Local Council avoids liability for breach of statutory duty but is nevertheless held liable for breach of common law duty of care following trip and fall on stormwater pit in Council reserve.

In Issue

  • Whether the reserve was properly classified as ‘roadside’ or a ‘pathway’ for the purposes of the Road Management Act 2004 (VIC).
  • Whether the trial judge had provided a proper basis for the findings as to the Applicant’s breach of duty of care regarding the probability of the risk.
  • Whether the trial judge had erred in making findings of fact about ‘common sense’ measures that could have been taken to reduce and/or eliminate the risks which were not the subject of evidence.

Background

On the evening of 14 September 2008, the respondent was walking along a footpath in suburban Shepparton when he decided to cut across a reserve which was part of parkland area under the control of and maintained by the applicant Council. The respondent tripped over a protruding stormwater pit located in the reserve and suffered injuries.

Decision at trial

At first instance the trial judge found the applicant had breached its statutory and common law duty of care and awarded the respondent $422,710.00 in damages.

Issues on appeal

The substantive issues for the Court of Appeal were: whether the trial judge erred in classifying the reserve as a ‘pathway’ as opposed to ‘roadside’, with the consequence that s107 of the Road Management Act 2004 (VIC) would serve as a complete defence to the claim; and whether the trial judge erred in addressing and determining the question of breach of common law and statutory duty.

Decision on appeal

The Court of Appeal found the applicant made out the first ground of appeal, in that the reserve was properly classified as a roadside and that s107 operated as a complete defence to the breach of statutory duty claim. However, as conceded by the applicant, the pit was non-road infrastructure and s107 did not absolve the applicant from complying with the common law duties it owed as the non-road infrastructure manager.

The second and third grounds of appeal focused on alleged defective findings of fact by the trial judge regarding the probability of the risk and the effective measures that could have been put in place to alleviate the risk.

The Court of Appeal was reluctant to disturb the trial judge’s findings of fact when his Honour was in a better position to assess the evidence firsthand. As to the probability of the risk occurring, the Court of Appeal found no appealable error in the trial judge’s reasoning, and found that he did provide an appropriate basis for the findings on both the seriousness and likelihood of the risk and the probability that in a suburban area, pedestrians would cross the reserve at night.

As to the simple remedial measures that the applicant could have taken to reduce or eliminate the risk (such as building up the surrounding ground to make the pit flush with the surrounding land), the Court of Appeal found they were properly the subject of common sense reasoning and no expert evidence was needed to establish such measures. It was therefore open to the trial judge to make such findings even though there was no direct evidence of the cost or ease of implementing these precautions.

The appeal was dismissed.

Implications for you

Where a local authority fails to adduce evidence that precautions that could be taken to reduce hazards on local authority land are not reasonable, it is open for a court to use common sense and common knowledge to infer that they are in fact reasonable.

Greater Shepparton City Council v Clarke [2017] VSCA 107