Reported Decision : (2002) 121 LGERA 117 New South Wales Court of Appeal CITATION : The Owners - Strata Plan No 13218 v Woollahra Municipal Council [2002] NSWCA 92 FILE NUMBER(S) : CA 40191/01 HEARING DATE(S) : 25 October 2001 JUDGMENT DATE : 8 April 2002 PARTIES : The Owners - Strata Plan No 13218 (Appellant) Woollahra Municipal Council (Respondent) JUDGMENT OF : Powell JA at 1; Young CJ in Eq at 25; Rolfe AJA at 79 LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT ED 4273/00 FILE NUMBER(S) : LOWER COURT Windeyer J JUDICIAL OFFICER : COUNSEL : R S Toner SC (Appellant) P W Taylor SC and M K Meek (Respondent) SOLICITORS : Philip Densham White (Appellant) Phillips Fox (Respondent) CATCHWORDS : Torts- Nuisance- Negligence- Misfeasance- Damage caused by pressure-Liability on Council for roots of tree growing on footpath- On facts, Council liable. Procedure- High Court decision restating principles after decision at first instance- Effect on appeal. (D) LEGISLATION CITED : Roads Act 1993 Supreme Court Act 1970, s 75A(5) Asman v Maclurcan (1985) 3 BPR 9592 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Bolton v Stone [1951] AC 850 Bourke v Sydney MC [1895] AC 433; (1895) 16 LR (NSW) 84 Bretherton v Hornsby SC (1963) 63 SR (NSW) 335 Brodie v Singleton Shire Council (2001) 75 ALJR 992; 180 ALR 145 Buckle v Bayswater Road Board (1936) 57 CLR 259 Butler v Standard Telephones & Cables Ltd [1940] 1 KB 399 Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 Coverdale v Charlton (1878) 4 QBD 104 Cowley v Newmarket Local Board [1892] AC 345 Davey v Harrow Corp [1958] 1 QB 60 Delaware Mansions Ltd v Westminster CC [2001] 3 WLR 1007; 4 All ER 737 Eggins v Brooms Head Bowling & Recreational Club Ltd (1986) 5 NSWLR 521 Ghantous v Hawkesbury City Council (2001) 75 ALJR 992; 180 ALR 145 Gibson v Preston (Mayor) (1870) LR 5 QB 218 Gorman v Williams (1985) 2 NSWLR 662 Gorringe v The Transport Commission (1950) 80 CLR 357 Hoare & Co v McAlpine [1923] 1 Ch 167 Hurst v Hampshire CC (1997) 96 (Knight's) LGR 27 Indermaur v Dames (1866) LR 1 CP 274 Kirk v Culcairn SC (1964) 64 SR (NSW) 281 Lemmon v Webb [1894] 3 Ch 1; affd [1895] AC 1 McCombe v Read [1955] 2 QB 429 CASES CITED: Masters v Brent LBC [1978] QB 841 Meux's Brewery Co v City of London Electric Lighting Co [1895] 1 Ch 287 Moody v Woollahra (1913) 16 CLR 353 Morgan v Khyatt [1962] NZLR 791; affd [1964] 1 WLR 475 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 Piening v Wanless (1968) 117 CLR 498 Proprietors Strata Plan 14198 v Cowell (1989) 24 NSWLR 478 Pyrenees SC v Day (1998) 192 CLR 330 Richmond CC v Scantelbury (1988) 68 LGRA 49 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Rose v Groves (1843) 5 Man & G 613; 134 ER 705 Rundle v Atarle [1898] 2 QB 83 Sedleigh-Denfield v O'Callaghan [1940] AC 880 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 Slovin v Wise [1996] AC 923 Solloway v Hampshire CC (1981) 79 (Knight's) LGR 449 Stillwell v Windsor Corp [1932] 2 Ch 155 Torette House v Berkman (1940) 62 CLR 637 Turner v Ringwood Highway Board (1870) LR 9 Eq 418 Walsh v Erwin [1952] VLR 361 Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 Wilson v Liverpool Corp [1971] 1 WLR 302 Wyong SC v Shirt (1980) 146 CLR 40 Young v Davis (1862) 7 H & N 760; 158 ER 675 affd (1863) 2 H & C 197; 159 ER 82 DECISION : Appeal allowed (by majority). Finding of liability. Remitted to Equity Division to assess damages. Respondent to pay costs of the trial and of the appeal. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40191 of 2001 ED 4273 of 2000 POWELL JA YOUNG CJ in Eq ROLFE AJA Monday 8 April 2002 THE OWNERS – STRATA PLAN NO. 13218 v. WOOLLAHRA MUNICIPAL COUNCIL Judgment 1 POWELL JA: I have read in draft the Judgments which have been prepared by Young CJ in Eq and Rolfe AJA, which Judgments, as it seems to me, give rise to the following questions: (a) whether, if it be necessary, if the appeal is to succeed, it is open to the Appellant to have the appeal determined on the basis of the law as determined by the majority of the High Court in Brodie v. Singleton Shire Council; Ghantous v. Hawkesbury City Council (2001) 75 ALJR 992; 180 ALR 145 (b) whether the decision of the majority of the High Court in Brodie v. Singleton Shire Council; Ghantous v. Hawkesbury supra has anything of relevance to say in relation to a case such as this; (c) whether the Appellant has established a cause of action against the Respondent. 2 Before turning to consider those questions, however, I think it appropriate to record some of the relevant provisions of the Roads Act 1993. They are as follows: "5. Right of passage along public road by members of the public (1) A member of the public is entitled, as of right, to pass along a public road (whether on foot, in a vehicle or otherwise) and to drive stock or other animals along the public road. … (2) The right conferred by this section does not derogate from any right of passage that is conferred by the common law, but those rights are subject to such restrictions as are imposed by or under this or any other Act or law. … 7. Roads authorities … (4) The Council of a local government area is the roads authority for all public roads within the area … (5) A roads authority has such functions as are conferred on it by or under this or any other Act or law. … 71. Powers of roads authority with respect to roadwork A roads authority may carry out roadwork on any public road for which it is the roads authority and on any other land under its control. … 88 Tree felling A roads authority may, despite any other Act or law to the contrary, remove or lop any tree or other vegetation that is on or overhanging a public road if, in its opinion, it is necessary to do so for the purpose of carrying out roadwork or removing a traffic hazard. … 145. Roads authorities own public roads … (3) All public roads within a local government area (other than freeways and the Crown roads) are vested in fee simple in the appropriate roads authority. … 146. Nature of ownership of public roads (1) Except as otherwise provided by this Act, the dedication of land as a public road: (a) does not impose any liability on the owner of the road that the owner would not have if the owner were merely a person having the care, control and management of the road, and … (d) does not constitute the owner of the road as an occupier of the land. … Dictionary … council means the council of the local government area. … road work includes any kind of work, building or structure (such as a roadway, footway, bridge, tunnel, road-ferry, rest area, transit way, station or service centre) that is constructed or installed on or in the vicinity of a road for the purpose of facilitating the use of the road as a road, the regulation of traffic on the road or the carriage of utility services across the road but does not include a traffic control facility and carry out road work includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a roadwork. … traffic includes vehicular, pedestrian and all other kinds of traffic. … traffic hazard means a structure of thing that is likely: a) to obscure or limit the view of the driver of a motor vehicle on a public road, or (b) to be mistaken for a traffic control device, or (c) to cause inconvenience or danger in the use of a public road, or (d) to be otherwise hazardous to traffic. …" 3 Before considering the first of the questions which I have set out above it is convenient, first, to set out certain parts of the Appellant's Statement of Claim and certain parts of the Outline Written Submissions which were provided to Windeyer J on the hearing at first instance. 4 The Appellant's Statement of Claim, after reciting (inter alia) the failure of the retaining wall, continued (inter alia) as follows (RAB 2-4): "7. The failure of the wall has been caused by the application of pressure upon it from Edgecliff Road, the road verge and the footpath which are supported by it. 8. Further or in the alternative the roots of the Camphor Laurel tree referred to in paragraph in (sic) 2.4 have by themselves or alternatively in conjunction with incompressible sandstone backfill beneath the road verge and footpath caused the application of pressure upon the retaining wall so as to cause it to become distressed and fail. … 9. The matters complained of in paragraphs 7 and 8 constitute a nuisance caused and/or continued by the Defendant. Particulars 9.1 The defendant has known since at least 1997 that the retaining wall has become distressed and has failed; 9.2 Notwithstanding, the Defendant continues to cause and/or permit Edgecliff Road, the road verge and the footpath to be supported by the retaining wall; 9.3 The defendant has taken no or no adequate steps to repair the retaining wall or otherwise to ensure that the wall is able safely to support the road verge and footpath; 9.4 Further or in the alternative the Defendant has known since at least January 1998 that the failure of the wall has been caused by the roots of the Camphor Laurel tree by themselves and/or alternatively in conjunction with the incompressible sandstone backfill beneath the road verge; 9.5 Notwithstanding the Defendant has refused and/or neglected to remove the Camphor Laurel tree or alternatively take such steps as may be necessary to inhibit or prevent pressure being applied to the wall by the roots of the tree; 9.6 Further or in the alternative, in or about April 1997 the Defendant dug a test pit adjacent to the boundary between Edgemont and the road verge and investigated or caused to be investigated the area beneath the road verge behind the retaining wall and thereafter placed concrete against the wall and resurfaced the footpath including that section abutting the wall where it had bulged and failed; 9.7 The Defendant has neglected and/or refused to take any action to abate the nuisance. 9.8 The Defendant has adopted the nuisance. 10. Further or in the alternative since about September 1997 the Defendant has been aware: 10.1 that the retaining wall has been distressed and has failed by reason of pressure emanating from land owned by it and/or of which it has the care, control and management; 10.2 that the retaining wall is in a dangerous condition; 11. In the circumstances the Defendant has owed and continues to owe a duty of care to the Plaintiff in relation to safeguarding it against loss, damage and injury. 12. The Defendant has breached its duty of care to the Plaintiff and was negligent. Particulars 12.1 The Defendant has failed to take any or any adequate steps to prevent pressure being applied to the retaining wall, or otherwise support the road verge independent of the wall; 12.2 The Defendant has refused and/or failed to remove the Camphor Laurel tree or otherwise prevent it from causing pressure to be applied to the retaining wall; 12.3 The Defendant has re-constructed the footpath adjacent to Edgemont so as to apply pressure to the retaining wall and cause it to become distressed and to fail; 12.4 The plaintiff otherwise repeats the particulars in paragraph 9. 13. Reconstruction of the wall so as to render it safe and capable of supporting or adequately supporting the road verge at Edgecliff Road requires: 13.1 work to be carried out on land owned by the Defendant or alternatively under the Defendant's care, control and management; 13.2 the approval of the Defendant in its capacity as owner of land and Statutory Consent Authority. 14. The destruction and/or removal of the Camphor Laurel tree requires the consent of the Defendant, in its capacity as owner of the land upon which the tree is located, and Consent Authority pursuant to the Woollahra Municipality Tree Preservation Order. 15. The Defendant has neglected and/or refused to: 15.1 carry out the work referred to in paragraph 13.1; 15.2 applied (sic) to itself for the Approvals referred to in paragraph 13.2. 16. In consequence of the nuisance referred to in paragraph 9 and the negligence of the Defendant referred to in paragraph 12 the Plaintiff has suffered and continues to suffer loss and damage. …" 5 The Written Outline Submissions which were handed in at trial on behalf of the Appellant were as follows (Combined AB 58-59): "1. The tree caused a nuisance. 