Reported Decision : (2004) Aust Torts Reports 81-753 New South Wales Court of Appeal CITATION : Leichhardt Municipal Council -v-Green [2004] NSWCA 139 HEARING DATE(S) : 27 April 2004 JUDGMENT DATE : 20 May 2004 JUDGMENT OF : Santow JA at 1; Bryson AJA at 2; Stein AJA at 3 DECISION : Appeal allowed with costs and judgment of District Court set aside. In lieu thereof, a verdict for the defendant with costs. If otherwise qualified, the respondent should have a certificate under the Suitors Fund Act, 1915. CATCHWORDS : Respondent injured stepping from cabin of truck into pothole - liability -negligence- manner of alighting from truck - whether injury caused by council's negligence - whether duty of care owed by council - whether duty breached Brodie v Singleton Shire Council (2001) 206 CLR 512 Burwood Council v Byrnes [2002] NSWCA 343; Ghantous v Hawkesbury City Council [2000] 206 CLR 512; Hawkesbury City Council v Ryan [2001] NSWCA 212; CASES CITED : Hoyts v Byrnes (2003) 201 ALR 470; Lake Macquarie City Council v Bottomley (1999) 103 LGERA 77 Makita v Sprowles (2001) 52 NSWLR 705; Richmond Valley Council v Standing [2002] NSWCA 35, Parramatta County Council v Watkins [2001] NSWCA 364; RTA v McGuiness [2002] NSWCA 201 Waverley Municipal Council v Wagner [2002] NSWCA 10. LEICHHARDT MUNICIPAL COUNCIL: Appellant PARTIES : Kevin Anthony GREEN: Respondent FILE NUMBER(S) : CA 40448/03 COUNSEL : D DAVIES SC/ K M GUILFOYLE (Appellant) P. WEBB QC/ P R STERNBERG (Respondent) SOLICITORS : Phillips Fox (Appellant) Elias Gates and Associates (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT 10367/02 FILE NUMBER(S) : LOWER COURT Garling DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA: 40448/03 DC:10367/02 SANTOW JA BRYSON JA STEIN AJA 20 MAY 2004 LEICHHARDT MUNICIPAL COUNCIL –v – GREEN 1 SANTOW JA: I agree with Stein AJA. 2 BRYSON JA: I agree with Stein AJA. 3 STEIN AJA: Introduction This is an appeal by the Leichhardt Council from a judgment of his Honour Judge Garling delivered ex tempore in the District Court on 13 May 2003. His Honour found a verdict and judgment in favour of the plaintiff (respondent), Kevin Anthony Green, in the sum of $173,354 for personal injuries he sustained on 22 November 1998 when he alighted from his truck and stepped into a pothole in Hay Street Leichhardt. The appellant argues that his Honour should have found a verdict in its favour, viz a verdict for the defendant on the issue of liability. The Judgment at first instance 4 After recounting the facts of the accident, which I will not now repeat, his Honour noted that there was no dispute that the appellant was the appropriate road authority and had control of Hay Street, where the accident occurred. His Honour then turned to the appellant's submissions and dealt with them in turn. The first is no longer relevant. 5 The second concerned the "obviousness" of the pothole and the respondent's own responsibility to look where he was stepping. His Honour distinguished a number of authorities saying that they raised quite different circumstances, e.g Richmond Valley Council v Standing [2002] NSWCA 359, RTA v McGuiness [2002] NSWCA 210; Burwood Council v Byrnes [2002] NSWCA 343, Brodie v Singleton Shire Council (2001) 206 CLR 512 and Ghantous v Hawkesbury City Council (2000) 206 CLR 512. 6 His Honour said that this was not a pedestrian case but one of a person getting out of a vehicle in the middle of the street, and stepping into a pothole. He stated, "I have no difficulty in finding that this particular pothole was dangerous." 7 The primary judge addressed the appellant's submission that it did not have an obligation to repair a pothole of which there was no evidence that it knew or should have known. There had been, so counsel submitted, no prior complaints or injuries. Of this submission his Honour said: The council owes the plaintiff and other users of this road a duty of care, including the duty to take reasonable care for people using the road. They knew the area was used by a large number of vehicles, trucks, motor vehicles and pedestrians. They had, in my opinion, a duty to ensure that holes of the type depicted in the exhibit were made safe. As I said earlier, I believe this hole was clearly unsafe. It would have been a danger to anyone who did not see it. When one looks at the photographs, it would seem that that hole had not just suddenly appeared, that hole had been there for some time. 8 His Honour then made his only reference to the expert engineering evidence. I set this comment out in full since the appellant argues that the two reports of Mr Porman and Dr Yeaman should not have been received into evidence. 9 He said: In addition to that, when one reads the expert evidence, whilst I do not greatly rely on it because I do not think it helps me very much, it does explain how the hole would have come about. 