Reported Decision : 105 LGERA 304 New South Wales Court of Appeal CITATION : Barbieri v Fairfield City Council [1999] NSWCA 405 FILE NUMBER(S) : CA 40697/97 HEARING DATE(S) : 25 August 1999 JUDGMENT DATE : 29 October 1999 Guiseppe Barbieri (Appellant) PARTIES : v Fairfield City Council (Respondent) JUDGMENT OF : Mason P at 1; Meagher JA at 2; Davies AJA at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 5130/95 LOWER COURT JUDICIAL OFFICER : George ADCJ COUNSEL : A: Mr H Marshall R: Mr D McGovern SOLICITORS : A: Andrew Fegent & Co R: Phillips Fox CATCHWORDS : Local Government; negligence; immunity for non-feasance; whether stormwater drain part of the highway; barricade erected by a resident; whether removal of barricade created a danger; whether breach of Council's duty of care; whether Council had duty to inspect Buckle v Bayswater Road Board 57 CLR 259 Gorringe v Transport Commission (TAS) 80 CLR 357 Sheppard v Glossop Corporation (1921) 3 KB 132 CASES CITED: Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Aust Ltd (1931) 46 CLR 41 RTA v Scroop (1998) 28 MVR 233 Woollahra Council v Moody 16 CLR 353 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Mifsud v Campbell (1991) 21 NSWLR 725 DECISION : Appeal dismissed with costs IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40697/97 DC 5130/95 MASON P MEAGHER JA DAVIES AJA FRIDAY, 29 OCTOBER 1999 Guiseppe BARBIERI v FAIRFIELD CITY COUNCIL JUDGMENT 1 MASON P: I agree with Davies AJA. 2 MEAGHER JA: I agree with Davies AJA. 3 DAVIES AJA: This is an appeal from the judgment of a Judge of the District Court of New South Wales, his Honour Acting Judge George. His Honour dismissed a claim brought by Mr Barbieri, who had suffered injuries on 24 September 1994, when, while walking along the grass on the footpath of Gipps Street, Smithfield, his leg went down into and was caught by a broken manhole cover. The manhole cover gave access to an inspection pit of the stormwater drain system. On the following Monday, the respondent, the Fairfield City Council ("the Council"), replaced the stormwater cover. Mr Barbieri's claim relied upon the principles of nuisance and negligence. His Honour rejected the claim on the ground that the Council was protected by the principle of nonfeasance. The Basic Facts 4 No explicit evidence was given as to how the break in the stormwater cover came about. However, evidence was given that, on 31 August and 1 September 1994, roadworks were carried out in the area by a firm, Readymix, which had been engaged by the Council to stabilise the surface of the roadway in Charles Street and Gipps Street. Later in September, on a date which has not been identified, a firm, Emoleum, applied hot mix to the roadway. Although no finding was made by his Honour, it is possible that a truck engaged in either of these works drove onto the stormwater cover and either caused the damage to it or increased the extent of it. The evidence given to the Court would not support a finding that the stormwater cover was damaged by a truck of the Fairfield City Council or by the Council's employees. 5 His Honour received an affidavit of Mr G A Griffith, who was Mr Barbieri's father-in-law and who lived in his home. Mr Griffith deposed that approximately two weeks before Mr Barbieri's accident, he noticed the hole in the stormwater cover. He took a barricade from Charles Street, where roadworks were being performed, and placed it over the stormwater cover. Mr Griffith deposed that the workers appeared to be Council workers, that the barricades had the words "Fairfield City Council" on them and that the vehicles used also had the name of the Council on them. Mr Griffith deposed that, later the same day, the Council workers removed the barricade. 6 In this appeal, Mr D McGovern, counsel for the Fairfield City Council, has submitted that the affidavit ought to have been rejected as not all paragraphs were in proper form and as Mr Griffith drew inferences from the involvement of Council employees in the works which, Mr McGovern submitted, were unfounded. However, Mr Griffith made it clear what was the basis of his inferences, namely, that the barricades had the name of the Council on them and that the employees were travelling in vehicles which also showed the name of the Council. Although some of the affidavit may have been better phrased, I consider that the trial Judge was correct in admitting it and in giving it such weight as he saw fit. 7 The description given by Mr Griffith, of noticing the damaged stormwater cover, of taking a barricade from nearby roadworks in Charles Street, of placing it over the cover and of the removal of the barricade later on the same day by persons engaged in the roadworks, may be accepted as a true account of events that occurred. The description was supported by other evidence. Mr Griffith died before the trial. His Honour did not reject Mr Griffith's affidavit but said that, where it was inconsistent with the evidence of witnesses before him, he would place greater weight on their evidence. 