2. Ordinary common law principles dictate that a Council that causes a nuisance is liable to abate it. 3. Alternatively, if the Council does not cause the nuisance, but continues or adopts it and does nothing about it, it is liable. A nuisance is continued if the Council with knowledge of its existence, fails to take any reasonable means to bring it to an end, though with ample time to do so. A nuisance is adopted if the Council makes any use of that which constitutes the nuisance. The Council adopted the nuisance when they knew or ought reasonably to have known that the tree roots were causing damage. … Highway immunity 4. In this case, the nuisance is created by a tree, the presence of which, has nothing to do with any statutory power vested in the defendant to take care and control and maintain the road. 5. There is no principle that protects the defendant in the facts of this case. 6. If there is, it does not confer immunity on the defendant on the facts of this case. There is no issue as to immunity from suit at the hands of a plaintiff injured in the course of using the road. The highway immunity rule has never protected a Council from failing to abate a nuisance caused by something that is not part of the road and which it allows to become a nuisance, even if it did not originally create that which in due course became a nuisance. … 7. The defendant is not protected from: 7.1 negligently re-instating the area dug out to inspect the wall to ascertain the cause of failure; 7.2 making the position worse; 7.3 omitting to take such steps as were necessary to prevent damage to the plaintiff from the collapse of the wall supporting the road when it had the opportunity to do so." 6 In his Judgment, Windeyer J, under a heading "Pleadings" wrote (RAB 13-14): "7. The owners' main claim is in nuisance. It is claimed first that the failure of the wall has been caused upon it (sic) by pressure from each Edgecliff Road, the road verge and the footpath which are supported by it. No evidence adduced went to this. The real claim is that the roots of the camphor laurel tree have caused pressures on the wall which have caused it to fail. It is said that the Council caused or adopted and continued this nuisance. There was a third claim made in negligence which was less strongly argued. In essence the negligence claim was that since 1997 the Council had been aware of the failure of the wall and its dangerous condition, that it owed a duty of care to the owners to safeguard them against loss, damage or injury and that it had breached this duty of care. It is claimed that reconstruction of the wall to render it safe requires work to be carried out on Council land or at least under Council control and also requires approval of the Council as owner of the land. That is admitted and it is clear that work on the retaining wall would require some work on the adjacent footpath area. It is also claimed and admitted that removal of the camphor laurel tree would require the consent of the Council as owner of the road land and as the consent authority under the Woollahra Municipality Tree Preservation Order. The relief claimed by the owners is first an order that the Council demolish the retaining wall and reconstruct it to provide the proper support for its land, being the road; secondly, that such relief as is necessary to abate the nuisance be given; and thirdly, damages. I should add here that although there was evidence adduced by the plaintiff as to the work required to reconstruct the wall, there was no evidence as to the costs, the owners, for some reason appearing to think that an order could or would be made that the defendant rebuild the wall. Thus there was no evidence to support the claim for damages albeit that damage was a necessary component of the claim in negligence if it were to succeed and, of course, for the nuisance claim insofar as it was not limited to injunctive relief. Fortunately for the plaintiff, no point was made about this and it was agreed that if it were appropriate to award damages then the quantum of those damages should be determined in a separate hearing, presumably before me or before a Master. 8. By its defence, the Council denies that any damage to the wall has been caused by its activities or by the camphor laurel tree. Its main defence, however, is based on the highway immunity rule and the law relating to non-feasance by public authorities. The Council denies that it planted the tree or that it had anything to do with its planting and therefore denies that it had any duty to prevent the tree roots causing damage, or to repair, so as to give rise to a claim in nuisance or in negligence." 7 When he turned to consider the cause of the damage to the wall (RAB 14-16) Windeyer J concluded that that damage had been caused by pressure exerted on the wall by the roots of the Camphor Laurel tree. He then concluded that part of his Judgment as follows: "The fact that even since the trench has been re-filled, cracking has recommenced at the edge of the reconstructed footpath, points to continuing problems with the tree from its roots and the likelihood that unless something is done, there would be continuing problems even if the wall is rebuilt, although perhaps not for some time. The fact that the wall is inadequately constructed in that its design and construction does not accord with modern engineering requirements is not really relevant. What is relevant is whether or not the tree and its roots have caused a nuisance which has caused the wall to fail. I find that to be the position." 8 His Honour then turned to consider the "public highway immunity rule". After a reference to a number of the authorities his Honour then concluded (RAB 18): "13. The highway immunity rule has been upheld recently in Ghantous v. Hawkesbury City Council [1999] NSWCA 37 and Brodie v. Singleton Shire Council [1999] NSWCA 51. Ghantous is the subject of an appeal in the High Court of Australia, but as I understand it success in any appeal would involve a change in the law for Australia. In any event the hearing was expedited on the application of the plaintiff and a decision should be given on the law as it stands. 14. I am of the opinion that the immunity rule provides a complete defence to the claim. Whether or not it is fair that the highway immunity rule should be relied upon in this case where damage to a ratepayer's property is caused by nuisance, for which the Council to which rates are paid would be liable in the absence of the immunity rule, is a matter for the Council to decide and to remedy if it considers that it ought to do so. It is not a responsibility which can be laid at its feet by the court in this action, even accepting that camphor laurel trees are not generally well regarded. It follows from this that there must be judgment for the defendant on the plaintiff's claim." 9 It being clear on the pleadings that the Appellant based its case against the Respondent in both nuisance and negligence and that the Respondent denied that it was subject to any duty to repair sounding in nuisance or any duty to exercise care in the control and management of Edgecliff Road sounding in negligence, and it also being clear that, in the course of the submissions advanced at trial, the Appellant's solicitor submitted that the so-called highway immunity rule did not confer immunity on the Respondent in the present case, it seems to me that, notwithstanding what was said by Menzies J in the passage from his judgment in Piening v. Wanless (1967-1968) 117 CLR 498, 509 and the passage from the Judgment of McHugh JA (as he then was) in Eggins v. Brooms Head Bowling and Recreation Club Limited (1984) 5 NSWLR 521, 524, to which Young CJ in Eq has referred in his Judgment, the Appellant is entitled to have this appeal determined in accordance with the principles laid down by the High Court in Brodie v. Singleton Shire Council; Ghantous v. Hawkesbury City Council [2001] HCA 29; 75 ALJR 992; 180 ALR 145 if that be necessary in order that it be held that it had made out a case for relief against the Respondent. 10 The question which then arises is whether the decision of the majority of the High Court in Brodie v. Singleton Shire Council; Ghantous v. Hawkesbury City Council supra has anything of relevance to say in relation to a case such as this is. In my opinion it has not. 11 So far as I have been able to ascertain, what came to be known as the "non-feasance rule" or the doctrine of the immunity of highway authorities was limited to cases in which a person who, exercising his common law right to use a highway, while doing so sustained injury as the result of the relevant highway authority failing to maintain the highway in good repair. As was said by Pollock C.B. (with whom Martin and Channell BB concurred) in Young v. Davis (1862) 7 H & N 760, 770; affd (1863) 2 H & C 197: "At common law such an action could not have been maintained against the parish. The rule with respect to persons who travelled on highways was this: a parish was bound to repair the highways within it, and there was a mode of compelling them to do so, but the traveller was expected to take care of himself, and if the road was a little out of repair, to proceed with caution, and not to travel with the same speed as if the road was in repair, and when he met with an accident throw on other persons the blame of that which was owing to his own want of caution. Then, the common law not rendering a parish liable to an action simply because a road was out of repair (a matter upon which there must always be a difference of opinion, viz. whether it is good for all or ordinary purposes), the question is, whether, when the Highway Act passed, it was intended to transfer to the surveyor the duty of repairing the highways, and to render him liable to an action in the event of an accident arising from their non repair. I think there is much weight in the remark of my brother Martin, that if this action could be sustained hundreds of actions against surveyors of highways might have been brought during the last century. But no such action has been brought; and that appears to me to amount to a cotemporaneous (sic) exposition of the statute. On looking however at the 5 & 6 Wm.4, c.50 all the reasoning in the Judgment delivered by Coleridge J in M'Kinnon v. Penson as reported in 9 Exch. 609 (affirming the Judgment of this Court reported in 8 Exch. 319), applies to the present case. Reading the Act section by section would anybody believe that it was the intention of the legislature to make surveyors of highways personally responsible for any accident to a traveller from a road being out of repair? A positive obstruction of, or nuisance on, a road, whether caused by a surveyor of highways or any other person, would no doubt render responsible the person who caused the obstruction or nuisance; but looking at the statute and the course of legislation, I am clearly of opinion that the legislature never intended to make a surveyor of highways personally responsible at the hazard of a jury finding him guilty or not guilty of negligence in not repairing the road. Coleridge J, in delivering the Judgment of the Court of Exchequer Chamber in M'Kinnon v. Penson , points out that the legislature never contemplated rendering the surveyor of a county bridge liable; and it must be observed that, as far as the two ends of the common highway are within the county, that is for one hundred yards at each end, a surveyor of a country bridge is a surveyor of the highway. M'Kinnon v. Penson confirmed it as it has been by the Court of Exchequer Chamber, is a distinct authority, which enables us to say that this matter has already been decided; and if the plaintiff is dissatisfied with our judgment he must appeal to a Court of error. (see also Gibson v. Mayor of Preston (1870) LR 5 QB 218 ; Cowley v. Newmarket Local Board [1892] AC 345 ; Bourke v. Municipal Council of Sydney [1895] AC 433; (1895) 16 NSWLR 84 ; Rundle v. Atarle [1898] 2 QB 83 ; Sawer: "Nonfeasance in Relation to 'Artificial Structures' on a Highway" 12 ALJ 231 ; A. T. Denning: Case Note 55 LQR 343 ; Friedmann: "Liability of Highway Authorities" 5 Res Judicata 21 ; Sawer: "Nonfeasance Revisited" 18 MLR 541 ). 12 It was to remedy this situation to which the Judgments of the majority of the High Court in Brodie v. Singleton Shire Council; Ghantous v. Hawkesbury City Council supra were directed. 13 In their joint Judgment, Gaudron, McHugh and Gummow JJ, having concluded that the common law of Australia did not give rise to the "immunity" which had been pleaded, wrote 75 ALJR 1024; 180 ALR 189: " F. CONTENT AND BREACH OF THE DUTY OF CARE [150] The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist. [151] The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v. Shirt a consideration of various matters; in particular the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case. [152] In dealing with particular cases and in determining factual issues respecting breach of duty, it may be convenient to differentiate between the design and construction of a roadway, between subsequent works done on it and between courses of inspection to ascertain its soundness. These matters are not mutually exclusive and sometimes may overlap." (Their Honours then proceeded to consider those matters separately, and, in the course of dealing with questions of repair, maintenance and work in the course of which they wrote 75 ALJR 1026; 180 ALR 192 ): "(iii) Pedestrians [163] The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous , the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v. South Australia ), or the surrounding area (as in Buckle , where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a 'trap' or as Jordan CJ put it, " of a kind calling for some protection or warning '. In Romeo , Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises 'is generally entitled to assume that most entrants will take reasonable care for their own safety'. Each case will, of course, turn on its own facts." 