10 On the issue of liability the judgment concluded: In my view, it is quite clearly not something which just happened. It is something which the defendant, in my view, should have discovered, should have had the method of discovery and should have done something about. It would have been easy to have dealt with the problem on a temporary basis. A sign, obstruction or anything could have been placed over the hole to warn people but the real duty was to repair it. It would be very simple to repair, even if it was repaired on a temporary basis and later done more efficiently. The defendant did not call any evidence to show they had a system for detecting such holes or repairing such potholes. I am therefore satisfied the defendant breached its duty of care. I am satisfied it was negligent in not either warning or, more importantly, repairing the hole in such a way that users of the road could have stepped into the hole the way the plaintiff did and that the plaintiff's injury arises directly from his stepping into this large pothole. 11 His Honour found that there was no contributory negligence on the part of the respondent and assessed the damages for his injuries. In the event that the appeal on liability is dismissed, damages are not in question. Submissions of the appellant 12 Counsel for the appellant, Mr Davies SC, submitted that the experts' reports should not have been admitted into evidence as they offended the principles laid down in Makita v Sprowles (2001) 52 NSWLR 705. Both reports (Porman and Yeaman) were no more than speculative. Mr Davies said that although it was not free from doubt it appeared that his Honour did have regard to the material in the reports. 13 Second, Mr Davies submitted that there was no evidence as to who carried out the work which lead to the formation of the potholes. He argued that the respondent had the onus of showing that the work was carried out by the appellant, or on its behalf, in a negligent fashion. Although the respondent subpoenaed all of the relevant files of the appellant council, which were produced, no document from these files was tendered. 14 Next, the appellant says that the case was never pleaded nor run on the basis of a breach of duty to inspect or by the appellant not having a proper inspection system in place. The trial judge therefore went beyond the particulars of negligence and found that the appellant should have discovered or had a means of discovering the pothole and should have repaired it. 15 Fourthly, the pothole was obvious to anyone taking reasonable care for his own safety. His Honour had not properly addressed this argument. 16 Counsel submitted that there was no duty to inspect, nor breach of any such duty established. The respondent has not shown that the pothole could reasonably be suspected to exist by the appellant, Brodie at [165]. In effect, his Honour had reversed the onus of proof. 17 Further, it was wrong of his Honour to conclude from an examination of the photographs that the pothole had been there "for some time". 18 Lastly, there was no evidence by the respondent as to how a warning sign might have influenced the way in which he alighted from his vehicle or where such a sign would have been placed. Submissions of the respondent 19 On behalf of the respondent Mr Webb QC submitted that it was implicit in the particulars of negligence in the Statement of Claim (particulars (c) and (d) – (f)) that the case was, inter alia, an inspection case. This was made explicit in exchanges between the bench and counsel when objection was made to the tender of the expert reports. 20 Counsel submitted that it was appropriate to consider the "obviousness" of the pothole in context, see Parramatta County Council v Watkins [2001] NSWCA 364 at [27]. When this was done, it is plain that what might be obvious to a pedestrian is not to a driver alighting from a vehicle in the instant circumstances. Also, his Honour found no contributory negligence, see Hawkesbury City Council v Ryan [2001] NSWCA 212 at [77]. This was a large and relatively deep pothole and would have been a hazard to anyone, for example, at night. I accept the Respondent's submission on "obviousness" and can see no error in his Honour's approach. 21 Further, Mr Webb submitted that the photographs and the evidence satisfied his Honour that the hole had been there for some time. The state of this pothole and others in the nearby area were within the purview of the council. The process of formation of the pothole was clearly a slow evolving process over time. 22 Mr Webb submitted that the experts' reports were admissible and while there were inconsistencies as to how the holes were formed, they both agreed that water ingress between the joints and the adjacent road surface was relevant. Whether the holes were caused by poor compaction (Porman) or joint spalling (Yeaman) does not matter. 23 Counsel submitted that any proper inspection system by council would have revealed an underlying problem and resulted in its correction. 