Section 5B And 45 Of The Civil Liability Act 2002 – Duty Of Care And Non-Feasance Protection

Case Note

Blacktown City Council v Hocking & Anor. [2008] NSWCA 144

Spigelman CJ, Beazley JA, Giles JA, Tobias JA, Campbell JA

In Brief

• The appeal was heard consecutively with that of Angel v Hawkesbury City Council [2008] NSWCA 130 as in both matters the Defendant Councils raised a defence based upon s45 of the CLA. In doing so, each relied upon the majority judgments of Basten and Bryson JJA in North Sydney Council v Roman [2007] NSWCA 27 ("Roman's case").

• Special leave was granted in Roman's case, however the proceedings settled before the appeal could be heard. Accordingly, the Chief Justice of the Court of Appeal directed the appeals in both this matter and that of Hocking be heard together by a bench of five to ensure consistency of decision making.

• The Court of Appeal considered s45 of the Civil Liability Act 2002 ("CLA") – Special Non-Feasance Protection for Road Authorities and whether the council could defend the claim on the basis that it had no actual knowledge of the risk which in this case was the footpath surrounding the lid of a Telstra pit. _

• S 45 of the Civil Liability Act provides in part as follows:_

"(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.

(2) This section does not operate:

(a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or

(b) to affect any standard of care that would otherwise be applicable in respect of a risk."_ _

• " This paper deals solely with the Blacktown City Council v Hocking [2008] NSWCA 144 decision.

Background

• On the 19 January 2002, the Plaintiff, was walking along a footpath on Reston Avenue, within the local government area of Blacktown City Council ("the Council") when she stepped on the lid of a Telstra pit that was set partly within the footpath and the grassy verge, when the lid rotated causing her leg to enter the pit causing her serious injury.

• The Plaintiff denied she saw anything to alert her to the fact the lid may have been defective.

• The Plaintiff sued the Council and Telstra for damages in negligence.

• The Council conceded the pit was installed by Telstra between 1975 and 1980 and subsequently the Council engaged contractors, Nepean Concrete Industries Pty Ltd ("NCI") to construct the footpath within which the pit was located between 1994 and 1995. The Council conceded that presumably after the work was completed by NCI, one or more of the Council's employees inspected the footpath.

• The principal of NCI, Mr Garofali, gave evidence that it was his company's instructions from the Council when laying footpaths to incorporate existing Telstra pits into the footpath. The lip of the pit, if necessary, was to be raised or recreated up to the point where the lid was supported from underneath and fitted flush with the footpath.

• Mr Garofali conceded that concrete should have been poured around the side of the pit within the verge in order to create a lip on which the lid could sit, for otherwise the lid would not necessarily have been properly supported. That did not occur in this case.

• Mr Garofali, upon being shown a number of photographs taken shortly after the accident, said he could see that new or fresher concrete had been laid over the older concrete as evidenced in the photographs by the different colours in the cement. Mr Garofali was adamant the lid could not be supported only on three sides. Notwithstanding this, Mr Garofali was not prepared to concede that whomever performed the work did a "hopeless job".

• A number of photographs were tendered of the pit.

• Mr John Shackleton, maintenance inspector for the Council, confirmed in a statement tendered by Telstra into evidence that he was the inspector at the time of the Plaintiff's accident. His duties included the inspection of roads, footpaths, kerbs and gutters for defects which he would then refer "to maintenance". He was unable to state with certainty when he may have walked the length of Reston Avenue when conducting an inspection, however he wrote: "it was [his] usual practice to drive into the street, either part way or whole of the way and get out of the car to inspect the road, footpath and drainage pits."

• Mr Shackleton further confirmed that if pits or lids of any utility presented as an obvious risk then it was the practice for maintenance inspectors to request a Blacktown City Council barricade to be placed at the site immediately. This process involved the immediate contacting of Telstra or the relevant service provider by phone to advise them of the broken or missing pit lid and request their urgent attention to that repair.

