Richmond Valley Council v Standing [2002] NSWCA 359 (4 November 2002)

Last Updated: 5 November 2002

NEW SOUTH WALES COURT OF APPEAL

CITATION: Richmond Valley Council v Standing [2002] NSWCA 359

FILE NUMBER(S):

40999/01

HEARING DATE(S): 8 August 2002

JUDGMENT DATE: 04/11/2002

PARTIES:

Richmond Valley Council (Appellant)

Ethyl Lynda Standing (Respondent)

JUDGMENT OF: Handley JA Sheller JA Heydon JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 410/00

LOWER COURT JUDICIAL OFFICER: Blanch J

COUNSEL:

Mr M J Joseph SC/Mr S P W Glascott (Appellant)

Mr S G Campbell (Respondent)

SOLICITORS:

Phillips Fox (Appellant)

Mitchell, Playford and Radburn (Respondent)

CATCHWORDS:

Tort - negligence - duty of care - existence and scope of duty - whether council owed plaintiff a duty of care to ensure pavement in a safe condition - nonfeasance

Local government - councils - liability in tort - nonfeasance - relevance of budgetary allocation for pavement repairs to assessment of breach of any duty of care - ND

LEGISLATION CITED:

DECISION:

See paragraph 62

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40999/01

DC 410/00

HANDLEY JA

SHELLER JA

HEYDON JA

4 November 2002

RICHMOND VALLEY COUNCIL v Ethyl Lynda STANDING

Tort - negligence - duty of care - existence and scope of duty - whether council owed plaintiff a duty of care to ensure pavement in a safe condition - nonfeasance

Local government - councils - liability in tort - nonfeasance - relevance of budgetary allocation for pavement repairs to assessment of breach of any duty of care

The plaintiff was injured when she tripped and fell on an irregular paved concrete surface in the vicinity of a school which she had just visited. The relevant surface was a junction between a footpath and a driveway. The concrete surface contained cracks and holes of various sizes, and some differences in height between its various portions. The plaintiff alleged that she tripped when her foot caught in a hole present in a crack between portions of the concrete surface. The trial judge found that the council owed the plaintiff a duty of care to ensure that the pavement was in a safe condition, that that duty had been breached, and judgment was entered for the plaintiff.

The defendant sought leave to appeal against the finding of liability.

Held (Heydon JA, Handley and Sheller JJA agreeing), granting leave to appeal and allowing the appeal,

As to existence of a duty of care:

1. Whether the defendant owed a duty of care to the plaintiff depended on whether there was a reasonably foreseeable risk of harm to a pedestrian exercising reasonable care for her own safety, bearing in mind the particular advantages of pedestrians: [29], [53]-[60].

Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512; Parramatta City Council v Watkins [2001] NSWCA 364; Lombardi v Holroyd City Council [2002] NSWCA 252, applied.

2. In determining the existence of the duty of care the trial judge and the Court of Appeal were not obliged to accept expert evidence in support of the conclusion that the footpath was "unsafe" and posed "a danger". That opinion was not supported by the plaintiff's evidence, nor by the expert's expertise, which related to the behaviour of pedestrians in environments radically different from the environment in which the plaintiff moved: [43], [48], [52].

As to the scope of the duty of care:

3. There was a foreseeable risk of injury here, but it was not a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety. The plaintiff, like pedestrians generally, was in an excellent position to see and avoid imperfections in the surface. There could have been no expectation on her part that the surface would be smooth. The unevenness in the paving slabs, the cracks and the holes at the place where the plaintiff was moving were as obvious as similar features all over the country, and as obvious as other common features like raised tree roots and manhole covers. There was no concealment of any of the features of the site which the trial judge criticised. There was no inadequacy in the lighting, or obscuring of the hazard by grass or otherwise. It was reasonable to expect the plaintiff to have seen what lay ahead of her as she walked along in broad daylight: what was there was obvious and called for no special vigilance: [54].

Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512; Parramatta City Council v Watkins [2001] NSWCA 364; Lombardi v Holroyd City Council [2002] NSWCA 252, applied.

4. The conditions of the site were so obvious and so typical of those commonly to be encountered in daily life that the defendant was not under any duty to undertake inspections to identify them. Even if the defendant had become aware of the particular conditions of the site, it had no duty to alter them in view of their obviousness: [59].

