Reported Decision : 119 LGERA 167 New South Wales Court of Appeal CITATION : Waverley Municipal Council v Wagner [2002] NSWCA 10 FILE NUMBER(S) : CA 40441/00 HEARING DATE(S) : 7/12/01 JUDGMENT DATE : 8 February 2002 PARTIES : Waverley Municipal Council (Appellant) Barrie Wagner (Respondent) JUDGMENT OF : Meagher JA at 1; Sheller JA at 2; Young CJ in Eq at 3-20 LOWER COURT JURISDICTION : District Court LOWER COURT 1204/99 FILE NUMBER(S) : LOWER COURT Puckeridge DCJ JUDICIAL OFFICER : COUNSEL : D Davies SC (Appellant) S Norton and I Ryan (Respondent) SOLICITORS : Phillips Fox (Appellant) Brydens Law Office (Respondent) CATCHWORDS : TORT- Accident on highway- No evidence as to who carried out work on item causing accident- Plaintiff must fail- Proposition 1 of Powell JA in Lake Macquarie CC v Bottomley endorsed. (D) Brodie v Singleton SC (2001) 75 ALJR 992 CASES CITED: Lake Macquarie CC v Bottomley (1999) 103 LGERA 77 Hawkesbury CC v Ryan [2001] NSWCA 212 DECISION : Appeal allowed with costs: Respondent to have certificate under Suitors' Fund Act if qualified. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40441 of 2000 DC 1204 of 1999 MEAGHER JA SHELLER JA YOUNG CJ in EQ Friday 8 February 2002 WAVERLEY MUNICIPAL COUNCIL v BARRIE WAGNER Judgment 1 MEAGHER JA: I agree with Young CJ in Eq. 2 SHELLER JA: I agree with Young CJ in Eq. 3 YOUNG CJ in EQ: This is an appeal from a judgment of his Honour Judge Puckeridge in the District Court awarding the plaintiff a verdict of $117,236.00 in respect of personal injuries suffered when he tripped and fell over a loose paver in Spring Street, Bondi Junction. 4 There is no doubt at all that on 23 June 1996, the plaintiff parked his motor vehicle close to the kerb in Spring Street, Bondi Junction for the purpose of taking some parcels to the Post Office. Next to the area where he had parked his vehicle was a small sapling tree. The footpath was a paved footway. The plaintiff got out of his vehicle, stepped onto the roadway to open the door of his van to remove the articles so that he could carry them into the Post Office. He stepped from the roadway onto the footpath and in the first step he took with his right foot his ankle went over. He looked behind him and saw a paver on its side. It was a paver which was around the tree and it was tilted down towards the tree. The plaintiff said he had put his foot down on the paver which was tilted on its side and his ankle went over. 5 The learned Judge said that there was no contrary evidence, and indeed, the plaintiff was not cross-examined on the vital part of this statement and he must find that the plaintiff stepped on a paver which went onto its side. Nothing was said to us contrary to this view. 6 The Judge found the local council liable for the plaintiff's accident. He said at Red 13: "Whenever the pavers were put on the footpath there can be little doubt that the Council or a person or body on its behalf was authorised by the Council to do that work. The Council certainly had statutory power to do that work and there has been no evidence called on behalf of the defendant indicating that any work was not authorised by the Council. "It has correctly been submitted on behalf of the defendant, that there is no evidence as to who removed certain pavers to put in the sapling tree." I would interpolate here that there was indeed no evidence that the pavers were in fact removed. His Honour continued: "Indeed it may be that the tree was removed or what was there earlier was removed. In any event … it is clear that in placing pavers around the tree or the area available for use for planting a tree, the Council in not ensuring that the pavers were placed with a hard edge against another hard edge, failed to take a reasonable care for users of the footpath. That is a civil wrong and the Council could have avoided danger to users of the highway in the manner indicated by Mr Towson (the plaintiff's expert) in evidence … and, I find that such means were available to the defendant. "There has been no evidence produced on behalf of the defendant to suggest that such means were not reasonably available. "Accordingly, I find that the defendant was in breach of the duty of care which it owed to users of the footpath including the plaintiff, in failing to adopt the reasonable precautionary measures referred to by Mr Towson and there will be a verdict for the plaintiff." 7 His Honour had noted a submission on behalf of the defendant that it was not the controlling authority of the road and footpath but simply the road authority. However, his Honour noted that it was conceded that the Council did have statutory power to do work on the footpath and that the plaintiff had submitted that in para 6 of the grounds of defence, the defendant alleged that any acts or omissions by the defendant in respect to the footpath were carried out by the defendant in its capacity as a road or highway authority. 8 The defendant appealed on the basis that there was no evidence before the learned Judge from which he could find a verdict for the plaintiff in respect of the case the plaintiff presented to the Court. 9 The case was heard before Puckeridge DCJ on 18 May 2000. The pleadings were framed in accordance with the traditional view of the law that affected cases of people tripping on footpaths or highways prior to the decision of the High Court in Brodie v Singleton SC (2001) 75 ALJR 992, a decision handed down on 31 May 2001. 