14 In the course of his Judgment, Kirby J wrote 75 ALJR 1027; 180 ALR 208: " The immunity should be abolished and the common law re-expressed [226] I accept the force of the foregoing arguments for adhering to this Court's past authority. However, in my view, the Court should now remove the anomalous immunity, re-express the common law in Australia and subsume the liability of highway authorities in negligence and nuisance within the general law governing all other statutory bodies." Later, his Honour wrote 75 ALJR 1040-1041; 180 ALR 212-213 : "[244] Ghantous v. Hawkesbury City Council: Accepting the existence of such a duty of care, of the stated scope, I am not convinced that the evidence called for Mrs. Ghantous established a breach of that duty in her case. Mrs. Ghantous did not establish that the original construction of the footpath was negligent; that its design or state at the time of the accident was in any way inappropriate or a cause of her accident or that the respondent's exercise of its planning power was defective. [245] A body such as the council has little effective control over the use by pedestrians of a footpath and its surrounds, once created. Such structures do not have an infinite lifespan. They are subject to deterioration by reason of the weather, ordinary traffic use, of subterranean changes, of public utilities that lawfully disturb them and other persons who unlawfully do so the rate of deterioration will vary. Necessarily it is unpredictable and largely out of the control of bodies such as the respondent. … [248] Local authorities are not insurers for the absolute safety of pedestrians or other users of roads and footpaths. To recover, a person in the position of Mrs. Ghantous must establish a want of reasonable care causing his or her injuries. Her mishap was simply an accident. Her damage was not shown to be the result of negligence on the part of the respondent. No other basis was made out upon which she could succeed. [249] Brodie v. Singleton Shire Council : So far as Mr. Brodie and his company are concerned, I agree with the conclusion of the joint reasons that the primary Judge's decision, holding the Singleton Shire Council liable, is readily supportable by the application to the facts of the ordinary principles of negligence viewed in the context of the council's applicable statutory powers. I agree with the reasoning contained in the joint reasons and the result that follows." 15 The passages from the several Judgments of the members of the majority of the High Court in Brodie v. Singleton Shire Council; Ghantous v. Hawkesbury City Council supra which I have set out above, in my view, make it clear that the duty of care which was formulated in those Judgments was a duty of care to a defined class of persons, namely, road users and, thus, not one, the breach of which would impose on the Respondent liability, whether in nuisance or negligence, for damage alleged to have been sustained by adjoining land owner as the result of the actions or inactions of a highway authority. The source of that liability, if it exists, must be found elsewhere. 16 It seems to me that, subject to it appearing that the Respondent could be held liable for it, the fact that the failure of the wall was caused by the pressure exerted on it by the roots of the Camphor Laurel tree would provide the foundation for a cause of action in nuisance. It is true that, in the usual case, claims seeking damages for, or an injunction against the continuation of, a nuisance caused by trees, are based on the incursion by the branches (see, for example, Lemmon v. Webb [1894] 3 Ch 1; affd [1895] AC 1) or the roots (see, for example, Butler v. Standard Telephones and Cables Limited [1940] 1 KB 399; McCombe v. Read [1955] 2 QB 429; Davey v. Harrow Corporation [1958] 1 QB 60; Morgan v. Khyatt [1962] NZLR 791; affd [1964] 1 WLR 475; Masters v. Brent London Borough Council [1978] QB 841) across the boundary of the plaintiff's property. Despite this, it does not seem to me that, in order that one might establish a cause of action in nuisance one must establish such a physical incursion. In Shelfer v. City of London Electric Lighting Company; Meux's Brewery Company v. City of London Electric Lighting Company [1895] 1 Ch 287 both Kekewich J and the Court of Appeal (Lord Halsbury, Lindley and A.L. Smith LJJ) held that vibrations caused by the operation of electricity generating machinery which caused structural damage to a public house situated on land which was adjacent to but not contiguous with the defendant's land nonetheless constituted an actionable nuisance (see also Hoare & Co. v. McAlpine [1923] 1 Ch 167 in which Astbury J held that structural damage to a building caused by vibrations which were themselves caused by the driving of piles on an adjoining property was sufficient to ground an action for damages for nuisance). 17 The real question is, thus, whether the Respondent can be held liable for the nuisance thus created. 18 In general, the person who creates the nuisance by some act of misfeasance as opposed to mere nonfeasance is always liable for it, whether or not he is in occupation of the land on which it originates. In addition, the occupier of premises where the nuisance exists is in generally liable although, if the nuisance not be created by the occupier he is not liable unless, with knowledge or means of knowledge on the part of himself or his agent (Torette House v. Berkman [1940] 62 CLR 637; Solloway v. Hampshire County Council [1981] 79 (Knight's) LGR 449) either he continues the nuisance without taking reasonably prompt and efficient steps for its abatement or he adopts the nuisance by making any use of the thing which constitutes it (Sedleith-Denfield v. O'Callaghan [1940] AC 880). While an occupier may, in such circumstances, be held liable for a nuisance which he has not created, it does not seem to me that the owner of property which is the source of a nuisance of which he knows or ought to know, but who is not to be regarded as in occupation of that property – a fact which because of the provisions of s.146(1)(d) of the Roads Act 1993 is of relevance in the present case – may escape liability for the consequences of that nuisance. 19 In Hurst v. Hampshire County Council (1997) 96 (Knight's) LGR 27 the Court of Appeal (Stewart-Smith LJ, Morritt LJ (as he then was) and Sir John Balcombe) held that although the tree, the roots of which had damaged the plaintiff's house, had not been planted by the defendant highway authority – so that the authority was not liable to pay to the plaintiff statutory compensation pursuant to the provisions of s.96(7) of the Highways Act 1980 (UK) – the fact that s.263(1) of the Highways Act 1980 vested every highway maintainable at public expense in the relevant highway authority gave the defendant highway authority a sufficient property in the tree to render it liable in nuisance for the damage caused by the tree. 20 The most recent authority of which I am aware is that of the House of Lords in Delaware Mansions Limited v. Westminster City Council [2001] UKHL 55; [2001] 3 WLR 1007; [2001] 4 AER 737, another case relating to damage caused by the encroachment by the roots of a tree growing in the footpath of the highway. 21 In Delaware Mansions Limited v. Westminster City Council supra the principal speech was delivered by Lord Cooke of Thorndon, with whom Lord Steyn, Lord Browne-Wilkinson, Lord Clyde and Lord Hutton agreed. In the course of his speech, his Lordship said: "29. Beyond that I think that the answer to the issue falls to be found by applying the concepts of reasonableness between neighbours (real or figurative) and reasonable foreseeability which underline much modern tort law and, more particularly, the law of nuisance. In Sedleigh-Denfield v. O'Callagahan [1940] AC 880, the House of Lords held that an occupier of land "continues" a nuisance if, with knowledge or presumed knowledge of its existence (in that case a defective grating giving rise to flood damage), he fails to take reasonable means to bring it to an end when he has reasonable time to do so. In Overseas Tankship (UK) Ltd. v. The Miller Steamship Co. Pty. [1967] 1 AC 617, The Wagon Mound (No. 2) , the Privy Council, approaching the case under the rubrics of both nuisance and negligence, said, at p.644 per Lord Reid: 'If it is clear that the reasonable man would have realised or foreseen and prevented the risk, then it must follow that the appellant is liable in damages.' … [31] In both The Wagon Mound (No. 2) case and Goldman's case the judgments, which repay full rereading, are directed to what a reasonable person in the shoes of the defendant would have done. The label nuisance or negligence is treated as of no real significance. In this field, I think the concern of the common law lies in working out the fair and reasonable just content and incidents of a neighbour's duty rather than affixing a label and inferring the extent of the duty from it. … [33] Approaching the present case in the light of those governing concepts and the judge's findings, I think that there was a continuing nuisance during Flecksun's ownership until at least the completion of the underpinning and the piling in July 1992. It matters not that further cracking of the superstructure may not have occurred after March 1990. The encroachment of the roots was causing continuing damage to the land by dehydrating the soil and inhibiting rehydration. Damage consisting of impairment of the load-bearing qualities of residential land is, in my view, itself a nuisance. This is consistent with the opinions of Talbot J in Masters' case [1978] QB 841 and the Court of Appeal in the instant case, although neither Talbot J nor Pill LJ analysed specifically what they regarded as a continuing nuisance. Cracking in the building was consequential. Having regard to the proximity of the plane tree to Delaware Mansions, a real risk of damage to the land and the foundations was foreseeable on the part of Westminster, as in effect the judge found. It is arguable that the cost of repairs to the cracking could have been recovered as soon as it became manifest. That point need not be decided, although I am disposed to think that a reasonable land owner would notify the controlling local authority or neighbour as soon as the tree root damage was suspected. It is agreed that if the plane tree had been removed, the need to underpin would have been avoided and the total cost of repair to the building would have been only £14,000. On the other hand the judge has found that, once the council declined to remove the tree, the underpinning and piling costs were reasonably incurred, despite the council's trench. [34] It is at this point that I see Solloway v. Hampshire CC (1981) 79 LGR 449 as important as a salutary warning against imposing unreasonable and unacceptable burdens on local authorities or other tree owners. If reasonableness between neighbours is the key to the solution of problems in this field, it cannot be right to visit the authority or owner responsible for a tree with a large bill for underpinning without giving them notice of the damage and the opportunity of avoiding further damage by removal of the tree. Should they elect to preserve the tree for environmental reasons, they may fairly be expected to bear the cost of underpinning or other reasonably necessary remedial works; and the party on whom the costs has fallen may recover it, even though there may be elements of hitherto unsatisfied pre-proprietorship damage or protection for the future. But, as a general proposition, I think that the defendant is entitled to notice and a reasonable opportunity of abatement before liability for remedial expenditure can arise. In this case Westminster had ample notice and time before the underpinning and piling, and is in my opinion liable." 22 In the present case, complaints concerning cracking in the retaining wall and the lifting of the footpath in that general area were made to the Respondent from at least the early to mid 1980s and the Respondent in the mid 1980s dug up the footpath where it had been buckling and lifting, levelled the surface in the general area and relayed the footpath with fresh concrete. Following the failure of the wall in 1997, the Respondent by no later than early January 1998 had the report of Coffey Partners International Pty. Limited which indicated that the most likely cause of the wall failure was the exertion of increasing pressure on the wall from the roots of the Camphor Laurel tree, which indicated that a replacement wall would be required and the Camphor Laurel tree would need to be removed. Despite all this, the Respondent has failed to remove the Camphor Laurel tree. 23 In the circumstances, I conclude that the Appellant has made out a case in nuisance against the Respondent. 