Whittlesea City Council v Merie [2005] HCATrans 1046 (16 December 2005)

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Whittlesea City Council v Merie [2005] HCATrans 1046 (16 December 2005)

Last Updated: 4 January 2006

[2005] HCATrans 1046

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M112 of 2005

B e t w e e n -

WHITTLESEA CITY COUNCIL

Applicant

and

SUZANN MERIE

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 DECEMBER 2005, AT 11.18 AM

Copyright in the High Court of Australia

MR A.G. UREN, QC: If the Court pleases, I appear with my learned friend, MR G.J. MOLONEY, for the applicant. (instructed by Ligeti Partners)

MR T.P. TOBIN, SC: If the Court pleases, I appear with my learned friend, MR B.J. McCULLAGH, for the respondent. (instructed by Grando and Breheny)

HAYNE J: Yes, Mr Uren.

MR UREN: In our submission, this case involves a complete and significant misapprehension by the Court of Appeal of Victoria of the law as stated in Ghantous’ Case which affects not only the defence of the defendant road authority but also affects plaintiffs’ rights of action in proceedings which they might bring against like authorities for injuries as a result of footpaths. The reason why we say that is if we could take the Court to the application book to pages 60 to 64, starting off at page 60, if I could take the Court to the decision of the court a little bit below line 25. Under the heading of “The Duty of Care” the court came to the conclusion as a result of their interpretation of Brodie and Ghantous’ Case that:

In the case where the duty in question is directed to pedestrians, it is not to all pedestrians using the footpath that such a duty is owed: it is only to those pedestrians exercising reasonable care for their own safety.

This theme was taken up on the top of page 61 where it is said that the law of this State is a result of what was said by Mr Justice Gillard in Moyne Shire Council that the plaintiff must establish:

that at the time when he or she fell over suffering injury, the pedestrian was exercising reasonable care for his or her own safety. If the pedestrian was not exercising reasonable care, then as the law now stands there is no duty of care owed.

That is a very significant thing not only because it is contrary to a recent decision of the New South Wales Supreme Court in Volman, of which we have provided the Court with a copy, in which Mr Justice Hodgson, whose decision was agreed with by the other members of the court, said:

I adhere to the view that the duty of highway authorities is to exercise reasonable care to avoid injury; but that in assessing what this requires, it is relevant to consider the magnitude of the risk of injury (to the plaintiff or to a class including the plaintiff) that a reasonable person in the position of the highway authority would have foreseen and considered it appropriate to take action against, and that, in relation to the road users in general and pedestrians in particular, the relevant risks are those to persons exercising reasonable care for their own safety.

In so saying he said that it was his view that Ghantous’ Case did not mean:

that a pedestrian can never succeed in a negligence case against a highway authority unless the pedestrian proves that he or she suffered injury while exercising reasonable care for his or her own safety.

So the decision of the court in that case is directly contrary to what was said by the Court of Appeal in Merie’s Case and also what is said by the Court of Appeal in Merie’s Case is contrary to the provisions of the Wrongs Act because the contributory negligence provisions of the Wrongs Act provide in section 26(1) that:

If a person (the claimant) suffers damage as the result partly of the claimant’s failure to take reasonable care (contributory negligence) and partly of the wrong of any other person or persons-

(a) except as provided in section 63, a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant –

What the Court of Appeal has done in the passages which we read out from pages 60 to 61 is to say that the plaintiff’s claim is defeated by the plaintiff’s own failure to exercise reasonable care. So it does not matter how careless the Council has been; if the plaintiff does not exercise reasonable care for his own safety, then he does not succeed.

This is the result of an interpretation of Ghantous’ Case which, in our respectful submission, is not only erroneous and a misrepresentation of what said and done in that case, but also establishes a barrier to plaintiffs which is unique in the law and highly significant.

HAYNE J: Can I just understand something better about the facts. Can we look at the photographs at pages 2 and 3. What is the cause of the trip and fall?

MR UREN: The cause of the trip and fall looking at page 2 is the little portion of the concrete where the X is marked. The concrete which had been dislodged has in fact been put back for the purpose of the photograph and the cause of the fall as it was found was the slipping by the plaintiff on the imperfection which can be seen on page 6.

HAYNE J: Let it be assumed for the purpose of debate that you are right to criticise the manner of expression adopted in the Court of Appeal. Assuming that to be so, if what is said at paragraphs 159 and following of Ghantous is applied, what arguable case does the plaintiff have that there has been any breach of duty?

MR UREN: What arguable case does the plaintiff have?

