Greater Shepparton City Council v Clarke  VSCA 107
May 31, 2017
The Victorian Court of Appeal has considered the construction of various key provisions of the Road Management Act 2004 (Vic) (RMA) including section 107, clause 6 of Schedule 7 and the responsibilities of a ‘road authority’ and ‘infrastructure manager’.
At 8.00pm on 14 September 2008, Mr Clarke allegedly tripped on a raised stormwater pit located on a grass reserve in Shepparton, suffering significant injury to his left hip.
Mr Clarke commenced Victorian Supreme Court proceedings against the Greater Shepparton City Council (Council), in which he claimed damages on the grounds Council breached its common law duty of care and various statutory duties as the relevant road authority for the reserve and infrastructure manager of the stormwater pit.
On 8 September 2016, His Honour Justice Keogh gave judgment in favour of Mr Clarke in the sum of $422,710 plus costs agreed or assessed, including $275,000 for general damages. An appeal by Council was dismissed on 9 May 2017, although the Court of Appeal unanimously upheld Council’s ground of appeal with respect to the nature of Council’s statutory duties under the RMA.
Mr Clarke allegedly tripped on one of three Council‑owned raised stormwater pits while ‘traversing’ a grass reserve bordered by four public roads in Shepparton, Victoria.
The precise circumstances of Mr Clarke’s accident were the subject of debate at trial due to inconsistencies in the evidence. Nevertheless, the Court accepted that Mr Clarke had tripped and fallen due to it being too dark to see the raised stormwater pit.
The case at trial was essentially limited to two main points: Whether the reserve was a ‘public road’ (specifically, a ‘pathway’) and the nature of Council’s statutory and common law duties as road authority and infrastructure manager.
The Court held the reserve was a ‘pathway’ for the purposes of the RMA and consequently Council owed and had breached a duty as road authority to inspect, maintain and repair the reserve in accordance with section 40(1) of the RMA.
The Court also held the stormwater pit was non-road infrastructure, and Council owed and had breached a duty as infrastructure manager in accordance with clause 6(d) of Schedule 7 of the RMA.
Consistent with these findings, the Court determined that section 107 of the RMA did not offer Council a defence to its breach of section 40 or apply to Council as an infrastructure manager.
The Court also found that Council breached its common law duty of care by failing to take any precautions in response to the hazard caused by the raised stormwater pit; such as building up the earth around the pit, painting the edge of the pit a contrasting colour, or erecting a warning sign. Damages were reduced by 15% on account of Mr Clarke’s contributory negligence.
Council principally relied on three grounds of appeal: the nature of its statutory duties, breach and causation.
Ultimately, the latter two grounds were dismissed. However, importantly for Council and other road authorities in Victoria, the first ground was unanimously upheld. The Court of Appeal provided a detailed analysis of key provisions of the RMA including section 107 [liability of a road authority], clause 6(d) of Schedule 7 [duty to maintain non-road infrastructure] and definitions including ‘pathway’, ‘developed’ and ‘roadside’.
The nub of Mr Clarke’s argument was that the reserve was a ‘pathway’ and captured by the words ‘or other area’ in the definition of ‘pathway’ in the RMA. The Court of Appeal disagreed and accepted Council’s submission that the reserve is ‘roadside’ and said a ‘pathway’ is:
An area of land developed and used for the purpose of passage (other than by a motor vehicle) [and cannot] from time to time vary according to the use to which that area [is] put.
Council argued that the Court at first instance incorrectly held that the reserve was ‘developed’ by Council for use by members of the public as a ‘pathway’ and that simple maintenance activities, such as mowing the grass, did not constitute ‘development’ of the reserve for use as a ‘pathway’.
The Court of Appeal agreed that Council did not ‘develop’ the reserve for use by members of the public as a ‘pathway’ and said Council’s simple maintenance activities fell ‘well short of satisfying the term “developed” ’:
To develop a piece of land is to alter its character in a material respect.
Council argued that the RMA divides the concept of a ‘public road’ into five components, namely: roadside, shoulder, roadway, pathway and ancillary areas, and a roadway is limited to the area of a public road which is open to or used by members of the public for driving or riding vehicles.
The Court of Appeal agreed and said:
The ‘roadside’ is the area beyond the roadway, and beyond the shoulder, but which does not include a pathway.
The key issue was whether the reserve in which Mr Clarke fell came within the second limb of section 107, that is ‘… to maintain, inspect or repair the roadside of any public highway (whether or not a public road)’.
It was not disputed that the reserve formed part of a ‘public road’, albeit it was unsealed and part of the ‘road reserve’ as defined by section 3 of the RMA.
Having found that the Court’s conclusion at first instance was erroneous, the Court of Appeal confirmed:
It follows that under section 107 of the RMA the Council did not have a statutory or common law duty to perform road management functions in respect of the reserve.
Clause 6 of Schedule 7
The Court of Appeal held that the statutory duty of an infrastructure manager under clause 6(d) of Schedule 7 of the Act only applies to ‘infrastructure’ placed on a ‘roadway or pathway’ and said:
The conclusion that the reserve was not a pathway (nor was it a roadway) means that clause 6(d) did not apply to the stormwater pit.
However, the Court of Appeal confirmed that section 107 does not affect or displace the common law duty of care owed by Council as an infrastructure manager.
Accordingly, Council continued to owe a duty to take care to eliminate or reduce hazards which a pedestrian – having reasonable care for his or her own safety – would not see and avoid; in the present case, the raised stormwater pit.
The Court of Appeal’s decision that Council breached its duty of care to Mr Clarke was not unexpected.
However, the Court of Appeal’s detailed reasoning with respect to Council’s statutory duties and the RMA provisions is most welcome and will provide clarity and certainty to future litigation involving road authorities and infrastructure managers.
Authored by Nigel Kemp, Partner and Katherine Davis, Senior Associate, Melbourne
Insured covered for cost of restorative works but not preventative works under liability policy of insurance
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