8 Mr T L Potts, a works superintendent with the Fairfield City Council, and Mr K Hore, who had been an overseer for the Council, gave evidence that Readymix had stabilised the surface of Charles Street on 31 August and the area of Gipps Street, near Mr Barbieri's home and the stormwater cover, on 1 September. Mr Hore was the Council overseer who supervised those works. Mr Potts gave evidence that there was no record of Council barricades being taken out for use in those works or for any other work in the area at that time. He said that the Council's barricades did not bear the name "Fairfield City Council" but the initials "FCC" and/or the Council's logo. He said that the Council's barricades would not have been made available to Readymix or Emoleum. Mr Hore gave evidence that the barricades used in the roadworks on 31 August and 1 September were those provided by Readymix. He said that the Council's barricades did not carry its name. Accordingly, although Mr H Marshall, counsel for Mr Barbieri, pointed to the contract between the Council and Readymix which specified that the Council would provide all necessary signs, it was not proven and his Honour did not hold that the barricade which Mr Griffith placed over the hole was a Council barricade. 9 The Statement of Claim alleged that the Council, in its capacity as the Local Government Authority, had carried out work in Charles Street near the intersection with Gipps Street in the period in or about August and September 1994. It alleged that the road repairs were effected by the Council by its servants, agents or contractors. As evidence was called from Mr Potts, who had been the Council officer responsible for the supervision of the engineering department of the Council, including the sources of plant and equipment and the daily allocation of staff, and who was responsible, inter alia, for the records kept in relation to barricades, I consider that the trial Judge was bound to hold that the relevant works were those undertaken by Readymix or Emoleum and probably were the works carried out by Readymix. It would be inconsistent with the evidence of Mr Potts to hold that other roadworks were carried out during the relevant period at or near the corner of Charles and Gipps Streets by employees of the Council. 10 Having referred to the point that he placed greater weight on the evidence of the live witnesses, the trial Judge went on to say: "… even if I do reject the evidence of the council officers that a council barricade could not have been present on this site and I accept at its highest the evidence of Mr Griffith that in fact a council barricade was moved by him to indicate danger on this site it does not, in my judgment, alter the situation." That passage did not constitute either a rejection of the evidence of Mr Potts or of Mr Hore or an acceptance of Mr Griffith's evidence. It merely postulated the possibility of accepting that a Council barricade may have been used. The passage did not express or infer a finding that the barricade was moved from where Mr Griffith had placed it by employees of the Council. The Law 11 In Buckle v Bayswater Road Board (1936) 57 CLR 259 at 281-2, Dixon J expressed the principle of nonfeasance in these terms: "It is well settled that no civil liability is incurred by a road authority by reason of any neglect on its part to construct, repair or maintain a road or other highway. … 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." In Gorringe v The Transport Commission (TAS) (1950) 80 CLR 357 at 379, Fullagar J said: "It would also seem to be the accepted view today that the rules apply even to a highway authority only in respect of the actual roadway itself and such artificial structures in and about the roadway as can fairly be considered 'part of the road' or 'made for road purposes' or 'made for roadway purposes' in Buckle v Bayswater Road Board . Bridges, drains and culverts, which are essential parts or accessories of a roadway, are generally considered as falling within the purview of the rules." The Stormwater Drain 12 An issue for the trial Judge was whether the stormwater drain had been constructed by or for the Fairfield City Council in its capacity as the authority responsible for roads in the area. His Honour held that the stormwater drain had been so constructed and served the purpose of draining the roadway. His Honour was entitled to infer that the stormwater drain was created to take water from the footpath and from the roadway. The stormwater drain was so situated as to be suited to that end. There was no evidence that the stormwater drain had been created for any other purpose or that any households had direct access to the drain. If it were