Garvan v Australian Capital Territory [2002] ACTSC 70 (26 July 2002)

Last Updated: 2 August 2002

Eileen Joan Garvan v Australian Capital Territory [2002] ACTSC 70 (26 July 2002)

CATCHWORDS

PERSONAL INJURIES - Public authority - fall on footpath - concrete irregularity on paved area - no breach of duty of care by public authority

Australian Capital Territory v Badcock [2000] FCA 142, (2000) 169 ALR 585

Australian Postal Corporation v Bessey [2001] FCA 266

Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 180 ALR 145

Lake Macquarie City Council v Bottomley (1999) 103 LGERA 77

Waverly Municipal Council v Wagner [2002] NSWCA 10

Wilson v Piesley (1975) 7 ALR 571

No. SC 1000 of 1999

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 26 July 2002

IN THE SUPREME COURT OF THE )

) No. SC 1000 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: EILEEN JOAN GARVAN

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

Defendant

ORDER

Coram: Master T. Connolly

Date: 26 July 2002

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the defendant with costs

1. This is a claim for damages for personal injuries arising from a fall which the plaintiff suffered while walking with a friend in the Garema Place pedestrian precinct in Canberra City on 12 June 1996. The plaintiff, who at the time of the incident was a retired schoolteacher, had lunched with a friend and was walking with her friend, Mrs Cox, in a generally easterly direction. She tripped on a raised piece of concrete in the paved pedestrian area. She described the piece of concrete as being round, about 25 to 30 centimetres in diameter, and two centimetres above the general level of the paving in the surrounding area. The Garema Place area, then as now, is paved with concrete bricks, and photographs were tendered showing the general area.

2. The plaintiff's case is that as a result of the trip she sustained injuries which have lead to an aggravation of a pre-existing right hip condition which has lead to a hip replacement, and a shoulder injury which has lead to a right shoulder replacement. There were also frank injuries in the nature of a fracture to the left elbow and a compression facture at L2.

3. Liability was strongly in issue, as well as the extent to which her medical condition is attributable to the effect of this accident.

4. Mrs Garvan described the circumstances of the fall as follows:

"We were walking along and at that time they had removed most of the bollards to allow the trucks for the building of the Garema Building, I think it's called. And it was pretty rough round about there, and I mustn't have been watching my feet, I suppose, and I tripped on the- this remains of what I was told was a bollard, which was a round of concrete, I suppose like a very much flattened down donut that held down the hammered out iron pole which had obviously supported some structure."

She said that the concrete, which was what she tripped on, projected above the surrounding paving by about two centimetres. There is a photograph of the point where she says she tripped tendered in these proceedings as Exhibit B, but she says that when this photo was taken some weeks after the fall the concrete was no longer there, and the photograph does not show any concrete. Mrs Garvan said that projecting out from the middle of the concrete was the remains of an iron pole, and this was about another two centimetres above the paving, but by the time the photographs forming Exhibit B were taken some weeks after the incident the iron pole had been flattened down. No one knows who did this, but the plaintiff's case is clearly that she tripped on the 2 centimetre high concrete, and not the remains of the iron pole. All that is shown in the photograph is the flattened down remains of a metal pipe which appears flush with the surrounding paving.

5. Mrs Garvan impressed as an honest witness, and it was not put to her that she was mistaken about the existence of the concrete. Her companion, Mrs Cox, also said that she saw that the plaintiff tripped on a piece of concrete about two centimetres above the level of the paving, but she thought that the concrete was square. I am satisfied that the plaintiff did trip on a piece of concrete about 2 centimetres above the level of the surrounding paving, and about 25 to 30 centimetres in diameter.

6. The plaintiff thinks that the concrete was the remains of a bollard, but the officers of the Department of Urban Services who gave evidence for the defendant were not able to identify it with any more precision. The evidence of the defendant, through Mr Mercieca and Mr King, is that there had been no complaint of any hazard in this area prior to the fall. They inspected the area some months after the fall, and there was some criticism of this delay, but the letter of complaint from Mrs Garvan, dated 25 June 1996 was that the slab was no longer there, and she did say in that letter "I was glad to see this did not constitute a public risk to others." It seems to me that the departmental officers cannot be criticised for affording an inspection of the area a lower priority when the complaint on its face says that the hazard has been removed. The department has no knowledge of how the concrete came to be in the pedestrian area, or how it came to be removed.

