Cummins v Young Shire Council & Anor [2005] HCATrans 747 (9 September 2005)

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Cummins v Young Shire Council & Anor [2005] HCATrans 747 (9 September 2005)

Last Updated: 22 September 2005

[2005] HCATrans 747

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney Nos S522 of 2004 and S220 of 2005

B e t w e e n -

PATRICIA KAREN CUMMINS

Applicant

and

YOUNG SHIRE COUNCIL

First Respondent

BRYMOUNT PTY LIMITED T/AS WATSON TOYOTA

Second Respondent

Applications for special leave to appeal

McHUGH ACJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 SEPTEMBER 2005, AT 12.25 PM

Copyright in the High Court of Australia

MS S. NORTON, SC: If the Court pleases, I appear with my learned friend, MR R.J. TAYLOR, for the applicant in both matters. (instructed by McCabe Partners)

MR D.L. DAVIES, SC: May it please the Court, I appear with my learned friend, MR J.M. MORRIS, for the Council in both matters. (instructed by Deacons)

MR R.A. CAVANAGH: If the Court pleases, I appear for the second respondent. (instructed by Henry Davis York)

McHUGH ACJ: Yes, Ms Norton.

GUMMOW J: You need an extension of time, do you not?

McHUGH ACJ: Yes.

MS NORTON: I had forgotten that, but if I do, can I have one? I know there was a delay in finding documents with respect to one appellant. Is that the matter to which your Honours – one respondent?

McHUGH ACJ: Well, the application was filed on - - -

MS NORTON: I remember the Christmas holidays intervened between judgment and when documents were filed.

McHUGH ACJ: Yes. I have a note that extension of time was required, but I just cannot recollect what the precise day is. Anyway, carry on, Ms Norton.

MS NORTON: I do apologise, your Honour, for not having a more ready answer.

McHUGH ACJ: Yes.

GUMMOW J: Well, the application for special leave in S220 went on on 16 May.

MS NORTON: That was the second one. What happened, briefly, your Honour, is that in the District Court there was one statement of claim with two defendants. The plaintiff in that statement of claim was successful against both defendants. Both defendants then lodged appeals to the Court of Appeal. So there was only one plaint in the District Court but two appeals in the Court of Appeal. When we lodged the documents here one set of documents was lodged, naming both defendants, and then the Registry picked up, quite rightly, that there had been two appeals in the Court of Appeal and therefore there needed to be two applications for special leave in this case. The second respondent took no issue to it.

We had served them with the documentation with respect to the first application, and no new submissions were filed with respect to the claim against them. They are all in the one set of documents. It was simply that we had failed to realise, or take account of what happens when there are two appeals in the Court of Appeal from one case in the District Court. As I understand it, no one took issue with our lateness, and we did put on an application for extension of time in the second one, as I understand it.

Your Honours, what we say is the special leave point in both of these cases is that over time the interpretation of the decision that this Court handed down in the matter of Ghantous and Brodie has kind of evolved into a situation where those responsible for footpaths and roads argue that if a danger is obvious they do not owe a duty to pedestrians, that they have, in effect, an immunity because the pedestrian has an opportunity to see and avoid problems in footpaths.

We say such an absolute immunity for obvious dangers is likely to produce the same unjust results as did the absolute immunity for nonfeasance matters and result in a reluctance for those who have the ability to repair and maintain roads to just leave them in a state of decay and let them continue to decline. That was one of the matters which led three of the judges in the decision of Ghantous and Brodie to say that the nonfeasance rule in itself was not a good rule. That was the decision of Justices Gaudron, McHugh and Gummow at paragraph 135 of that judgment. If I just briefly take the Court to that before I return to the facts. It sums up where our argument is headed - - -

McHUGH ACJ: I think Justice Gummow and I are well familiar with that - - -

MS NORTON: I thought you might be, your Honour. It is basically paragraph 135, where it says:

Secondly, a result of the growth of the misfeasance rule . . . is that an authority will escape liability if it has never attempted to repair some danger on a road of bridge but thereafter may become liable if it attempts, even perfunctorily, to repair it. The practical consequence is to abrogate the immunity once an authority takes any remedial action and to open up its actions to scrutiny according to the usual principles of negligence. This state of affairs provides a strong incentive to an authority not to address a danger on a roadway.

Our argument in a nutshell is that is what happened under the nonfeasance rule and because of the interpretation over time that has been placed on this decision, what is happening now is that those responsible for roads are maintaining that if a danger is obvious they do not have to take any steps to fix it, even if they have a reasonable time to do so. That is one of the things that the nonfeasance and misfeasance rule was abolished to prevent that happening and it is just returning under a different guise.