• The Council declined to call evidence as to how frequently inspections were carried out nor when the last inspection was performed prior to the Plaintiff's accident.

District Court Decision

• The trial Judge made it clear she proposed to rely purely upon the photographs depicting the condition of the pit at the time of the plaintiff's fall and for the purpose of determining the condition of the pit at the time of construction of the footpath some seven to eight years earlier.

• The trial Judge found it was impossible to determine whether there had been any attempt to make a lip on the side of the grass verge when the footpath was laid. Furthermore, her Honour found that at the time the footpath was laid in 1995 the lid to the pit was damaged and chipped away at the edges, on the basis there was cement filling at the corners of the lid which she found was more probable than not, added when the footpath was laid. The effect of which was to remove the lip completely at both ends. Her Honour was satisfied that at the time of the Plaintiff's fall the lid was not supported on the side of the pit along the grass verge. Accordingly, her Honour was satisfied that when the footpath was laid it was not done so as to ensure the lid of the Telstra pit was properly supported by a lip on all sides.

• The trial judge was satisfied the damage to the side of the pit where it abutted the grass verge was likely due to the passage of cars onto the verge, as the presence of a roll kerb invited such vehicles to drive onto the grass verge. Furthermore, her Honour accepted the Council was aware that vehicles could potentially pass onto the footpath in this fashion.

• Her Honour found the outward appearance of the pit itself should have put the Council on notice that it was defective, acknowledging that:

"Mr Shackleton's inspections were done in the knowledge that the area had roll kerbs, ought to have alerted him to the possibility of damage to the pit within the area where cars could be expected to drive."

• Referring to the principles enunciated in Wyong Shire Council v Shirt (1980) 146 CLR 40, Her Honour found it was entirely foreseeable that if a pit covered by a lid was built into a footpath and the lid was inadequately supported, that pedestrians might be at risk of injury.

• Her Honour found the Council owed a non-delegable duty of care to the Plaintiff and although NCI had made inadequate provision for the lip on which to sit the lid of the pit when it laid the footpath, it was the Council that bore liability for its negligent construction. Such a finding was based upon the decision in Leichhardt Municipal Council v Montgomery [2005] NSWCA 432, which following her Honour's decision in this matter was reversed by the High Court in Leichhardt Municipal Council v Montgomery [2007] HCA 6.

• Her Honour found the Plaintiff had failed to make out a case against Telstra for its failure to carry out inspections and maintain the pit and its lid. Her Honour found there was no evidence to permit a finding that some time after the footpath was made and before the Plaintiff's accident a Telstra technician opened the pit and the inadequate support of the lid was revealed. Nor did she accept that despite Telstra having embarked on a maintenance program on the adjacent side of Reston Avenue in November 2001 that this would have alerted Telstra to the defects of the pit and lid. Therefore, Her Honour was unable to find Telstra had knowledge of the damaged and dangerous state of the lid before the Plaintiff's accident.

• The trial Judge rejected the negligence alleged against Telstra that it failed to install pits that could withstand the weight of vehicles being driven over it, on the basis Telstra was not to have known the pit would have ended up being partly in the footpath and partly on a grass verge or that there would be a roll kerb requiring the pit to be reinforced in order to withstand the weight of a passing vehicle.

• The trial judge ultimately found negligence on the part of the Council but not Telstra, entering a judgment for the Plaintiff against the Council and judgment for Telstra against the Plaintiff. The Plaintiff was awarded $685,199 in damages.

The Appeal

• The Council appealed the trial Judges' decision asserting she erred in finding negligence on the Councils part and/or that it was liable for any negligence on the part of the contractor who constructed the relevant section of the footpath. Additionally, the Council appealed the trial Judges' assessment of damages and the dismissal of its cross-claim against Telstra.

• The Plaintiff cross-appealed against the dismissal of her claim against Telstra.

Court of Appeal Decision

• The Council's appeal was allowed with Spigelman CJ, Beazley JA and Campbell JA, largely agreeing with Giles JA. The Plaintiff's cross-appeal was dismissed.