7. The plaintiff, beyond suspicion that the concrete was the remains of a bollard, has no knowledge of how it came to be there or how it came to be removed.

8. Counsel for the defendant submitted that on this state of evidence the plaintiff must fail, as there was no evidence to show who placed the concrete in the pedestrian mall. In Waverly Municipal Council v Wagner [2002] NSWCA 10 the New South Wales Court of Appeal held that a plaintiff did not establish a case in negligence where all that was proven was that the plaintiff tripped on a loose paver in a council footpath. Young CJ in Equity, in a passage agreed with by Meagher and Sheller JJA, endorsed a proposition of Powell JA from Lake Macquarie City Council v Bottomley (1999) 103 LGERA 77 where it was said

"If the evidence which is tendered to a court does not disclose when, or by whom, or by which, the relevant work was carried out, the plaintiff's claim must, without more, fail for want of proof."

9. On the law as it stood before the High Court decision in Brodie v Singleton Shire Council; Ghantos v Hawkesbury City Council [2001] HCA 29; (2001) 180 ALR 145 a plaintiff may well have been able to recover where they tripped over an irregularity in a pedestrian area, at least where it was a heavily trafficked area, by establishing that the local authority had an obligation to take reasonable steps to inspect the pedestrian area and repair such defects. In Australian Capital Territory v Badcock [2000] FCA 142, (2000) 169 ALR 585 the Full Court of the Federal Court dismissed an appeal from the Full Court of this Court against a decision of the Master where it was found that the Territory was negligent in failing to repair a protruding paving block in a carpark adjacent to Canberra City. In that case, there had been a complaint about hazardous pavers made to the Department before Mrs Badcock had her accident, and this is a significant difference from the present case. Einfeld J said at 593

"A person walking on what is obviously a pedestrian area, designed, installed or permitted to be used for that purpose, need not be permanently on the lookout for hazards on a step by step basis...A variation in the height of the pavers in an area such as existed here created an edge which is more hazardous than undulation or uneven surfaces in a nature reserve."

10. At 595 His Honour said

"While people walking in public areas must take general care for their own safety, they cannot be required to assess, as they proceed, which particular paver irregularity may cause them injury and which probably will not. In public areas they are entitled to rely on the area's custodians to remedy or otherwise protect them from all recognisable risks of injury."

11. Mr Pilkinton submitted that this no longer represents the law following the High Court's significant restatement of the law relating to the liability of public authorities in Brodie v Singleton Shire Council; Ghantos v Hawkesbury City Council.

12. The defendant accepts the existence of a duty of care on behalf of the Territory as the public authority with responsibility for maintaining roads footpaths and pedestrian areas in Canberra, but argues that, on the law as stated in Brodie, there is no breach of the duty in the present circumstances.

13. In the joint judgment of Gaudron, McHugh and Gummow JJ it is said at para 163 (p 192)

"The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for there own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes."

14. Justice Kirby agreed that the pedestrian claim, Ghantous, must fail, stating at [243]

"Mrs Ghantous did not establish that the original construction of the footpath was negligent; that its design or state at the time of the accident was in any way inappropriate or a cause of her accident or that the respondent's exercise of its planning powers was defective."

With respect, the same could be said in this matter. Justice Kirby continued at [244]

"A body such as the council has little effective control over the use by pedestrians of a footpath and its surrounds, once created. Such structures do not have an indefinite lifespan. They are subject to deterioration by reason of the weather, or ordinary traffic use, of subterranean changes, of public utilities that lawfully disturb them and other persons who unlawfully do so. The rate of deterioration will vary. Necessarily it is unpredictable and largely out of the control of a body such as the respondent."

