On 20 August 2015, the Court of Appeal handed down the judgment in the matter of Kennedy v Shire of Campaspe  VSCA 215. This was the first occasion on which the court has had the opportunity to consider the operation of the Road Management Act 2004.
The appeal came to the court following a decision by Judge Bowman that the statutory defences set out in sections 102, 103 and 105 of the Act provided the Shire with complete immunity to the plaintiff’s claim which arose out of her tripping on a section of footpath that was approximately 10 to 12mm higher than the surrounding pavement. Having decided that the statutory defences were available to the defendant His Honour did not go on to consider whether the plaintiff may have had a claim in negligence against the Shire.
The evidence at trial was that the Council had a Road Management Plan and that the relevant intervention level was not reached until there was a 30mm height difference between adjoining sections of pavement. However, evidence was obtained from Council officers that the Council endeavoured to meet standards that exceeded those set out in Road Management Plan. More specifically it had what was described as a proactive list for grinding. The Shire’s witnesses described how inspection reports categorised various levels of steps in footpath surfaces above 5mm. Concessions were made that subject to funding and convenience, including the availability of contractors in an area, the Shire endeavoured to eliminate steps over 10mm. Safety and customer satisfaction were noted as factors driving this practise. One of the Shire’s witnesses said that they endeavoured to get their footpaths “in a really really good state”.
Regrettably for the Shire, the Court of Appeal elevated the Shire’s endeavours to provide a better standard of pavement than set out in the Road Management Plan by describing this as a policy which was contemplated in section 39 of the Road Management Act. By this means it imposed a higher standard upon the Shire than was present in its Road Management Plan thereby depriving it of its ability to rely upon the statutory defences that might otherwise have been available to it under the Act.
Furthermore, the Council was also subject to criticism for having failed to comply with the inspection intervals set out in its Road Management Plan. The fact that it failed to comply with the relevant interval by only a few days and that there may have been a subsequent inspection revealing the path to comply with the intervention standards set out in the Road Management Plan was of no real consequence to the court.
Despite the fact that the Court of Appeal was forced to admit that even on its own analysis the defendant’s supposed shortcomings had not caused the plaintiff’s injury and that there was apparently plenty of evidence to suggest that the plaintiff didn’t have much of a common law claim it remitted this action to the County Court for retrial solely in order to determine whether the plaintiff has a claim against the Shire in negligence.
It seems somewhat unfair that the Shire’s well-intentioned attempts to exceed the standards set out in its Road Management Plan led to it being deprived of the ability to rely upon the statutory defences that might otherwise have been available to it in the Road Management Act.
Regrettably, the Court of Appeal was able to elevate what might reasonably be regarded as an ad hoc practice into what it categorised as a policy due to evidence that the Shire was always striving to achieve higher standards. The fact that this apparent desire was not reflected in any formal document or recorded anywhere in a Minute made no difference to the Court’s conclusion. It was enough for the Court of Appeal that one of the Shire’s witnesses admitted the proactive list was “basically our practice of what we do”. The fact that what the court regarded as a policy was fundamentally inconsistent with the intervention standards set out in the Road Management Plan didn’t bother it all.
As a consequence of the court’s decision it is vitally important that every Council carefully review its Road Management Plan and adopt procedures so as to ensure that practices adopted by its staff or departments which might involve acting to higher standards than those set out in the Road Management Plan can’t be categorised as policies that can then be used to undermine the protection that might otherwise be afforded by a well crafted Road Management Plan and potentially act to deprive the Council of defences that might otherwise be available under the Road Management Act.
We suggest amendments to Road Management Plans which make it clear that the Road Management Plan is intended to provide an all-encompassing policy document for matters relating to the management of the roads and footpaths within a municipality. The Road Management Plan should set out the means by which binding policies can be made and preferably who is empowered to make them. The plan should clearly state that in the event any practice, activity, procedure or the like adopted any standards inconsistent with the plan then those practices, procedures, activities or the like should be regarded as being inconsistent with the standards set out in the Road Management Plan. Furthermore, a review of the inspection intervals set out Road Management Plans should be undertaken so as to introduce both a degree of flexibility as to the timing of inspections and also allow for the failure to undertake an inspection within the necessary time interval to be cured by a subsequent inspection regardless of when the results of the inspection become known within the council.
Finally, it is worth noting that despite the Court of Appeal’s efforts to undermine the defences set out in the Road Management Act we consider a Road Management Plan to be a vital part of any council’s efforts to manage the risks it faces in the management of its road and footpaths. Furthermore, nothing that was said by the court has done anything to encourage pedestrians to think that their prospects of being able to demonstrate that a highway authority has been negligent have improved in any way.
On 23 July 2007, the appellant, Irene Kennedy (‘Kennedy’) was walking on Haverfield Road to the south of Ogilvie Avenue, Echuca (‘the footpath’). Kennedy tripped over a lip of about 10 to 12mm (‘the lip’) created by uneven concrete paving sections (‘the incident’). She sustained injury to her right wrist and sued the respondent, the Shire of Campaspe (‘the Shire’) for damages arising from an alleged breach of duty under the Act and in negligence.
The Shire denied any breach of duty and relied on defences under pt 6 of the Road Management Act (“the Act”) (specifically ss 102, 103 and 105) and s 83 of the Wrongs Act 1958 (‘Wrongs Act’), and pleaded contributory negligence.
The Shire argued that the lip was obvious, and that the fall was caused by Kennedy not lifting her right foot sufficiently high enough. They also submitted that there was no common law duty, because such a duty only arises in circumstances where a plaintiff exercises reasonable care for their own safety, and in this instance Kennedy had failed to exercise that reasonable care.