• Giles JA, who was in the majority, found that it was erroneous to regard the lack of a discrete lip on the photograph exhibits as indicating a deficiency in the support provided to the lid in 1994-1995 or at the time of the Plaintiff's fall, or as going to the Council being put on notice that the pit was defective. To determine the reason why the lid rotated was to speculate on the evidence available.

• Giles JA did not accept that the evidence available to the trial judge established that an inspection would have alerted the Council that the pit was defective. He concluded:

"The Plaintiff failed to establish negligence on the part of either the Council or Telstra. Issues concerned with of the Council's actual knowledge of the risk do not arise. Nor is it necessary to consider the Council's appeal on damages."

• Spigelman CJ, Beazley JA and Campbell JA agreed with Giles JA and Tobias JA in relation to the finding that there was no negligence on the part of the Council at the time the footpath was constructed. Any defect could not be found to have existed eight years before the accident on the basis of a visual inspection of photographs, without expert evidence.

• In relation to the subsequent negligence by Mr Shackleton, Spigelman CJ, Beazley JA and Campbell JA agreed that the absence of support on the grass side of the pit lid could be picked up on inspection by Mr Shackleton. (Giles JA did not agree the evidence was sufficient for such a finding.)

• Notwithstanding this, the majority applied s45 of the CLA and found that the Council did not have "actual knowledge" for the purpose of s45 of the CLA. Had Mr Shackleton observed the defect he would have arranged a barricade. This did not occur and thus he did not have actual knowledge and nor did the Council. The Council's appeal was upheld and Roman's case applied.

• Dissenting judge Tobias JA highlighted the dangers of Judges attempting to interpret photographs as it involves speculation. It was Tobias JA view that it was not open to the trial judge to settle on conclusions unless there was some evidentiary basis for such findings.

• Tobias JA accepted the photographs depicted the condition of the pit at the time they were taken, but whether they indicated a presence of the lip was potentially a matter for common sense and common observation of the photographs. The trial judge however chose to interpret the photographs without the assistance of an expert.

• Tobias JA upheld Council's submission that there was no basis for a primary finding by the trial judge of inadequate construction and therefore no basis that a proper inspection would have revealed the defective pit at the time the footpath was constructed.

• Turning to the s45 question, Tobias JA found the trial judge made no findings with respect to whether Mr Shackleton, the Council inspector at the time of the accident had actual knowledge of the defective pit. The trial judge did not determine this issue. Tobias JA found it strange that the trial judge had not in the present case applied s45 in accordance with her approach in Roman's case. Notwithstanding this, Tobias JA, was satisfied that whilst the trial judge had not expressed a finding that Mr Shackleton had actual knowledge of the damaged pit, the findings she did make were tantamount to such a finding. The failure of the Council to call Mr Shackleton enabled His Honour to draw the inference that a regime of regular inspection or a proper inspection would have revealed the damaged pit lid. Consequently he found that the Council had actual knowledge and he applied s45(1) of the CLA and found the Council liable.

• Tobias JA preferred the reasoning of McColl JA, dissenting, over that of Basten and Bryson JJA in Roman's case. Therefore Tobias JA rejected the majority, but he was the only judge to do so.

• As to the question of whether the trial judge was correct in finding Telstra was not liable to the Plaintiff, Tobias JA found the trial judges findings were open to be made on the evidence before her and therefore the trial judge was correct in finding that there was no breach of duty on the part of Telstra to the Plaintiff.

Implications

• The Court of Appeal has upheld the decision in Roman's case. A strict interpretation of s45 requires "actual knowledge" in order for a road authority to lose its special nonfeasance protection. Even a negligent inspection which could or should have revealed a defect by the Council inspector was insufficient to find or infer knowledge in the Council.

• Tobias JA was in the minority in inferring that the Council inspector did have the requisite knowledge, but it may remain open for such an inference to be made in an appropriate case as Leichhardt Council v Serratore [2005] NSWCA 406 was not overruled.

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