15. Later in his judgment His Honour said, in an important passage [248] (213)

"Local authorities are not insurers for the absolute safety of pedestrians or other users of roads and footpaths. To recover, a person in the position of Mrs Ghantous must establish a want of reasonable care causing his or her injuries. Her mishap was simply an accident. Her damage was not shown to be the result of negligence on the part of the respondent. No other basis was made out upon which she could succeed."

16. Justice Callinan, in a passage which was endorsed in the joint judgment, said at [355] (240) that there was no negligence established against the council in respect of the uneven pavement where Mrs Ghantous fell because

"There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this."

17. It seems to me that, although Badcock is a decision binding upon me as a decision of the Full Federal Court, those aspects of Einfeld J's judgment set out above can not stand with the decision of the High Court in Brodie and Ghantous, and I must of course apply the law as stated by the High Court. I should note that it may well be the case that Badcock was in any event correctly decided, because there was evidence of repeated complaints to the Department of Urban Services about the dangers created by raised pavers in the area of Mrs Badcock's fall, and the Department had knowledge of other falls in the period immediately preceding her fall, but did not remedy the situation. It seems to me that it is implicit in the judgments in Brodie and Ghantous that, where a public authority is on notice of a particular hazard which can easily be remedied, it must act.

18. But there is no evidence that the Territory in this case had any knowledge of the concrete irregularity on the paving that amounted to a 2 centimetre raised area. The proposition that the Territory must constantly monitor all paved areas for irregularities is inconsistent with the decision in Brodie and Ghantous. The Territory tendered an extract from a published public document that showed that, as at June 2000, it was responsible for over three million square metres of community paths in the Australian Capital Territory. It can not be said that a public authority in such circumstances acts unreasonably merely because it is not aware of a 2 centimetre irregularity at one point in the network of paths, even if that point is in a highly trafficked area. It must be remembered that Mrs Ghantous also fell in a highly trafficked area.

19. It seems to me that this type of irregularity is the type of irregularity referred to by the High Court and, in the absence of any failure by the Territory to act on any complaint, it is not, as Kirby J said, in the position of an insurer. It seems to me that Mrs Garvan, like Mrs Ghantous, had the misfortune to accidentally trip on an irregularity in the paving area that was clearly visible. To find liability in such circumstances, it seems to me, would be inconsistent with the law as stated in Brodie and Ghantous. I find that her unfortunate fall was an accident, but it was not the fault of the defendant. Accordingly there should be a judgment for the defendant.

Damages

20. Although I have entered a judgment for the defendant it is still appropriate for me to assess damages.

21. The plaintiff at the time of the accident was a 66 year old retired teacher. She says that she saw her foot catch the edge of the raised concrete as she fell, and then she fell onto her right knee and her elbows. Her right elbow was cushioned by her handbag, but her left elbow hit the paving. She was shocked, and says she had pain everywhere. She rolled into a sitting position, and rested for a while. A gentleman helped her to her feet, and held her there until she was able to stand. Her friend then assisted her to walk towards the Canberra Centre where she had to pay her account at David Jones. She says that she nearly fainted as she was doing this, and a young staff member got her a glass of water and then rang for a taxi to take her home. She directed the taxi to her general practitioner, Dr Uren. He had been her longstanding family doctor. In his report of 21 June 1996 Dr Uren said

"Mrs Garvan consulted me in my surgery on the 12 June this year after she had fallen on a piece of concrete near Garema Place. She fell heavily onto her left elbow sustaining a fracture of the neck of the radius. In addition to this she jarred her lumbar and cervical spine aggravating a previous degenerative condition. She sustained several bruises particularly around her right knee and her right hip has been causing pain."

22. Mrs Gavan says that she knew before the fall that she had a degenerative arthritic condition in her hip, and that this would probably eventually lead to a hip replacement procedure, but she says that she had hoped that this would not occur for some years. She says that she was not in particular discomfort, although prolonged walking could cause some inconvenience. In August 1996 Dr Uren referred her to Dr Morris, orthopaedic surgeon, saying that she has had known osteo-arthritis of her right hip since 1992.