ORDERS

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The orders of the trial judge are set aside.

4. In lieu of the orders of the trial judge, the Statement of Claim is dismissed.

5. The respondent is to pay the appellant's costs of the trial and of the appeal.

6. The respondent is, if qualified, to have a certificate under the Suitors Fund Act.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40999/01

DC 410/00

HANDLEY JA

SHELLER JA

HEYDON JA

4 November 2002

RICHMOND VALLEY COUNCIL v Ethyl Lynda STANDING

Judgment

1 HANDLEY JA: I agree with Heydon JA.

2 SHELLER JA: I agree with Heydon JA.

3 HEYDON JA: This is an application by an unsuccessful defendant for leave to appeal against a verdict in favour of the plaintiff in the sum of $68,376.50 with costs, ordered by Blanch J on 5 December 2001. This Court received full argument to the intent that if leave were granted, the appeal could be disposed of without the need for a separate hearing.

4 On 19 June 1997, the plaintiff, then aged 62, attended a function at Casino High School, her granddaughter's school. As she was leaving with her daughter, she left the grassed school grounds through a gap in a fence, moved onto a footpath outside the school, fell, and seriously injured her knee. The accident took place in the middle of the day, at about 1.20 pm, in broad daylight. The plaintiff had only used that footpath on a couple of earlier occasions.

5 The plaintiff's case at trial was that the defendant was in breach of its duty of care in failing to keep the footpath in a safe condition.

6 The trial judge accepted that the plaintiff was telling the truth to the best of her ability. He found that the toe of the shoe on her left foot went into a "crack, gap or hole" in the concrete of the path, her foot caught in it, and she fell onto her left knee.

7 The trial judge described the area as follows:

"The hole or crack appears from the photographs to be in a section across the footpath where the footpath has been graded down to the asphalt surface of the road so as to provide a drive-in over the gutter. That appears to have been done in a way that is not the usual way for such a driveway to be constructed in that it is not incorporated in the ordinary way into the footpath, but rather the level of the footpath has remained constant. The driveway has been constructed by grading the area that would otherwise be the footpath into a slope and the area between the slope and the footpath has been filled in by what has been described as a fillet. What it amounts to is another V shaped gradient made of concrete.

The crack or hole that is in question in this case is the crack or hole at the top of that fillet where the fillet joins the footpath."

8 The trial judge then said:

"The defendant has photographed and made measurements along the fillet and has measured the depth of various cracks along that fillet. According to the defendant's calculations there is one hole or crack which is 15 millimetres deep, another that is 10 millimetres deep, another which is 8 and then another 3 millimetres. The depth of those cracks tends to reduce to nil travelling from the gutter across to the grass on the other side of the footpath.

The plaintiff's evidence would support the proposition that it was the largest hole, 15 millimetres deep, which caused her to come to grief. The defendant argues that by looking at the diagram and photograph prepared by the defence that it appears to be the situation that she fell in the crack that was 8 millimetres deep."

The trial judge rejected the latter contention.

9 The trial judge then discussed the evidence given by two experts called on behalf of the plaintiff, and said that the location involved "an extra danger" in the combination of the "trip lip" and the elevation.

10 The trial judge then said:

"the plaintiff fell because her foot went into a crack or hole that was in the order of 15 millimetres deep and that imperfection in the footpath was of such a kind and in such a place that it was not readily visible to her and the combination of the imperfection and the place where it was does amount to a breach of duty of care on the part of the defendant."

11 The significance of the finding that the crack or hole was "not readily visible to the plaintiff" may be affected by the next passage in the reasons for judgment, where the trial judge found that, readily visible or not, the "crack" was seen by her:

"The plaintiff said that she was taking ordinary care in walking along. She saw the crack, she saw the footpath and there is nothing in her actions which I can see that could lead to any finding of contributory negligence on her part."