The other point of some relevance is that this is basically a simple footpath case as against the first respondent, the Young Shire Council - the only difference being that in this case it was a Crown road, not a road actually vested in the Council and we say that that is, again, attempting to hide behind those kind of distinctions is pretty much what was pointed out as being not advantageous in the next paragraph in the decision of Ghantous, and that is paragraph 136, where it says:

Thirdly, the operation of the “highway rule” is to make some “positive” action, in effect, the determinant of the litigation. A corollary is the necessity to make “the most detailed investigation of the authority’s past records, in order to determine what, if any, positive work the authority has carried out on the defective roadway”. Such an inquiry may be impractical or impossible for the plaintiff for reasons wholly within the defendant’s control. These concerns may increase when work previously performed by a public authority is “outsourced” to an independent contractor. There may also be cases where it is impossible to obtain evidence of any work either due to effluxion of time or because a defendant authority has succeeded (sometimes not even directly) the body which first did the work. To hold that a plaintiff must fail for want of evidence of positive action taken at some time in the past which discloses “when, or by whom, or by which, the relevant work [was] carried out” is apt to exclude meritorious cases.

We say if the first respondent is allowed to simply say, “Well, this is a Crown road. We have never asked the Crown to fix it. In fact, we’ve had a go at fixing it ourselves, but that means we don’t owe you a duty”, that is, again, something that this Court in the Brodie Case was suggesting is not really relevant.

The facts in this case are fairly simple. There are some very bad reproductions of photographs at the front of the book, but they give the Court an idea of the state of this particular road. It is a laneway. It is actually within the central business district – if Young has a central business district – of Young, and it is a laneway that gives access to the Council car park, as I understand it, and to the Toyota dealership which operates on both sides of the road.

If you look at the photographs on page 1, the used car dealership, which is where the Cummins family were buying their new vehicle – their, new for them, vehicle – was on the right-hand side, and what Mrs Cummins and her family were doing were walking with an employee of the second respondent from the car sales yard, where they had had a look and a test drive of the utility, across to the new car area, where you can see the Toyota sign on the wall, to do some paperwork.

GUMMOW J: Now, what do you say about paragraph 34 on page 129 of Mr Davies’ submissions as to the actual facts?

MS NORTON: Yes, your Honour, that was dealt with by the trial judge. Briefly, what happens is Mrs Cummins in cross-examination did admit that as she was walking across the road she did not look at the road surface each time she put her foot down, as indeed there was evidence, if evidence was needed, nobody does. What happened on this case was Mr Cummins was in front of her with her son and a Mr Maloney. They were crossing in front of her, she was crossing behind them, and her evidence was she was looking generally where she was going but she had not seen these particular defects. Of course, one would admit in cross-examination – one would have to admit – that if you were looking down, entirely focused on the ground you were walking on, you would notice these things as you walk across, but that is not how people walk.

We say that what is relevant is the issue has arisen, but does the conduct of a pedestrian become relevant on the question of whether there is a duty or only whether there has been a breach, or both. It would seem logically it is both. The pedestrian has to be using the footpath, for a purpose footpaths are normally used, in a reasonable manner. So, in our submission, once the plaintiff gives evidence that she is walking, basically keeping a lookout of where she is going, following someone who has invited them to follow her, then she is a reasonable user of the footpath and is owed a duty by those who have the responsibility to maintain the footpath.

The fact that even though she is keeping a reasonable lookout she does not see the particular irregularities on which she injures herself, goes to - - -

GUMMOW J: It is not really a footpath, is it?

MS NORTON: No, it is a road. I should not have said footpath.

GUMMOW J: It is a laneway.

MS NORTON: It is a laneway. What it is is a laneway that runs and gives access – it is a one-way road, it gives access to, I think, the Council car park and the Toyota car park and a number of other businesses that back onto the lane. So it is a low speed street for cars, but it is also, I think, from having read bits of the transcript, fairly frequently used by pedestrians because it gives access to the rear of all of these premises. If you park in the Council car park you end up walking down the lane. It appears to have been common ground at trial that Mrs Cummins was not the first one who was asked to walk across the lane to get from one building to the other. So it is a fair amount of pedestrian traffic, but a low speed road.

So if you are applying the normal calculus, it would be definitely a lane where it is foreseeable there will be quite a deal of pedestrian traffic. What the Council did was allocate some money in 1996 for the repair of the road, but by the time of the accident they had not spent that money - their priorities being to high speed, more trafficked, roads. So they gave their priority to motor vehicles rather than putting any emphasis on the fact that this particular road was extensively used by – well, I do not know if “extensively” is the right word, but was on a regular basis used by pedestrians to gain access to these premises. If you just look at the photographs at page 1, you can see the state of the footpath is quite disgraceful.

It is bizarre in a way that in running footpath cases now there seems to be an emphasis on proving just how bad the road and footpath is, because that way the person responsible for the road sees themself as escaping liability. “It is so bad this person shouldn’t have used it”. “It’s so bad that they should have taken a torch with them of a night-time”. “It’s so bad that they should’ve watched each time they put each foot down”. That is a situation that is just not practical with respect to people crossing the road.

