Ghantos v Hawkesbury City Council S69/1999 [2000] HCATrans 504 (30 August 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S44 of 1999

B e t w e e n -

SCOTT MUNN BRODIE

First Applicant

LONDAY PTY LIMITED

Second Applicant

and

SINGLETON SHIRE COUNCIL

Respondent

Office of the Registry

Sydney No S69 of 1999

B e t w e e n -

CATHERINE GHANTOUS

Applicant

and

HAWKESBURY CITY COUNCIL

Respondent

Applications for special leave to appeal

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 30 AUGUST 2000, AT 3.53 PM

Copyright in the High Court of Australia

_________________

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, MR R.S. TONER, SC and DR J.P. BERWICK, for the appellants in Brodie v Singleton Shire Council. (instructed by Craddock, Murray Neumann)

MR F.S. McALARY, QC: If your Honours please, I appear with my learned friends, MR L. KING, SC, MR W.S. REYNOLDS and MR J.A. KERNICK, for the respondent in the first appeal. (instructed by Moray & Agnew)

MR A.S. MORRISON, SC: If your Honours please, I appear with my learned friend, MS M.C. WALKER, for the applicant in the matter of Ghantous. (instructed by Stacks the Law Firm with Goudkamp Mahony)

MR P.R. GARLING, SC: If the Court please, in the second matter, the matter of Ghantous, I appear with my learned friend, MR M.T. McCULLOCH, for the respondent, the Hawkesbury City Council. (instructed by Phillips Fox)

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friend, MS C.F. JENKINS, seeking leave to intervene on behalf of the Attorney-General for the State of Western Australia. (instructed by the Crown Solicitor for Western Australia)

MR J.L.B. ALLSOP, SC: May it please the Court, I appear with my learned friend, MR T.H. BARRETT, seeking leave to intervene on behalf of the Attorney-General for the State of New South Wales. (instructed by the Crown Solicitor for New South Wales)

MR M.A. DREYFUS, QC: May it please the Court, I appear with my learned friend, MR S.M. COHEN, seeking leave to intervene on behalf of the Attorney-General for the State of Victoria in both matters. (instructed by the Victorian Government Solicitor)

MR JACKSON: Your Honour, may I say, the parties and the interveners have discussed a possible order - - -

GLEESON CJ: What is the attitude of the parties to the applications to intervene?

MR JACKSON: Your Honour, so far as we are concerned, we have no objection to the intervention, subject to two matters, one being the question of costs in the event; and the second question concerns the extent to which the interveners might be permitted to address the substance of the cases, in which case we would submit they should not be permitted to do so. When I say "substance", I mean the facts of the particular cases.

GLEESON CJ: What is your attitude, Mr Morrison?

MR MORRISON: We take the same view as my learned friend, Mr Jackson.

KIRBY J: Is the point on costs that if it went beyond tomorrow that you would be asking that the Solicitors-General pay the marginal costs, the extra costs?

MR JACKSON: Yes, any costs by which the costs of the proceedings were increased. Your Honours, it goes really beyond just a question of time of the hearing, because some of the aspects of the case one has to just read the submissions.

GLEESON CJ: The applicants for leave to intervene have that leave, but on the basis that their submission be limited to questions of principle rather than the substantive merits of the actual cases. On the question of whether it will be necessary to go beyond the written submissions, that is a matter that can await determination. Is it convenient for the parties and the interveners if we hear counsel for both applicants first and then come to the respondents and the interveners?

MR JACKSON: We had agreed, subject to the Court of course, on an order that would accommodate that. The order we propose was that my learned friend Mr Morrison go first, I would go second, we would be followed by Mr McAlary and Mr Garling for the respondents, and the interveners are in the order of Western Australia, New South Wales and Victoria, followed by a reply by me and then one by Mr Morrison.

GLEESON CJ: Yes, Mr Morrison.

MR MORRISON: Thank you, your Honour. Your Honours, might I commence by handing up an outline of argument.

KIRBY J: Which takes your submissions beyond 20 pages.

