the George Street Mall and the George Street Footpath did not flow down the Footpath." 25 In March 1993, the Respondent's solicitors wrote to the Appellant's then solicitors a letter (AB 515) which was in the following terms: "We refer to your client's Amended Statement of Claim served 8 March 1993. We enclose by way of service our client's Defence to Amended Statement of Claim. We are instructed to advise that the plans and specifications of the George Street Mall including the planter box were prepared by Environmental Landscapes Pty. Ltd. We understand that company now trades as Environmental Partnership Pty. Ltd. of 2 River Street, Birchgrove. The drainage system and engineering drawings for the construction of the George Street Mall were prepared by Ove Arup & Partners, Civil and Structural Engineers of 41 McLaren Street, North Sydney. At this stage we do not have instructions to joint either of those organisations as Third Parties to the proceedings." 26 In May 1993, there was filed on behalf of the Appellant a Further Amended Ordinary Statement of Claim (AB 17) to which Arup & Environment were joined as additional parties-Defendants, Arup as Second Defendant and Environment as Third Defendant. By that Further Amended Statement of Claim the Appellant, asserted as against Arup that it had failed to exercise due care and skill in the design and/supervision of the construction of the Mall and the design, repair and reconstruction of the George Street footpath and guttering, and, as against Environment that it failed to take reasonable care in the design and/or construction of the Mall and/or the design, repair and reconstruction of the George Street footpath and guttering. 27 When, in August 1993, there was filed on behalf of Environment its Defence (AB 85) to the Further Amended Statement of Claim, there was also filed on behalf of Environment a Third Party Notice (AB 89) in which Environment sought as against the Respondent indemnity for the costs and expenses incurred by it in relation to the claim made against it (Environment) by the Appellant. 28 Thereafter, in September 1983, there were filed on behalf of the Respondent Third Party Notices (AB 59,63) in which the Respondent sought against each of Arup (AB 59) and Environment (AB 63) indemnity against or contribution toward any amount which the Respondent might be adjudged liable to pay to the Appellant in the proceedings. 29 Although it appears (AB 95-96) as if it may not have been filed in the Court at the time (see AB 95-96) it would seem that, at some time prior to September 1995, the Appellants present solicitors caused to be served upon the Respondent, Arup and Environment, a Second Further Amended Ordinary Statement of Claim, in which Second Further Amended Ordinary Statement of Claim (AB 30), the Appellant sought to enlarge the particulars of negligence upon which she sought to rely. For present purposes, it is sufficient to note that, among the amendments introduced by the Second Further Amended Ordinary Statement of Claim was the insertion into paragraph 15 (see para. 23) of a further particular (h) (AB 35) which was in the following terms: "Knew or should have known that the redesign and reconstruction work involved the Shopping Centre Mall and the consequent reconstruction of the Footpath and Guttering would lead to increased pedestrian usage of the area of the footpath in question and its surrounds." 30 Thereafter, in September 1995, the Respondent's solicitors obtained from a Mr. Keirnan, a consulting civil engineer, a report of his investigation of pedestrian movement and footpath design at the Kable Street site. It is clear from Mr. Keirnan's report (AB 405-415) that he was aware of the various particulars of negligence upon which the Appellant sought to rely in the Second Further Amended Ordinary Statement of Claim (see AB 406). The conclusions reached by Mr. Keirnan in relation to those various matters were as follows (AB 415): "The conclusions refer to the statement of claim issues recorded in section 1. · There is no evidence of significant increase in pedestrian movement along Kable Street footpath as a direct result of the construction of the Windsor Mall in George Street. · The footpath and concrete footpath in place at the time of the incident was of adequate width for peak pedestrian movement at that time and for future movements. · The unsurfaced footpath area either side of the concrete path were most likely worn down as a result of prolonged pedestrian movement combined with adverse soil and weather conditions over a considerable period of time. · The reported condition of the footpath at the time of the incident is typical of unsurfaced footpath areas beside concrete kerbs and centrally located concrete paths that are subject to wear and tear over a considerable period of time. · The concrete path in Kable Street was in good condition and the extent of the footpath paving laid in Kable Street and other side streets as part of the mall construction is considered to be in accordance with accepted practice." 31 In May 1996, Mr. Keirnan provided to the Respondent a Supplementary Report (AB 416-420). In that Supplementary Report, Mr. Keirnan wrote (inter alia) as follows (AB 418-419): "6. FOOTPATH WIDTHS IN KABLE STREET The kerb alignment at the accident location was not changed as a result of the mall construction. Hence the footpath width was and still is 2.5 metres wide and the concrete paving width remained at 1.2 metres wide, but has been paved full width since the accident. The concrete paving 1.2 metres wide centrally located, is the traditional minimal width of concrete footpath adopted typically by councils for most streets. And if the adjoining surfaces are subject to excessive wear and tear, the paved area is usually widened to reduce maintenance. This can occur near schools, shopping areas and other more frequently used footpaths and this appears to have been the case in Kable Street. It is not known if or to what extent pedestrian traffic has increased in Kable Street at the accident site. General urban growth in the catchment and the presence of the shopping mall suggests there would have been some pedestrian growth since the construction of the mall. In any event the on-site survey of pedestrian volumes at the accident site showed that even with the mall constructed pedestrian volumes were low and the concrete footpath was adequate for two people to walk side by side or pass each other. 