Cases where, say there is a set of stairs and someone chooses to scramble down an embankment, then they are not acting reasonably, and a reasonable way has been provided them to get where they are going. But in this particular case, to let a road deteriorate when it had been in this state, or in the state of needing repairs, from at least 1996 and to do nothing and then say, “Well, we don’t owe a duty because our road is really bad” seems to be something that this Court, in the matter of Ghantous and Brodie, was pointing out was a bad result of the law of nonfeasance and misfeasance.

The other matter that arises is a matter that much turned in the Court of Appeal on the fact that the Court of Appeal looked at some photographs. I have dealt with that in my written submissions but, in brief, what happened was the photographs had been taken prior to the plaintiff giving evidence but they were not shown to her. They were tendered without objection, but then in the Court of Appeal they are relied on for the Court of Appeal to substitute its own opinion over that of the trial judge as to whether or not the walking across this laneway would have been made more difficult because of shadows.

We submit with respect to that, that that is something that is basically unfair. These photographs were never shown to the plaintiff, and that when you look at them you can see shadows. Who knows where exactly the shadow was precisely the time she was crossing, given that she had people crossing in front of her. To place so much emphasis on photos is, in all the circumstances, not appropriate. If you look at the photos you can see that there definitely are shadows falling over the lane, and they seem to fall over near the area where the plaintiff came to grief – who knows exactly where they were as she walked across. It is our submission that basically it was unfair to change a decision of the trial judge based on photographs which the trial judge had seen but which the plaintiff had not, and she had never been questioned about them.

Now, with respect to the second respondent, it is more interesting than a normal footpath case. It would be an expansion to say that they are liable, but the facts are that there is a commercial relationship between the applicant and the second respondent. It was the second respondent’s enterprise that led her to cross the lane. It was their system of business, as it were, to have the cars on one side of the lane and the paperwork on the other and ask her to follow them across. The argument advanced by the second respondent is, “Well, if you expand the law in this way business people will be responsible for anybody who falls over trying to walk to their premises”, but that is not realistic. This is - - -

McHUGH ACJ: But it really would be imposing an extreme duty. Lord Simonds said in Smith v Austin Lifts that the relationship between employer and employee is not that of trained nurse and imbecile child, and one can say that the relationship between customers and business owners is not in that category either. Really, it is asking a lot of a person who sells cars to be expected to take care for the safety of somebody crossing the road, even if you are going to somewhere on the car owner’s business.

MS NORTON: It was not just on the car owner’s business, your Honour. It was from where the car was stored to be sold across the road to where the paperwork was to be done, in circumstances where he did not say, “Make your own way around to the new car area and we’ll sign some documents”. He says, “Follow me”. What is a person to do in those circumstances? You are likely to be looking ahead at him at where he is walking and simply following him, assuming that it is safe to walk in the area he is walking, where with the state of this lane it simply was not safe. So it is a case that
turns very much on its face, with respect to the second respondent, but not a case where one could be alarmed that any floodgates would be opened if liability was found.

There was also some evidence from someone at - the second respondent that they had asked the Council to fix this lane up, and there was also some evidence that the lane was particularly bad around the area where the Toyota dealership was. One might think that is because they have cars coming in and out of their showroom and it wears out a bit quicker there.

The basic thrust of it is that, as Justice Bryson has said in the case of Henshaw, which we sent up, it really seems to have gotten to the stage where the argument is, “My road is so bad and I don’t do anything to fix it and therefore I am not responsible for what happens when you suffer a foreseeable injury using my road”. That is an extreme view of what this Court said in Ghantous and Brodie. Those are our submissions.

McHUGH ACJ: Thank you. Yes, the Court need not hear you, Mr Davies or Mr Cavanagh.

In this matter the applicant seeks special leave to appeal against Young Shire Council and Brymount Pty Limited trading as Watson Toyota, the proprietors of commercial premises who had sold a car to the family of the applicant.

Insofar as the application concerns the Council, the case turned on the application of the principle in Brodie v Singleton and Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512 to the facts of the case particularly the passage of the joint judgment in paragraph 163 where the joint judgment said that:

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.

The Court of Appeal found that the case involved an obviously uneven surface in respect of which the applicant was required to take care for her own safety. The Court held that the road, notwithstanding its poor state of repair, did not constitute a trap and that in broad daylight it was an obvious hazard. The case therefore turned on questions of fact, and nothing about it requires the grant of special leave to appeal.

So far as the application against the second respondent is concerned, the applicant seeks to extend the duty of care owed by an occupier of land to a duty to warn of risks of injury in the surface of roadways leading to those premises. In our view, there is nothing in the authorities that would warrant such a grant and an appeal on such a ground would have insufficient prospects to warrant the grant of special leave to appeal. Accordingly, the application must be dismissed with costs in favour of both respondents.

The Court will now adjourn to reconstitute.

AT 12.47 PM THE MATTERS WERE CONCLUDED