MR MORRISON: Indeed. Your Honours will see from that that we wish to advance four submissions. Firstly, that the nonfeasance doctrine should never have been treated as part of the law of Australia. Secondly, that the extension of the doctrine to the road reserve is contrary to authority. Thirdly, that only activities within the scope of the highway authority acting as a highway authority are covered by the doctrine and we say that, relevantly, whatever it was doing in respect of foot traffic was in a capacity as a traffic authority as well as a highway authority and, therefore, the doctrine does not apply on the authority of this Court. Finally, we would wish to say that the hazard which his Honour at first instance found had been created was created by misfeasance and not by nonfeasance.

McHUGH J: But that is not a point for special leave to appeal, is it, a question of fact?

MR MORRISON: That is a question of interpretation of the law, not of fact, your Honour. There is a conflict between the authorities as to what constitutes nonfeasance or misfeasance on the same facts and we would say that the approach taken - - -

McHUGH J: No. This is one of the problems with precedent. If you had juries deciding all these matters, they would simply be decided as questions of fact. They would be.....and they are just differening views as to the facts of the case. One court says, "We characterise this as misfeasance". Another one says, "We characterise this as nonfeasance". There is no question of law involved, is there?

MR MORRISON: Well, there is, your Honour, because on the same set of facts, courts have found, relevantly, opposite conclusions. For example - - -

McHUGH J: Yes, but juries do that every day. You get a defamation action. Two people.....an article, it goes before two different juries. One finds a verdict for the plaintiff, the other a verdict for the defendant. There is no question of law involved.

MR MORRISON: But the construction of what constitutes misfeasance and what constitutes nonfeasance is ultimately a matter of law and if, for example, the result in Grafton City Council simply cannot stand with the result in Gorringe on an analysis of the approaches, then there is a problem for this Court and for this Court to determine and that is one of the reasons that we say gives rise to the special leave application. Your Honours, can I - - -

KIRBY J: Could I just ask you, Dr Morrison, it seems an awful long while ago that I read the written submissions in this. Is this the case where the point is taken that some of your submissions which seem to be in accord with your lengthier written submissions were not run at trial, or is that Brodie?

MR MORRISON: No, I do not understand that to be a point taken in our case.

KIRBY J: That is in the other case, yes, very well.

MR MORRISON: Your Honours, it might assist if I very briefly take the Court to the photographs of the scene which are to be found in the application books at page 169. Your Honours will recall from the chronology and submissions, and there is no issue about it as between the parties, that looking at those photographs on page 169, one is looking from the George Street shopping mall that the Council created in 1984.

KIRBY J: Is that trolley put there strategically by the photographer to show a narrowing of the footpath along which your client must try to walk?

MR MORRISON: Not being there at the time, I could not say, your Honour. But in one of the subsequent photographs there are two people walking along the footpath, which is equally convenient for our submission.

KIRBY J: It might be the photographer's family.

MR MORRISON: Your Honours, what happened was, your Honours will recall, that a 2.5 metre wide footpath was created, and one can see it in the right-hand of those two photographs as part of the shopping mall development when George Street was closed.

A year later Council approved and there was a further development at the other end being a Franklins Supermarket and associated shops and a large parking station. That left, interconnecting those two areas, what was virtually the only remaining area of suburban-ype footpath in the central business district of Windsor, and that was the 1.2 metre footpath, the 50 metre-odd stretch that your Honours can see.

GAUDRON J: And that had been there all the time, had it not?

MR MORRISON: That had been there for 30 or 40 years.

GAUDRON J: It looks in good condition.

MR MORRISON: And, indeed, no complaint was made about it. That was not the problem.

GAUDRON J: No.

MR MORRISON: Might I take your Honours over the page to page 170. Your Honours will see the left-hand top photograph is looking in the opposite direction up towards the shopping mall, and your Honours can see the wider footpath narrowing. Your Honours will then see the area which, in fact, is to the left of that photograph and then repeated in the enlargement on the top right of 170, the drop which his Honour found to have been 50 millimetres or a little more, that is just a fraction over two inches, and which was the area which was eroded away on the side of the footpath closest to the wall.

KIRBY J: The only reason for not extending the footpath from the wall to the kerb would be to save money?

MR MORRISON: We do not know, your Honour, because, in our case, no evidence was advanced as to the cost, difficulty, policy, operations, any of those sorts of issues which could have been raised by the Council to say, "It would have been too expensive; we had other priorities; we were going to get round to it." It was simply treated as an act of casual negligence.