7. CONCLUSIONS 1. The pedestrian movement at the accident site in Kable Street was minimal and the width of the concrete pathway and the adjoining footpath space was adequate for the pedestrian volumes at the time of the accident. 2. The impact of the main street mall construction on pedestrian traffic is likely to have been minimal in Kable Street and other side streets. 3. A review of current Australian standards and guidelines indicates the footpath meets the basic pedestrian requirements for width. 4. The footpath paving surface widening carried out since the accident was desirable to improve the streetscape in Kable Street and to reduce footpath maintenance." 32 The proceedings first came before Freeman DCJ on 24 June 1996. Despite the form of the Second Further Amended Ordinary Statement of Claim, and, in particular, the particulars of negligence alleged in the Second Further Amended Ordinary Statement of Claim, in the course of his opening the matter to his Honour, Dr. A.S. Morrison SC said (inter alia) (AB 94): "The plaintiff's case is that the footpath area was in its original state being the last section of ordinary suburban type footpath left in the area and accordingly quite narrow. The pedestrian traffic of course had significantly increased over the years but most particularly had increased in the construction of the shopping mall and of a parking station a little further down the street servicing that mall and of course Franklins and other major retailers in the area. The consequence of that change in circumstances was that the areas on either side of the narrow concrete footpath had become degraded. What had been once upon a time grassed areas became progressively bare earth and then that earth was worn away as a consequence of both ordinary water action, not assisted by the way in which the planter box had been moved but in addition heavy foot traffic, because of course the path itself wouldn't bear all the foot traffic. So at the time when this accident occurs there's no grass and the area on other (sic) side of the concrete path has dropped and on the side where the accident occurred to the plaintiff dropped some inches so that there's a sheer drop off the footpath. The plaintiff will say she was walking along the footpath, she stepped to the side of the footpath because there was someone coming in the opposite direction, that she fell into the drop on the side of the footpath closest to the wall and she suffered injury. Her case is that that was a consequence of the negligence of the defendants or of each of them. ……… … there will be an issue as to whether or not there was fault on the part of the defendants in the way in which the shopping mall was designed and the arrangements made for foot traffic in respect of the area where the plaintiff suffered her injury." 33 Neither Dr. Morrison's opening nor the evidence (AB 103-104, 108-109) given by the Appellant as to the building of the shopping centre complex fronting Kable Street and the alleged increase, over the years between 1985 and 1990, in the number of people using Kable Street, at first attracted any objection. However, after what appears to have been the mid-morning adjournment, Mr. W. Fitzsimmons, who then appeared for the Respondent, raised with Freeman DCJ the question whether, in the light of the form taken by the Second Further Amended Ordinary Statement of Claim, it was open to the Appellant to seek to rely upon the establishment of the shopping centre complex facing Kable Street (AB 124). The concerns which Mr. Fitzsimmons then raised with his Honour were also expressed by Mr. G. M. Gregg and Mr. J. Carr who appeared at the time for Arup and Environment respectively. 34 There then followed a considerable - and diffuse - debate, recorded in some twenty-five pages of transcript (AB 124-149) as to whether or not it was open to the Appellant to rely, in some way, upon the establishment of the shopping centre complex as a matter going to the negligence which the Appellant sought to assert against the three defendants. 35 Although, on the hearing of the appeal, Dr. Morrison asserted that, as the result of this debate, the issue joined between the parties was clarified, that issue seemingly (T. 4) being that, by reason of its development of the mall and its approval of the supermarket complex, the Respondent came under an obligation to upgrade the existing pathway, I remain to be persuaded that that was so. Certain it is that Dr. Morrison was unable to point to any passage in the transcript in which Freeman DCJ ruled, or in which the several counsel then appearing agreed, that the issue was as I have just indicated. 36 When, at an early stage of the hearing of the appeal (T.3), Dr. Morrison commenced his submissions in respect of the first of the six errors into which, so he submitted, Freeman DCJ had fallen , which alleged error was: (That) his Honour misdirected himself as to the Appellant's case in, contrary to his own ruling, disregarding the developments approved by the Council other than the George Street Mall. he directed our attention to the following passage in the transcript on the hearing before Freeman DCJ (AB 147): "FITZSIMMONS: … what the plaintiff has led evidence about is it's nature in effect of the traffic not only of pedestrians but other things such as shopping trolleys which are contributed to by the supermarket at the other end of Kable Street. It's quite a - and strollers I think the plaintiff referred to. HIS HONOUR: Well I think it's very doubtful. But let's assume that in order to ensure that you are in no way prejudiced by this subtle change of direction in the plaintiff's case, I think frankly your expert can argue the plaintiff's case as it's presently being put. Consequently I would think the plaintiff ought not be disadvantaged in costs by this exercise. But I'll give you an adjournment if you're prepared to pay for it …" and, a little later (AB 148-149): "HIS HONOUR: I think I will order the plaintiff's costs be the plaintiff's costs in the cause. If the matter is staying with me I will be able to clarify it when we finally see what the wash-up is. Now, just before I leave this vexed question of pleading, we all understand the basis upon which the plaintiff's claim has now been made out. Perhaps one of you might be good enough to order a copy of the transcript. I'm sure you all will. I'll ask that it be done as quickly as possible, but that really lays the basis for it doesn't it regardless of what the pleadings are. FITZSIMMONS: Yes, I think your Honour that's what has been ventilated this morning, clear all parties I would have thought by now are sure as to what it is, even tough the pleadings may not …" 37 Despite Dr. Morrison's bold assertion as to what he said was the agreed basis upon which the trial proceeded, a reference to the discussion which, in respect of this matter, took place on the hearing of the appeal (T.3-15) would indicate the members of the Court had considerable difficulty in discerning what it was that Dr. Morrison claimed to have been agreed and, even greater difficulty discerning the case which, in this respect, was being advanced on behalf of the Appellant on the appeal. 