BUSINESS LAW

ASSIGNMENT

Student Name : Isabel Wong Huey Tze

Lecturer : Lance Andrew Dubos

Student ID : 065TJIWL

Words : 872 Words

Date : 02/09/2020
Case : Steven Graham Clarke v Freater Shepparton City Council [2016] VSC 542

Plaintiff : Mr Steven Graham Clarke

Defendant : Greater Shepparton City Council

Issue:

i) Whether the Defendant had breached its common law duty of care and various
statutory duties in his role as relevant ‘road authority’ to plaintiff under the Road
Management Act 2004?
ii) Whether the reserve in which plaintiff fell and injured considered as ‘pathway’ or
‘roadside’ as defined in Road Management Act 2004?

Rules:

Firstly, the rule highlighted in this case is Section 40 (1) of Road Management Act 2004
where it provides that a road authority has a statutory duty to inspect, maintain and repair a
public road to the standard specified in the road management plan for that public road or a
specified class of public roads which includes that public road. Besides, Section 40 (3) of the
same Act states that the statutory duty to inspect applies to any part of a public road which
should be a ‘roadway’ or a ‘pathway’. The definition of ‘roadway’ and ‘pathway’ was
referred by the judge in Section 3 of the same Act. Likewise, Section 40 (4) of the same Act
also provides that the statutory duty to inspect does not apply to any roadside or other area of
a public road that has not been developed by a road authority for use by the public as a
‘roadway’ or ‘pathway’; or non-road infrastructure which is installed in the road reserve.
Other than that, Section 101 of Road Management Act 2004 states that in determining
whether a road authority, infrastructure manager or works manager has a duty of care or has
breached a duty of care in respect of the performance of a road management function, a court
should consider the principles specified in Section 83 of the Wrongs Act 1985. Moreover,
Paragraph 6 of Schedule 7 of Road Management Act 2004 also states the duty of an
infrastructure manager to take reasonable measures to maintain non-road infrastructure or
related works to a satisfactory standard. Lastly, the defendant had relied on Section 107 of
Road Management Act 2004 and claimed that the reserve came within the definition of a
roadside instead of a pathway under this section.
Analysis:

In this case, the judge firstly concluded that the reserve came within the definition of
‘pathway’ as stated in Section 3 of the Act. Consequently, the judge held that the respondent
could not rely on Section 107 of the Road Management Act as a defence to the plaintiff’s
claim. Next, the judge had considered whether the plaintiff had established that his injuries
had been caused by a breach of the duty by the defendant. The judge found that the relevant
risk of harm was that a pedestrian crossing the reserve at night would encounter the storm
water pit and come to grief upon it pursuant to Section 48 of the Wrongs Act 1958. So, the
judge concluded that Paragraph 6 of Schedule 7 of the Road Management Act applied in this
case and the judge was referring to the case of Gosling v Lorne Foreshore Committee of
Management Inc & Anor1 which characterised the duty of care, owed by the defendant to the
plaintiff, would not see and avoid as a duty to pedestrians to eliminate or reduce hazards
which a pedestrian, having reasonable care for his or her own safety. Accordingly, His
Honour held that the hazard, created by the pit, clearly fell within the responsibilities of the
defendant as an infrastructure manager to reduce or eliminate the risk against any pedestrian.
The respondent had responsibility for inspecting the storm water pits as part of the non-road
infrastructure of the reserve, and the respondent is said to have actual knowledge of the
nature of the raised storm water pit through its regular inspection and maintenance activities
as stated under Section 40 (1), (3) and (4) of the Road Management Act. Thus, the plaintiff’s
claim is justified as the defendant had breached its common law duty of care and statutory
duty in his role as relevant ‘road authority’ to plaintiff under the Road Management Act
2004.

Conclusion:

In short, I agreed with the judgment of trial that the defendant had breached its duty of care as
the defendant had failed to maintain the reserve by building up the area in proximity to the
storm water pit and failed to reduce or eliminate the dangers caused by the pit against any
pedestrian. I believe that in the absence of any evidence by the respondent that precaution
action was taken to the reserve, the respondent could not depend on Section 107 of Road
Management Act 2004 as a defence against plaintiff’s claim and Section 107 does not affect
or displace the common law duty of care owed by Council as an infrastructure manager.

1
[2009] VSCA 228
Reference:

Case:

Clarke v Greater Shepparton City Council [2016] VSC 542

Gosling v Lorne Foreshore Committee of Management Inc [2009] VSCA 228; 25 VR 302

Statute:

Road Management Act 2004

Wrongs Act 1985

Website:

https://insurance.moray.com.au/publication/greater-shepparton-city-council-v-clarke-2017-
vsca-107/

https://pinpoint.cch.com.au/document/legauUio2735500sl753915465/clarke-v-greater-
shepparton-city-council