GAUDRON J: Or they may have been going to landscape it, grass it and tree it, grass, shrubs and trees - who knows?

MR MORRISON: Your Honour, can we then, in response to that, go to page 187 where your Honours will see what the Council did after the accident, namely, to pave it from road to wall.

GUMMOW J: What is 187 a photograph of?

MR MORRISON: Page 187 is taken from a little bit further back. Your Honours can see in the earlier photographs the area of garden bed and shrubbery, which is up at the George Street end. Further down, your Honours will see that the footpath area has now been extended and paved from road to wall. That was done at some time, we do not know when after this accident.

KIRBY J: This is like the glass half empty or the glass half full in the sense that it is misfeasance if you take it from the point of view of building a footpath so narrow and leaving the verge and it is nonfeasance if you take it from the point of view of having not put the road from wall to wall, as it later did.

MR MORRISON: Indeed.

KIRBY J: Perhaps that shows how unsatisfactory the distinction is.

MR MORRISON: Indeed, it is one of the many problems with the doctrine. If your Honours look at page 219, there is a further photograph which illustrates the state of the footpath as it ended up and indicates the way in which it was dealt with. I mentioned earlier there was a photograph which showed two people walking. That is one at page 171, at the foot of that page. Your Honours will recall that the plaintiff, a lady in her sixties, was faced with two people walking the opposite way, stepped off the footpath to give way to them, not very far from the foot of the photograph at the bottom of page 171, that is she had only just gone onto the narrower area, and she fell on the two inch or more drop on the right and suffered quite significant injuries.

KIRBY J: Was she on the wall side or the kerb side?

MR MORRISON: She was on the wall side, your Honour. Your Honour, the unchallenged evidence was that until 1984 this area had been an ordinary suburban-type footpath, grassed on either side of the concrete, but after the developments in 1984 and 1985 there was relatively rapidly weathering, and I say "weathering" not in the sense necessarily of the elements, but particularly in the sense of foot traffic because that was the primary cause his Honour found of the erosion which led to the drop on either side. So that it went from an ordinary suburban environment to a situation where the grass was all worn away, the ground was worn away, and by 1990, when the accident happened, the area was in a hazardous state - that being the word used by his Honour - that your Honours can see in the photographs.

GUMMOW J: Now, I see it was alleged in paragraph 5 of the pleading on page 4 that the Council had responsibility for the care and control of the footpath and that was admitted, I think.

MR MORRISON: Yes, your Honour.

GUMMOW J: What is the statutory foundation for the involvement of the Council?

MR MORRISON: The Council, in fact - there was no issue about that at trial - - -

GUMMOW J: There might not be.

MR MORRISON: - - - but under the Local Government Act - - -

GUMMOW J: Is that right?

MR MORRISON: - - - had responsibility - when I say "had responsibility", had power to build and maintain paths.

GUMMOW J: Well, what section?

MR MORRISON: Can I come back to that, your Honour, because - - -

GUMMOW J: Well, it is the starting point for all this doctrine.

MR MORRISON: With respect, not necessarily, because it was never argued that that power was imperative.

GUMMOW J: No, you asked us to consider this doctrine. What I am telling you is you cannot begin to consider this doctrine in relation to anything unless you look at a particular statute. We went through all this in Crimmons and only Mr Allsop has really taken this up in his written submissions.

MR MORRISON: Certainly, your Honour. Well, your Honour, can I satisfy your Honour about that tomorrow?

GUMMOW J: If you are founding a duty of care coming out of what a statutory body does, you have to look at the statutory body and what its powers were.

MR MORRISON: Thank you, your Honour, we will take that on board overnight.

GUMMOW J: I hope so.

KIRBY J: In a sense you have your arguments around a way that takes on an unnecessary battle. On one view you can say, accept all the law on misfeasance and nonfeasance, this is clearly a misfeasance and therefore you should win, and you do not have to go into the other issues. It is a question of whether you get special leave then, it being just a matter of applying established law, but - - -

GLEESON CJ: That would be a very risky way of putting your application for special leave.

MR MORRISON: That had occurred to us, your Honour, and, indeed, it is not the way we primarily put our submissions, but it is quite true that if our second, third or fourth grounds succeeded, then we would not need to overturn the law in respect of nonfeasance.