38 Be all this as it may, at the conclusion of the discussion to which I have earlier referred, Freeman DCJ adjourned the further hearing of the matter until 26 August 1986. 39 Thereafter, the Respondent's solicitors sought and obtained from Mr. Keirnan a further report on the matter: "… indicating whether the commercial developments in the shopping centre in the vicinity of Kable Street would have been likely to increase pedestrian traffic on the footpath in Kable Street, Windsor and if so would this increased pedestrian traffic have been likely to exceed the capacity of the footpath on the eastern side of Kable Street between the Franklins Shopping Centre and the George Street Mall." (AB 422) 40 For the purposes of preparing that report, Mr. Keirnan carried out a survey of pedestrian movements in Kable Street during a Thursday evening peak period, the results of which survey he was then able to compare with the similar survey which he had carried out in a Saturday morning peak period in 1995, the results of which survey he had recorded in the report which he had provided in September 1995 (para. 29). Mr. Keirnan's conclusions (AB 427) to which I have earlier (para. 13) referred and which were accepted by Freeman DCJ were as follows: "7. CONCLUSIONS The development of the George Street Mall had minimal impact on pedestrian movement, and the eastern footpath in Kable Street at the time was adequate for the pedestrian movement generated from the Mall. The development of the Franklins Shopping Centre increased the pedestrian movement on the eastern footpath of Kable Street, but the increase was well within the acceptable level of service criteria for pedestrian pathways." 41 It would appear (AB 150, 530) that, on 23 August 1996 - that is, the Friday before the adjourned hearing of the proceedings was resumed - agreement was reached between the Appellant, on the one hand, and Arup and Environment, on the other, for the compromise of the claims which had been raised by the Appellant against Arup and Environment, that compromise involving the discontinuance by the Appellant of the proceedings insofar as they involved claims against Arup and Environment, each of the Appellant, Arup and Environment bearing her, their and its own costs. 42 The fact of that settlement having been conveyed to the Respondent's solicitors, they, on the same day, forwarded to the Appellant's solicitors by facsimile a letter (AB 530) which was as follows: "HAWKESBURY COUNCIL & ORS. ats GHANTOUS We refer to our telephone conversation of 23 August 1996. We note you have today agreed upon a settlement with the Second and Third Defendants in respect of the causes of action pleaded against them in your client's Second Further Amended Statement of claim. We understand notwithstanding these settlements the case to be presented on behalf of your client includes an allegation that as a consequence of the design and construction of the George Street Mall, the flow of storm water was redirected so as to contribute to the erosion of the ground surface adjacent to the concrete path in Kable Street where it is alleged your client suffered her fall. If we are incorrect in this understanding, please clarify as soon as possible." 43 As the Respondent's solicitors had anticipated, despite the compromise which had been reached between the Appellant, on the one hand, and Arup and Environment, on the other, the case which was advanced on behalf of the Appellant on the resumed hearing included the claim that, as a consequence of the design and construction of the Mall, stormwater was redirected into Kable Street and caused, or at least contributed to, the erosion of the soil adjacent to the footpath. For this purpose Associate Professor Yandell was called for the purpose of giving evidence to elaborate upon the report which he had earlier provided to the Appellant's solicitors (AB 224-261). Further, in the course of his cross-examination of Mr. Keirnan, Dr. Morrison sought to have Mr. Keirnan concede that a consequence of the design and construction of the Mall was to redirect stormwater into Kable Street so as to cause or to contribute to the erosion of the ground adjacent to the footpath (AB 335-338), it being noted that that cross-examination followed the viewing in Court of a video tape which had been filmed in 1993 on a rainy day (AB 243), the rain being moderate to heavy, which video tape appeared to provide no support whatsoever for the evidence of Associate Professor Yandell. 44 In the circumstances, and given the stated intention of the Appellant's solicitors as to the future conduct of the hearing before Freeman DCJ, the Respondent did not seek to reach any compromise with Arup or Environment, each of which was retained as a Cross-Defendant in the proceedings (see T 40-43). 45 On the third day of the resumed hearing before Freeman DCJ, and shortly before the conclusion of the case for the Respondent, there was a discussion between counsel and his Honour as to the future conduct of the hearing. In the course of that discussion counsel appearing for the Respondent said (AB 318-319) (inter alia): "Your Honour can I just raise this, I don't know what my friends are going to say to this I have not discussed it with them, but the case sits so far as the case between the plaintiff and the first defendant is concerned, one can see that the plaintiff's submission is twofold or the case is twofold, water flowing from the mall and secondly, the increased flow of pedestrian traffic. On the state of the evidence the flow of water from the mall if there was any to the extent which might attract some question of liability it would seem that the evidence is against the proposition that it went anywhere near or could go anywhere near where the plaintiff had identified the place where she suffered the fall. So we come down to the question of whether or not the increased flow in pedestrian traffic is a matter for which the first defendant is liable to the plaintiff in respect of the injuries she is alleging that she suffered. ……… The involvement of the third parties or the co-defendants in this case on the third party proceedings depends upon what your Honour finds in respect of the action between the plaintiff and the first defendant of course. If your Honour was to come to the conclusion that upon the evidence the construction of the mall - leaving aside the fact of the mall, but the design and construction of the mall was not causative in any way to the condition of the footpath at the point where the plaintiff suffered the fall, that effective leaves the cross-defendants out of the action as it were. And in terms of housekeeping and using time productively, it may facilitate the resolution of the matter if we could embark upon that issue between my friend and Mr. Morrison - Mr. Morrison and myself and then address the question that might arise between my client and third parties." 