24 His Honour was entitled to have been satisfied to a degree necessary to shift the evidentiary onus to the appellant to prove its inspection system. See Ryan at [58] and Watkins at [28-29]. There was no reversal of the onus. Consideration 25 Some submissions of the appellant may be set aside. It seems moderately clear that notwithstanding that there was no specific particular of negligence relating to the inspection system or a failure to warn, the extensive exchanges between the judge and counsel early in the hearing when the reports of the experts were tendered, confirm that the allegations were or became part of the respondent's case. 26 Second, an examination of the transcript of evidence and judgment seems to confirm that the reports of Mr Porman and Dr Yeaman were received into evidence. There was extensive discussion as to their admissibility when they were sought to be tendered. At Combined Appeal Book 42-43 his Honour decided to provisionally admit the reports, saying that he would reconsider the issue at the conclusion of the case because he had some doubts. The reports were marked as exhibits E and F. 27 However, it does not appear that his Honour returned to reconsider the admissibility of the reports. His comment in the judgment on the value, or lack of value, of the expert evidence (quoted above at para [7]) appears to confirm their receipt into evidence. Accordingly, I will approach the argument on the basis that the reports were admitted into evidence. Should the expert reports have been admitted? 28 Mr Porman is a consulting engineer with Simpson Associates Forensic Engineering. Dr John Yeaman is a highly qualified civil engineer. 29 When one reads Mr Porman's report it is plain that without having any stated instructions, appropriate expertise or experience, or at least none that is apparent on the face of the report, he expounds on the practice and policy of the appellant council. For example, he says at page 7: It is important at this point to note that the Defendant has a long standing practice regarding the restoration of work carried out by others in the public way. 30 And later, as one possible scenario: The Defendant completely resheeted the carriageway up to the circular surrounds of the Sydney Water manholes, then at a later date Sydney Water carried out maintenance on its 100mm line requiring that at each manhole a square of the carriageway be removed. Sydney Water then reset the manholes and temporarily reinstated the excavation, pending permanent restoration by the Defendant. 31 Again, at page 9 Mr Porman stated: …under the Defendant's policy/practice the responsibility for the asphalt at the manholes remains with excavating body until such times as it is permanently restored. 32 After postulating four possible scenarios as to what might have occurred, Mr Porman's concluding opinion is noteworthy. He says that it is "most probable that the council repaired the subject pothole and placed the adjacent patch at the time of restoring the nearby electrical trench" (p12). Unfortunately, this conclusion was not based on any evidence available to Mr Porman, nor referred to in his report. It was, it seems, entirely speculative. Nor is it made clear why this scenario was to be preferred to any of the other possibilities which he saw. 33 Mr Porman was really in the dark as to what had actually occurred and his "guesswork" was made obvious by the unanswered questions he posed at page 11. He said that there were relevant questions which might impact on any decision regarding the accident. These were, when was the resheeting of the street carried out? Further, who did the work on the potholes and established the squares around them and temporarily reinstated the squares? Further, who repaired the subject pothole and when? 34 Without the answers to these critical questions, and without evidence, Mr Porman seems to have leapt to the conclusion that the appellant repaired the pothole and placed the adjacent patch there. There was no evidence to support this opinion. It was no more than speculation. The report should have been rejected by his Honour. 35 Turning to the report of Dr Yeaman, it should be pointed out that his inspection of the pothole was around four years after the accident. The inspection lead him to certain conclusions that the joints between the manhole patch and the adjacent road opened, allowing surface water to enter. This caused spalling of the joints and further water ingress and failure of the edges. 36 Dr Yeaman concluded that "the most probable scenario of events" was that: Some time in the past, the Council overlaid Hay Street as part of their annual resheeting programme. At that time the contractor would have covered each of the manholes with a sheet of tarred paper (or similar) and paved the entire street. Following rolling of the Asphaltic Concrete the contractor would have cut out the tarred paper exposing the manhole at some depth below the finished surface. Either Council or the Contractor would have advised the owner of the drainage system that the manhole covers would require lifting to the height of the finished surface. It is likely that this work would have been undertaken by a contractor to the owner. This is supported by the fact that the AC has been clearly provided from a different source to the surrounding pavement. The squaring out of the manhole patch, with sides of the square appearing to have been cut by a "jack hammer –spader" not a saw cut as apparent in the adjacent trench and other repairs closer to Parramatta Road. The fact that the manhole covers are slightly higher than the manhole patch. The manhole patches were probably not treated with a bituminous emulsion to create a bond between the manhole patch and surrounding patch. With hindsight this would need to be a hot bitumen to obtain the optimum bond between a Crushed River Gravel mix and the basaltic surround, principally because CRG aggregates have poor affinity to bitumen, which is often corrected by the use of bitumen additives. This process called stripping of aggregate is exacerbated by water. Edge spalling and subsequent potholes have probably been repaired by Council as a result of their own inspection or reports by road users. 