Pearce v Moyne Shire Council [2005] HCATrans 752 (9 September 2005)

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Pearce v Moyne Shire Council [2005] HCATrans 752 (9 September 2005)

Last Updated: 22 September 2005

[2005] HCATrans 752

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M13 of 2005

B e t w e e n -

LORRAINE FLORENCE PEARCE

Applicant

and

MOYNE SHIRE COUNCIL

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 SEPTEMBER 2005, AT 9.49 AM

Copyright in the High Court of Australia

MR T.P. TOBIN, QC: If the Court please, I appear on behalf of the applicant with my learned friend, MR A.J. KEOGH. (instructed by Maddens Lawyers)

MR P.N. ROSE, SC: If the Court pleases, I appear with MR A.D. CLEMENTS, for the respondent in this appeal. (instructed by Hunt & Hunt)

KIRBY J: Yes, Mr Tobin.

MR TOBIN: Your Honours, we submit that there are two aspects of this application which attract the section 35A Judiciary Act criteria for the granting of leave. The first of that is the question of public importance and this case involves a question of law of public importance being what is the duty that highway authorities owe road users and, in particular, pedestrians.

KIRBY J: That is not very important now in Victoria, given the change of the legislation following Brodie and Ghantous.

MR TOBIN: We say that it is still important in Victoria in the sense that there must be an understanding of what the common law is because the legislative changes, whether it be the Transport Act or whether it be the - - -

KIRBY J: Yes, but the time to deal with that would be in a case which has been knocked out on that statute, not in a case in which it was agreed on all hands that the transitional provisions protected the rights of your client or that the Act did not apply to her case.

MR TOBIN: We would submit that each of those statutory modifications are dependent upon a correct understanding of what the common law is and so although it would be relevant, especially in those cases, but it is relevant whether or not we are still dealing with the old common law cases which are in the pipeline, if I may use that term, the section 37A cases which are the statutory modifications in the removal of the nonfeasance or the modifications made by the Road Management Act, each of those cases are predicated upon acceptance of the common law and then modification of it. There is no statutory scheme.

KIRBY J: I understand the point but if Justice McHugh were here – shortly to leave us – he would say we can only do 70 or so cases a year and therefore we pick them, if possible, in cases which will have a general importance of principle of the law. We have to be discerning.

MR TOBIN: We accept that and we say that when there is the volume of this type of conduct which is coming before the courts, that is, the relationship between road users and public authorities it is important in that context although it is modified in its effect by subsequent statutory modifications but the underlying principle is important. Secondly, we say that section 35 is attracted because there is a need to resolve, we say, what are differences of opinion that have been expressed in relation to these matters.

What appears to be variously interpreted in judgments of particularly this State and in New South Wales is the interpretation of paragraph 163 of Brodie which was the paragraph, we say, that was illustrating matters applicable to breach. What the duty was, we say was stated by those three members of the Court, which are seen in subsequent decisions to be the majority to this point, is in paragraph 150. Paragraph 150 states generally what the duty is, the duty in effect, and the others are explanation that the authorities:

are obliged to take reasonable care . . . not create a foreseeable risk of harm to a class of persons –

Then, after describing that as the duty the Court then goes on to consider all the various relationships or causes, whether it be construction, whether it be design or whether it be inspection, and when considering those the Court talks about matters which are breach rather than are duty.

In that regard, paragraph 163 is no more than a description of the breach and if in fact paragraph 163 is describing the duty it is difficult to see how the description of the duty in paragraph 163 sits with the judges’ approval of Webb v South Australia where the Justices say that Webb is an appropriate finding of a court. They refer not only in 163 to that but they also refer to it earlier at 148 but in, particularly, 149. They have referred to it at much earlier in the judgment but also there:

The better course is that indicated in the passage from Webb v South Australia set out earlier in these reasons. The Court there gave to the duty of care of the highway authority a content reflecting what had been said by Mason J in Wyong Shire Council v Shirt.

We say that to that extent there needs to be an understanding, particularly when it has been highlighted by what we say the dissenting judgments of Justice of Appeal Gillard says in this case saying, what is the duty of care because this is important, particularly for judges who are instructing juries to say what the duty of care is and then what constitutes a breach of it.

HAYNE J: Does it come to this, that reasonable care of a highway authority does not require the highway authority to produce footways - as distinct from roadways – footways which are free from imperfection?

MR TOBIN: We say the duty is the duty as expressed in all negligence, a duty to take reasonable care. We say that there is no breach of that duty under what is said in 163 if the state of the footpath, taking into account all the considerations as imperfections, that it is considered reasonable that they do not attend to or that they do not inspect for.

HAYNE J: Leaving aside whether you resolve the question of the level of duty or of the level of breach or at a combination of the two levels, is the imperfection with which we are concerned that illustrated in the photographs at 54 and following of the application book?

MR TOBIN: Yes, and we say in relation to that the judgment of whether or not that is an imperfection and the existence of that imperfection which lasted, and the jury could conclude, lasted for at least 11 years and the jury could conclude that the defendant knew of it for that period of time, that is a determination for a jury. Six people chosen from that community are imposing their standards on the community.

KIRBY J: That is true but the Court of Appeal acknowledged the exceptional circumstances, the truly exceptional circumstances that authorise an appellate court to disturb the decision of a jury. We have said in Naxakis and more recently in Swain, everything that could be said for this residual area of the law.