46 A little later, Dr. Morrison said (AB 319): "I might be able to assist to this extent your Honour, that the plaintiff will contend that this was the effect of foreseeable pedestrian development and the plaintiff is not going to rest this case on water, save insofar as rain might soften the soil and wind might blow the soil but essential it's additional foot traffic that the plaintiff says is the cause of the problem." which observation led to the following exchange between Freeman DCJ and Dr. Morrison (AB 320): "HIS HONOUR: I rather thought that would be the case. You would otherwise be pushing it up hill and expecting the water to do likewise. MORRISON: In some practical difficulty with the evidence. Yes. …" 47 A little later in the course of the discussion (AB 322-323), the following occurred: "HIS HONOUR: … Are you in a position to put your last remaining evidentiary material in yet Mr. Bennett. BENNETT: We're just looking at it your Honour, the answer to that's yes in just a moment your Honour. But I must say this in light of the concession made by my learned friend a moment ago that if waters not the problem … HIS HONOUR: It's not the flow of water, its the flow of pedestrians. BENNETT: The design of (sic) construction of the mall becomes irrelevant to your Honour's deliberations, it's simply the pedestrians generated by the fact of the mall, but if that's the case there's no basis upon which I could recover against them nor could the plaintiff. MORRISON: Hence the plaintiff discontinuing against the second or third defendants. HIS HONOUR: That sounds right. BENNETT: There are implications by reason of that concession being made at this stage because of the opportunities which have been denied to the first defendant with regard to the cross-defendants. They could have been out of it a lot earlier than this. But in any event your Honour could I tender a bundle … HIS HONOUR: Well it seems to me that - and I haven't looked at the transcript from the first day, but my impression for what its worth is that this case has undergone a real sea change from when it first opened. BENNETT: It has your Honour, when one looks to the opening it is … HIS HONOUR: You know I thought initially it was a mall - it's really become more Franklins and the mall hasn't it because of the pedestrian connection. BENNETT: In the very early stage it began with water from the mall because of the design and construction and it evolved to pedestrians generated by the mall and ultimately when Mr. Fitzsimmons chucked (sic) into the breach for me when it started it became pedestrians generated by Franklins and the mall and now it's in addition to the water. HIS HONOUR: That's why we went over I think because there really seemed to me to be a change in emphasis which although it was theoretically covered by one of the pleadings it was really a case being run sub silentio almost. BENNETT: And then we're now at the stage where water's not the problem, its the pedestrians. HIS HONOUR: All right that may be the cause for all sorts of intricate arguments about ancillary matters but that's jumping several hurdles before we come to them." 48 Towards the end of the discussion, Mr. Gregg, who appeared for Arup, and Mr. Carr, who appeared for Environment, submitted that, in the light of the evidence and the discussion which had occurred, each of Arup and Environment was entitled to a verdict on the Cross-Claims. The transcript then records the following (AB 327-328): "HIS HONOUR: Do you want to say anything Mr. Bennett? You don't want to argue that the water running down the outside caused the pedestrians to step over onto the inside. BENNETT: Not at all. HIS HONOUR: Don't you? BENNETT: Indeed that (sic) my friend has put I've found most compelling. I must say it has some attraction because whatever the costs of (sic) position is going to be, vis a vis the cross-defendants. The sooner they're out of it the better and if there are (sic) some concession from the plaintiff that we are talking about pedestrians and not water that makes it a lot easier of course but on the evidence that's there … (not transcribable) .. I concur with what my friend has said. HIS HONOUR: I think that's probably right. Do you want to be heard about any of this Mr. Morrison, I don't think it's any of your concern really, except – MORRISON: Not in the least your Honour." 49 Freeman DCJ appears (AB 328) then to have delivered a Judgment - which is not included among the appeal papers - in which Judgment - one might reasonably assume (AB 552) - his Honour found a verdict for each of Arup and Environment against the Respondent but reserved the further costs of those parties for further argument. 50 In his Judgment, Freeman DCJ, after dealing with the background facts and recording his acceptance of the evidence of Mr. Keirnan, proceeded (AB 553-559): "The acceptance, by the plaintiff, that there was no effect from water either falling on or generated by the paving of the mall means that the real thrust of the plaintiff's case is to be found in paragraph 15(h) of the Statement of Claim. The argument developed upon that allegation is that the Council had a duty, in approving the construction of the mall to consider the increase in pedestrian traffic general by the mall (and by the development of Franklins of which it knew or ought to have known); to consider the likelihood (depending on the information before it) of accelerated wear and tear and the necessity, therefore, to either take steps of its own or to require (as part, perhaps, of the approval of the Franklin's development) the developer to take steps to upgrade the footpath. It is not pleaded that the Council in considering the approval of the Franklin's development should have considered the impact in Kable Street of this new construction. 