"She was managing with her problem until a recent fall in Civic in which she sustained a undisplaced fracture of the head of her left radius, aggravation of her degenerative lumbar sacral spinal disc and marked aggravation of her osteo-arthritis of her right hip."

Dr Morris saw her in September and recommended that she go to surgery, and he performed a hip replacement procedure on 25 October 1996.

23. In his report of 9 March 2000 Dr Morris said that the fall "aggravated her lumbar spine degeneration and her hip arthritis", but concluded

"I do not believe the fall she sustained in Garema Place had any bearing on her underlying hip osteoarthritis which had been demonstrated back in 1992 and progressed over that time and eventually culminating in her total hip replacement."

He clarified this statement in a report of 10 May 2000 in which he said

"While I believe that the fall Mrs Garvan experienced did not of itself change the underlying hip arthritis that she had experienced since 1992, I concede that the fall would have certainly aggravated her symptoms for a period of time afterwards"

He concluded that the fall

"has not damaged the hip joint specifically other than to have a temporary aggravation in the underlying symptoms of her hip arthritis."

24. Dr Cairns, who reported for the defendant, said in his report that in the fall the plaintiff

"sustained an undisplaced fracture of the left radial head, minor compression fracture of the L2 vertebra, transient aggravation of pre existent lower back disability and pre existent osteoarthritis involving her right hip joint."

25. I am satisfied that the fall has, in addition to the frank injury of the broken elbow and the crush fracture at L2, had the effect described by both Dr Morris and Dr Cairns, that is a temporary aggravation of her underlying degenerative condition in the back and right hip.

26. The reports of Dr Uren do not mention shoulder pain. In December 1997 she had changed general practitioners due to the retirement of Dr Uren, and Dr Thie had x-rays done of her shoulder, which showed advanced osteoarthritis in the right shoulder. A subsequent ultrasound showed a rotator cuff tear. Mrs Garvan said in her evidence that she noted extreme pain in her right shoulder when she was in hospital for the hip replacement in October 1996 and had to raise herself from a reclining position in the bed by pulling herself up from a bracket above the bed.

27. Dr Woods performed an arthrogram of the right shoulder in May 1998 and a replacement arthroplasty of the right shoulder in July 1998. In his report of August 2001 Dr Woods says he first saw the plaintiff in April 1998 with a history of right shoulder pain which had been worsening over three years. He said of her shoulder condition:

"I believe that the condition suffered by Mrs Garvan was a degenerative osteoarthritis of both shoulders with the right being more affected than the left at the time that she was examined. I did not obtain a specific history that linked the onset of these symptoms to the fall that was mentioned having occurred in Jude 1996. The shoulder arthritis that Mrs Garvan suffered is likely to have been due at least in part to some underlying or constitutional cause. It is conceivable that clinically silent arthritis which is in existence may be made more symptomatic due to the effects of an injury."

28. Dr Scott, who provided a medico legal report in October 2001 says that he notes Dr Woods comments, and expresses the view that the plaintiff aggravated her degenerative shoulder condition and sustained a right rotator cuff lesion in the fall in 1996. The general practitioner also asserts that the rotator cuff lesion occurred in the fall. These assertions are not supported by reasoning, and are hard to reconcile with the absence of shoulder pain noted by Dr Uren, her evidence that sharp shoulder pain occurred as she was attempting to raise herself while recuperating from the hip operation, and the report of Dr Woods, who is the treating specialist in respect of the shoulder. I note that he says that he did not obtain a history that links the shoulder pain with the fall. I am not satisfied that the rotator cuff lesion was caused or aggravated by the fall.

