Reported Decision : [2001] Aust Torts Reports 81-614 [2001] ACL Rep 265 NSW 64 New South Wales Court of Appeal CITATION : Coffs Harbour City Council v Backman & Ors [2001] NSWCA 202 FILE NUMBER(S) : CA 40463/99 HEARING DATE(S) : 5 June 2001 JUDGMENT DATE : 29 June 2001 Coffs Harbour City Council (Appellant) PARTIES : Theodore Backman (1st Respondent) William David Featherstone and Margaret Featherstone (2nd Respondents) JUDGMENT OF : Handley JA at 1; Stein JA at 2; Grove AJA at 45 LOWER COURT JURISDICTION : District Court LOWER COURT DC 8/97 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER : Appellant - C R C Newlinds/S P W Glascott COUNSEL : 1st Respondent - L King SC/J Neal 2nd Respondents/Cross-Appellant - A P Coleman Appellant - Phillips Fox SOLICITORS : 1st Respondent - Henry Davis York 2nd Respondents - B L Abbott & Co, Coffs Harbour CATCHWORDS : TORT - negligence - Order under s 124 of the Local Government Act 1993 to slash vegetation - liability of Council in absence of further complaint - whether danger was one the Council could have reasonably suspected to exist or known to arise - TORT - negligence - liability - duty of care owed to a trespasser - whether it was reasonably forseeable that a person would enter the land in question - D LEGISLATION CITED : Local Government Act 1993 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 CASES CITED: Brodie v Singleton Shire Council [2000] HCA 29, 31 May 2001 Hackshaw v Shaw (1984) 155 CLR 614 Phillis v Daly (1988) 15 NSWLR 65 DECISION : 1. Appeal allowed. 2. Pursuant to the undertaking given to the Court on the granting of leave to appeal, the appellant to pay the costs of the first respondent. 3. Verdict and judgment entered in the Court below against the appellant be set aside and a verdict for the appellant entered. 4. In substitution therefor, a verdict and judgment be entered for the first respondent against the second respondents in the sum of $24,000. 5. The second respondents pay the costs of the first respondent and appellant in the Court below. 6. The cross-appeal be dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40463/99 DC 8/97 HANDLEY JA STEIN JA GROVE AJA Friday, 29 June 2001 COFFS HARBOUR CITY COUNCIL v Theodore BACKMAN & ORS The first respondent, Mr Backman, was injured when he fell into an open sewer access point on vacant land owned by the second respondents. Due to the long grass on the land, he did not see the open access point. The Council was joined as a defendant as they had issued an Order under s 124 of the Local Government Act 1993 in 1995 to have the owners slash the land. It appears that the land was slashed after the notice was served, however there is no direct evidence of this. There is no evidence of any further complaint being made. If there was an inspection by the Council, a visual inspection from the street frontage would probably have sufficed. It would have been unnecessary to traverse the whole of the land, particularly the corner where the sewer cover was located, to determine whether the vegetation had been slashed. Mr Backman sued the appellant and the second respondents for damages for negligence, and was successful against both. The appellants and the owners were both granted leave to appeal conditional upon them paying the first respondent's costs of the appeal in any event. The Coffs Harbour City Council appeal from the judgment of Delaney DCJ. The owners of the land cross-appealed. Held: Per Handley and Stein JJA, and Grove AJA: 1) There was no evidence that the Council had removed the cover of the sewer access point, nor was any inference to that effect available. 2) It is not difficult to infer that Mr Featherstone, one of the owners of the property in question, displaced the cover of the sewer access point when slashing the land in response to the Council Order. There is no other plausible or rational scenario available. 3) The danger of the open access point was not one which the Council could have reasonably suspected to exist or known to arise. Therefore, there was no breach of duty of care owed by the appellant. - Brodie v Singleton Shire Council [2001] HCA 29 applied 4) The owners should have reasonably expected that a person may cross their land up to the rear boundary and into the south-east corner, where the sewer access point is located. The owners would know, or ought to know, of the likely presence of trespassers on their land. 5) Once the owners knew of the danger created by the displacement of the sewer access point cover, there was a reasonably foreseeable risk of injury to anyone entering this part of their land. The first respondent's technical status as a trespasser did not diminish the content of the duty of care owed. - Hackshaw v Shaw (1984) 155 CLR 614 applied - Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 applied Orders: 1) Appeal allowed. 2) Pursuant to the undertaking given to the Court on the granting of leave to appeal, the appellant to pay the costs of the first respondent. 