15(h) is a particular and cannot be wider than the allegation of negligence in paragraph 15 itself. Leaving aside the question of whether such an argument can be based on the pleadings (I think allowing some tolerance and latitude that it can) the question remains has the plaintiff argued this case and has she called evidence to support it? The answers to both questions are clearly in the negative. It would be necessary, at a minimum, for example, to establish that the Council knew of the Franklin's development when it made its decision about the mall. Other evidence would also clearly be relevant and necessary. In any event, counsel for the plaintiff when asked in the course of his submissions whether he was arguing a failure on the part of the defendant in relation to its planning obligations specifically disavowed such a submission. It is not necessary, then, to consider the interesting question of whether a Council owes a duty of care enforceable by a plaintiff in respect of its consideration of the mall. In any event the evidence of Mr. Keirnan, to which I've earlier referred, establishes that the Council could not reasonably have been expected to foresee swift degradation of the footpath verges an (sic) distinct from in a common sense sort of way, foreseeing that some deterioration would take place over the long term. Had the mall not been constructed at all there would none the less be some increase in foot traffic by virtue of the Franklin's development. The Council, absent any allegation of duty in relation to its powers of approval in relation to that development could not have been liable since it would not have introduced any change in the footpath. Once the Council interfered with the footpath by creating the mall and thereby increasing (to a minimal extent) foot traffic in Kable Street, it became necessary for the Council to undertake that work without negligence and to not produce (as a necessary and natural consequence of the work) a danger arising in some proximate place. (On these pleadings if the Council did no more than approve the Franklin's development, no action would lie despite the foreseeable consequence of increased traffic and to a certain extent accelerated wear producing the hazard of which the plaintiff was ultimately the victim). However, the Council here has, as pleaded, taken a positive step in creating the mall. The Council would be responsible if it has done one of two things - ie if it had negligently constructed the roadway (the paved section from George Street extending about 12 metres down Kable Street) or if it had introduced an artificial structure 'which is not shown to be part of the road' ( Buckle v. Bayswater Road Board 57 CLR 259 per Latham CJ at 271). As I have indicated there is no evidence that the paving in Kable Street from the mall was negligently constructed and the original allegation of poor drainage, being not supported by the evidence, was abandoned. The original construction of the section of the footpath involved in this unfortunate episode is not the subject of any allegation of negligence. The Plaintiff's sole argument is that the mall general additional foot traffic to the extent that the 'natural and necessary' consequence was the erosion of the verges giving rise to the difference in levels which was the hazard to which the plaintiff fell victim. At the outset I should say that I doubt that the evidence justifies such a conclusion. What the evidence does establish is that the combination of the mall and the development further down produced between them an increase in foot traffic or rather traffic on the footpath so that the rate of erosion was accelerated to a certain extent. Could Council's failure to keep the remaining section in adequate repair or, with foresight to avoid such degeneration by laying an adequate footpath be said to be a misfeasance? Mr. Morrison SC for the plaintiff argues in his helpful written submissions a number of propositions. The first of these is the formal submission that the distinction between misfeasance and nonfeasance should be held not to apply in this case. He concedes, however, that this court is bound by a number of determinations upholding the existence of the principal (sic) that Councils are responsible only for misfeasance and not for 'mere nonfeasance'. His second argument is that the footpath is not part of the roadway so as to attract the application of the principle set out above. He relies upon the provisions of the Local Government Act as it stood in 1990 wherein the definition of 'road' did not incorporate the footpath. He also refers to Grafton City Council v. Riley Dodds (Australia) Limited (1956) SR 53 at 57.9 and following where the court referred to strictly 'the actual roadway itself' or 'the roadway proper'. He refers also to Simon v. Islington Borough Council (1943) 1 KB 188 at 197 where the English Court of Appeal said: 'the immunity extends only to damage due solely to the non repair of the road qua road. It does not extend to act or defaults of the Highway Authority in connection with any duties except characteristic highway duties such as that of repairing the road. It does not apply in connection with public health duties eg in connection with sewers … nor with the duty of protecting the public from falling into an unfenced pit along side the high road; nor the duties imposed by the Road Traffic Act … if such other duties have been undertaken by the body which is also the highway authority and ill performed then the highway authority may be sued by the person injured and the immunity doctrine is no defence.' This statement of authority was expressly approved by the Court of Appeal in Turner v. Ku-ring-gai Municipal Council (1990) 12 MVR 321 at 328/34. In Hughes v. Hunters Hill Municipal Council (1992) 29 NSWLR 232 it was held by the Court of Appeal that a tree planted on a footpath by a local authority was an artificial structure and the Council was liable to compensate the plaintiff who tripped over the uneven footpath caused by the roots of that tree. In that case Mahoney AP assumed, without deciding, that the misfeasance/nonfeasance rule applied to footpaths and similarly the Full Court was not troubled to decide the question whether the footpath was part of the roadway in Donaldson v., Municipal Council of Sydney (1924) 24 SR 