McHUGH J: But you abandoned any case of misfeasance at the trial, did you not?

MR MORRISON: No, your Honour.

McHUGH J: What is the meaning of the passage at page 257 of his Honour's judgment at line 40 when he said:

The original construction of the section of the footpath involved in this unfortunate episode is not the subject of any allegation of negligence. The Plaintiff's sole argument is that the mall generated additional foot traffic to the extent that the "natural and necessary" consequence was the erosion of the verges giving rise to the difference in levels which was the hazard to which the plaintiff fell victim.

MR MORRISON: The answer to that is that first of all it was put to his Honour in terms, and indeed in written submissions, that the area where the plaintiff fell was not an area which was covered by the doctrine in any event, and that was put to his Honour in terms. Secondly, it was put to him, and his Honour acknowledged in his judgment, that the doctrine was wrong, albeit that he was bound to apply the law, as this Court has laid it down in Buckle and in Gorringe. So, let there be no doubt that there was a challenge which his Honour acknowledged in his judgment expressly to the application of the doctrine, but it was never put, your Honour, that the footpath was itself defective, but that was not the cause of the accident.

KIRBY J: But before the footpath was created, (misfeasance), there may have been other hazards, but there was not the hazard from which your client suffered her injury. It was not just the building of the footpath with its verge and drop that created the hazard that your client - - -

MR MORRISON: No, your Honour, that is not the way we put it. The footpath had been built 30 or 40 years earlier, in perfectly good condition - - -

KIRBY J: I see at that stage the verge came up to the footpath.

MR MORRISON: Indeed, there was no drop. The areas on either side of the footpath were grassed and remained grassed, and on the evidence, in entirely satisfactory condition until 1984. So for 30 or 40 years this was a normal suburban environment, with a normal footpath and grassed verges which were roughly level with the concrete. So, that when we say there is no complaint made about the footpath, in literal terms that is so. We never suggested the footpath was wrongly built or wrongly maintained.

GLEESON CJ: Well, the arrangements about the shopping mall generated pedestrian traffic that placed a stress on the verges.

MR MORRISON: Indeed. In answer to a question from his Honour at first instance as to whether this was a planning case, we said it was not in the sense that we were not complaining about the planning approval for the George Street Mall at the one end, or Franklins at the other. We said in terms that what we were complaining about was the failure to take any action to deal with the foreseeable consequence of those planning decisions. Which is not the same thing.

McHUGH J: To return to a point that Justice Gummow made, forget that altogether, supposing there had never been any doctrine of immunity of highway authorities, that Gorringe and Buckle had never been decided in this country. You would have to show a duty of care. There seemed to me, running through your submissions, and perhaps even more so in the other application, a view that if there is a foreseeable risk of injury then there would have been a duty of care. But we are dealing here with a public authority and it got to show that by reason of the fact that it is a statutory authority, that it owed a duty of care.

GUMMOW J: Footnote 32 of New South Wales' submissions collects some of the authorities.

GAUDRON J: And the consequence of that is the use of the word "immunity" may not be at all appropriate. That may have been a convenient tag that has grown up through a misunderstanding of the law.

MR MORRISON: What we would say in that regard is that if this Court were to apply any of the criteria laid down variously in Pyrenees Shire Council v Day, that we would fall within those criteria, so as to create the relevant relationship and the duty of care.

McHUGH J: But that requires an examination of the statute, it requires an examination of quite a number of considerations. The so-called "doctrine of immunity" is really no more than a conclusion that in those circumstances, not duty of care is owed. Well, that is a fixed rule, irrespective of the circumstances. But, even if you abandoned that rule, it seems to me that you have to establish that there is a duty of care, at least in your particular case.

MR MORRISON: Can I turn the argument on its head for a moment and say this, that what was not argued against us was that there was no duty of care. What was argued against us was that there was an immunity from breach of that duty. That was the case that was put and that was the way his Honour expressly decided the matter at first instance.

McHUGH J: Well, so far as I am concerned, if you want to get special leave in this case, you will have to persuade me that there is a duty of care irrespective of how it was argued because it seems to me that is the proper approach. You seem to want us to adopt a view that in every circumstance, in every case, there is a duty of care owed, full stop, by highway authorities in respect of users of roads.