3) Verdict and judgment entered in the Court below against the appellant be set aside and a verdict for the appellant entered. 4) In substitution therefore, a verdict and judgment be entered for the first respondent against the second respondents in the sum of $24, 000. 5) The second respondents pay the costs of the first respondent and appellant in the Court below. 6) The cross-appeal be dismissed with costs. OoO IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40463/99 DC 8/97 HANDLEY JA STEIN JA GROVE AJA Friday, 29 June 2001 COFFS HARBOUR CITY COUNCIL v Theodore BACKMAN & ORS JUDGMENT 1 HANDLEY JA: I agree with Stein JA. 2 STEIN JA: Introduction 3 On Sunday, 1 October 1995 the plaintiff, then 75 years old, injured himself when he fell into an open sewer access point on land owned by the second respondents, Mr and Mrs Featherstone. He sued the appellant, the Coffs Harbour City Council, and the owners of the land, for damages for negligence and succeeded against both. Delaney DCJ entered a verdict and judgment for the plaintiff in the sum of $24,000 and apportioned it equally between the defendants. The appellant and the owners were both granted leave to appeal conditional upon them paying the plaintiff's costs of the appeal in any event. Facts 4 The accident occurred at Woolgoolga, north of Coffs Harbour and within the appellant's local government area. The second respondents owned vacant land at 44 - 46 Clarence Street (also called the Pacific Highway) being lots 5 and 6 in DP 805637. The lots are subject to an easement to drain water 2.5m wide in favour of the appellant Council. The line of the easement runs from the street frontage straddling the boundary between lots 5 and 6 and, at a point about 35m into the land, turns to the south east and runs diagonally across lot 6 and crosses into the adjacent lot to the east close to the rear corner of the land. On this boundary there is a chain wire fence. At the rear of the land is a paling fence and, behind it, a number of dwelling houses. 5 The subject land was vacant and, so far as the evidence disclosed, had never had any buildings erected on it. To its south was a fruit barn and, to the north, a motel. 6 Lots 5 and 6 together have an area of a little over 2000m2 with a combined street frontage of about 42m, which was unfenced and open to the highway. The depth of the land varies but averages around 50m. 7 Within the easement is a sewer line which had been in place for 20 to 25 years prior to the accident. In 1992, or perhaps 1993, a manhole access point situated towards the south-east corner of Lot 6 was replaced. Apparently it had become buried and difficult to locate. The replacement system was an H type Humes Precast Concrete Manhole system, which was raised 190 to 200mm above the ground. It consisted of a number of components. Importantly for this case, it had a lid which fitted into a surround. The lid and surround had a combined weight of 230kg. These two units sit in a 'make-up ring' and are affixed with an adhesive or sealant. The system allowed for visual access by the removal of the lid with a specially designed tool used to raise it. If physical access was required to the sewer, the lid and surround would be removed by a backhoe equipped with a lifting device. 8 According to the evidence, it would take at least four able bodied men to lift the weight of the lid and surround without mechanical assistance. In addition, this would be a difficult task because of the problems of obtaining a grip. 9 On the day of the accident the plaintiff entered the land to carry out his Neighbourhood Watch duties. A neighbour was away from home and had asked him to check on her backyard, about 350m from his house. Mr Backman intended to check by looking over the fence, presumably the paling fence at the rear of the subject land. He walked through the vacant block of the second respondents. He had done this before. At one stage in his evidence he said three or four times. At another time he said 'many times'. 10 The grass on the vacant land was, he said, very thick and had not been cut for a long time. He fell down the sewer hole which he had not seen, injuring himself. There was, he said, no top on the hole. He did not see the hole before he fell because it was covered with grass. Nor did he see the cover or lid. He described the grass as overgrown 'wire' grass which crept. It was 'as thick as anything'. He estimated its height at 6 to 9 inches. 11 The plaintiff then went to see a Mr Elliott, who was apparently a council employee. Mr Elliott noted that Mr Backman was injured. The two of them returned to the land and 'scratched around' before they located the manhole and lid. To find the manhole Mr Elliott needed to pull the grass away. He said that the grass was 'fairly long'. The lid was found about two feet to the southern side of the manhole. 