12 The trial judge then turned to the defendant's capacity to have averted the accident:

"Insofar as the state of the footpath is concerned and council's knowledge of it and attitude towards it, it appears that the council officer who gave evidence was familiar in general terms with the footpath and the area outside the school. It was acknowledged to be a high traffic area and the council's attitude towards such matters is apparently that in the longer term it is better to replace footpaths than to repair them and the council officer has also given evidence that in respect of this particular area it is not one that he would organise to be repaired because he does not regard the danger as great enough to warrant that degree of priority being given to repairs here.

Insofar as the costs argument is concerned there has been tendered the annual report of Casino Council, as it then was, for 1996/1997. A case was sought to be made by the defendant on the basis that only some ten thousand dollars was available for the purpose of repair of this nature. It appears however that from the Expenses and Revenue Account of the council in fact during that particular period for transport and communications under which head repair of footpath comes there was in fact an expenditure of almost three million dollars and it appears that at the end of the financial year the council found itself having a very small surplus. The short point is that how much is available for road repair is a matter for the council in prioritising its budget. Quite obviously in a budget of over ten million dollars it was possible to make a significantly larger sum than ten thousand dollars available for repair of footpaths. On that basis the plaintiff should not be denied a verdict because of the likely public cost of making safe what might be a hazard.

The council officer who gave evidence also said that a very rough estimate of how much it would cost to make all the footpaths safe would be fifty thousand dollars. He then wanted to resile from that because it is too difficult an estimate to make but obviously as a very, very broad figure it is an amount of money that is well and truly within the capacity of the council to meet if the council saw fit to do it. The suggestion for repair was firstly filling the hole although the council officer was of the view that grinding back the protruding parts would be a better solution. The council has the machinery to do that."

Did the plaintiff fall at the deepest hole, 15 mm deep?

13 It is convenient first to clear one factual challenge out of the way.

14 The defendant argued to this Court that the trial judge erred in finding that the crack in which the plaintiff's shoe caught was 15 mm deep rather than 3 or 8 mm deep. It said that a comparison of one photograph (in exhibit A) with another (in exhibit 2) revealed that the relevant crack was between or near points marked 4 and 5 on the exhibit 2 photograph (at which points the depths were 8 mm and 3 mm respectively). On exhibit 2 Mr Radnidge, who at the time of the accident was Technical Services Manager of the defendant, marked numbers indicating the height discrepancy between the fillet to the adjacent footpath slab. Points 2, 3, 4 and 5 were 10, 15, 8 and 3 mm high respectively. The defendant also submitted that Mr Radnidge was not cross-examined by the plaintiff to suggest that the truth was different from what a visual impression of the photographs supported, and a reference was given to page 51 line 55-page 52 line 30 of the transcript.

15 The points marked in exhibit 2 are not marked in exhibit A, and thus it is not easy to draw any conclusion supportive of the defendant's contention by mere comparison of the photographs. But even if mere comparison offered some support for the defendant's contention, it is not correct to say that there was no cross-examination of Mr Radnidge on the point. Immediately after the passage of cross-examination identified above by the defendant, the following appears at page 52, lines 30-49 of the transcript:

"Q. I show you again Exhibit 2, that's the photograph you say you took?

A. Yes.

Q. And I show you part of Exhibit A, photograph number 4, see that?

A. Yes.

Q. Just looking at photograph number 4 and the photograph you've taken, the position you've got .3, I withdraw that. Looking at where you have marked number 3 on your photograph Exhibit 2, see that?

A. Yes.

Q. That would appear to coincide with the area where the arrow as pointing in Exhibit A photograph 4 would it not?

A. It's very difficult on the photograph but in the distance back across this way it would appear to be approximately a metre, yes."

That is not merely cross-examination of Mr Radnidge on the point. It is cross-examination which caused him to concede that the point marked 3 on exhibit 2 corresponded with where an arrow pointed in exhibit A. It was common ground that the arrow in exhibit A pointed to where the plaintiff fell. At the point numbered 3 the depth was 15 mm. Mr Radnidge thus made a concession amply supporting the trial judge's finding.

16 The defendant also criticised the trial judge for not giving reasons:

(a) for his conclusion that the depth of the relevant hole was 15 mm, and

(b) for rejecting Mr Radnidge's evidence that the depth was 3 or 8 mm.