MR MORRISON: No, with respect, no, your Honour. All we would say is that the nature of the - that whether or not there is a duty and the nature of the duty that is owed will depend upon the circumstances.

GUMMOW J: It will depend in the first place upon the terms in which the power and/or duty is conferred by the legislature.

MR MORRISON: Yes.

GAUDRON J: And then because you are talking about a duty to take a positive step, which is what the rule about nonfeasance and misfeasance seems to me to be about, the distinction between acts and omissions, you have to find a relationship of a kind that gives rise to a duty to take positive steps.

GLEESON CJ: Central to the reasoning in Buckle and Gorringe, as I understand it, is that you do not treat the highway authority as an occupier.

MR MORRISON: Indeed.

KIRBY J: I suppose you are entitled to say this, that if the courts of Australia or New South Wales think the proper approach to this and the starting point is a doctrine of immunity, then they have to be disabused, and that is a special leave point.

MR MORRISON: That is why we, as our very first point, challenge that doctrine of immunity head on and it is, indeed, the way in which we have approached the matter, to say that the very origin of this immunity is the matter which brings us here. If it were simply a question to be decided upon the particular facts, the matter would never have reached this point.

McHUGH J: Yes, but the law has moved on. After all, negligence was not an independent tort back in the middle of the last century. It was not until the abolition of the forms of action in 1852/1853 that it was regarded as an independent tort. People really did not talk about duties of care in the way we do now. So it is understandable that courts might have spoken about immunities, if they used that expression, which I am not sure they did, but now it really seems to me that what you describe as an immunity is really a question of no duty owed in those circumstances.

But, surely, the starting point is whether there can be circumstances in which councils owe duties of care, or highway authorities owe duties of care and does it vary according to whether or not it is a main highway, an interstate highway, or a road in a particular council district. It may have all sorts of impact on ratepayers, on the State generally; one may have to differentiate between one and the other, particularly in terms of breach, even if there was a duty of care.

MR MORRISON: Your Honour, that is exactly the sort of consideration which the courts - and very recently, for example, the Chief Justice of South Australia undertook that exercise in Calvaresi, one of the cases that has been provided to your Honours. That was a case where what was involved was the road verges and the question of the vegetation blocking vision at an intersection, and that was a case where his Honour found that the nonfeasance principle did not apply, but having regard to the Council's actions, having regard to its policy and its resources, its conduct was reasonable in the circumstances and there was no breach of its duty of care in those circumstances so as to cause it to be liable for the injury that resulted.

McHUGH J: Yes, but the very fact that you have to make that inquiry may be a reason why you should have a fixed rule of no duty. Does it mean in every case that you are going to have to try these issues? It is not a case like Crimmins where you are dealing with one particular authority in respect of a particular group of people. You would be dealing with all sorts of roads under all sorts of conditions under all sorts of budgets from year to year and councils and other authorities having different priorities.

GLEESON CJ: And does it mean that councils' expenditure priorities become a justiciable issue?

MR MORRISON: Well, the answer to that, of course, is no, your Honour, and the courts have not treated such policy considerations as a justiciable issue, but the reasonableness of the councils' conduct having regard to expenditure has been considered in matters such as Gloucester Shire Council very recently in the New South Wales Court of Appeal, but the reason that issue arises in a case like that is because the nonfeasance doctrine is itself so narrow in its application.

When one turns to Turner v Ku-ring-ai Council, when one turns to Gloucester Shire Council, one is dealing with cases involving signage on roads and the issue then is, "What application does the nonfeasance principle have?" It would seem on the authority of this Court in Buckle it has none. Notwithstanding some dicta to the contrary from the majority in the New South Wales Court of Appeal in Gloucester, although the majority found for the plaintiff there on different grounds, the fact of the matter is that traffic decisions have been regarded as exempt from the doctrine, notwithstanding that the road surface may have been a factor. So that inquiry is going to have to be made anyway. It cannot be avoided.

GAUDRON J: One of the issues that perhaps needs to be considered is one can readily understand why, for example, there could be no duty to build, repair, et cetera - there may be no duty to build, repair, et cetera et cetera. But does that mean that there is no duty to warn?

MR MORRISON: Yes. Again, it would depend upon the circumstances. For example, for a rural council to repair a road may be a very expensive undertaking. But despite its dangerous state, it may not be reasonable to require that that be undertaken, having regard to funding and other priorities. But the putting up of warning signs might be a very simple solution, and it is a solution which the courts have consistently held is exempt from the nonfeasance defence.

