New South Wales Court of Appeal CITATION : Gosford City Council v Timbs [1999] NSWCA 255 FILE NUMBER(S) : CA 40013/99 HEARING DATE(S) : 16 July 1999 JUDGMENT DATE : 16 July 1999 PARTIES : Gosford City Council - Claimant Patricia Timbs - Opponent JUDGMENT OF : Sheller JA at 11; Giles JA at 2; Cole AJA at 12 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 70162/97 (Gosford) LOWER COURT JUDICIAL OFFICER : Puckeridge DCJ COUNSEL : S G Campbell - Claimant R E Quickenden - Opponent SOLICITORS : Hunt & Hunt, Newcastle - Claimant Robert Stephen, East Gosford - Opponent CATCHWORDS : NEGLIGENCE - fall on footpath - council approved driveway - council held liable as occupier - alternative basis of liability as approving authority not decided - verdict and judgment $25,000 plus interest - application for leave to appeal - bases of liability probably wrong - but council permitted case to be fought on basis it was occupier - did not refer to relevant common law and statute - in circumstances, leave to appeal refused. DECISION : Application for leave to appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40013/99 DC 7162/97 (Gosford) SHELLER JA GILES JA COLE AJA Friday 16 July 1999 GOSFORD CITY COUNCIL v PATRICIA TIMBS JUDGMENT 1 SHELLER JA: I will ask Giles JA to give the first Judgment. 2 GILES JA: This is an application for leave to appeal in which the claimant seeks to overturn a verdict and judgment for the opponent for $25,000 plus interest. The proposed appeal does not challenge the amount of the verdict and judgment. The claimant says that it should not have been found liable to the opponent. 3 The opponent was injured when she slipped and fell on the footpath. She slipped and fell on the part of the footpath providing a driveway to a property. The driveway had been constructed by or on behalf of the owners of the property, the opponent's neighbours, at a slope which, it was held, created an unnecessary danger such that a person walking as the opponent was walking could slip and fall. 4 The owners of the property had applied to the claimant for approval to the construction of an access crossing to the property. The plan submitted with the application showed a slope at the relevant part, when scaled off, of one in eight. The approval was given subject to conditions including that the access crossing should be in accordance with the plan, that the claimant's officer should be contacted when formwork was complete, and that the work was to be completed to the satisfaction of the City Engineer. The driveway was constructed with a slope of one in six. No one contacted the claimant when the formwork was complete, or at all in relation to the construction of the driveway, and it seems that no inspection was made by the claimant in relation to satisfaction of the City Engineer or otherwise. 5 The claimant was found liable in negligence. It was held that it was an occupier of the relevant part of the driveway, that as such occupier it was under a duty to take reasonable care to protect persons including the opponent using the driveway from foreseeable or unnecessary risk of injury, and that it failed to take reasonable care because it did not take steps to see that the driveway was constructed in the manner required, that is, with a slope of one in eight. The reasons of the learned trial judge referred to the submission that the claimant could "claim the benefit of the nonfeasance principle", but rejected the submission on the ground that it was "a case not of repair but of construction of a particular access way which construction resulted in, and I accept on the evidence before me, an unnecessary danger". 6 We heard argument from the claimant on the merits of the appeal, as the common understanding was that the appeal should be disposed of if leave were given. From that argument, and we have not heard from the opponent in response, there seems to be a very strong case for his Honour having erred in treating the claimant as an occupier and subject to the duty I have described. Such a view of the claimant as a road authority would seem to be contrary to the common law, see, for example, Sisson v North Sydney Municipal Council (1966) 1 NSWR 580 esp at 583, and also to statute, see s 146(1)(d) of the Roads Act 1993. 7 His Honour referred to an alternative basis on which the claimant might have been found liable to the opponent, that as an approving authority it was in breach of a duty to see that the driveway was constructed in accordance with the approval, but did not finally decide that alternative basis. On the claimant's argument, and again we have not head from the opponent in response, there seems to be good reason to think that the alternative basis might not have been open to his Honour, see Sutherland Shire Council v Heyman (1985) 157 CLR 424 and the recent negation of general reliance as a basis for finding a duty of care in Pyrenees Shire Council v Day (1998) 192 CLR 330 and W D & H O Wills (Australia) Limited v State Rail Authority of New South Wales (1998) 43 NSWLR 338. 8 The difficulty is that the case was fought before his Honour on a different basis from that involved in the arguments put by the claimant to this Court. At the commencement of the hearing his Honour was told by counsel for the opponent, without dissent from counsel for the claimant (not counsel appearing before us), that it was common ground that the claimant was the occupier of the relevant part of the footpath and the entity responsible for it. There was then some rather obscure reference to what can now be recognised as the misfeasance rule, but in terms that the claimant said that it had no duty to inspect driveways constructed by home owners or repair such driveways. The introductory remarks to his Honour concluded with counsel for the opponent clearly referring to an occupier's non-delegable duty. From this and his Honour's reasons, it is clear that the case was fought on the basis that the claimant was relevantly an occupier, and that the issue was whether, as an occupier, it had a duty to inspect following the giving of approval to ensure that the driveway had been constructed in accordance with the approval. The issue as to duty and breach of duty was then taken over into the alternative basis of obligation as an approving authority. It was acknowledged before us that his Honour was not referred to either Sisson v North Sydney Municipal Council or s 146(1)(d) of the Roads Act , and he can not have been assisted on the proper application of the misfeasance rule. 9 This being an application for leave to appeal, that the case below was fought in the manner I have described is to my mind a very relevant matter to whether leave to appeal should be granted. The amount involved is not large. Leave to appeal is required because it is less than $100,000, and it is considerably less than that sum. It was submitted by the claimant that on the authority, or at least example, of Electricity Commission of New South Wales v Yates (1993) 30 NSWLR 351 the apparent fundamental departure from principle could not be ignored by this Court, and that because the proceedings below were not conducted according to law the fundamental departure should be corrected by the grant of leave and (if the apparent departure were found to be so) upholding the appeal. Electricity Commission of New South Wales v Yates was a much stronger case than this, where there was an award of damages contrary to the peremptory direction in recent legislation that such damages should not be awarded. I think it was very different from the present case, in which the claimant's error was permitting the proceedings to be conducted on the erroneous basis that the claimant was the occupier of the relevant part of the footpath and liable for breach of an occupier's duty. 10 His Honour's decision, in the circumstances I have outlined, should not be taken as any authority for the future. However, given the amount involved and the basis on which the proceedings were conducted below, I consider that this is not an appropriate case in which leave to appeal should be granted, and I propose that the application for leave to appeal be dismissed with costs. 11 SHELLER JA: I agree. 12 COLE AJA: I also agree. 13 SHELLER JA: The application for leave to appeal is dismissed with costs. ________________ 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.