24 In my opinion, Orders 1-2 and 4-5 proposed by Rolfe J in his Judgment should be made. 25 YOUNG CJ in Eq: This is an appeal from a decision of Windeyer J [2001] NSWSC 158 dismissing a claim for mandatory injunction and damages in respect of alleged nuisance emanating from a tree planted on the footpath of Edgecliff Road. 26 The learned judge said that the plaintiff's claim was in nuisance. He acknowledged that there was a subsidiary claim in negligence which he said "was less strongly argued" and which does not appear to have been further evaluated. 27 His Honour held that the real claim of the plaintiff was that roots of a camphor laurel tree growing on that footpath caused pressures on a retaining wall causing that wall to fail. His Honour held that the plaintiff had established that this was the cause of the wall's failure. He also held that it had not been established that the defendant planted the tree on the footpath. 28 The learned judge considered the law as to self-sown trees on highways as expounded by this Court in Bretherton v Council of the Shire of Hornsby (1963) 63 SR (NSW) 335, 338 where the Full Court consisting of Sugerman, Manning and Else-Mitchell JJ said, "We think it clear that a self-sown tree growing on a highway cannot possibly be regarded as an artificial structure so as to require consideration of any refinements of the law on the subject." Their Honours clearly meant the escape route for plaintiffs from the immunity rule espoused in Buckle v Bayswater Road Board (1936) 57 CLR 259, 281-2 that a highway authority in whom a road is vested is not generally liable by reason of neglect to maintain the highway. 29 His Honour then decided that the defendant had no obligation with respect to the tree or damage being done by it and dismissed the suit. 30 The ratio of Windeyer J's decision is in the first sentence of [14] of the judgment, viz, "I am of opinion that the immunity rule provides a complete defence to the claim." 31 His Honour made that decision on 15 March 2001. On 31 May 2001, the High Court brought down its judgment in Brodie v Singleton Shire Council (2001) 75 ALJR 992 in which it held that the principle laid down in Buckle v Bayswater Road Board was no longer good law. 32 The appellant says that even on 15 March 2001, Buckle v Bayswater Road Board did not provide an answer to its case. However, even if that were not so, this Court on this appeal must apply the law as at today's date and that is the law as expounded in Brodie. 33 Before passing to consider that proposition, I should note that an appeal from a single judge lies as of right to the Court of Appeal only if more than $100,000 is involved. There is hardly any material to show that this case involves more than $100,000. However, in view of the issues involved, and that neither party seems at all concerned about the point, the case is one where leave to appeal should now be granted nunc pro tunc. 34 The first question to consider is whether, the trial having been conducted on the basis that the pre-Brodie law applied, it is open to the appellant to have the appeal heard on the basis of Brodie. 35 Mr Toner SC for the appellant says that this result follows from s 75A of the Supreme Court Act. This appeal is a rehearing and this Court must apply the law at the time of hearing. 36 On the other hand, Mr Taylor SC who appeared with Mr Meek for the respondent put that once parties have deliberately fought a case on the issues raised by the law as it was understood at the time of trial, the mere fact that that understanding is later found to be erroneous, is no reason for an appellate court to interfere. 37 Mr Taylor SC reminds us that both parties were aware at the time Windeyer J heard this case that Brodie had been argued before the High Court and that judgment had been reserved. Both parties knew that the immunity rule was strongly under challenge in the High Court appeals yet the parties elected to have the judge determine their dispute at that time rather than wait. 38 In Eggins v Brooms Head Bowling and Recreational Club Ltd (1986) 5 NSWLR 521, 524, McHugh JA said, "The issues at a trial are decided on the basis of the 'law' which applies to them at the date of the trial. If a party believes that the current state of the law is erroneous, he must object to its application to his case or be bound by it. If he fails to raise the point at the trial, he cannot be allowed to raise it on appeal because of the accident that he has lodged an appeal and that, before the hearing of the appeal, a superior Court has decided that the law is different from what it was conceived to be at the date of the trial." 39 The passage which I have quoted is not an isolated statement. In Piening v Wanless (1968) 117 CLR 498, 509, Menzies J said, "A verdict in the trial which was conducted on one basis cannot be set aside merely because the decision, upon which counsel presumably relied in determining how he would conduct his case, has been overruled subsequently." See also Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, 39 and Wilson v Liverpool Corp [1971] 1 WLR 302, 307. 40 However, in Western Suburbs Hospital v Currie (1987) 9 NSWLR 511, 521, McHugh JA himself distinguished what he had said in Eggins from the case before him. The difference was between an appeal as in Currie and an application for a new trial as in Eggins. With an appeal there was usually no prejudice in the appellate court considering the evidence at the trial and applying the new principles to it. If no evidence could have been given which could have prevented the new point from succeeding at the trial and no other prejudice was involved, the appellate court could consider the new point. 41 The present case is an appeal where the appellant seeks that this Court substitute its decision for that of the trial judge. The notice of appeal sought, as did the original claim, both a mandatory injunction and damages. However, in argument, Mr Toner SC made it clear that all that was now sought was that this Court find negligence on the facts below but on the Brodie test and send the case back for assessment of damages. He made it clear that if the Court considered that it were preferable to grant a new trial, he would not protest. 42 It is clear that the case was deliberately conducted below on the basis that the pre-Brodie law governed. All involved were aware that the High Court had the immunity rule under consideration in reserved judgments and elected to proceed with the case as an expedited matter. The appellant seems to have taken this view because it feared imminent collapse of its wall. 43 Furthermore, as the respondent's argument in the Orange Book at p 17 reminds us, "The Appellant chose to proceed with the hearing on the basis of the existing law. The Appellant did not submit below that the law which provided the immunity was wrongly decided. Rather the Appellant sought to distinguish the facts of this case from application of the immunity principle … . Specifically it sought to argue that the tree was not part of the road and that no question of the Council's (unidentified) powers with respect to the care and control of the road applied." 44 In most cases where the instant problem occurs, the appellate court will be able to say that the pleadings or the facts as proved below are unable to support a case based on the new principle. The present is one of the few cases where this escape route is not available to us. 45 One can distinguish Eggins on a number of grounds, including that it was an application for a new trial after a jury trial and that the pleadings were inadequate to support the new case. A similar comment may be made about Piening v Wanless. However, the general proposition laid down by McHugh JA in Eggins does state the law and the present case runs into direct collision with it. 46 The appellant merely says that s 75A(5) of the Supreme Court Act states that an appeal to this Court is a rehearing and that that necessarily carries with it the duty to apply the law as it exists at the date of the hearing. 47 There is no doubt that that submission represents the general law. However, the way that the rehearing is conducted must be in accordance with fairness and usual procedure which include the principle laid down in Eggins. 48 Thus, I consider that we need to consider the appeal on the basis accepted by the parties before the trial judge, that is the pre-Brodie law. However, as will hopefully become clear, it makes little difference to the result. 49 The solicitor who appeared for the appellant before Windeyer J put the following two submissions (I have summarized these from the Black book page 58): A. The tree caused a nuisance. The council at least continued or adopted the nuisance. This made the Council liable. The Council adopted the nuisance when it knew or ought to have known that the tree roots were causing damage: Richmond CC v Scantelbury (1988) 68 LGRA 49, 51-2; Proprietors Strata Plan 14198 v Cowell (1989) 24 NSWLR 478, 483-4. B. The tree's presence has nothing to do with the Council's statutory power to maintain the road. There is no principle of immunity on the facts of this case. The Highway immunity rule never protected a Council from failing to abate a nuisance caused by something which is not part of the road and which it allows to become a nuisance, see Buckle at pp 270, 280-1, 283; Moody v Woollahra (1913) 16 CLR 353, 359, Bretherton at p 335. 50 The law of nuisance falls into two subsets, Public Nuisance and Private Nuisance. Public Nuisance usually covers cases of interference with the highway, though, of course, it is not confined to this type of case. Private nuisance comprehends three classes of case: viz (1) cases of encroachment onto a neighbour's land short of trespass; (2) causing physical damage to the neighbour's land; and (3) unduly interfering with the convenient enjoyment of the neighbour's land (see Clerk & Lindsell on Torts, 18th ed (2000) 19-06). 51 The present case does not fit into any of these categories. The wall was wholly on the appellant's land. Nothing happened on the land which would annoy the public generally in respect of which the appellant could say that it suffered special damage. Nor was this a case such as Rose v Groves (1843) 5 Man & G 613; 134 ER 705 or Walsh v Erwin [1952] VLR 361 where the blockage of a public way deprived the plaintiff of access to his land. At least as at the date of trial, there was no public nuisance. 52 As the Council was not an occupier of the road, private nuisance, which is a tort between neighbouring occupiers, was also inappropriate. 53 Furthermore, the facts found by the learned judge show that the roots of the tree in question never actually reached the wall. The failure was because of compaction by the pressure exerted on the soil in front of the advancing roots. In this technical area of the law, these fine distinctions may be crucial; cf Asman v Maclurcan (1985) 3 BPR 9592. 54 As counsel for the respondent pointed out, his Honour did not make a finding that the Council adopted any nuisance. Despite the simple statement in Cowell at 484, based on Sedleigh-Denfield v O'Callaghan [1940] AC 880, 894 and 913 that one adopts a nuisance if one fails to bring it to an end though with ample time to do so, what facts are necessary to support that view in any given case are a matter for the trial judge (see per Lord Romer at p 913). 55 The essential cause of action in the present case was not nuisance, but negligence. It is to be noted that the leading cases in this area of law were negligence, not nuisance, cases; see eg Buckle v Bayswater Road Board (1936) 57 CLR 259; Gorringe v The Transport Commission (1950) 80 CLR 357. 56 Even before Brodie, what would need to be established by a plaintiff in such an action would be negligence within the understanding of Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 that is, that even an improbable risk of injury may be foreseeable, but there is only a breach of the duty of care if the plaintiff is within the class of persons who might reasonably be foreseen as being injured and a reasonable person in the defendant's position would have responded to the risk in all the circumstances of the case. 57 The Brodie principle really gets us into the same area. The only real difference is that the immunity principle has been discarded. 