GLEESON CJ: And that example demonstrates the unhelpfulness of asking whether there is a duty of care. You have to be much more concrete by relating the duty which you assert to the harm that has befallen the plaintiff. And I notice that in the South Australian case you referred us to, in paragraph 205, Chief Justice Doyle did not say the question is whether there was a duty of care. He described the common law principle as a principle that:

a highway authority owes no duty to undertake active measures to maintain or repair a highway -

It is much more concrete than asking "Is there a duty of care?" Of course there is a duty of care. The authority is not allowed to go out and build traps for people. The question is "What is the duty?"

MR MORRIS: Indeed. We would say in terms of what this Court said in Pyrenees, it is a duty to have regard to those whom it knows, or should know, are likely to suffer harm.

McHUGH J: Why? Why should it have a duty to take positive action? That is why you have to advance reasons other than foresight, because as Justice Gaudron pointed out, you are requiring somebody to take positive steps. Now why should you? The statute which places the council in charge of roads does not require it, does not impose a duty. Why should the common law? You have to provide reasons, it seems to me, over and above foreseeability.

MR MORRISON: May I give an example by way of responding to your Honour. Supposing there are a dozen potholes in a section of road and a council fills in 11 of them and through inadvertence fails to fill in the 12th, though its employees knew it was there and knew it was their job to fill it, and that results in an accident and an injury. Now, that gives rise squarely to the question as to whether or not that is misfeasance or nonfeasance and there is conflicting authority on that interesting proposition, because if one follows the Gorringe approach, one would say that, although they did work on the bridge in Gorringe, they did not do work which was relevant to the event which later occurred and which caused the collapse of the bridge. If one follows the Grafton City Council line of authority, the row of trees where you remove all but one, then you say, well it is manifestly misfeasance, because although you did no work on that hole, in fact what you did was to create a trap, because the road gave the appearance of being repaired.

McHUGH J: But they are just questions of fact. You get two reasonable body of people - reach opposite conclusions; a classic question of fact.

MR MORRISON: But does that not just illustrate the difficulty of application of the rule and one of the reasons why the rule itself is a thoroughly unsatisfactory part of our law.

GLEESON CJ: But what are you proposing in substitution for the rule?

MR MORRISON: Your Honours, we would submit that, as has been recommended by various law reform commissions in Australia, three in Australia, one in New Zealand, that the nonfeasance doctrine be done away with, the New South Wales Law Reform - - -

KIRBY J: I am surprised that you put it that way, because that creates a great problem, I think, for courts, given that the parliaments to whom the law reform reports have been addressed have not acted, I would have thought, and I understood your submissions to be, that what should now be done is to subsume this category of negligence on the part of a public authority into the general body of the law of the liability of public authorities and lifting the shackles of the former misfeasance rule, which had a certain practical utility, but was unjust, and then you just apply the normal principles. In some cases, like Pyrenees, you would be able to make good your claim for negligence, in some cases like Romeo you will not.

MR MORRISON: Indeed.

KIRBY J: But asking us to give effect to Law Reform Reports that the parliaments to whom they have been addressed have not is, speaking for myself, a big ask.

MR MORRISON: Your Honour made that point in Boland v Yates Property Corporation, [1999] HCA 64; 74 ALJR 209 at page 239, and a little earlier at page 236. Your Honour said there, at paragraph [129]:

First, an immunity from liability at law, to the extent that it exists, is a derogation from the normal accountability for wrong-doing to another which is an ordinary feature of the rule of law and fundamental civil rights.

A little further down, your Honour said:

To the extent that a legal authority is uncertain, the immunity, being anomalous, should not be expanded. The scope of the immunity rather than being enlarged, should be confined to essentials.

GLEESON CJ: But applied to the present case, that begs the question because it assumes there has been a wrongdoing.

McHUGH J: And assumes a duty.

MR MORRISON: Is it not implicit, we would say, your Honours, in what his Honour at first instance found, that the hazard which the Council created was a breach of its duty of care to those whom it knew were likely to use the path?

GAUDRON J: Well, you have to say - and this is really where we start it, without the Act - that in the context of that legislation, whatever it is, and in the circumstances, there was a duty of care to this particular plaintiff.

