Crombie v Livingstone Shire Council & Anor [2000] QCA 229

SUPREME COURT OF QUEENSLAND CITATION: Crombie v Livingstone Shire Council & Anor [2000] QCA 229 PARTIES: TERRENCE BEDFORD CROMBIE (plaintiff/first respondent) v THE COUNCIL OF THE SHIRE OF LIVINGSTONE (first defendant/appellant) THE STATE OF QUEENSLAND (second defendant/second respondent) FILE NO/S: Appeal No 7462 of 1999 DC No 40 of 1996 DIVISION: Court of Appeal PROCEEDING: General civil appeal ORIGINATING COURT: District Court at Rockhampton DELIVERED ON: 13 June 2000 DELIVERED AT: Brisbane HEARING DATE: 6 June 2000 JUDGES: de Jersey CJ, White J, Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made. ORDER: Appeal dismissed with costs to be assessed. CATCHWORDS: TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – SUFFICIENCY OF EVIDENCE – appellant was sued for damages for injuries first respondent sustained as a result of a fall on the edge of a footpath – whether sufficient evidentiary basis for trial Judge’s finding that appellant was responsible for incorrectly and negligently laying section of footpath TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – STANDARD OF PROOF TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – ADMISSIBILITY OF EVIDENCE – whether evidence of who performed the work erroneously not admitted Blatch v Archer (1774) 1 Cowp 64, considered Buckle v Bayswater Road Board (1930) 67 CLR 259, referred to Gold Coast City Council v Hall [2000] QCA 92, Appeal No -- 1 of 5 -- 2 4354 of 1999, 24 March 2000, followed Hampton Court Ltd v Crooks (1957) 97 CLR 367, considered Nash v Gold Coast City Council Appeal No 3 of 1988, 5 May 1988, distinguished Yass Shire Council v Burnett [1999] NSWCA 35, distinguished COUNSEL: PJ Lyons QC with PHN Major for the appellant DVC McMeekin SC with WL McCarthy for the first respondent C Fitzpatrick for the second respondent SOLICITORS: King & Company for the appellant Robert Harris & Co for the first respondent Crown Law for the second respondent [1] de JERSEY CJ: The appeal should be dismissed with costs to be assessed. I have had the advantage of reading the reasons of Dutney J, with which I agree. I add these brief observations. [2] The appellant’s written material suggested that the learned trial judge applied “a standard of proof which was demonstrably inadequate”, not sufficiently demanding, that is, in respect of the respondent plaintiff. Nothing in the reasons for judgment suggests that His Honour applied anything but the correct standard of proof, proof on the balance of probabilities. During the hearing the judge made observations about the significance of the appellant Council’s apparent lack of relevant records and its failure to lead evidence as to who it said was responsible for carrying out the work. As suggested by counsel for the respondent plaintiff, His Honour apparently had in mind the dictum of Lord Mansfield in Blatch v Archer [1774] 1 Cowp 64, 65, that “it is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”; or as put by Dixon CJ in Hampton Court Ltd v Crooks (1957) 97 CLR 367, 371, “slight evidence may be enough unless explained away by the defendant and … evidence should be weighed according to the power of the party to produce it". His Honour’s was a perfectly appropriate approach. [3] The appellant contended that the learned judge erred in refusing to allow the admission of evidence for the appellant “of who performed the work the subject of the action”. His Honour made that ruling on the basis that the appellant’s pleading, involving non-admissions, did not permit of its putting forward a positive case of that character. The appellant’s principal witness, Mr Windress, nevertheless gave some such evidence, as His Honour records in his reasons for judgment (footnote 33). It suffices to say that the ruling was justified and His Honour’s approach to the evidence unassailable. [4] WHITE J: I have read the reasons for judgment of Dutney J and agree with him that the appeal should be dismissed. There was sufficient evidence from which the trial judge could draw the inferences which he did and from reading the whole of -- 2 of 5 -- 3 his reasons it is clear that his Honour did not apply anything other than the appropriate standard of proof in doing so. [5] The orders should be that the appeal be dismissed and the appellant pay the costs of each respondent to the appeal to be assessed. [6] DUTNEY J: The appellant, Livingstone Shire Council, was sued in the District Court for damages sustained by the plaintiff/first respondent as a result of a fall on the edge of a footpath in Anzac Parade, Yeppoon on 4 October, 1995. [7] The first respondent had been shopping before venturing into the Strand Hotel in Anzac Parade for a quick drink on his way home. After leaving the hotel the first respondent turned right along the footpath heading towards a phone booth. He turned his head to look back when he saw a taxi pull into a nearby rank and while doing so tripped on a broken edge of the concrete footpath, fell and suffered injury. [8] Central to the case was the condition of the concrete footpath on which the first respondent fell and the identity of the party responsible for it being in that condition. [9] The history of the footpath was obscure. The evidence suggested that the concrete footpath had been laid between 20 and 30 years earlier. Some time later the concrete had been dug out in a trench parallel with the roadway for the purpose possibly of laying telecommunications cabling. This resulted in a patch of concrete several inches wide running the length of the relevant part of the footpath about halfway between the building alignment and the kerb. Later (perhaps 20 years ago) a series of clay drainpipes was laid across the footpath from the building alignment to the kerb. These pipes were then concreted in. Later still (between 15 and 20 years ago) an area of concrete was placed between two of the covered drain pipes on the kerb side of the parallel patch, extending from the kerb itself almost to the parallel patch. In