58 The current approach is outlined in the following passages from Brodie [The figure in square brackets takes up the paragraph in the judgment, the figure in round brackets refers to the page in ALJR]: (a) The reasoning in cases such as Bretherton must now be considered outmoded and not to be followed [81] (1008); (b) In cases where a road user is damnified by a highway authority, nuisance must now be considered subsumed in negligence [55] (1002) [129] (1020); (c) "Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to (a class of persons which includes the plaintiff), then to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk." [150] (1024); (d) The solution of these cases calls for the consideration of the magnitude of the risk, the probability that it will occur, the expense, difficulty and inconvenience in effecting the repair and the competing responsibilities and commitments of the authority [151](1024), [162] (1026); (e) It is strongly arguable that Dixon J's reasoning in Buckle v Bayswater Road Board was defective in that his Honour did not give adequate weight to all the authority then available. However, even if this is not so, the immunity rule produced is no longer the law in Australia [58] (1003); [125] (1019). 59 The pleadings on negligence are in paragraph 12 of the statement of claim. The particulars refer to the failure to take pressure off the wall, the failure to remove the camphor laurel tree plus repeat the matters alleged as constituting nuisance. 60 The statement of claim also alleges that the defendant negligently failed to carry on work on its land to solve the problem and failed to give the necessary approvals for work to be done. The answer to this latter was that no approvals have ever been sought. No evidence on this latter point was presented. 61 Because the debate and the decision focussed on the immunity point, the evidence was in a relatively short compass and the judgment is virtually confined to the immunity point. It was agreed that any damages should be assessed by a Master. 62 The appellant says that the case in negligence was very clear and can be shortly stated. On the findings of the trial judge, the roots of the tree were applying pressure to the wall which had failed in the vicinity of the pressure, the Council was aware of the problem, the Council did nothing to ameliorate the problem. Not only was this a case where damage was foreseeable, it was actually occurring. No reasonable person would have just stood by and let the damage continue to occur particularly as a by product might well be the collapse of part of the footpath. 63 However, it is not the case that even if a person knows that their tree will, unless attended to, cause damage to a neighbouring property that that person will necessarily be liable in negligence. The plaintiff must demonstrate that the Council owes to it, or to a class of people including it, a duty of care which it has breached. 64 Furthermore, when one is considering the duty of a council as to whether it is negligent in not exercising its statutory powers, one has to consider the decision of the High Court in Pyrenees Shire Council v Day (1998) 192 CLR 330, a matter to which I will return. 65 In a case where no damage has occurred, it is appropriate to say that it is not necessarily negligent to fail to attend to a foreseeable risk as foreseeable risks do not always come to cause damage (cf Bolton v Stone [1951] AC 850, 858). However, once damage has actually occurred, this philosophy no longer has validity. 66 In England, s 89 of the Highways Act 1959 appears to give a statutory right of action to neighbouring owners against a highway authority for damage done by planted trees growing on a road. However, in Hurst v Hampshire CC (1997) 96 (Knight's) LGR 27, 32, Stuart-Smith LJ (with whom Morritt LJ and Sir John Balcombe agreed) said with respect to other trees: "In my opinion the authorities also show that a sufficient property in post-adoption trees also vests in the highway authority to ground an action for nuisance both at the suit of the user of the highway who is injured as a result of the dangerous condition of the tree and also at the suit of the adjoining owner who suffers damage to person or property, provided the damage was reasonably foreseeable." 67 The authorities his Lordship had in mind appear to be Turner v Ringwood Highway Board (1870) LR 9 Eq 418; Coverdale v Charlton (1878) 4 QBD 104 and Stillwell v Windsor Corp [1932] 2 Ch 155. These cases go to the right of the highway owner to the trees growing thereon. In view of section 146 of the Local Government Act 1993, they do not require consideration here. 68 Mr Taylor SC and Mr Meek rely on Hurst's case for the view that the duty in nuisance to the highway user and the duty to the adjoining occupier are much the same. I do not consider that this assists a like case in NSW. 69 Liability was found in nuisance in Hurst's case. Clerk & Lindsell op cit at 19-67 adopt it as representing the law of England. For the reasons given, it does not represent the law in this State. The Court in Hurst did not deal with negligence. However, the judges said that the claim in negligence would present great difficulty in the light of Slovin v Wise [1996] AC 923. 70 In Slovin v Wise, the House of Lords decided that if there is no statutory right to sue for breach of statutory duty, it would be unusual for there to be a duty of care at common law to pay compensation for not doing that which the statute gave the public authority a discretion to do, see per the leading judgment for the majority delivered by Lord Hoffmann at pp 952-3. 71 The High Court broadly adopted Slovin v Wise in Pyrenees Shire Council v Day (1998) 192 CLR 330. At page 347, Brennan CJ (who with Gummow & Kirby JJ constituted the majority) said that one must look to see whether the statute gives a remedy to people in the situation of the plaintiff if the statutory duty is not fulfilled. He then said [26], "No duty breach of which sounds in damages can be imposed when the power is intended to be exercised for the benefit of the public generally and not for the protection of the person or property of members of a particular class." 72 In the present case, the Council had the care and control of the highway and had duties which involved the control of the highways for the benefit of the public. The mere non-performance of these duties did not give rise to a cause of action in negligence in a neighbouring owner. 73 As the judgment shows, these matters received little attention at the trial. 74 The onus was on the plaintiff to show that there was a duty on the council, the content of that duty and breach. In the light of the above discussion, it seems to me that the plaintiff/appellant failed to make out its case under either the pre or post Brodie law 75 Thus, even if I were to try the case on the evidence before Windeyer J on the present law and forgot all about the immunity point, the appellant would still be unsuccessful. 76 It is not completely clear on the authorities the extent of the immunity if it were still relevant. However, there is no need to delve into this topic and I would not wish to do so in view of the reformulated law in Brodie. No relevant argument was put to us that the learned trial judge came to the wrong conclusion if the highway immunity rule applied. 77 I considered for a while that the "fair" way out of the current problem was to grant a new trial on all issues. However, Piening v Wanless (1968) 117 CLR 498, shows that this course of action should not be pursued. The parties are entitled to a decision on the claims as raised at the trial on the law as accepted by counsel at the trial or as modified at the time the appeal is determined. 78 It follows that that appeal must be dismissed with costs. Introduction 79 Rolfe AJA: By a Statement of Claim issued in the Equity Division on 8 December 2000, the plaintiffs/appellants, The Owners – Strata Plan 13218, ("the appellants"), for which Mr R S Toner of Senior Counsel appeared, sued the defendant/respondent, Woollahra Municipal Council, ("the respondent"), for which Mr P W Taylor of Senior Counsel and Mr M K Meek of Counsel appeared, in respect of damage to a retaining wall, which was on the appellants' land, and which was intended to retain the respondent's footpath and roadway, which was on land higher than the appellants'. The appellants sought a mandatory injunction and damages for nuisance and negligence. Because of the issues raised by the appeal, it is necessary to set forth, in some detail, the matters alleged in the pleadings. 80 The appellants alleged, and this was admitted, that they are the owners and occupiers of the land in Strata Plan 13218, upon which is erected a building known as "Edgemont" at 291 Edgecliff Road, Woollahra. They further alleged that in the area in which "Edgemont" is situated, the respondent is the Consent Authority for development, pursuant to the provisions of the Environmental Planning and Assessment Act 1979. This was admitted. The Statement of Claim continued that the respondent: "2.2 is the owner of the land comprising Edgecliff Road including a road verge and footpath adjoining Edgemont to the west; 2.3 has the care, control and management of the road, the road verge and footpath, adjoining Edgemont; 2.4 is the owner of, and has the care, control and management of a large Camphor Laurel tree located on the road verge adjoining Edgemont". 81 In paragraph 3 of its amended defence, the respondent stated: "3. With respect to paragraphs 2.2, 2.3 and 2.4:- 3.1 says that the ownership of Edgecliff Road is vested in it pursuant to the provisions of Section 145 of the Roads Act, ("the Act"); 3.2 says that it had and has various statutory powers with respect to Edgecliff Road as provided in the Act including those that permit the care control and management of the road, the road verge and the footpath adjoining the Plaintiffs' property; 3.3 says that the ownership of Edgecliff Road does not constitute it as an occupier of land (Section 146(d) of the Act); 3.4 admits that a large Camphor Laurel tree ("the tree") is located on the verge of Edgecliff Road; 3.5 denies it planted the tree; 3.6 says that the tree is an artificial structure brought onto the Road by others and for which it is not responsible; 3.7 says that in the circumstances of this claim: 3.7.1 neither the vesting of the ownership of Edgecliff Road in it, 3.7.2 nor the statutory powers referred to at 3.2 above, 3.7.3 nor the location of the tree on the road verge when that tree was not planted by it, 3.7 gives rise to any duty to repair sounding in nuisance or any specific duty to exercise care in the control and management of Edgecliff Road sounding in negligence". 82 Paragraph 3 of the Statement of Claim, which alleged that the general fall in the topography of the land was to the east, was admitted, and, in answer to paragraph 4, which alleged: "4. Located on the boundary between Edgemont and the road verge is a sandstone block retaining wall the toe of which is approximately 2.5 metres below the level of Edgecliff Road and the road verge", the respondent admitted the existence of the retaining wall, but said that it is not located on the boundary between "Edgemont" and Edgecliff Road. 83 The respondent denied that Edgecliff Road, the road verge and the footpath are supported by the retaining wall. 84 In paragraph 6 the appellants pleaded that the retaining wall had bulged outward to the east from its original position; has failed; and is in an unstable and dangerous condition and, in paragraph 7, that the failure of the wall was caused by the application of pressure upon it from Edgecliff Road, the road verge and the footpath, which are supported by it. In paragraph 8 it was pleaded: "Further or in the alternative the roots of the Camphor Laurel tree referred to in paragraph 2.4 have by themselves or alternatively in conjunction with incompressible sandstone backfill beneath the road verge and footpath caused the application of pressure upon the retaining wall so as to cause it to become distressed and fail". 85 In paragraph 9 it was pleaded that the matters complained of in paragraphs 7 and 8 constituted a nuisance caused and/or continued by the respondent, and a number of particulars were given of that. 86 The respondent admitted that the retaining wall had bulged and failed, but denied that it was in an unstable and dangerous condition. It denied paragraph 7, and asserted that the wall had failed as the result of inadequate design and construction. It denied paragraph 8. In answer to paragraph 9 it admitted paragraph 9.1, but asserted that as to paragraph 9.2, the road verge and footpath are not supported by the wall; as to paragraph 9.3 it asserted that it is under no obligation to take any steps to repair the retaining wall on the appellants' property; as to paragraph 9.4 it denied that the roots of the Camphor Laurel tree caused the failure in the manner alleged by the appellants; as to paragraph 9.5 it denied it was under a duty to take any action with respect to that tree or its effects "for which it is not responsible"; as to paragraph 9.6 it admitted the actions pleaded, but denied those in any way caused the failure of the retaining wall "the wall having already failed by that time"; as to paragraph 9.7 it said that "it is under no obligation to take any action to abate any nuisance, without in any way admitting nuisance"; and as to paragraph 9.8 it denied any nuisance or its adoption of any "or that it has any duty to repair sounding in nuisance". 