inferred that stormwater from houses ran through pipes onto the road and then through culverts into the drain, such evidence would not establish that the stormwater drain had not been created as part of the roadworks. There was, in any event, no evidence about this. The burden of proving that the drain was constructed and maintained by the Council in some capacity other than as a road authority lay upon Mr Barbieri as the plaintiff. The proof of that other capacity was a necessary part of his case: see per Dixon J in Buckle v Bayswater Road Board at p 296. Removal of the Barricade 13 The principal argument put by Mr Marshall on behalf of Mr Barbieri was that the Council increased the danger by taking away the barricade which Mr Griffith had placed there. This submission necessarily fails on the facts, for it was not shown that the Council did so. Indeed, the fact that the stormwater cover was not replaced at the time the barricade was removed is itself an indication that Council employees were not involved. 14 I agree, in any event, with the view of the trial Judge that, as Mr Griffith had no right to appropriate the barricade and place it where he did, whoever took the barricade away was entitled to do so and the act of recovering the barricade was not an act of misfeasance. Even if Council employees were aware of the danger, and there is no evidence that they were, the Council did not incur liability by leaving the danger as it was before Mr Griffith placed the barricade there. 15 A road authority is not liable unless it was an active agent in causing the danger. Thus, in Buckle v Bayswater Road Board at p 292, Dixon J said: "When the highway authority acts in that capacity the question is whether, by the negligent exercise of its statutory powers or otherwise without statutory justification, it has been the active agency in causing the nuisance." At p 284, his Honour said: "But it [the authority] will be liable not on the ground that it failed to exercise its powers so as to prevent them, but on the ground that it was the active agent in causing an unnecessary danger in the highway." 16 His Honour referred to Sheppard v Glossop Corporation (1921) 3 KB 132. In that case, a municipal council adopted the practice of turning off, at 9pm, certain lights including one which illuminated a retaining wall. The plaintiff in that case had, on a dark night, walked over the retaining wall and fallen onto the roadway and had been injured. It was held that Glossop Corporation was not liable, as it had done nothing to make the street dangerous and was under no obligation, whether by lighting or otherwise, to give warning of danger. 17 It follows that, if the Fairfield City Council did not cause the damage to the stormwater cover, it was not obliged, even if it was aware of the danger, to give a warning about it. It was, moreover, entitled to remove any barricade which had been placed over the stormwater cover by a local resident without authority. The placing of the barricade by Mr Griffith did not impose upon the Council a liability either to repair the damage or to warn of the danger. The Council was entitled to remove from the footpath any barricade or warning placed there by a resident without its authority. That was the view of the trial Judge who, in the course of his reasons, said: "It seems to me that the danger that was present and created by the deterioration or breakage of the stormwater slab was not altered by the removal of whatever barrier Mr Griffith placed there and in my judgment it makes no difference who removed it. On the authorities, a failure to repair is nonfeasance, even though the danger is known to exist." Responsibility for Damage to the Stormwater Cover 18 It was submitted, by counsel for Mr Barbieri, that the Council was responsible for the actions of the person or persons who damaged the stormwater cover. If anyone was shown to have done this, it was the employees of Readymix, the contractor. A basic principle was stated by Dixon J in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48 where his Honour said: "In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he has not directly authorised the doing of the act which amounts to a tort. The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal." It was submitted, however, that the Council had a non-delegable duty of care as the roadworks on the corner of Charles and Gipps Streets were carried out on its behalf. It was submitted that the Council was responsible for the roadworks and had a duty to oversee them and to inspect the area at the conclusion of the works to ensure that no danger had been created. This submission was put without reference to authority. 