12 Mr Elliott informed a council overseer, a Mr Third, and they returned to the land. Mr Third put a barricade around the hole. Mr Elliott confirmed that the entire crown (surround) and lid had become dislodged. It was off to one side of the hole - 18 inches to two feet away although 'very close'. Mr Elliott did not think that its edge was at the hole. 13 The Council's Risk Co-ordinator, Mr Quinn, gave evidence that after he was made aware of the accident, he made inquiries of council officers. He then telephoned the owners. This was on 4 October 1995. He asked Mrs Featherstone who had slashed the block. She said that her husband had done it. He was nearby so she put him on the telephone to speak to Mr Quinn. 14 Mr Quinn's evidence was that: Mr Featherstone said that he knew why I was calling, that he was aware of the accident to Mr Backman. He said that he hadn't slashed the block, he said he had engaged a contractor to do it. I asked him what the contractor's name was and he wouldn't give me the contractor's name. 15 Apparently the Council had received a complaint in early 1995 from a Mr Jarman, a resident, about the overgrown vegetation on the subject land. This lead the Council to send a letter to the owners on 27 February 1995 referring to a complaint about their property being 'overgrown with vegetation and [is] not in a safe or healthy condition'. The letter recorded that an inspection by a Council officer had revealed that the complaint was justified. 16 An Order under s 124 of the Local Government Act 1993 was enclosed which, so it said, would apply after 14 days from 27 February 1995, viz 13 March 1995. The accompanying Order gave the owners of the land 28 days from 13 March 1995 to slash 'all vegetation' on the land 'so as to render the land in a safe and healthy condition'. The stated reason for the order that 'the land was not in a safe or healthy condition' as it was overgrown with vegetation. 17 The Order, expressed to be under Order No 21 to s 124, noted that failure to comply was an offence and that, failing compliance, Council may undertake the works itself and recover the costs from the landowner. 18 There was no direct evidence of any subsequent Council inspections, although it appears inferentially that the land was slashed at some point of time after the notice was served. 19 Certainly the owners acknowledged this, Mrs Featherstone telling the Council officer that Mr Featherstone did it himself and Mr Featherstone saying that he had a contractor, whom he refused to name, do it on his behalf. 20 There was no evidence of Council receiving any further complaint about the condition of the land from Mr Jarman or from anyone else. If the Council had checked for compliance, a visual inspection from the street frontage would probably have been sufficient. Clearly, it would have been unnecessary to traverse the whole of the land, including the south eastern corner where the manhole was located, to ascertain whether the vegetation had been slashed. 21 Mr Green, the foreman of the Council's Sewerage Department, gave evidence about the sewer inspection covers in the council area, saying that there were 7,390. Other evidence indicated that 70% of the access manholes were on private land. Council had 20 men in its sewer department. 22 Mr Jones, the operator in charge of the Woolgoolga Sewerage Treatment Plant, testified as to a change in the manhole in 1992 or 1993. He visited the land following the accident and saw that the lid was 'completely off', exposing the sewer access hole. It was, he said, 'pushed off, it seemed'. The edge of the surround was just on the lip of the hole. A backhoe lifted it clear and it was placed back over the hole after new sealant was applied. He described the vegetation in the area as 'pretty dense' with high grass over the whole of the land. Although he conceded that he was guessing, he estimated its height at about two feet. The grass, he said, was growing over the lid and hole, concealing them. 23 Mr Jones was asked if it was his opinion that the lid and collar had been lifted. He answered: 'No. I'd say it'd been pushed'. He was then asked why he thought that and he said: Just the way it was sort of off on that angle, as though it had just been hit with something or pushed with something. … The critical question 24 The question arises as to who removed the lid and surround from the sewer access hole. Bearing in mind its weight and the evidence about the need for four men to move it without machinery, one may put to one side a casual act of a third party malefactor. That can only leave two possibilities, the Council or the owners. There was no evidence that the Council had removed it nor available inference to that effect. The situation with the Featherstones' is different. They did not testify before the District Court. Mr Quinn's evidence of the conversations with Mrs Featherstone and Mr Featherstone may be accepted. He spoke to them within three days of the plaintiff's accident. Mrs Featherstone told Mr Quinn that her husband had slashed the land. She put her husband on the telephone and he then contradicted his wife and told the Council officer that he had not slashed it but had engaged a contractor to do it. He was asked, but refused, to provide the name of the contractor. He was aware the plaintiff's accident and knew why Mr Quinn was calling. 