87 However, the appellants raised a separate cause of action in negligence. They pleaded, in paragraph 10, that either further, or in the alternative, since about September 1997, the respondent had been aware that the retaining wall has been distressed, and had failed by reason of pressure emanating from land owned by it and/or of which it has the care, control and management, and that the retaining wall is in a dangerous condition. The respondent denied this. 88 In paragraph 11, they pleaded that in those circumstances the respondent has owed, and continues to owe, a duty of care to the appellants in relation to safeguarding the retaining wall against loss, damage and injury, which was also denied, and, in paragraph 12 they pleaded: "The Defendant has breached its duty of care to the Plaintiff and was negligent. PARTICULARS 12.1 The Defendant has failed to take any or any adequate steps to prevent pressure being applied to the retaining wall, or otherwise support the road verge independent of the wall; 12.2 The Defendant has refused and/or failed to remove the Camphor Laurel tree or otherwise prevent it from causing pressure to be applied to the retaining wall; 12.3 The Defendant has re-constructed the footpath adjacent to Edgemont so as to apply pressure to the retaining wall and cause it to become distressed and to fail; 12.4 The plaintiff otherwise repeats the particulars to paragraph 9". 89 The respondent denied the allegations of breach pleaded in paragraph 12, "or that it was under an obligation to undertake the actions referred to in the particulars to paragraph 12". 90 The respondent admitted paragraphs 13 and 14, which alleged: "13. Re-construction of the wall so as to render it safe and capable of supporting or adequately supporting the road verge at Edgecliff Road requires: 13.1 work to be carried out on land owned by the Defendant or alternatively under the Defendant's care control and management; 13.2 the approval of the Defendant in its capacity as owner of land and Statutory Consent Authority. 14. The destruction and/or removal of the Camphor Laurel tree requires the consent of the Defendant, in its capacity as owner of the land upon which the tree is located, and Consent Authority pursuant to the Woollahra Municipality Tree Preservation Order". 91 In paragraph 15 the appellant asserted that the respondent had neglected or refused to carry out the work referred to in paragraph 13.1, and to apply to itself for the approvals referred to in paragraph 13.2. The respondent denied it was under any obligation to have undertaken the matters pleaded in paragraph 15, but admitted that those works have not been carried out. 92 Paragraph 16 pleaded that in consequence of the nuisance referred to in paragraph 9, and the negligence referred to in paragraph 12, the appellant has suffered, and continues to suffer, loss and damage, essentially because of the damage and likely collapse of the retaining wall. The respondent denied these matters, and also the appellants' claim for relief, which, in the end, reduced itself to a claim for damages. 93 Thus the appellants squarely raised the issue that the respondent was negligent in failing to prevent the tree from applying pressure, in the manner alleged, to the retaining wall, thereby causing it to become distressed and fail. The Judgment of Windeyer J 94 His Honour set out the general facts and referred to investigative activities carried out by various geotechnical engineers. He noted that the investigation by Mr Lumsdaine of Coffey Partners disclosed: "… quite large roots from the tree running parallel to the boundary beneath the footpath area and towards a service pit wall, apparently placed in position about 20 years ago. The report from Coffey Partners expressed the clear opinion that the damage to the wall was caused as a result of pressure caused by the roots of the tree. Photographs in evidence clearly show a root system and some roots of considerable size". 95 He continued that the respondent retained Mr Davies of GHD-Longmac Pty Limited to carry out investigations, and that additional test pits were dug in the trench area so that this could be done. He noted that Mr Davies considered that the "wall distress" resulted from inadequate design and construction of the wall, and that the root system had not been influential in this. His Honour continued that after all the inspections had taken place, the respondent filled the trench in a way to ensure that little, if any, pressure would be exerted on the wall as a result of the filling, and that thereafter the footpath area was also re-concreted, but that since then cracks have appeared at the edge of the re-concreted area, "and it is obvious that pressures are being exerted upon it". His Honour considered the pleadings and stated that the appellants' main claim was in nuisance, being that the roots of the tree had caused pressure on the wall, which, in turn, had caused it to fail. He said: "There was a third claim made in negligence which was less strongly argued. In essence the negligence claim was that since 1997 the Council had been aware of the failure of the wall and its dangerous condition, that it owed a duty of care to the owners to safeguard them against loss, damage or injury and that it had breached this duty of care". His Honour recorded that the parties had agreed that if it were appropriate to award damages, the quantum should be determined in a separate hearing, either before himself or a Master. 96 In paragraph 8 he stated that whilst the respondent denied that any damage to the wall had been caused by its activities or by the tree: "Its main defence, however, is based on the highway immunity rule and the law relating to non-feasance by public authorities. The Council denies that it planted the tree or that it had anything to do with its planting and therefore denies that it had any duty to prevent the tree roots causing damage, or to repair, so as to give rise to a claim in nuisance or in negligence". 97 His Honour then proceeded to decide the dispute between Mr Lumsdaine and Mr Davies, and said that he had no hesitation in preferring the evidence of the latter to that of the former. His Honour's findings in this regard were not challenged. He gave detailed reasons for making them, and continued: "I accept the evidence of Mr Lumsdaine that there was present in the trench, some sandstone particle type material and that the pressure of the tree roots as the roots grew would cause compaction of those pieces of hard material against each other, which would exert pressure on the wall. I also accept his evidence that the existence of the edge of the services pit would cause additional pressure to be exerted on the wall by the roots. The fact that the wall has failed between the Camphor Laurel tree and the pit, but has not failed further away, gave further support to the opinion of Mr Lumsdaine". 98 His Honour considered that the cracking of the re-constructed footpath pointed to continuing problems with the tree from its roots, "and the likelihood that unless something is done, there would be continuing problems even if the wall is rebuilt, although perhaps not for some time". 99 He did not consider that the fact that the wall is inadequately constructed, in that its design and construction does not accord with modern engineering requirements, was really relevant, but: "What is relevant is whether or not the tree and its roots have caused a nuisance which has caused the wall to fail. I find that to be the position". 100 His Honour nextly dealt with the public highway immunity rule and referred to the judgment of Dixon J in Buckle v Bayswater Road Board (1936) 57 CLR 259 at p 281. Having done that, he said that there was no evidence that the respondent planted the tree, an issue on which the appellants bore the onus, and that, in terms of the decision in Buckle, there was no original act of the road authority to found the complaint. He considered that to be the position because it neither planted the tree, nor had it been shown that its work on the pavement was in any way connected with the failure of the wall. 101 His Honour, nextly, dealt with the responsibility of a council for nuisance caused by trees planted by it in the road or on the footpath, and referred to the various authorities in relation to that. He noted that the highway immunity rule had been recently upheld in this Court in Ghantous v Hawkesbury City Council and Brodie v Singleton Shire Council. He was aware that those cases were the subject of applications for Special Leave to Appeal to the High Court, and said that, as he understood it, success in any appeal would involve a change in the law for Australia. He continued: "In any event the hearing was expedited on the application of the plaintiff and a decision should be given on the law as it stands". 102 If I may say so with respect, his Honour was obliged to follow this course. He certainly could not assume that the High Court would change the law. 103 His Honour concluded that he was of the opinion that the immunity rule provided a complete defence and, after making some further observations in relation to that matter, he dismissed the appellants' claim. 104 It is important that the chronology is observed. His Honour gave judgement on 15 March 2001. In Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council [2001] 75 ALJR 992, the High Court gave judgment on 31 May 2001. It is not suggested that the learned trial Judge did not apply the law as it stood at the time of the trial. However, the law has been changed by the two High Court decisions. Two substantial questions arise. The first is how this Court should deal with that change. The second is what effect the change has. To some extent these questions pose the same problem. The Proceedings Revisited 105 Before considering those questions, however, I think it necessary to review, shortly, the pleadings. The Statement of Claim raised both nuisance and negligence, the latter being pleaded in quite general terms. It was, in my opinion, pleaded with sufficient generality to give rise to a claim in negligence against the respondent. The respondent appreciated that it was required to meet a negligence claim and, in addition to its various denials, it expressly pleaded that in the circumstances in which it found itself, the facts alleged against it did not give rise to any specific duty to exercise care in the control and management of Edgecliff Road sounding in negligence. It raised specifically, in answer to the claim of negligence, its entitlement to immunity arising under the law before the decisions in Ghantous and Brodie in the High Court. 106 Mr Taylor submitted that, in those circumstances, if the appellants wished to allege that there was no entitlement to such immunity, they should have filed a reply stating that. I do not agree. Part 15 rule 21 (1) provides that if there is no reply to a defence, there shall be an implied joinder of issue on the defence, and sub rule 4 provides that a joinder of issue operates as a denial of every allegation of fact made in the pleading on which there is a joinder of issue unless, in the case of an express joinder of issue, any allegation is excepted from the joinder and is stated to be admitted, in which case the express joinder of issue shall operate as a denial of every other allegation of fact. 107 Accordingly, there was a joinder of issue and one such issue was whether the facts pleaded, even if establishing negligence, could render the respondent liable in law. 108 A reply could not have added to the issues joined between the parties and, it is quite obvious from his Honour's reasons, that the respondent put at the forefront of its defence the former immunity rule. It is equally obvious that negligence was argued, even if not in the same detail and with the same force, as negligence. The Nature Of The Appeal And The Change In The Law 109 Section 75A (5) of the Supreme Court Act 1970 provides: "Where the decision or other matter under appeal has been given after a hearing, the appeal shall be by way of re-hearing". 