MR TOBIN: I accept that, but the Court of Appeal in disturbing the jury’s determination did so on the basis of saying that the duty that is owed is a duty to exercise reasonable care for a pedestrian exercising reasonable care for themselves. That is not what is said by the majority in paragraph 150. It is not what is said by the majority in each of the other subsections, and if in fact that is what is being imposed as the law in relation to pedestrians, it is the specification of a special class of duty for pedestrians and it is a movement contrary to the trend that we say has existed with cases such as Zaluzna and Burnie Port Authority where the duty has been expressed and consistently been expressed in relation to conduct between parties who have the appropriate relationship of a duty to take reasonable care.

Why should there be a special class created for pedestrians? Should not that matter or those matters relevant to pedestrians be taken into account in the determination of whether there has been a breach of the duty, that is, the duty to take reasonable care? Why – and it is said in part that the origin of the comments come from Indermaur v Dames and the application of occupier liability type principles to this - - -

KIRBY J: There are those famous words, “, taking due care for himself,” and we had this issue argued recently in the Court in a case called Neindorf, but this is a rather weak factual case, a very weak factual case. I do not know that we would be doing your client any favour by bringing the case up to the Full Court.

CALLINAN J: No, pedestrians are in a different position from some of the parties in the cases to which you have referred. They are moving slower, they have an opportunity to make observations and those self-evident matters condition the response, the reasonableness of the response of the defendant.

MR TOBIN: Yes, and we accept that. We say that is the test. The test is duty is owed; taking into account the circumstance has the duty been breached?

CALLINAN J: But your crack that appears in the footpath is the sort of crack that probably appears in masonry or paths in half the suburban houses of Australia and suburban yards of Australia.

MR TOBIN: That is why we say that - - -

KIRBY J: She lived next to it, knew of it and was perfectly aware of its existence.

MR TOBIN: The fact of the awareness of the existence is a matter which of course the jury can take into account in the assessment of whether there has been a breach, but the existence of a defect does not defeat the plaintiff’s claim if the defect is said to be there by reason of a breach of a duty, but if in fact there is a knowledge of the existence or a probable knowledge because of the obviousness of it, it would mean that the discharge of the duty has probably been effected.

As Justice of Appeal Bryson said in Henshaw, if the concept is the awareness of the defect being apparent, the way in which an authority protects itself is to make the defect more apparent. If there is a hole out the front of this Court the City of Melbourne would best protect itself by making the hole deeper or bigger. If in fact a hole existed out at the front of this Court which was a dangerous hole, it would be reasonably foreseeable that somebody would eventually trip into that hole just as Anderson v Commissioner of Railways in that situation where somebody walked into the bar.

That is foreseeable and we say they are matters for the jury to take into account and they have taken those matters into account. Why we say that the Court needs to define what the duty is and then determine whether or not there has been a breach is for those reasons set out by Justices of Appeal Bryson and by Acting Justice of Appeal Gillard, and in particular in a jury action. We say that if the Court were to consider that issue being something that needs to be revisited, and we submit it needs to be revisited, this is the perfect vehicle to do so.

It is the perfect vehicle to do so because it brings clearly into focus the issues of what is the duty. It brings into focus does the content of the duty or breach of the duty involve an element of the conduct of the pedestrian and if so is it the conduct of the ordinary pedestrian or of the plaintiff’s own conduct to be considered and it brings into account the question of contributory negligence. In this case, the finding of contributory negligence in - - -

KIRBY J: The jury found - 45 per cent, I think it was.

MR TOBIN: Yes, and it was relied upon - - -

KIRBY J: That was the issue in your written submissions that interested me because there has been a tendency in some quarters to lift up the question of contributory negligence into the then duty and that is an important question, but when one looks at the facts of this case they are not terribly promising that the Court would find it necessary to grapple with that issue in order to resolve this particular instance.

MR TOBIN: The Court sees that, but this is a community judgment and what they expect as to the duty of their public authorities and - - -

KIRBY J: I realise that, but then the Court of Appeal said they have their function and it is very exceptional to disturb a jury verdict, but they felt that the facts were so unpromising that this was the extreme case. They used the correct formulae.

MR TOBIN: The Court of Appeal, though, in making that determination, made the determination, we say, with the application of the duty of care being that as described – or they say as described in paragraph 163 – which has that added paragraph to it, or that added clause to it, the duty to take reasonable care for pedestrians taking reasonable care. If the Court says that what was meant in that case was this expression of the duty being a special duty to pedestrians rather than it being an element in the breach, we accept what is said, but if the Court says the duty is the duty to take reasonable care and the duty of a pedestrian to take reasonable care for themselves was to be assessed in whether there is a breach, we say in that regard this is the vehicle for this Court to revisit the matter.

In the circumstances, we say that paragraph 163 of the three Justices has been determined in different ways. We say that in this particular case
the determination by the Court of Appeal by the two justices was incorrect and that it is an appropriate case for review to clarify this law in Australia.

KIRBY J: Yes, thank you, Mr Tobin. The Court does not need your assistance, Mr Rose.

The applicant makes some good points based mainly on the reasons of the dissenting judge in the Court of Appeal, Justice Gillard. However, we are unconvinced that special leave should be granted. The issues of general principle that arise in the case are covered by the decisions of this Court in Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512 and in Naxakis v Western General Hospital (1999) 197 CLR 269 and Swain v Waverley Municipal Council [2005] HCA 4.

The law of highway authority liability in Victoria has been changed by statute and that affects the significance of the case for other cases. We are not convinced that an issue of general principle arises. Insofar as it does, that issue requires a better factual vehicle than is provided by this case. Special leave to appeal is therefore refused. The applicant must pay the respondent’s costs.

The Court will now adjourn to reconstitute.

AT 10.09 AM THE MATTER WAS CONCLUDED