408 because the tree which disrupted the asphalt and over which the plaintiff fell was held to be an artificial structure. I do not find myself, at this late stage, able to differentiate between the footpath and the roadway itself and indeed I am bound by the terms of the judgment of Wood J in Taylor v. The Council of the Municipality of Marrickville (unreported but delivered 11/4/86) where is Honour states the principle in these terms: 'At common law an immunity attaches to a highway authority such as the council, in relation to the maintenance of structures upon or under a road, including a footway , where the structure serves a purpose arising out of the function of the road or footway … this immunity negates both general duty of repair sounding in nuisance and any specific duty to exercise care in the control and management of roads and footways even with respect to known dangers, sounding in negligence. The immunity is however confined to nonfeasance and does not excuse accidents caused by misfeasance faulty or negligent construction of the original work.' I hold therefore the footpath running parallel to and forming part of the overall road structure in Kable Street is an area which is covered by the immunity principle. It is clear law that a council is immune from suit for mere nonfeasance. Although Mahoney AP had occasion to question whether this situation should still continue to obtain in Turner's case and Hughes' case (supra) nonetheless his honour specifically decided that the principle was binding upon and to be followed by the Court of Appeal. I take this principle to mean that no one can compel a council to lay a road or to repair a road once laid provided there is no negligence involved in the original construction. It seems to me to follow that no one can compel a council to improve or upgrade a road once properly laid notwithstanding the development of obviously dangerous circumstances. The situation is quite different in relation to artificial structures brought into the roadway by the council ( Hughes, Donaldson supra) or an artificial situation caused by the council ( Grafton Council v. Riley Dodds and McClelland v. Manchester Corporation (1912) 1 KB 188). The situation is also different where the nature of the road works undertaken whilst sound in themselves, none the less naturally produce a hazard elsewhere. Woollahra Council v. Moody 16 CLR 353 where at 358 Mr. Justice Barton said: 'if the authority having care and maintenance of the road undertakes new work such as this kerbing and guttering and in carrying out this work leaves a place immediately adjoining in such a condition that the natural and necessary consequence is that the place becomes dangerous then it is clear to me that there is a misfeasance and not a mere nonfeasance and if damage results by reason of that misfeasance I think the authority is responsible.' In that case the council had constructed a section of kerbing and guttering which had the physical effect of concentrating and accelerating a flow of water into a natural culvert so as to enlarge, necessarily, the culvert and so create a hazard. This is the sort of argument which the plaintiff would have been entitled to rely upon had the evidence sustained some physical interference by way of water flow etc from the mall. I do not think the argument runs, however, whether there is no such physical interference and the only element identified is a modest increase in foot traffic. I don't think it can be said that the paving from the mall is itself an artificial work or structure (see the judgment of McTiernan J in Buckle supra at page 300 and Dixon in Buckle at page 281). The paving is part, indeed it is the footpath and does not constitute an artificial structure." and at the conclusion of his Judgment found a verdict for the Respondent. 51 Thereafter, each of the Respondent, Arup and Environment sought the making of special orders for costs in its favour, the orders sought by the Respondent including the making of a Bullock order (Bullock v. London General Omnibus Co. [1907] 1 KB 264). 52 In the Judgment which he delivered on 16 December 1996 when dealing with those various applications, Freeman DCJ said (inter alia) (AB 564-565): "The question remains whether the first defendant is entitled to pass across to the plaintiff the costs just awarded against it in respect of its former co-defendants. I don't believe it should be so entitled. The plaintiff ultimately saw, despite persevering in calling Professor Yandell, the difficulty in her course against the second and third defendants. The first defendant was in a superior position to perceive those difficulties, having, as it did, available, from 1993 onwards, evidence by way of video tape indicating that the hypothesis constructed by Professor Yandell was an untenable one. It should have been clear enough to the first defendant that it was in a position to release its co-defendants when the plaintiff did. In any event, as I said, it does not seem to me that the additional costs involving the third party proceedings would amount to very much in the overall scheme of things. The first defendant is to recover the bulk of its costs from the plaintiff in accordance with the proposition that the costs follow the event." 53 The Appellant, as I have earlier recorded, appealed in respect of the Judgment delivered by Freeman DCJ on 21 November 1996. 54 The Respondent filed a Notice of Contention and a Notice or Cross-Appeal, the Cross-Appeal being directed to that part of Freeman DCJ's Judgment delivered on 16 December 1996 in which he declined to make the Bullock order which had been sought by the Respondent. 55 In the Written Submissions which were filed on behalf of the Appellant it was alleged that Freeman DCJ erred in the following respects - those respects differing from those asserted in the original Notice of Appeal which had been filed on behalf of the Appellant: 1. his Honour misdirected himself as to the Appellant's case in, contrary to his own ruling, disregarding the developments approved by the Council other than the George Street Mall; 2. his Honour erred in failing to refer to evidence and witnesses whose unchallenged evidence of observation was clearly inconsistent with the opinion evidence of a witness (Mr. Keirnan) whom he accepted; 3. the negligence of the Respondent Council in the circumstances amounted to misfeasance and not mere nonfeasance; 4. the hazard was not part of the footpath and therefore not subject to any misfeasance/nonfeasance rule; 5. in any event, the footpath was separate from the road surface and not subject to the misfeasance/nonfeasance rule governing that surface; 6. alternatively, the misfeasance/nonfeasance rule is wrong and does not form part of the law of New South Wales. 