Even if criticism (a) is strictly speaking correct, the criticism goes nowhere because the conclusion was plainly correct on the evidence of Mr Radnidge, a witness called by the defendant. Criticism (b) is not correct because Mr Radnidge did not give evidence that the depth was 3 or 8 mm; rather he gave evidence that the depth was 15 mm.

17 The defendant also said that the trial judge's finding could not be supported by the experts, who assumed a 15 mm depth rather than proving it. In view of what has been said above, these criticisms do not matter. The experts certainly do not point against Mr Radnidge's concession.

What finding did the trial judge make about what the plaintiff saw?

18 Considerable attention was devoted to that part of the trial judge's reasons for judgment in which he said that though the hole was not readily visible to the plaintiff, she "saw the crack, she saw the footpath ... ." On one reading of the reasons for judgment of the learned trial judge, the finding that the plaintiff saw the "crack" entailed a finding that she saw the depth of the crack. Counsel for the plaintiff, however, argued that the trial judge's finding was only that what the plaintiff saw was the "crack" - the dividing line between the pavers - but not the "hole" or "gap" between them. He accepted that there was an ambiguity in the trial judge's language, but that it could be explained by reference to the fact that the judgment was delivered ex tempore, and resolved by a reading of the whole judgment. This particular argument fails. The trial judge appeared to use the words "hole", "crack" and "gap" indifferently throughout his judgment. He said that the plaintiff's foot was caught "in what has variously been described as a crack, gap or hole - the plaintiff described it as a hole." He then spoke of a "hole or crack", a "crack or hole" (three times), various "cracks", various "holes or cracks", which he called "those cracks"; he then referred to a "hole" and a "crack". Just before the trial judge made the finding that the plaintiff saw the "crack" he said her foot went into a "crack or hole". Further, the photographs appear to show the existence of both the crack and the various height differentials.

19 However, much of the plaintiff's evidence was to the effect that before she fell she saw only the crack, not the hole.

20 In chief she said:

"Q. Did you observe the footpath in front of you as you walked?

A. I was looking where I was walking.

Q. Did you observe at the time or immediately prior to your fall, the hole that your foot went in to?

A. I saw it.

Q. When was that?

A. When I was walking down to the car my foot went in the hole.

Q. And then you saw it?

A. Mm.

Q. That's the first you saw of it?

A. That's right."

21 In cross-examination she said:

"Q. And you noticed the cracks between the different slabs of concrete in the footpath at that time, that is when you were walking to the high school?

A. I didn't look when I was walking to the high school, because I was on the footpath when I was walking up to the high school.

Q. Yes, but when you were walking along the footpath you noticed the cracks in the slabs or between the slabs?

A. No.

Q. You didn't notice that?

A. No.

Q. But when you were walking back you said you were looking where you were walking and no doubt you saw the cracks in the footpath?

A. Once I put my foot in the hole.

Q. Isn't it the case that when Mr Radburn asked you `did you observe the hole', you said `I saw it', that's correct isn't it?

A. Yes.

Q. And you saw it before you stepped into it, isn't that right?

A. No."

22 The plaintiff was then shown exhibit A photograph 4 which contained an arrow which she identified as marking the point at which she fell. The evidence proceeded:

"Q. And you said you were looking where you were going, that's correct?

A. Yes.

Q. And you would've seen - well firstly I show his Honour and my friend, that line or division between the cement slabs in the footpath?

A. I would have.

Q. And you would have seen that line or division between the slabs of concrete?

A. Yes I would have."

23 The plaintiff was then asked questions about what the trial judge called the "drive-in over the gutter" or "driveway": the cross-examiner called it the "vehicle crossing".

"Q. Mrs Standing you knew you were on a vehicle crossing at some point of time when returning to your car, that's correct isn't it?

A. Yes.

Q. And you knew that you had walked down one slight rise and were going to go up another slight rise to return to the footpath proper?

A. I'm not sure, I can't remember walking down it.

Q. Do you remember stepping up do you?

A. Yes.

Q. So you saw the rise and you stepped up over the rise or that's what your intention was, is that correct?

A. Yeah.

Q. And you saw as you said that crack or division between the concrete slabs above that rise, is that right?

A. When I tripped in it.

Q. Mrs Standing you saw - I'm showing you here from the Bar Table, tell me if you can't see it, would you prefer me to show you the photograph up close?