Decision at first instance
The trial judge held that, although Kennedy may well have had an arguable case against the Shire based upon negligence, the operation of the Act prevented her from succeeding.
The Court of Appeal found in favour of the Kennedy and that:-
- The Shire breached its statutory duty to inspect, maintain and repair public roads and the statutory defences are not available to the respondent.
- Although the Court of Appeal said that it was not open to find a causal connection between the respondent’s breach of statutory duty and the incident.
- Kennedy failed to establish the Shire’s liability for her pain and suffering based on a breach of its statutory duty. At trial there was no consideration of the common law claim hence the case was remitted to the County Court to have any common law cause of action heard and determined.
Not all Road Management Plan (“the Plan”) are necessarily a policy and vice versa. However, based on the reasoning of the Court of Appeal, the question of whether a plan is a policy or a policy is a plan, really depends on the relevant standard, whether the plan can be construed as a policy and whether there has been a breach.
The Shire was in breach of the standard, it imposed by their own plan for the timeliness of inspections of secondary footpaths, which was a breach of the duty to inspect.
Where a standard governing the frequency of inspections has been breached the breach could not be cured until the relevant authority has obtained the relevant inspection report.
The Shire’s failure to repair the lip, erect signage was not a result of scarce resources, social or political considerations- it was due to failure to become aware of the lip due to carelessness of an inspector who had failed to comply with the Shire’s policy of detecting and reporting lips.
Kennedy relied upon the failure of the inspector to detect the lip as a breach of policy, which required the Shire and its inspectors to record all lip irregularities. The inspector was never called to give evidence and the Court of Appeal agreed with the trial judge that the failure to call the inspector as a witness supported the inference that the Shire had actual knowledge that there was a risk that could lead to harm, within the meaning of section 102 of the Act.
Interestingly, the Shire’s Technical officer, Glen Major (Major) gave evidence. Major was asked about the Plan and explained the proactive list. He said that the Shire would grind ‘things’ less than 15 mm for customer satisfaction and that a lip of 10mm did not pose as a hazard. There was no obligation for the Shire to do anything and the proactive grinding occurred as a way for the Shire to ‘keep the ratepayers happy’- not as a safety precaution or hazard minimisation.
His evidence gave a very strong impression that intervention of lips less than 30mm was a practice adopted by Council; and raises an interesting question: How can a council breach their own standard, if the standard to grind lips less than 30mm is for ‘customer satisfaction’? Well, the answer depends on whether the standard forms part of a policy.
The Shire’s Road Management Plan
At the time of the incident, the Shire had adopted a plan on 14 December 2004 and was operative up until the time of the incident, the plan required:-
- Intervention to footpaths at a level of 30mm or more;
- Intervention within 30 days from the date of a known defect;
- No immediate intervention for anything less than 30mm – unless, of course there was a known defect, in which case the immediate intervention was required.
- Inspections every 18 months.
- Inspectors to record everything over 30mm and then 5mm, 10mm, 20mm and 30mm.
- Anything less than 30 mm was put on a proactive list and would be ground at the end of the financial year- depending on how much money was left over.
Is it a plan or a policy
It was the trial judge found that the Shire’s Plan was a policy within the meaning of section 39 of the Act. This meant that certain statutory defence were unavailable to the Shire because the Plan was deemed a policy.
The Court of Appeal agreed with Kennedy, that the Shire had a policy that was distinct from the Plan, because the systematic approach taken by the Shire of the grinding down of lips on footpaths was something that was ‘done’ to try and maintain a ‘standard’. There was a continuing breach of its duty to inspect in accordance with the standard of frequency set out under the Plan.
The Plan was a practice of the Shire and over time, amounted to a policy and if the proactive list is taken to be a policy, then the Shire did not act in accordance with its policy. The Court of Appeal said that the policy was ‘inherently flexible’ and lacked ‘stringency’. Putting a hazard on a proactive list gave no guarantee as to when it would be remedied. It gave no guarantee as to any remedial action, including a warning.
It was also noted that when the Shire became aware of a hazard, there was no evidence that a warning sign, bollard or hazard sign was placed around the protruding lip. The Court of Appeal said that the evidence of the policy was that once a lip was placed on the proactive list, there was no guarantee that it would be fixed- it depended on left over money.
What is the standard?
The Court of Appeal said that the duty to inspect under section 40 of the Act meant that the Shire was under a statutory duty to inspect, maintain and repair public roads. That the standard imposed is a hierarchy of duties upon a road authority.
The standard is either found in a road management plan, specified policy and if no plan or policy then the standard is to act at a reasonable level having regard to the character of the road and state of repair in which a reasonable person would have expected to find a road of that character. Interestingly, the Court of Appeal found that the Shire had two standards, one being the maximum permissible duration of inspections being 18 months and the second being the intervention level of 30mm for immediate action.
At this point it is important to understand that section 41 of the Act sets out the way in which an authority can determine standards in relation to inspection, maintenance and repair of defects reported or found.
- Under section 39, it is these standards that may be determined a policy or in a road management plan.
- Based on the evidence of the Shire’s technical officer, the failure to call the relevant inspector as a witness (which allowed the Judge to draw a negative inference), the Court of Appeal’s interpretation of the Shire’s plan as a policy lead to the ultimate conclusion that: the Shire had a Plan, that was deemed a policy, the Shire failed to comply with its’ own standards and was, therefore, unable to rely on the statutory defences.
- Depending on whether it is a policy or a plan, will impact on your ability to rely on statutory defence under the Road Management Act.