37 However, there was no evidence of any relevant work or repair by the council. There was simply no proper basis laid for many of Dr Yeaman's conclusions. They were surmise, perhaps gleaned from his extensive local government experience. The fact of the matter is that there was no evidence of the work performed by the council, Sydney Water or any other body or contractor. Importantly, there was no evidence of when any work was done. 38 Dr Yeaman's conclusion passed far beyond reasonable inference or assumption from established facts. It was, like Mr Porman's, no more than educated speculation. His report should also have been rejected. Effect of reliance on the experts' reports 39 Although his Honour said that he did not greatly rely on Porman or Yeaman, it is clear that he did place some reliance upon them. Plainly, as he said, he relied upon them to understand how the pothole would have come about. However, given his other findings on liability, it is likely that reference was made to the reports. For example, that the pothole had been there for some time and had not just suddenly appeared. Otherwise, given the state of the evidence, it is difficult to know on what basis his Honour came to his conclusions. 40 Although the respondent argues to the contrary, this case is very much like Waverley Municipal Council v Wagner [2002] NSWCA 10. In Wagner, after quoting from Powell JA in Lake Macquarie City Council v Bottomley (1999) 103 LGERA 77 at 90-91, Young CJ in Eq said: 16. In the instant case, the case was presented on a certain basis. In order to succeed on that basis it was to my mind necessary that the plaintiff put forward evidence to show that the Council or someone for whom the Council was vicariously liable, committed the wrong of laying the pavers in a careless way. One would have thought that there were ways and means of proving that fact, if it be the fact, by the use of discovery and interrogatories. However, the only material before the Judge was that the Council was the road authority, the footpath was an extensive one fronting a series of commercial buildings in a busy street in its municipality and really there was no-one else who could have been responsible for it. Miss Norton said that the learned Judge was entitled to infer from those facts, there being no contrary evidence placed on behalf of the defendant, that the pavers were laid by the defendant. However, with respect, this ignores the submissions of Mr Davies SC. There was a considerable difference in the outcome of the case as to whether the pavers were laid by the Council or by an independent contractor. Mr Davies SC also, rightly in my view, submitted that what the learned Judge had really done was to reverse the onus of proof and say that in the absence of any further evidence, the wrongdoer must be the Council. 41 Young CJ in Eq. added that there was just no evidence to go to a tribunal of fact that the council had done the work. 42 In my opinion, the primary judge in effect reversed the onus of proof when he said that the council did not call any evidence to show they had a system of detecting and repaired such potholes and then adding that it followed that the appellant had breached its duty of care. 43 The evidence had not reached anything like a prima facie case which cast an evidentiary onus on the appellant to call evidence of its inspection system in order to show that it was such as there was no breach of its duty. See and compare Ryan at [58], Watkins at [28-29] and Wagner at [16]. 44 It should be noted that Mr Webb sought to submit that Wagner was wrongly decided and should be reconsidered. No notice was given of this intention and we should not permit the submission to be made. Conclusion 45 To summarise, it is my opinion that his Honour fell into error in a number of ways. He should not have admitted the expert opinions; he in effect reversed the onus of proof; there was simply no evidence that the appellant, or its contractor, did any of the work associated with the pothole; there was no evidence as to who did the work or when it was done and there was no evidence of any inspection system by the council. It follows that the contention must also fail. 46 Accordingly, it is unnecessary to examine the issue of the failure to warn, although there was no evidence from the respondent as to what effect a warning would have had on him or where and how the warning should have been placed, Hoyts v Byrnes (2003) 201 ALR 470. Orders 47 It follows that the appeal should be allowed with costs and the judgment of the District Court set aside. In lieu thereof, there should be a verdict for the defendant with costs. If otherwise qualified, the respondent should have a certificate under the Suitors Fund Act, 1951. * * * * * * * * * * Last Modified: 06/08/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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