New South Wales Court of Appeal CITATION : Kaldor v Woollahra Municipal Council & Anor [2001] NSWCA 414 FILE NUMBER(S) : CA 40300/01 HEARING DATE(S) : 7 November 2001 JUDGMENT DATE : 7 November 2001 Rupert Byron Finlay Kaldor - Claimant PARTIES : Woollahra Muncipal Council - First Opponent Roads & Traffic Authority of New South Wales - Second Opponent JUDGMENT OF : Giles JA at 1; Rolfe AJA at 10 LOWER COURT JURISDICTION : District Court LOWER COURT 7026/99 FILE NUMBER(S) : LOWER COURT Balla DCJ JUDICIAL OFFICER : W Washington - Claimant COUNSEL : R Newlands & S P Glascott - Second Opponent V Hartstein - Second Opponent Baron & Associates - Claimant SOLICITORS : Phillips Fox - First Opponent I V Knight - Second Opponent CATCHWORDS : LEAVE TO APPEAL - motor cycle accident - caused by state of road - whether negligence in construction or repair of road - judge not satisfied there was - decision did not turn on misfeasance/nonfeasance - no inadequacy of reasons or finding against evidence - no arguable error - leave refused. CASES CITED: Brodie v Singleton Shire Council (2001) HCA 29; Hill v Commissioner of Main Roads (1989) 68 LGRA 173. DECISION : Application for leave dismissed with costs. DCIN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40300/01 DC 7026/99 GILES JA ROLFE AJA 7 November 2001 KALDOR v WOOLLAHRA MUNICIPAL COUNCIL & ORS Judgment 1 GILES JA: This is an application for leave to appeal from a decision of Balla DCJ, who found against the claimant in an action for damages for negligence for personal injuries sustained by the claimant in February 1999. The claimant was riding his motorcycle along New South Head Road at Rose Bay. He lost control of the motorcycle, fell off and was injured. 2 Her Honour was satisfied that his losing control of his motorcycle was precipitated by a rough section of the roadway at the point where a concrete lane on the road adjoined an asphalt lane on the road. There was at the interface what was sometimes called a disconformity, at other times a groove, and implicit in what her Honour said was that she was satisfied that a wheel of the motorcycle became trapped in the groove and that caused the accident. 3 However, her Honour was not satisfied that it had been established that either of the opponents, being the local council which in general terms had responsibility for the road until November 1997 and the Roads and Traffic Authority of New South Wales which in general terms had control of the road thereafter, was negligent. 4 Her Honour said that she accepted the submission made by counsel for those parties that there was no evidence on which she could find that, at either the time of construction or the times of patching of the roadway, the methods used by the relevant road authority - on the evidence it seems probable the local council - were unacceptable, and in particular that there was no evidence that at the time of construction the road authority should have been aware of the consequence of using the two materials concrete and asphalt and foreseen the likely load which one of the experts suggested would have caused the failure. She said that she was not satisfied that the expert evidence established that the manner in which the roadway was patched was negligent, and that, while the expert called for the claimant did describe the patching as temporary and was of the view that a permanent repair should be effected, the expert did not suggest that the patching that had taken place was of itself defective. She added that there was no evidence of the standards of the time in relation to either road construction or patching. 5 The conclusion which her Honour then stated was that the claimant's action in negligence against both the local council and the Roads and Traffic Authority must fail. She went on to say that, although it was not necessary for her to decide, she was also of the view that the action of the relevant road authority in patching the roadway could not be described as misfeasance, and to give reasons for that view. 6 In the draft notice of appeal and written submissions it was sought to contend that her Honour erred in the view to which she came in relation to misfeasance. It was submitted that the correct approach was to put aside the distinction between non-feasance and misfeasance consequent upon the decision of the High Court in Brodie v Singleton Shire Council (2001) HCA 29, a decision given a few weeks after her Honour's decision. However, it will be apparent from what I have said that the non-feasance/misfeasance distinction was not significant to her Honour's decision. We have been provided with the claimant's statement of claim in its final form, and it alleged generalised negligence as distinct from misfeasance. That was clearly the way her Honour first approached the matter, when she found that she was not satisfied that the claimant had shown that either the local council or the Roads and Traffic Authority was negligent. It was only after she so found that she went on to state her view in relation to misfeasance. 7 If matters had been left with the draft notice of appeal and the written submissions, that would have sufficed to call for the application for leave to appeal to be dismissed, because the grounds of appeal would be of no significance to the outcome of the claimant's action. In oral submissions it was also suggested that her Honour had failed in her obligation to provide reasons for her decision. That became a little mixed up with an apparent suggestion that her Honour's decision was against the evidence and the weight of the evidence, to use the words which fell from the claimant's counsel. The point was, as I understand it, that there was evidence that the roadway in the area where the claimant came to grief had been patched, had deteriorated, and had been re-patched on a number of occasions; that this itself was indicative of negligence; and that her Honour had failed to explain why she did not for that reason find that one or other of the local council and the Roads and Traffic Authority had been negligent, and in not being satisfied that negligence had been established had acted against the evidence and the weight of the evidence. 8 It is apparent to me that her Honour did have regard to the evidence in question, and I refer to what she said about the expert evidence concerning the manner in which the roadway was patched. It was said that this case was very close on the facts to Hill v The Commissioner of Main Roads (1989) 68 LGRA 173. In that case it was held that there had been negligence in that patching which inevitably deteriorated within a short time made an apparently safe roadway in fact unsafe, and that that amounted to misfeasance according to the dichotomy then in force. It is trite all cases depend on the evidence. The holding in Hill v The Commissioner of Main Roads does not translate to the present case unless there is the necessary evidence. The mere fact that a roadway has been patched and re-patched does not mean negligence or mean that this case is on all fours with Hill v Commissioner of Main Roads. 9 In my opinion, the grounds for an argument that her Honour's decision was incorrect have not been made out, and I propose that the application for leave to appeal be dismissed with costs. 10 ROLFE AJA: I agree. There is only one matter I would add. At one stage counsel for the claimant sought to assert that leave was not needed based on an affidavit. The affidavit was subsequently withdrawn as not conforming with the rules, and it was expressly conceded by counsel for the claimant that this was a matter in which the claimant did require leave. 11 I agree with the orders proposed by Mr Justice Giles. 12 GILES JA: Those will be the orders. _________________ 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.