110 It was not in issue, as I understood it, that on a re-hearing the Court shall apply the law as it exists at the date of the hearing of the appeal. The question, however, which arises, is whether the case has been conducted at first instance in a way which allows the change in the law between the determination of the case at first instance and the appeal to be applied on the hearing of the appeal. 111 This subject has been discussed on a number of occasions. In Piening v Wanless (1968) 117 CLR 498, a plaintiff brought proceedings in this Court seeking damages for personal injuries when a motor vehicle, in which he was a passenger, and which was being driven by the defendant, left the road and overturned. At the trial the jury returned a verdict for the defendant. This Court allowed the appeal and ordered a new trial from which decision the defendant, by leave, appealed to the High Court. The plaintiff gave particulars of specific acts of negligence. At pages 500-501 Barwick CJ said: "The case was heard at the outset upon these amended, or rather substituted, particulars and conducted throughout upon the assumption made and accepted by both parties that before the appellant's car became out of control there had been a sudden failure of the steering mechanism". His Honour pointed out that that was the way in which the case was left to the jury in the trial Judge's summing up. 112 In the Court of Appeal, a further ground was taken by the plaintiff, namely that this was a case in which the evidence of negligence should be found in the occurrence itself, the occurrence being the running of the vehicle off the road, without any concession on the part of the defendant that there had been a prior failure of the steering mechanism. His Honour, at page 502 said: "The majority of the Supreme Court accepted this ground, set aside the verdict, and ordered a new trial of the action. The reason advanced for the making of so unusual an order – unusual having regard to the course of the trial and the resultant verdict – was that, at the date of the trial, this Court had not decided Anchor Products Ltd v Hedges and that, thinking the relevant law to be settled by the decision of the Supreme Court in Priest v Arcos Enterprises Pty Limited , the respondent's counsel had elected not to seek to put before the jury a case based upon the so-called principle or doctrine of res ipsa loquitur, and to confine the respondent's case to evidence of the respondent's amended and further amended particulars of negligence. It was said that such an election had been "forced upon" the respondent's counsel, and that, having regard to this Court's later decision, he had been wrongfully compelled to exclude from the jury's consideration a case which otherwise would have been available to the respondent". 113 At page 505 his Honour said: "It is true that the then expressed opinion of the Supreme Court was that he" (the plaintiff) "must choose and could not endeavour to establish a case of negligence against the appellant by relying on the evidence which the occurrence itself provided, whilst at the same time relying on evidence of specific acts or omissions by the appellant. But the respondent was not obliged to accept that decision. He was entitled to press his claims to be lawfully entitled to endeavour to establish his case on the footing that the current decision of the Supreme Court was erroneous. It is true that the trial judge would have been bound to reject his submission: but the propriety in law as distinct from the propriety in point of precedent of that course on the part of the trial judge could then have been challenged. As the decisions of this Court have shown, it could have been successfully challenged". 114 At p 506 he continued: "In this case, the choice of the respondent's counsel not to press the evidence of the occurrence in support of the respondent's case of negligence was, in my opinion, in every relevant sense voluntary, and ought to be attended with the same consequences of responsibility as other voluntary decisions in the conduct of litigation". 115 That case, in my respectful opinion, differs from the present. The pleadings in the present case raised the question of negligence on the part of the respondent on which the appellants sought to rely. The appellants, for reasons to which I shall refer, established the negligence they had pleaded. The pleading of negligence against the respondent was obviously enough a challenge to the highway immunity rule. Unlike Piening v Wanless, the precise allegations necessary to challenge that rule were pleaded. There was pleaded back against the appellants the highway immunity rule. The questions therefore were whether there was negligence, and, if there was, whether the defence of the highway immunity rule exculpated the respondent. 116 In Papatonakis v Australian Telecommunications Commission & Anor (1985) 156 CLR 7, the High Court held that the duty owed by an occupier of land to a person lawfully on the land was no longer to be governed by the "special duties", which had applied previously, but by having regard to the ordinary duty of reasonable care. In that way the appellants challenged the law, as it then was. 117 The consequences of this was considered by this Court in Eggins v Brooms Head Bowling and Recreational Club Ltd (1984) 5 NSWLR 521, judgment in which was delivered on 12 August 1986. The defendant was the occupier of premises, which were used as a bowling and recreation club. In June 1979, the plaintiff sustained serious injuries on those premises when he slipped and fell as he went to leave them. His statement of claim alleged the breach of duty owed by the occupier of premises to an invitee. The action was heard by a jury and, at the conclusion of the evidence, the trial Judge directed the jury to return a verdict for the defendant on the ground that the premises did not constitute an unusual danger, and there was no evidence that the defendant knew, or ought to have known, of any danger in the use of the premises. During the course of submissions on appeal, counsel for the plaintiff sought leave to amend the statement of claim by substituting for the cause of action based on an occupier-invitee count, a cause of action based on a breach of a general duty of care owed by the defendant to a plaintiff. This application was made on the basis that the decision in Papatonakis and of this Court in Gorman v Williams (1985) 2 NSWLR 662 had made it clear "that the doctrine of dual duties is reinstated". 118 The principal judgment of this Court was given by McHugh JA and, at page 524, his Honour said: "The issues at a trial are decided on the basis of the 'law' which applies to them at the date of the trial. If a party believes that the current state of the law is erroneous, he must object to its application to his case or be bound by it. If he fails to raise the point at the trial, he cannot be allowed to raise it on appeal because of the accident that he has lodged an appeal and that, before the hearing of the appeal, a superior court has decided that the law is different from what it was conceived to be at the date of the trial. If the unsuccessful party succeeds in obtaining a new trial for a reason unconnected with any change in the law, then he may apply to amend his pleadings, if necessary, so that the new trial can be governed by the changed state of the law. But in my opinion he cannot seek to have a verdict, based on an accepted state of law, set aside on the ground that the law is later held to be different from what the parties accepted it to be. No one suggests that, where appellate proceedings are concluded or no appeal has been lodged, a party is entitled to have a verdict set aside on the ground that the law is later declared to be different from what it was at the date of the trial or the appeal. The accident of filing an appeal cannot alter this situation. Ex hypothesi the unsuccessful party, who cannot point to an error in the trial conducted in accordance with an accepted state of the law, has no appeal. It would be extraordinary if an unsuccessful party who had filed an appeal could have a verdict set aside because of a subsequent change in the state of the law while a party who recognised that he had no right of appeal could not get a new trial because he had failed to lodge a notice of appeal". 119 In my opinion, the appellants challenged the "highway immunity" rule by seeking to have the respondent found liable for its negligence in the particular circumstances of this case. As I have said, the issue clearly was whether, as the appellants alleged, the respondent was negligent and could be held liable for such negligence. The pleadings make that clear. The case was decided on the basis of the then existing law, but the challenge to the then existing law, which, in my view, emerges from the statement of claim, amounted to an objection or non-acceptance of the application of it, or its binding effect upon the appellants. Therefore, contrary to what happened in Eggins, there was no failure by the appellant to raise the point at the trial. 120 In Western Suburbs Hospital v Currie (1987) 9 NSWLR 511, the plaintiff sustained personal injuries as a result of a fall on hospital premises. The trial proceeded on the basis that the occupier's duty of care to an invitee was that laid down in Indermaur v Dames (1866) LR 1 CP 274. By the time the appeal was heard, the High Court had decided Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 on 10 March 1987. In that case, building upon Papatonakis and Gorman v Williams, the High Court terminated the distinction, which, was formerly taken to exist in law between the static condition of land and the dynamic situations affecting it, as a basis for deciding whether a duty of care existed in respect of a lawful entrant upon the land, and defined the new principle. At page 515, in Currie, Kirby P said: "In the present case, although the trial proceeded, and the judgment below was written, by the standard established by Willes J in Indermaur v Dames, it was agreed that there was no reason why this Court should not now proceed, on the appeal, to apply the law as re-stated in Australian Safeway Stores Pty Limited v Zaluzna: cf Eggins v Brooms Head Bowling and Recreational Club Limited … A general duty of care had been pleaded below. All of the matters of fact relevant to the new, simplified test of Australian Safeway Stores … had been proved, even though done so at the time for the purpose of attracting the principles in Indermaur v Dames. Applying Australian Safeway Stores … to the present case there can be no doubt that, in the relevant circumstances, having regard to the nature of the premises as a public hospital and Mrs Currie's entry on them as a visitor, that the hospital owed her a duty of care under the ordinary principles of negligence". 121 Importantly, in my opinion for the present case, is the statement by the President that the plaintiff in that case had pleaded a general duty of care. 122 McHugh JA, at page 520, said: "In the present case, the pleadings were wide enough to cover a case of breach of duty based on a general duty of care in addition to a special duty which until Australian Safeway Stores Pty Limited, was thought to be owed by an occupier to an invitee. Since the Hospital is not prejudiced, I think that this Court should decide the case on the basis that the Hospital owed Mrs Currie a general duty to take reasonable care for her safety". 123 His Honour continued that nothing in Eggins prevented the plaintiff relying on the change of the law in that case. He explained Eggins thus: "However, Eggins was a case in which the appellant sought a new trial. An application for a new trial is distinguishable from an appeal where the Court is asked to enter a verdict for the appellant on the basis of the evidence given at the trial and where the respondent will suffer no prejudice by reason of the application of a different set of principles. If no evidence could have been given which could have prevented the new point from succeeding at the trial, and if the appellate Court can decide the issue without 'deciding nice questions of fact, in considering which the Court of ultimate review is placed in a much less advantageous position than the Courts below', it is open to an appellate Court to entertain a new point: Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480 and Suttor v Gundowda Pty Limited (1950) 81 CLR 418 at 438". 124 Against this background, it is necessary to consider whether, notwithstanding that the decisions in Brodie and Ghantous had not been given when Windeyer J gave his decision, nonetheless the appellants are entitled to rely upon those decisions. 