Brown v Noosa Shire Council & Anor [2002] QDC 89

DISTRICT COURT OF QUEENSLAND CITATION: Brown v Noosa Shire Council & Anor [2002] QDC 089 PARTIES: CHRISTIAN BROWN (plaintiff) -v- NOOSA SHIRE COUNCIL(defendant) ENERGEX LIMITED (third party) FILE NO/S: D467/01 DIVISION: Maroochydore District Court PROCEEDING: Application DELIVERED ON: 9 May 2002 DELIVERED AT: Maroochydore HEARING DATE: 22 April 2002 JUDGE: K S Dodds DCJ ORDER: Judgment for the third party against the defendant on the third party claim together with costs of the third party proceedings and the application. CATCHWORDS: General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125; Jaensch v Coffey (1964) 155 CLR 549; McPhee v Zarb [2002] QSC 4; Sullivan v Moody (2001) 75 ALJR 1570; Uniform Civil Procedure Rules, rr 149(1) & (2), 171, 193, 293. COUNSEL: Mr A S Kitchin for the third party Mr S T Farrell for the defendant SOLICITORS: Carter Newell for Energex Limited Barry & Nilsson for the Noosa Shire Council [1] This is an application by the third party for summary judgment against the defendant: rule 293 Uniform Civil Procedure Rules (UCPR); alternatively that the defendant’s third party notice be struck out: rule 171 UCPR. [2] According to the plaintiff’s pleading, the plaintiff was walking from Noosa Drive, a roadway in the defendant’s local authority area, into some parkland adjacent to Noosa Drive during the hours of darkness. The parkland was under the control of -- 1 of 4 -- 2 the defendant and was enclosed by a perimeter fence. There was a vehicular entranceway into the parkland through which the plaintiff intended to pass. As he did so he tripped over a piece of chain 20 centimetres or so off the ground which was stretched across the entranceway as a barrier and suffered injury. [3] At the material time three metres or so away from where the plaintiff tripped and on Noosa Drive was a light pole containing a street light. It is because of this that the defendant’s claim against the third party seeks contribution or indemnity from the third party to or against any liability it may be found to have to the plaintiff. [4] To have any chance of success, the defendant’s claim against the third party must be able to show that the third party owed a duty of care to the plaintiff. [5] Rule 193 UCPR requires that a third party notice must have attached to it a statement of claim unless the court otherwise orders. [6] Rule 149(1) provides inter alia that a pleading “must – (b) contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and - - - (d) subject to rule 156, state specifically any relief the party claims.” Rule 149(2) provides, inter alia, that “ a party may plead a conclusion of law - - - if the party also pleads the material facts in support of the conclusion - - -.” [7] The third party statement of claim pleads that a duty of care was owed to a person such as the plaintiff because the third party had provided street lighting along Noosa Drive, owned the street lights and associated infrastructure and had sole responsibility/authority and/or power to maintain service and/or replace the street lighting. The content of the duty was said to be to “provide adequate lighting and/or to ensure that the established street lights were operative and effective”. [8] The third party has admitted that it provided street lighting services along Noosa Drive and for the purposes of the application does not dispute that it owned the street lights and associated infrastructure. It has denied it had sole responsibility/authority and/or power to maintain service and/or replace the street lighting. Rule 293 UCPR [9] For there to be summary judgment for a defendant, the rules requires the court be satisfied – “the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and there is no need for a trial of the claim or the part of the claim.” [10] The rule is new and should be applied according to its terms. Judicial statements dealing with claims in a summary way made prior to the rule should be read in that -- 2 of 4 -- 3 light. In McPhee v Zarb [2002] QSC 4 Wilson J, speaking of the new summary judgment rules in UCPR, said that the new rules call for a more robust approach by the court consistent with the overriding purpose of UCPR, that is “to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”. She went on to say that summary judgment should be given if in a defendant’s application the prospects of the plaintiff succeeding on the claim “are so slim as to be fanciful”. Rule 171 UCPR [11] This rule provides the court with a power to strike out all or part of a pleading at any stage of a proceeding. It applies, inter alia, if a pleading or part of a pleading – “(a) discloses no reasonable cause of action or defence”. The wording of the rule is similar to the pre-existing rules. Accordingly, the approach as disclosed in judicial statements made about striking out a pleading when previous rules were in force should be applied. The power will only be exercised in plain and obvious cases; where a claim is “so obviously untenable that it cannot possibly succeed”: General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125. [12] It is plain that during the hours of darkness the ability to see things that would be evident in daylight is compromised. Thus, it may be foreseeable that during the hours of darkness an impediment in a public area may, unless illuminated, result in a pedestrian in the public area unintentionally coming into contact with the impediment. It may mean, depending on the circumstances, that a person owning or in control of the public area may have a duty of care to users or potential users of the public area. [13] That, however, is different from saying that because the present third party installed street lighting which it owned together with associated infrastructure on an adjacent road it is therefore under a duty to the pedestrian to take reasonable care to ensure that impediments at some unstated time introduced into the public area by another, or for that matter on the road reserve, will be illuminated by the street lighting so that the pedestrian may see and avoid them at night. [14] Does the foreseeability I have referred to above together with mere installation or ownership of the street light and associated infrastructure found the duty? Does the addition of an allegation that the third party had a responsibility, authority or power to maintain, service and/or replace the street light assist? [15] As Deane J said in Jaensch v Coffey (1964) 155 CLR 549 at 583, “It is not and never has been the common law that the reasonable foreseeability of risk of injury to another automatically means that there is a duty to take reasonable care with regard to that risk of injury”. And as the High Court said in Sullivan v Moody (2001) 75 ALJR 1570 at 1577 [42], “A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care”. The Court went on to say that the notion of proximity “gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established. It expresses the nature of what is in issue, and in -- 3 of 4 -- 4 that respect gives focus to the inquiry, but as an explanation of a process of reasoning leading to a conclusion its utility is limited” at 1578, [48]. [16] For there to be actionable negligence, there must be a relationship sufficiently proximate to give rise to a duty of care. All that is pleaded is that the plaintiff as a pedestrian was injured by tripping over a chain attempting, during the hours of darkness, to access a public park adjacent to a road upon which was a street light and associated infrastructure installed and owned by the third party and for which it allegedly had a responsibility, authority, or power to maintain, service and/or replace. [17] I find that there are not pleaded material facts which could found a duty of care owed by the third party to the plaintiff or, to use the words of rule 171, disclose a reasonable cause of action. [18] I give judgment for the third party against the defendant on the third party claim together with costs of the third party proceedings and the application. -- 4 of 4 --