HAYNE J: Sorry, what arguable position are you in?

MR UREN: The position we are in is this. The correct test, in our submission, as the Court of Appeal in fact said as much in Boroondara City Council, is that you ask the question of whether a reasonable pedestrian of normal physical capacity exercising reasonable care for their own safety would be expected to see and avoid the imperfection constituted by the impairment which was tripped over. In other words, the test is an objective one. The Council must, when it decides or does not decide, as the case may be, to repair an imperfection, know what standard it has to meet. According to the result of Ghantous and other cases, it is not required to repair every imperfection which appears and which a plaintiff in the plaintiff’s own individual circumstances might trip over, but it is obliged to say to itself: what would a reasonable pedestrian of normal physical capacity exercising reasonable care for his or her safety, which means looking where they are going in the context of this case, would such a person be able to see and avoid this imperfection?

The effect of that pronouncement is, as the cases tend to show, that the imperfections which commonly exist in footpaths and are commonly come across by pedestrians in general are not required to be repaired by councils, whether the councils know of them or not, because the task would otherwise be too onerous and one expects people to be able to look where they are going.

In the present case, looking at the photographs it is, in our submission, perfectly clear that the imperfection was such as was able to be seen by a reasonable pedestrian of normal physical capacity exercising reasonable care for their own safety. The reason why this case failed was that what the trial judge did below and what the Court of Appeal seems to have agreed with is that it was said that the plaintiff’s own familiarity with the area was a reason for her not seeing the imperfection. That is to say, that was put as an excuse for her not looking where she was going and not seeing the imperfection in the road.

Boroondara’s Case holds expressly that you do not take into account the individual circumstances of a plaintiff who may be jogging, may be running with dogs, as some of the cases are, or who may be familiar, let us say, with footpaths and therefore take no notice of what is in front and is plain otherwise to be seen. But Boroondara’s Case said that you look at the matter from an objective point of view. The Council has to have regard to the expectations that a reasonable pedestrian will be able to see what is, generally speaking, in front of them.

In the present case the reason why the trial judge found in favour of the plaintiff was that she said the plaintiff was familiar with the area and, inferentially we think, therefore did not see the imperfection, but that is requiring the Council to have regard to the behaviour of people who are familiar with the area and therefore do not look where they are going. That is not exercising reasonable care, in our respectful submission, and nor is it what a reasonable pedestrian of normal physical capacity exercising reasonable care would do. They do look where they are going because there may be things on the road which arrived there fairly shortly; there may be toys left by children or there may be tree branches which have fallen or all sorts of things.

So what the Court of Appeal did and what the trial judge did was to subjectivise the pedestrian into the plaintiff, whereas Ghantous, and on proper interpretation, in our submission, and also Boroondara City Council show the task is an objective one and the Council must know at the time when it has to consider what to do about the footpath what to do with reference to the behaviour of ordinary reasonable pedestrians, not with respect to idiosyncratic behaviour of people who, for good reasons or not, may not be looking where they are going. In other words, Council has to have a standard of an objective nature to which it can adhere.

If it has to adhere to a standard which requires that it pay attention to the fact that people who are not looking where they are going because they are familiar with the area are concerned, then of course they will have to go round and fix up every imperfection because who knows when such a person might not arrive on the scene. Indeed, there presumably are roadways – in fact perhaps all roadways in the country and footpaths are ones in respect of which some people are familiar and therefore take no notice of where they are treading. The complaint that we make is that firstly the statement at pages 60 to 61 which we have read out is not justified by any law that we know of. It is a misapprehension, a misstatement of Ghantous’ Case. It is an important misstatement because it makes an important pronouncement about the law of tort in the connection of the relationship between a pedestrian, footpath and local Council. It is no less important in this regard than was Ghantous’ Case itself in respect of the statement of the duty of care. Of course, Ghantous’ Case had some other considerations but it is no less important, in our respectful submission, in the duty of care aspect than Ghantous’ Case was.

It must, in our respectful submission, be the case that the pronouncement made by the court at pages 60 and 61 is completely contrary to the provisions of the Wrongs Act because it would provide that failure to exercise reasonable care is in fact a bar to taking proceedings because it would mean there was no right of action which a plaintiff has in that regard.

It is said by our learned friends I think that this is a point that is too favourable to us. In one sense that is right but what it indicates is that the court started off on the wrong foot and, starting off on the wrong foot, continued on the wrong foot and came to the conclusion later that because the impairment was a hazard to the plaintiff who herself was exercising reasonable care, that in actual fact the Council was then liable and an order for damages was made.