125 In Brodie, the Chief Justice, in considering non-feasance, said that the manner in which the case was conducted and decided at first instance and in the Court of Appeal was to be understood in the light of the law originally developed by English courts and declared for Australia by the decisions of the High Court in Buckle v Bayswater Road Board and Gorringe v Transport Commission, the latter case being followed by the Full Court of the Supreme Court of New South Wales in Kirk v Culcairn Shire Council (1964) 64 SR (NSW) 281. After a detailed consideration of the matter, his Honour was of the view that special leave to appeal should be granted, but that the appeal should be dismissed. 126 In the joint judgment of Gaudron, McHugh and Gummow JJ, their Honours referred to the fact that in Ghantous the plaintiff sued both in negligence and nuisance, but failed in the District Court because of a finding, which was upheld in this Court, that the case was one of non-feasance. 127 In Brodie, the action was brought in negligence and, at the trial, the case was held to be one of misfeasance, resulting in a verdict in favour of the plaintiffs. An appeal by the Council to this Court was successful on the basis that such work as the Council had undertaken, in replacing defective decking planks, amounted to no more than superficial repairs and did not remove the case from the category of non-feasance. 128 The essential argument in the High Court was that the decisions in Buckle and Gorringe prevented the applicants from succeeding. 129 There was no doubt that in both cases the applicants had sued, inter alia, in negligence. After a detailed consideration of the matter, their Honours said, paragraph 150: "The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist". 130 In relation to repair, maintenance and works, their Honours said, paragraph 159: "The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from the creation of conditions during or as a result of repairs or works, from a failure to remove unsafe items in or near a road or from the placing of items upon a road which create a danger, or the removal of items which protect against danger". 131 Their Honours pointed out not all failures to repair would create risks to road users. They then discussed various alternatives. 132 At paragraph 162, their Honours said: "The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authorities. In the circumstances of the given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations. The resources available to a road authority, including the availability of material and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made. It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform after more pressing dangers are first addressed. Even so, it may well be reasonable for the authority to exercise other powers including, for example, by erecting warning signs, by restricting road usage or, in extreme cases by closing the road in question". 133 Whilst their Honours formulated the duty in relation to road users, there seems to me to be no reason why the same duty does not apply to the respondent in relation to negligent acts causing foreseeable damage to people adjacent to the road. It would seem a very strange result if, for example, the root of a tree caused damage to a person using the footpath, such that that person was entitled to recover, but also caused damage to an adjoining landholder, but that person, notwithstanding that the same negligence was applicable, could not recover. The duty of care or, perhaps more correctly, the content of the duty of care, depends upon it being reasonably foreseeable that the failure of a council to act reasonably may well lead to foreseeable damage to others. There is no suggestion in the present case that the performance by the respondent would have involved such content or scope or manner of exercise to make it unreasonable for the respondent to have avoided the consequences of the activities of the roots: Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431. 134 At paragraph 226 Kirby J said: "However, in my view the Court should now remove the anomalous immunity, re-express the common law in Australia and subsume the liability of highway authorities in negligence and nuisance within the general law governing all statutory bodies". 135 At paragraphs 239 and 240, his Honour said: "239. These conclusions leave the liability of the respondents to be determined by the ordinary principles of negligence law as applied to a statutory authority with relevant duties and powers. Because this represents a shift in the understanding of the law from that which prevailed at the time of the trials of the respective actions now before this Court, the question arises as to whether fairness requires that the proceedings be returned for re-trial in accordance with the law as so expressed. 240. In my opinion, this course is not required. In each proceeding, the applicants recorded their intentions to rely on ordinary principles of negligence (and, in the case of Mrs Ghantous's action, the law of nuisance) freed from the immunity. In such circumstances, the respondents were obliged to consider the eventuality that has now occurred. They elected to call no evidence to justify their respective failures to attend to the suggested defects in the surface and the surrounds of the road, bridge and path in question in their cases . Re-trial would obviously be expensive and inconvenient. In my opinion, it is open to this Court, in each case, to reconsider the evidence at trial, judging it by reference to the ordinary principles but governing the existence and scope of a duty of care of a statutory body having the powers respectively enjoyed by the present respondents". (My emphasis) 136 The fact that the respondent did not seek to call any evidence of the priority in which the work should be carried out or undue expense in this case, when confronted with a direct challenge to the highway immunity rule, would suggest, conformably with the authorities to which I previously referred, that it should not be entitled to a new trial. Gummow J had referred to a statutory authority taking such a course in Pyrenees Shire Council v Day (1998) 192 CLR 330 at para 184, where he quoted at length from Canadian authority pointing to the type of evidence a council should call. Judgment was delivered on 23 January 1998, some two years before the present action was heard. But the respondent did not call any such evidence. Rather the evidence was that it had attended to the matter on several occasions, but in a quite ineffectual way. Was There Negligence? 137 Windeyer J did not really address this point for the reasons to which I have referred. However, his findings, which must now be considered in the light of nuisance being subsumed in negligence, make it clear that he was satisfied that the reason for the distress in the retaining wall was the existence of the quite large roots from the Camphor Laurel tree running parallel to the boundary and beneath the footpath area towards a service pit wall. This caused the pressure to which his Honour made reference. He accepted Mr Lumsdaine's evidence that there are continuing problems with the tree roots, the likelihood being that unless something is done, there will be continuing problems even if the wall were to be re-built. 138 There can be no doubt that the appellants carried the onus to show that there was a duty on the respondent, the content of that duty, and its breach. In my opinion, the appellants achieved those requirements. The duty, as I have suggested, cannot be confined to road users although, of course, in Ghantous and Brodie, those were the persons to whom the duty was found to exist. However, as I have said, it would seem very strange if a council could create a danger on a roadway, but not be liable to people in its immediate vicinity and who would be foreseeably injured by it. At the very least, a duty of care is owed to adjoining land owners, who or which may be affected adversely by negligent acts on the part of a council, in respect of a road or matter on the road under its care, management and control. The appellants alleged that the respondent failed to take any, or any adequate, steps to prevent pressure being applied to the retaining wall, or otherwise support the road verge independent of the wall. The respondent called no evidence to show that reasonable inspection by it of the situation would not have disclosed a problem emanating from the roots of the tree. Nor did it call evidence to show that it was not, for some reason, under a duty: Romeo. Its obligation was to take reasonable steps to ascertain the existence of latent dangers, which might reasonably be suspected to exist. It did not, notwithstanding that Windeyer J found (paragraph 4): "Cracks in the footpath and lifting of the footpath in the area near the tree have been obvious over the years. In the mid 1980s the Council repaved the footpath where it had been lifting. Mr Hackett had noticed some cracking in the wall quite early during his occupation. He said the position of the wall got worse during the 1990s". Mr Hackett had lived in "Edgemont" since 1978. 139 It is notorious that cracks in a footpath in the vicinity of a tree, particularly of the type here in question, are likely to be caused by the roots of the tree. Yet, the respondent carried out no reasonable inspections and, indeed, when the problem was revealed, sought to place the blame not on the pressure exerted by the roots, but, rather, on the defective design of the wall. 140 In my opinion, the respondent was on notice that the roots of the tree, which was under its care, control and management, were causing damage in the area, and were under a duty to inspect and rectify the situation. This the respondent failed to do with the consequence that the wall was damaged. The failure of the respondent to take these steps, even after the re-pavement commenced to crack, indicates to me, quite clearly, negligence. That negligence was the cause, as found by Windeyer J, of the retaining wall being placed in a position of jeopardy. 141 I have not overlooked Mr Taylor's submission that the report of Peter Allsopp Pty Limited of 21 May 1998 (black book pages 129-134) is highly critical of the wall and asserted that it constituted nothing more than a veneer. That evidence was before Windeyer J, but his Honour came to a view as to the failure of the wall which, in my opinion, was open to him, and in which this Court ought not to interfere. 142 In the result, I am satisfied that the appellants proved that the respondent was guilty of breach of duty to the appellants. At one stage Mr Taylor submitted that there was no evidence of damage and, accordingly, negligence had not been established. However, I do not consider this argument is open to him. The reason is that his Honour noted specifically that it was agreed that if it were appropriate to award damages, which I take to mean that if he found that there was a breach of duty, then the quantum of damages should be determined in a separate hearing before himself or a Master. This was the way in which the parties elected to conduct the case, and it is not now open to the respondent to deviate from that. 143 Mr Taylor also sought to raise a limitation defence before his Honour. His Honour refused the application, from which refusal there has been no appeal. In these circumstances the point needs no further consideration. Should There Be A New Trial? The conduct of the appellants in the presentation of their case, and the way in which the case was fought, showed that all the issues the appellants had dealt with had been considered. The only prejudice would be to the respondent, in that it did not call evidence of the priority of carrying out new work, and its budgetary position. But the respondent must have been aware that in meeting such a case these were relevant considerations. It was the respondent which elected to conduct the case on a limited basis, and I do not see why, consistently with the authorities about new trials, it should now have the opportunity of running a more expansive case. Conclusions 144 In the result, I am satisfied that the appellants have proved that the respondent was guilty of a breach of its duty and was negligent. Accordingly, the appellants are entitled to have the matter referred for a determination of the question of damages. I am further of the opinion that, in all the circumstances, the respondent is not entitled to a new trial to enable it to seek to establish matters which it should have raised at the original trial. Orders Proposed 145 The orders I propose are that: (1) The appeal be allowed; (2) The judgment by Windeyer J, in favour of the respondent, be set aside; (3) In lieu thereof, it be found that the appellant has breached its duty to the respondent; (4) It be referred to Windeyer J to decide by whom the question of damages should be determined; and (5) The respondent pay the appellants' costs of the trial and of the appeal. ********** 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.