29. I am satisfied on all of the evidence that in the accident the plaintiff sustained a fracture of her left arm, a crush fracture at L2, bruising and abrasions, and soft tissue injuries and an aggravation of a previously symptomatic degenerative condition in her hip and low back. The plaintiff claims that the fall was the reason for the hip operation in October 1996, but this proposition is simply not supported by the medical evidence. Dr Morris, the treating orthopaedic surgeon in two reports refers to a temporary aggravation of her degenerative hip condition, and he clearly does not state that the operation was caused by the fall, or even that the operation was brought forward by the fall. The medical evidence is even more ambiguous in relation to the complaints of shoulder pain. The assertion that the rotator cuff tear was accident related is not consistent with the history taken by Dr Woods, the treating surgeon, or the history given in the witness box of frank pain following the attempt to lift from the bed following hip replacement. I am prepared to accept a degree of aggravation, again on a temporary basis, of the longstanding degenerative shoulder condition.

30. The approach a court must take in assessing damages where an accident aggravates a pre-existing condition has been well settled. The long established propositions from Barwick CJ's judgment in Wilson v Piesley (1975) 7 ALR 571 at 574 has recently been restated with clarity by Gyles J in Australian Postal Corporation v Bessey [2001] FCA 266 where His Honour stated that

"if an underlying condition is aggravated in the sense of it being made worse, any incapacity which results is compensable. On the other hand if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity"

31. I can well understand that from Mrs Garvan's perspective this unfortunate fall can be seen as the event that has precipitated a series of operations as her longstanding degenerative hip and shoulder conditions have gone to surgery. However, in the absence of the treating specialists linking the fall to a need to bring forward an operative procedure, it seems to me that the evidence does not support a link between the operations and the fall.

32. There was a claim particularised for anxiety and depression, but this does not seem to me to be supported by the medical evidence, and there was also evidence of some longstanding treatment which predated the fall.

33. Notwithstanding this, the general damages must reflect the fact of the frank injuries and the aggravation in the symptoms of the longstanding degenerative conditions in her back, hip and shoulder on a retired lady who was in generally good health notwithstanding these pre-existing degenerative conditions before the fall. I would assess general damages in the sum of $50,000, all of which I would attribute to the past, which would generate interest to the hearing date of $6,126. I would award general damages in the sum of $56,126.

34. There is no claim for loss of earning capacity as the plaintiff had been retired for some years from her former teaching career at the date of the accident.

35. The claim for out of pocket expenses was particularised to the date of the hearing as a claim for $45,530.03, but this includes the costs of the various operations which, on the evidence, I have not found to be attributable to the fall. It also includes costs of breast procedure, which is not attributable to the fall on any medical evidence. Looking at the breakdown of the medical expenses in Exhibit E, it seems to me that an award of $4000 is an appropriate sum for expenses to cover the frank injuries and temporary aggravation of the underlying condition that I have found to be accident related.

36. A Griffiths v Kerkemeyer claim was particularised in some detail, and was supported by the evidence of the plaintiff and her daughter. I have no doubt that the plaintiff's daughter provided a high level of care to her mother, and has continued to do this, particularly after the various operative procedures that the plaintiff has undergone. I have not, however, found these operations to be accident related, so the Grifiths v Kerkemeyer claim must, it seems to me, be dealt with in a manner consistent with my findings as to the causation of her medical problems. I accept that from the date of the accident to October 1996 when she went in to hospital for the hip operation the plaintiff required 4 hours a week in assistance due particularly to her broken arm, but also general mobility issues caused by the generalised back and hip pain, and some shoulder pain, caused by the temporary aggravation of the underlying condition. I would allow this rate to continue to the end of 1996, but it seems to me that beyond this point the need for assistance was related to the various operations, and not to the temporary aggravation. I would award the sum of $1600 for past gratuitous care, inclusive of interest.

37. This would have amounted to an award of $61,726 had I found that liability had been established. I am not satisfied, however, that liability has been established as the law now stands.

38. There should be judgment for the defendant, with costs.

I certify that the preceding thirty eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master T. Connolly

Associate:

Date: 26 July 2002

Counsel for the Plaintiff: Mr G Lunney

Solicitor for the Plaintiff: Higgins Solicitors

Counsel for the Defendant: Mr S Pilkinton

Solicitor for the Defendant: ACT Government Solicitor

Date of hearing: 25 June 2002

Date of judgment: 26 July 2002