MR MORRISON: Yes.

GAUDRON J: Well, what one is looking at is the statute, the relationship as to whether or not it gave rise to a duty, the content of that duty and so on. It does not help you to say, "Let us abolish the immunity". It just does not help. One has to go right back to the beginning and identify the statutory framework and the circumstances and then say it does not have to give rise to a duty of care.

MR MORRISON: We will undertake that task for the Court, but can I - - -

KIRBY J: I may be misunderstanding it, but I understood that that is what you want to do, you want to go back. But in your way has been this so-called "immunity" in it. You do not get back to the general principles of negligence, as the Court did in Pyrenees and in Romeo, but you have stumbled - if that is the right word to use - at the threshold on this immunity. You want to get the immunity out of the way and then, as in Pyrenees, as in Romeo, you will take your chances on the general principles of the law of negligence. Is that correct or am I misunderstanding it?

MR MORRISON: No, your Honour stakes our argument much better than we put it.

McHUGH J: Well, you will not find much sign of that argument in your written submissions then.

GAUDRON J: No, because - - -

McHUGH J: I cannot see a single reference. In fact, you did not even set out the terms of section 65, did you?

MR MORRISON: No, your Honours.

McHUGH J: Under Roads Act. I would have thought that was the beginning.

MR MORRISON: But is not the starting point this? That we accepted and conceded that, as in Buckle, the duty on the Council was permissive. That is, they were not required by statute to maintain, rather, they were permitted to maintain. The question then is, what duty of care arises in the circumstances? Now, we are content with his Honour's findings at first instance, namely that it was obviously hazardous not to have maintained this area. We are content that because it is a highly urban area - - -

GAUDRON J: You have foreseeability. But foreseeability is not enough, is it?

MR MORRISON: No, but - - -

GAUDRON J: To have a positive duty to take steps.

MR MORRISON: But it is a positive duty in this context: that Council has not been dealing with some area of footpath way out in the sticks where there is a relatively low usage of it, rather it is dealing with an area of high usage, high enough to cause the sort of erosion which is manifest in those photographs. High enough to have justified the closure of a street by the Council itself and the widening of the footpath to 2.5 metres except for this little bit.

McHUGH J: Yes, but it really just foreseeability dressed up and one has to examine the functions of the Council, what its obligations are. One would look at the Local Government Act, one would think, to see what are the obligations and maybe, depending upon where there is an onus, if there is an onus in these issues, as to whether you should have been leading evidence of their capacity to do this or do that, or whether it is a matter for them.

KIRBY J: That is what was done, was it not, in Pyrenees and in Romeo? Great pains were taken over what the legislative setting was. We had to find what the Council could do, had to do, and draw inferences from that as to what was the common law obligation of Council.

MR MORRISON: But if one goes back to the way in which this case was argued, first of all, no issue was taken about resources or policy by the Council, so that we would - - -

KIRBY J: That is all because everybody was locked into this old English doctrine. I mean, we lived through a period where anything that came from England in the law, we all had to obey, and the Privy Council ensured that that happened.

GLEESON CJ: One of the reasons for the old English doctrine may have been that councils were not to be put into the position of having to try and persuade judges that their priorities about money and about financial expenditure are justifiable.

MR MORRISON: Well, we would say that was not the reason that the doctrine developed.

GLEESON CJ: There are other forms of accountability that apply to councils apart from litigious accountability, but they include political accountability, which may be the reason for the improvement to this footpath.

McHUGH J: And when you talk about parties assume something because you are making a slippery slope for you to slide out of this Court on the ground it is not a suitable vehicle to deal with this issue of principle.

MR MORRISON: Well, your Honour, we would say that the way in which this case was fought at first instance left it as a case where clearly there is an implied finding of a duty of care and a breach of that duty.

McHUGH J: Well, Mr Morrison, it is getting late, but by tomorrow morning I think you had better examine the case to see whether or not there are facts that make this case a suitable vehicle to determine this question of principle, at least in this particular case.

GLEESON CJ: Is that a convenient time?

MR MORRISON: Yes, your Honour.

GLEESON CJ: We will adjourn until 10.15 tomorrow morning.

AT 4.36 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 31 AUGUST 2000