19 Although the allegation that the road repairs were effected by the Council by its servants, agents or contractors was contained in the Statement of Claim, this particular submission was not discussed by the trial Judge. It is not surprising that this was so, as the point was not clearly raised in the cross-examination of the Council's witnesses. I find it surprising that the submission was made that the Council was responsible for the breaking of the stormwater cover when no question to that effect was put to either Mr Potts, the works superintendent, or to Mr Hore, the overseer. Mr Hore gave evidence in chief that he did not notice the broken stormwater cover when he was overseeing the works carried out by Readymix on 31 August and 1 September 1994. In cross-examination, he was asked whether he knew the particular cover. He said he did not. He said that he had never looked at it. The evidence was left in that state. If the adversary system of litigation is to work effectively, then issues of substance must be put to the witnesses who have the knowledge to speak about them. It is unsatisfactory to ask the Court of Appeal, or a trial Judge, to draw inferences concerning matters which, if they were to be litigated, ought to have been the subject of explicit evidence. Obviously, the point was so understated at the trial that his Honour was unaware that the issue was being pressed. 20 I have earlier said that it was possible that a truck, for which Readymix or perhaps Emoleum was responsible, drove onto the footpath and damaged the stormwater cover. Mr McGovern submitted that it would be pure speculation to find that that occurred. In view of the fact, however, that Mr Griffith, who lived nearby, noticed the damage whilst the roadworks were being carried out, I consider that a finding that a Readymix truck did damage the stormwater cover in that way was open. Without concluding that the finding should be made, I continue with my observations on the assumption that that was the case. 21 If roadworks which are carried out on a council's behalf contain a degree of danger to road users, the Council will come under a responsibility to road users to take reasonable care for their safety. What is reasonable care in the circumstances will depend upon the facts of the case. Depending also on the circumstances, the duty of care or aspects thereof may be non-delegable: see Roads and Traffic Authority v Scroop (1998) 28 MVR 233. 22 The duty of care encompasses a duty to take reasonable care for the result of the works undertaken. So, in Woollahra Council v Moody (1913) 16 CLR 353, the Woollahra Council was held responsible where its works were poorly designed. New kerbing and guttering had caused a hole to form on the footpath due to increased movement of water. It was held that the hole was a natural and necessary or probable consequence of the works and that the injury, in respect of which damages were sought, resulted from the negligence of the Council "in respect of work actually done by them." 23 Mr Barbieri's injury, however, did not result from anything done on the roadways of Charles Street or Gipps Street. The stormwater drain and the stormwater cover were not within the ambit of the works being undertaken. There is nothing in the evidence to show that the works undertaken were such as to require or authorise any Readymix or Emoleum trucks to drive onto the footpath. In answer to the few questions put in cross-examination on this point, Mr Potts said that semitrailers would go around the block rather than turn in the street and that garbage trucks do not leave the road. It was not put to Mr Hore that Readymix trucks drove onto the footpath. Accordingly, if a Readymix truck damaged the stormwater cover, it did an act which was not required by the roadworks and was not authorised by the Fairfield City Council. The Council was not liable under principles of negligence for this act which was not a natural or probable consequence of the roadworks. The damage to the stormwater cover did not result from any work for which the Council had responsibility but from the negligence of a truck driver. 24 An argument was also put by Mr Marshall on the basis of inspection. However, as the Council was not liable for the damage to the stormwater cover, because it did not play an active part in creating it, then it was not liable for lack of inspection. Nor, for that matter, was there any evidence that Mr Hore failed to properly inspect the works which he was required to oversee, namely, the roadworks. Reasons 25 The final submission put by Mr Marshall was that the reasons for judgment were inadequate. Cases such as Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Mifsud v Campbell (1991) 21 NSWLR 725 were cited. In my opinion, his Honour made it clear what his views were on the issues that he understood were raised before him. The reasons were adequate in the circumstances of the case. Orders 26 I see no error in the judgment below. I would dismiss the appeal 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.