25 There is no cogent reason why Mr Featherstone should refuse to name the contractor unless there was, in fact, no contractor and Mrs Featherstone was telling the truth when she said that her husband had slashed the land himself. 26 To slash the land, given its size and overgrown state, would in all probability require a tractor and slasher. It was not a job for a suburban lawn mower. At the time of the accident the lid and surround were in a position either touching or very close to the manhole and to its south. That is, pretty close to the south eastern corner of the block, an area difficult to slash with a tractor because of the angle of the boundaries and existence of fences. Jones' evidence is compelling, that the lid was not lifted but pushed off at an angle 'as though it had been hit with something or pushed with something'. 27 It is not difficult to infer, in the absence of any evidence from the owners, that Mr Featherstone accidentally pushed the lid off the manhole when he was slashing the land, knocking it off to the southern side of the manhole. Further, that he knew he had done this. There is just no plausible and rational alternative scenario available. It is otherwise difficult, if not impossible, to explain Mr Featherstone's evasiness when questioned by Mr Quinn. The Council's position 28 His Honour found that the Council had breached its duty of care to the plaintiff. He said: … I am satisfied that they did not do sufficient in all the circumstances after having found it necessary to give a notice to ensure that the land was sufficiently cleared, in accordance with its notice, it having knowledge that the sewer line went through that land, to enable the line to be noticeable to ordinary persons entering upon that land whether they be trespassers or otherwise. 29 It is clear that the primary cause of the plaintiff's accident was the removal of the lid and surround from the sewer access manhole. If it had not been removed, the plaintiff would not have fallen into the manhole. 30 While the long grass obscured the hole and the separated cover, it was the open hole into which the plaintiff fell and injured himself. The Council was unaware that the lid and surround had been removed from the manhole at any time prior to the accident. It had no reason to suspect that it had been removed. In the absence of any further complaint about overgrown vegetation on the land I do not consider that the Council could be seen to be negligent in not continuing to follow up the matter and inspect the land. In any event, Council did not need to access the north-eastern corner of the site to check on compliance with the 'slashing' order it gave to the owners on 27 February 1995. A visual inspection of the state of growth on the land could be reasonably made from observations at the street boundary, or a small distance into the land. Such an inspection would not have revealed that the lid was off the manhole. 31 The danger of the open manhole was not one which the Council could have reasonably suspected to exist or known to arise. Gaudron, McHugh and Gummow JJ noted in Brodie v Singleton Shire Council [2001] HCA 29, 31 May 2001 that: Where the danger could not reasonably be suspected to exist, or could not be found except by taking unreasonable measures, generally there will be no breach of duty by the authority. On the other hand, there will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, or of which the authority has been informed or made aware. (at 165) 32 It follows that there was no breach of the duty of care owed by the appellant and its appeal should be allowed. The position of the owners 33 The second respondents cross-appealed against his Honour's finding of liability on their part. Reliance is placed on the status of the plaintiff as a trespasser. 34 I have already found that, on the balance of probabilities, the lid and surround on the manhole became dislodged when Mr Featherstone carried out a slashing operation on the land in order to comply with the Council's order. It was this action which created the danger of the open hole into which the plaintiff fell. The risk of accident was not far-fetched or fanciful, but a real one. 35 The real question is whether it was reasonable for the second respondents to expect anyone to come onto the corner of the land where the manhole was situated. Why would anyone be reasonably expected to visit this part of the land? I think there are a number of reasons why the owners should have reasonably expected that persons may cross their land up to the rear boundary and into the south-east corner, where the sewer access point was located. The land had always been vacant and completely open to the street, where the frontage was wide. Family pets, especially dogs, could wander onto the land and be followed by their owners. Young children might be expected to play on any part of the land. A number of residences are situated behind the paling fence at the rear of the land. Children could lose a ball over the fence and seek to retrieve it. It is possible that the land may be traversed as part of a 'short cut'. There are many such possibilities. 