If I could take the Court to, for instance, page 63 of the transcript in respect of the subjectivisation of the matter and not looking at it on an objective basis, the court observed at about line 25 that:

Her Honour does not in terms state that the condition of the ramp at the time was such that it created a hazard to the suppositious pedestrian taking reasonable care for their own safety.

That in fact is correct because her Honour did not make any pronouncement on that issue at all. The court went on to say:

She did, however, analyse the position of Mrs Merie and in particular, whether she as a pedestrian who did not see the hole, should have seen it in the circumstances.

That is then a correct pronouncement of what her Honour did. It was a subjectivisation of the position of the plaintiff and a viewing of the Council’s obligations through the position of the plaintiff as a person who in her own circumstances, which were ones of familiarity with the area, did not see the hole. The court then continued on to refer to the plaintiff’s failure to see the hole, not being a failure to exercise reasonable care for her own safety.

There is no recognition there that the test is the objective one to which we have referred or is the test which was set out only relatively recently by the Court of Appeal itself in Boroondara and also in Davis’ Case which is referred to in our summary. The object of the law in this respect, in our respectful submission, as we have put in our summary is to provide an objective test which a council can comply with whilst allowing for the existence of.....of the sort referred to in Ghantous to exist on the basis that they are the sort of things which a council could expect a pedestrian acting reasonably to see. In that context there is no basis for looking at the position of an individual plaintiff and saying is there some reason exculpatory of the plaintiff as to why she did not see this hole and if there is, then this plaintiff was acting, therefore we find, reasonably, the Council is liable because on that basis the hole becomes an impairment.

If the court had stated the test correctly, it would have been almost impossible, in our respectful submission, that it would not be said that the impairment in the present case was not one which would be expected to be seen by a pedestrian of ordinary physical capabilities taking reasonable care for themselves by looking where they are going. One only has to look at the hole filled in at page 2, look at the impairment itself at page 6, to see that these are the sort of impairments which commonly exist in footpaths. The object of Ghantous was to regularise, as it were, those impairments and to say councils do not have to fix them up if it can be expected that pedestrians in general will see them.

If the law is that an impairment of this sort has to be fixed up simply because a person who is familiar with the area might not look where she is going and might not see it, then the result in a large number of cases would firstly depend on the circumstances of the individual plaintiff and also councils would be obliged to engage in repairs which they would not be obliged to engage in if one looked at the matter from the objective point of view. The object of the law, in our submission, is to provide a standard with which councils can comply with respect to pedestrians in general and not a standard which councils have to comply with with respect to pedestrians who might turn up in six months, twelve months, nine months, two years time and say that their familiarity with the area or some other feature caused them not unreasonably not to look where they were going.

In our respectful submission, those aspects of the judgment, if there is a reasonable prospect that they are wrong, are sufficient for the grant of special leave because they do relate to a matter of considerable private and public importance with respect to the correct statement of the law of tort in this area. We are unable to find any case which accepts as correct the pronouncement which the Court of Appeal has made as to the state of the law.

Can I say something very shortly about the new legislation, the Road Management Act, which is said to be something which makes the resolution of this case unnecessary. Firstly, there are some 200-odd cases still pending in which this matter is one to which the Ghantous principles would apply without reference to the Road Management Act. Secondly, the Road Management Act does not supplant the common law. It provides some
principles which have to be looked at in the resolution of the question about whether a duty of care or a breach of a duty of care exists or not. It is important that the resolution of those issues start off with a correct appreciation of what the common law duty of care requires or what a breach of the duty of care requires. It would, in our respectful submission, be not possible to properly apply the principles in that Act on the basis that the common law is not correctly apprehended. If the Court pleases.

HAYNE J: Thank you, Mr Uren. We need not trouble you, Mr Tobin.

A central question litigated in the courts below was whether the hole on which the respondent plaintiff tripped and fell constituted a hazard to careful pedestrians. That question gives rise to no point of general application. We are not to be taken as endorsing all that the Court of Appeal said in its reasons for judgment and its treatment of what is said about standard of care in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512 at 579 to 581, paragraphs 158 to 162 per Justices Gaudron, McHugh and Gummow.

Nonetheless, we are not persuaded that there is a sufficient prospect of demonstrating that the orders made by the Court of Appeal should be set aside to warrant a grant of special leave to appeal in this matter. It follows that special leave is refused and refused with costs.

AT 11.41 AM THE MATTER WAS CONCLUDED