56 Although put more elaborately in the Written Submissions which were filed on its behalf, the case for the Respondent on the Cross-Appeal was that the basis upon which Freeman DCJ exercised his discretion involved a mistake as to the facts, it following that the discretion miscarried. 57 I turn, then, to deal first with the errors which, so the Appellant would have it, Freeman DCJ made in the course of his Judgment. 58 If I may with respect say so, it seems to me, that the first ground taken is without substance. Despite the fact that it would seem (Appellant's Written Submissions para. 14) that, on the hearing before Freeman DCJ, as on the hearing of the appeal, Dr. Morrison eschewed any submission that the Respondent had been negligent in approving the development of the Mall or in approving the shopping centre development, the Appellant, in the Written Submissions filed on her behalf, asserted (inter alia): "The question his Honour in fact asked during the course of submissions related to whether or not this was a planning case. In the sense that this was not exclusively a planning case, counsel for the appellant agreed but made it clear that the plaintiff maintained that the approval of the developments (and all the developments) in the context of the failure to maintain the verges was said to be negligence on the part of the Respondent Council." 59 But whatever be the way in which the case for the Appellant was conducted at trial, the passages from the Judgment of Freeman DCJ which I have set out above (para.49) make it, in my view, clear, that his Honour did consider whether the Respondent appreciated, or should have appreciated, that the approval of the development of the mall or the approval of the shopping centre development would have led to an increase in the pedestrian traffic in Kable Street and accordingly would or could have led to the creation of a situation of danger which imposed upon the Respondent an obligation to upgrade the footpath. Those same passages indicate that his Honour concluded, as it was open to him to conclude, that no such obligation was imposed on the Respondent. 60 Although the Written Submissions filed on behalf of Appellant did direct some attention to the second alleged error on the part of Freeman DCJ, no submission was directed to it in the course of oral argument. In any event, in my view, there is no substance in this point either and I do not dwell further on it. 61 The Appellant's Written Submissions in relation to the third alleged error included the following: "29. It is submitted that what occurred was not a case of gradual deterioration unaffected by the actions or determinations of the Respondent Council. Rather the Council, with clear or imputed knowledge of the likely consequence, caused or permitted developments at either end of this fifty metre stretch of footpath without regard for the consequences in its vicinity. Council altered the conditions and created the hazard. What had been an ordinary suburban footpath and grass verges became a narrow footpath surrounded by worn away dirt and potholes. That was not nonfeasance but misfeasance. ……… 31. In the present case the respondent Council was manifestly an active agent in causing or approving the developments which led to the development of the 'hazard' which it by its negligence failed to repair. There is no reason to suppose that absent the developments created or approved by the Council the hazard would have come into existence. The Council's actions meet the Court's criteria for misfeasance. ……… 33. So in the present case the Council, which turned a suburban footpath into a significant link in a commercial business district, and which funnelled 2.5 metre footpath into a 1.2 metre footpath and which approved steps which it knew or should have known would significantly increase pedestrian usage and the likelihood of just that hazard which led to this injury, cannot say that the development was mere natural deterioration. 34. What would have been adequate was made inadequate by the Council's action and aggravated, not caused by the Council's subsequent inaction in failing to take any steps to deal with the hazard it had created. That is patently misfeasance and not nonfeasance." 62 With respect, it seems to me that these submissions cannot be supported. Rather the law is clear that, 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 (see, for example, Buckle v. Bayswater Road Board (1936) 56 CLR 259; Bretherton v. The Council of the Shire of Hornsby (1963) 63 SR 334) and the findings of fact made by Freeman DCJ demonstrate clearly that the Respondent has taken no action in relation to the footpath at the site of the accident which created or added to an unnecessary danger. 63 The fourth and fifth alleged errors may be dealt together, for they involve a consideration of the question whether the immunity of a road authority is limited to the carriageway or whether it extends beyond the carriageway so as to include what might be called the whole of "the road reserve". 64 Although it has been suggested (see, for example, Hughes v. Hunters Hill Municipal Council (1992) 29 NSWLR 232, 236 per Mahoney AP (as he then was)) that there may be some doubt as to the extent to which the principle of immunity of road authorities applies to foot or pathways as distinct from roadways, it seems to me that the weight of authority supports the view that the principle applies to the whole of what I might call "the road reserve". Thus, in Grafton City Council v. Riley Dodd (Australia) Limited (1955) 56 SR 53, to which Dr. Morrison directed our attention during the course of argument the Court (Street CJ, Roper CJ in Eq and Herron J) after referring to what Dixon J (as he then was) said in Buckle v. Bayswater Road Board supra at 281-282 as to the principle of immunity, continued 56 SR at 57: "His Honour also examined the limitations of the rule and emphasised that the limitation of liability applied only to a road authority, that is, an authority exercising powers for the construction, maintenance, repair and control of highways, and cited examples from decided cases to show that highways are limited to the paving stones, wood blocks, gravel, surface drains, timbers forming part of a footpath and the like, all being part of the road