annexure A to the trial Judge’s carefully reasoned judgment this last patch is described as “C” and the concrete covering over the drain to its immediate right hand edge facing the building alignment is described as “D”. [10] His Honour, the primary Judge, found that the cause of the accident was the crumbling away of the kerbside join between “C” and “D”. This itself was the result of the incorrect laying of “C” and in particular the absence of proper joints between “C” and “D”. This finding is not challenged on appeal. [11] The only substantive issue taken on the appeal was whether there was a sufficient evidentiary basis for his Honour to find that the appellant council had been responsible for the incorrect and negligent laying of “C”. Because of the immunity of a highway authority from civil action for nonfeasance the council would only be liable for damages if its misfeasance had given rise to the dangerous condition of the footpath.1 [12] It was further argued that his Honour adopted a different and lower standard of proof, in inferring that the council did the work. It seems to me that this is not a 1 Buckle v Bayswater Road Board (1930) 67 CLR 259 at 281-285. -- 3 of 5 -- 4 separate point and the issue is simply whether there was sufficient evidence to support the finding adopting the ordinary civil standard of proof. [13] The case for the plaintiff/first respondent was a circumstantial one but its foundation was not so flimsy as to rely only on the fact that at the material time the council had the care, control, management and maintenance of the footpath, a fact admitted by the council at trial. The relevant footpath is in the main street of Yeppoon, itself the largest centre and administrative capital of the shire and adjacent to the town’s busiest intersection. Even 20 years ago this would have been a well trafficked area, a fact acknowledged by the Shire’s director of technical services, Mr Windress. The size of the concrete patch, “C”, was such that it could not have been laid and allowed to dry without closing most of the width of the footpath thus creating an obvious pedestrian obstruction and inconvenience. Mr Windress gave evidence that no records now exist which shed any light on who actually performed the work on patch “C” but that such work should only be carried out with the approval of the council and generally by council workers. Nonetheless, he said that on occasions unauthorised work had been done on footpaths. [14] Reliance was placed by the appellant on the decision of the Full Court in Nash v The Gold Coast City Council2 as authority for the submission that the fact of control of the footpath and evidence that work on it was generally carried out by the council was insufficient a basis to infer that particular work had been done by the council. Nash was, however, factually a very different case from the present. In Nash the relevant work consisted of the laying of glazed tiles outside a restaurant. The tiles extended both laterally parallel to the building alignment forming a walkway and, more significantly, across the footpath from the doorway of the restaurant to the kerb. One can readily see, as did the members of the court in that case, that apart from the council there was at least one other party, the restaurant owner, with a significant interest in the laying of those tiles and it was there concluded that the inference that they were laid by the council and not the restaurant owner could not be safely drawn. [15] To like effect was the decision of the Court of Appeal in New South Wales in Yass Shire Council v Burnett3 where the inference could not be drawn in the face of another identified party with an obvious interest in constructing a storm water drain which took water from its own roof across the footpath. [16] In contrast to the decisions referred to above, here the concrete patch “C” provides no obvious benefit to the adjoining landowner. The patch is abutting the kerb and not the building alignment. There is a sufficient walkway between the patch and the building alignment to make it unnecessary for through traffic. The patch is not in immediate proximity to any entrance to the nearest building, the Strand Hotel. No evidence was called which could shed light on why the owner of the Strand Hotel might have patched such footpath and, indeed, after the accident, rather than repair it , the owner of the hotel asked the council to do so. If one couples these factors with the failure of the council to call any person who might be expected to have knowledge even of general council practice in relation to footpath 2 Appeal No 3 of 1988, 5 May 1988 3 [1999] NSWCA 35. -- 4 of 5 -- 5 maintenance at the relevant time and the inherent unlikelihood that, given its location and size, such work could have been carried out clandestinely, one has a much sounder basis for drawing the inference. The shire’s former town planner, Mr Gannon gave evidence for the plaintiff/first respondent to the effect that the council did carry out such footpath repairs at the relevant time. [17] In the result it seems to be that this case is for all practical purposes indistinguishable from the recent decision of this court in Gold Coast City Council v Hall4 where a similar combination of facts was a sufficient factual basis to support the inference that the work was carried out by the council. The appeal on this point should be dismissed. [18] The only other issue raised on the appeal was whether the trial Judge’s order that the appellant pay the second respondent’s costs of the action was an improper exercise of discretion. Quite properly, the appellant’s counsel confined his argument to the situation where the appeal was otherwise successful. In the circumstances it is not necessary to say more than having regard to the conclusion to which I have come on the substantive issue on the appeal the trial Judge’s discretion has not been shown to have miscarried. [19] I would dismiss the appeal. 4 [2000] QCA 92, Appeal No 4354 of 1999, 24 March 2000 -- 5 of 5 --