10 In accordance with the then standard procedure, plaintiffs did not allege matters of non-feasance, or if they did, they pleaded them in such a way as they might be thought to be misfeasance. Accordingly, there was no allegation in the pleadings of a failure to inspect or maintain the relevant footpath, but the case was presented and run on the basis that the Council had been guilty of a misfeasance in laying the pavers in the first place. That was the way in which the trial was conducted and indeed, that is the way in which Miss Norton SC (who appeared with Miss Ryan for the respondent), conducted the appeal. 11 Because of the way in which the case was run and the appeal was presented, I do not need to stay to consider in depth the alteration to what was thought to be the law that came about as a result of Brodie's case though it will be necessary to mention that case from time to time. 12 Mr Davies SC, who appeared for the appellant, said that there was no evidence before his Honour that the Council had laid the pavers. He pointed out that even if one could infer as the learned Judge seemed to have done, that the pavers were laid with the Council's authority, a very different situation would come about if the pavers were laid by a subcontractor or by the Council itself. He pointed out that in Lake Macquarie City Council v Bottomley (1999) 103 LGERA 77, 90-91 [38], Powell JA, with whom Handley and Giles JJA agreed, said that in this sort of case: "1. If the evidence which is tendered to a court does not disclose when, or by whom, or by which, the relevant work was carried out, the plaintiff's claim must, without more, fail for want of proof; … 3. Even if the evidence tendered to the court establishes that the relevant works were carried out by the Road Authority, the Road Authority is not to be held liable unless it carried out the works without due care and skill for the safety of those who might come to use the road, it following that, if the works were carried out in accordance with the standards of the time and the circumstances then prevailing, the Road Authority is not to be held liable, either, by reason of the carrying out of the works, or, by reason of the fact that, as a result of the deterioration of the works and the Road Authority's failure to maintain or repair them, the works have become unsafe. …" 13 Miss Norton SC said that this passage may not have survived Brodie's case. 14 It is true that Bottomley's case was referred to in Brodie at [136] (ALJR p 1021) and that the third of the propositions laid down by Powell J may now need modification. However, the first proposition, the one on which Mr Davies SC principally relies, was in fact endorsed post-Brodie by this Court in Hawkesbury City Council v Ryan [2001] NSWCA 212. That decision was made by a court consisting of Meagher, Heydon and Rolfe JJA, the lastmentioned giving the judgment of the Court. At [70], the Court set out the propositions without comments though proposition 1 had no relevance to the case then before it. 15 In my view Powell JA's proposition 1 in Bottomley still applies. 16 In the instant case, the case was presented on a certain basis. In order to succeed on that basis it was to my mind necessary that the plaintiff put forward evidence to show that the Council or someone for whom the Council was vicariously liable, committed the wrong of laying the pavers in a careless way. One would have thought that there were ways and means of proving that fact, if it be the fact, by the use of discovery and interrogatories. However, the only material before the Judge was that the Council was the road authority, the footpath was an extensive one fronting a series of commercial buildings in a busy street in its municipality and really there was no-one else who could have been responsible for it. Miss Norton said that the learned Judge was entitled to infer from those facts, there being no contrary evidence placed on behalf of the defendant, that the pavers were laid by the defendant. However, with respect, this ignores the submissions of Mr Davies SC. There was a considerable difference in the outcome of the case as to whether the pavers were laid by the Council or by an independent contractor. Mr Davies SC also, rightly in my view, submitted that what the learned Judge had really done was to reverse the onus of proof and say that in the absence of any further evidence, the wrongdoer must be the Council. 17 Miss Norton relied on para 6 of the defendant's defence which was in common form that if it was guilty of any wrongful act it relied on the former immunity. However, the leaned Judge overlooked the fact that this was not an admission that in fact the Council had done any work, it was only a defence that if it be found that it had done any work which was carelessly done, then the immunity operated. I agree with Mr Davies SC that it could not be used to boost the plaintiff's case. 18 To my mind, there was just no evidence fit to go to a tribunal of fact that the Council laid the pavers. 19 It follows that the appeal must be allowed; the judgment of the learned District Court Judge set aside, and in lieu an order be made that the plaintiff's claim be dismissed with costs. The plaintiff must pay the costs of appeal, but if qualified should have a certificate under the Suitors' Fund Act. 20 I should note that Mr Wagner is extremely unfortunate that his case was presented in May 2000, rather than June 2001. The state of the law which was rightfully assumed by all lawyers when the case was presented, probably mandated that the case be presented in a particular way. However much sympathy one must feel for the plaintiff, one cannot escape from the fact that the trial was presented in a particular way, and on the way it was presented and the evidence tendered, the plaintiff must fail. *************************** 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. 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