surface or work s necessarily connected therewith. His Honour also pointed out that, even with regard to the roadway itself, if the construction was improper or negligent, it is no answer that the dangerous condition arose not immediately but as a consequence proximate, even if direct, to the mode of construction adopted as in the case of Woollahra MC v. Moody ((1913) 16 CLR 353; 1 LGR 188). His Honour points out that a marked distinction exists between the position of such an authority in relation to the defective condition of a road, street, bridge, footpath or other place over which there is a public right of passage, and the position of a water, sewerage, gas and other like authority in relation to the defective condition of any parts of its undertaking, which, under statutory authority, it maintains in a highway so as to form part of a roadway or pathway used by the public." (see also the recent decisions of this Court in Campbelltown City Council v. Crain 23 October 1998 (unreported) and Lake Macquarie City Council v. Bottomley 3 March 1999 [1999] NSW CA 28 ). 65 So far as the final alleged error is concerned, it is sufficient to say that this Court is bound by the decisions of the High Court in Buckle v. Bayswater Road Board supra and Gorringe v. The Transport Commission (Tasmania) (1950) 80 CLR 37 and that, unless, and until, the High Court decides to the contrary, or the Parliament legislates to remove it, the principle of the immunity of a road authority in respect of nonfeasance remains part of the law of this State. 66 I would therefore propose that the appeal be dismissed with costs. 67 I turn, finally, to the Cross-Appeal. 68 Although it may be doubted whether, in the circumstances, the Respondent has a right of appeal (see District Court Act 1973 s.127(2)(d)), no point was taken by the Appellant on the hearing of the appeal in relation to the matter. In the circumstances, it seems to me, that the appropriate course to adopt is to proceed on the basis that, if leave to appeal be needed, such leave ought to be deemed to have been granted and the appeal should be determined on its merits. 69 In the course of his Judgment as to costs Freeman DCJ wrote (inter alia) (AB 563): "… The plaintiff was possessed of evidence, namely the opinion of Professor Yandell, which purported to justify the claim that water running from and as a result of the construction of the mall and its drainage had had some physical effects upon the relevant length of the footpath. ……… Professor Yandell was, indeed, called in the plaintiff's case, but I was not persuaded by his evidence. Given the combination of his opinion and the formulation at that time by the plaintiff of that sort of case, it was clearly not imprudent for the plaintiff to join the second and third defendants, nor was it imprudent for the first defendant to issue third party notices against those other entities or notices to co-defendants." 70 That passage must be borne in mind when one comes to consider the basis upon which, in the passage which I have earlier (para. 51) set out his Honour declined to make the Bullock order which had been sought by the Respondent. 71 If one adapts to the circumstances of this case the principles discussed by Gibbs CJ (with whom Murphy, Wilson and Brennan JJ agreed) in Gould v. Vaggelas (1983-1985) 157 CLR 215) in reliance upon which a court is justified in making, as against an unsuccessful defendant, a Bullock order in relation to a successful defendant's costs, then the passage from the Judgment of Freeman DCJ as to costs to which I have latterly (para. 63) referred would seem to have enlivened the discretion to make such an order in the present case. 72 However, the basis upon which his Honour declined to make the order in the present case to my mind reflects either a mistake on his Honour's part as to the facts or involved his Honour overlooking some of the relevant facts. Thus: 1. although compromising her claim against Arup and Environment upon the grounds to which I have earlier (para. 41) referred, the Appellant continued to allege as against the Respondent that the damage was caused by the diversion of storm waters down the footpath in Kable Street and, for that purpose called Associate Professor Yandell; 2. despite the tender of the video tape during the course of Associate Professor Yandell's evidence, Dr. Morrison, as I have earlier (para. 42) recorded, proceeded to cross-examine Mr. Keirnan as to the question of storm water, Mr. Keirnan's evidence proceeding into the early afternoon of the third day of the resumed hearing; 3. it was not until there occurred the discussion between counsel and the Bench at the time when Mr. Bennett indicated that he was about to close the Respondent's case - which appears to have been late in the afternoon of the third day of the resumed hearing - that Dr. Morrison informed his Honour that the Appellant was not any longer seeking to rest her case on the diversion of storm water, at which time, as I have earlier (para. 45) noted, his Honour, for the first time , indicated that he thought that that would be the case; 4. contrary to what appears to have been his Honour's view, namely, that the costs which he ordered the Respondent to pay to Arup and Environment would not amount to very much in the overall scheme of things, those costs, in each case, related to the three additional days of hearing. 73 In these circumstances it seems to me that the exercise of his Honour's discretion miscarried. 74 It thus remains for this Court to exercise the discretion afresh. In the circumstances, it seems to me that the additional costs have been incurred by reason of the manner in which the Appellant's case was conducted at the trial, and for that reason, it seems to me that it is appropriate that the Respondent have a Bullock order made in its favour. 75 For these reasons I propose the following Orders: 1. ORDER that the Appeal be dismissed. 2. ORDER that, if it be necessary, leave be, and be deemed to have been, granted to the Respondent to file a Cross-Appeal in the form of the Notice of Contention and Cross-Appeal already filed. 3. ORDER that the Cross-Appeal be allowed. 4. ORDER that the costs of the Respondent ordered by Freeman DCJ to be paid by the Appellant to the Respondent include such costs as were ordered to be paid by the Respondent to Arup and Environment. 4. ORDER that the Appellant pay the Respondent's costs of the Appeal and Cross-Appeal. 76 GILES JA: I agree with Powell JA. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.