36 In my opinion, it cannot be said that the owners would not have reasonably expected anyone to come onto their land and into the area where the sewer access manhole was located. 37 In Hackshaw v Shaw (1984) 155 CLR 614 at 662 - 663 Deane J said: … it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk. Where the visitor is lawfully upon the land, the mere relationship between occupier on the one hand and invitee or licensee on the other will of itself suffice to give rise to a duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury to her or him. When the visitor is on the land as a trespasser, the mere relationship of occupier and trespasser which the trespasser has imposed upon the occupier will not satisfy the requirement of proximity. Something more will be required. The additional factor or combination of factors which may, as a matter of law, supply the requisite degree of proximity or give rise to a reasonably foreseeable risk of relevant injury are incapable of being exhaustively defined or identified. At the least they will include either knowledge of the actual or likely presence of a trespasser or reasonable foreseeability of a real risk of such presence . (emphasis added) 38 In my view, the requirements specified by Deane J have been satisfied on the evidence and inferences open to be properly drawn. Once the owners knew that the manhole was exposed by the dislodgment of the lid and surround, there was a reasonably foreseeable risk of injury to anyone entering this part of the land. The occupiers would know, or ought to know, of the likely presence of trespassers on their land. 39 The majority in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 applied Deane J in Hackshaw. Their Honours said (at 487) that: … There remains neither warrant nor reason for continuing to search for fine distinctions between the so-called special duty enunciated by Willes J. [in Indermaur v. Dames ] and the general duty established by Donoghue v. Stevenson . The same is true of the so-called special duties resting on an occupier of land with respect to persons entering as licensees or trespassers. So long as these alternative formulae are retained, courts and others concerned with the application and administration of the law are committed to pursuing the "barren exercise" to which Brennan and Dawson JJ. referred. We are unable to see sufficient justification for their continued recognition. It is a mistake to think that the failure of an occupier of dangerous premises to take reasonable care does not encompass an act or omission on the part of the occupier which suffices to attract the general duty. 40 See also Samuels JA in Phillis v Daly (1988) 15 NSWLR 65 at 67 - 68. 41 The circumstances of the plaintiff's entry on the land, while constituting a trespass, was but a technical one. He was there for a laudable purpose as part of his neighbourhood watch duties. He was not on the land for any nefarious, illegal or mischievous purpose. The land was vacant and open to the roadway. It almost invited entry by a variety of persons for a variety of reasons. The circumstances of the plaintiff's entry on the subject land do not, in my opinion, diminish the content of the duty owed, which was to take reasonable care. On the facts as I have found them, that duty was clearly breached. 42 It follows that his Honour was not in error in finding against the second named respondents. Their cross-appeal should be dismissed. 43 Since the appellant Council has been successful and the cross-appellants unsuccessful, it follows that they must bear the whole of the plaintiff's damages. Proposed orders 44 I would propose the following orders: 1. Appeal allowed. 2. Pursuant to the undertaking given to the Court on the granting of leave to appeal, the appellant to pay the costs of the first respondent. 3. Verdict and judgment entered in the Court below against the appellant be set aside and a verdict for the appellant entered. 4. In substitution therefor, a verdict and judgment be entered for the first respondent against the second respondents in the sum of $24,000. 5. The second respondents pay the costs of the first respondent and appellant in the Court below. 6. The cross-appeal be dismissed with costs. 45 GROVE AJA: I agree with Stein JA. oOo 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.