A. Mm, yes please.

Q. When you were returning to your car Mrs Standing, you knew that that was a rise didn't you?

A. Yes.

Q. And you saw it?

A. Well I would have.

Q. And you saw that crack dividing the rise from that footpath slab?

A. Yes.

Q. But you nevertheless stepped as you say, on that crack with your left foot, you stepped on the crack with your left foot?

OBJECTION

WITNESS: I didn't step on it.

[COUNSEL FOR THE DEFENDANT]: Q. Did you step on the rise?

A. No.

Q. Where did you place your left foot in relation to that rise?

A. In the hole.

Q. Did you say your toe went in the hole?

A. Yes.

Q. Is it the case that you say, did you know you were putting your toe in the hole or do you say you didn't know that until after you fell?

A. I didn't know that until after I fell."

24 The ultimate effect of that evidence was that the plaintiff agreed that she saw the crack, but said that she did not appreciate she was putting her foot into a hole until after she had fallen.

25 At the outset the trial judge made favourable findings about the plaintiff's credibility. When he made the finding that she saw the crack, he did not qualify those early favourable findings in any way. Despite the ambiguity of the trial judge's language, and the strong support in that language as a whole for the conclusion that the word "crack" included the word "hole", it is unreasonable to conclude that the trial judge meant by saying that the plaintiff saw the crack that she also saw the hole. It is unreasonable because she denied that and the trial judge apparently accepted that denial.

The law as stated in Brodie v Singleton Shire Council

26 It is convenient to collect some key points made by the High Court in Brodie v Singleton Shire Council and the case argued and decided with it, Ghantous v Hawkesbury City Council: [2001] HCA 29; (2001) 206 CLR 512. Gaudron, McHugh and Gummow JJ said at [150] that persons in the position of the defendant having statutory powers to design or construct roads or carry out works or repairs on them:

"are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist."

They said that questions of breach depended on the following test (at [151]):

"The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; [(1980) 146 CLR 40 at 47-48], a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case."

They then said at [160] and [162]-[163]:

"In dealing with questions of breach of duty, while there is to be taken into account as a `variable factor' the results of `inadvertence' and `thoughtlessness' [Smith v Broken Hill Pty Co Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343], a proper starting point may be the proposition that the persons using the road will themselves take ordinary care [Miller v McKeon (1905) 3

CLR 50 at 60].

...

The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authority. In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations. The resources available to a road authority, including the availability of matériel and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made. It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are first addressed. Even so, it may well be reasonable for the authority to exercise other powers including, for example, by erecting warning signs, by restricting road usage or, in extreme cases, by closing the road in question.

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 their 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. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia [(1982) 56 ALJR 912; 43 ALR 465]), or the surrounding area (as in Buckle [1936] HCA 65; [(1936) 57 CLR 259 at 266], where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a `trap' or, as Jordan CJ put it, `of a kind calling for some protection or warning' [Searle v Metropolitan Water, Sewerage and Drainage Board (1936) 13 LGR 115 at 117]. In Romeo, Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger [Romeo [1998] HCA 5; (1998) 192 CLR 431 at 455 [52]]. Kirby J pointed out in the same case that even an occupier of premises `is generally entitled to assume that most entrants will take reasonable care for their own safety' [Romeo [1998] HCA 5; (1998) 192 CLR 431 at 478 [123]]. Each case will, of course, turn on its own facts."

27 Gaudron, McHugh and Gummow JJ decided that the non-feasance immunity existing at common law should be abolished, and Kirby J reached the same conclusion. Though Gleeson CJ and Callinan J disagreed with the abolition of the non-feasance immunity, they each said important things about when pedestrians might recover in relation to the condition of footpaths, and what they said is as applicable to non-feasance cases as it is to misfeasance cases. At [355] Callinan J said:

"Even if I were to assume that an action in negligence lay against the respondent for any failure to maintain or improve the footpath to keep or make it safe, whether as a matter of misfeasance or otherwise, I would conclude that there was no failure in that regard because the footpath was not, despite what the expert witness was allowed to say, unsafe. The case of the applicant in negligence was that a differential in height between the concreted part of the footpath and the earthen part of it created a dangerous situation. A court is not obliged to accept an expert, especially when his or her evidence is evidence purportedly resolving and concluding an issue of the kind which arose here [Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 at 306 [110], fn 137]. A court is not bound to accept that a matter of ordinary observation such as the readily apparent state of the footpath is a matter calling for expert opinion. But in any event the expert's opinion (uncontradicted as it was) did not go so far as to say that the `poor maintenance' which caused the `hazard' actually caused one of such a nature that to leave it unrectified was negligent. 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. The applicant herself admitted in cross-examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the earthen verges. There was no negligence on the part of the respondent either in the construction of the footpath or in not keeping the concrete strip and verges level."

28 At [6] Gleeson CJ, after noting that the non-feasance immunity was abolished in England by statute in 1961, said:

"when general principles of negligence, unqualified by any rule of immunity, were applied, the courts insisted that an injured plaintiff had to show that the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land."

At [7] he approvingly quoted Cumming-Bruce J in Littler v Liverpool Corporation [1968] 2 All ER 343 at 345:

"Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green."

The law applied to the facts: duty of care

29 The first question is whether the defendant owed a duty of care to the plaintiff. That turns on whether the failure of the defendant to repair the footpath created a "foreseeable risk of harm" to pedestrians. That expression appears to be a reference to a reasonably foreseeable risk, since at [161] in Brodie v Singleton Shire Council Gaudron, McHugh and Gummow JJ said: "Not all failures to repair will create risks to the users of a road, or at least not risks which would, as a matter of the reasonably foreseeable, pose a risk of injury." The existence of a duty must be assessed in part by reference not to any requirement that the footpath "be safe ... in all circumstances", but by reference to the position of "users exercising reasonable care for their own safety" (at [163]). This was said to be particularly important in relation to pedestrians. The question is whether there was a reasonably foreseeable risk of harm to a pedestrian exercising reasonable care for her own safety, bearing in mind the particular advantages of pedestrians. The issue of the capacity of the defendant to deal with particular risks and the competition between claims on scarce resources is not specifically relevant to the question of the scope of duty, but to the question of its breach.

30 It is not entirely clear why the trial judge found that there was a duty of care. He appears to have held that there was a duty, and that it was breached, because the 15 mm hole was "not readily visible" to the plaintiff and because of its location at the top of an elevation. Though the trial judge summarised the expert evidence of both Dr Adams and Mr Moir, or at least aspects of it, at some length, he appeared to have based few conclusions on it. From Dr Adams' report he appeared to infer that the footpath was "unsafe" and "would pose a danger" to the plaintiff. It is not clear whether he agreed with Dr Adams' view that the broken condition of the concrete at the edge of the driveway was a "significant trip hazard". The trial judge's statement of his perception that there was significance in the location of the trip lip at the top of an elevation appears after discussing Mr Moir's evidence.

31 In Ghantous v Hawkesbury Shire Council there was expert evidence summarised thus by Callinan J at [348]:

"An expert called by the respondent at the trial gave evidence that it was poor maintenance to allow the surfaces alongside the concrete strip to deteriorate to the extent to which they had, and that in their current condition they were a hazard to a person stepping, as the applicant did, to one side."

As was seen in [25] above, Callinan J, whose reasoning was concurred in by the other judges, at [355] rejected the conclusiveness and indeed the admissibility of this evidence.

32 The transcript of the trial in this case records the following near the close of the plaintiff's case:

"REPORTS OF DR ADAMS AND MR MOIR TENDERED. OBJECTION. RELEVANCE (ASSUMPTIONS). OBJECTION CONTINUED.

EXHIBIT #D AMENDED REPORTS OF DR ADAMS AND MR MOIR TENDERED, ADMITTED AFTER OBJECTION."

The defendant's objection was not surprising, but the trial judge's rulings admitting the evidence were not the subject of any ground of appeal or submission to this Court. The plaintiff relied strongly on various parts of the experts' reports, which were not the subject of either cross-examination or contradiction, in this Court.

33 The question is whether the trial judge was or this Court is obliged to accept the evidence of Dr Adams which led the trial judge to say that the footpath was "unsafe" and posing "a danger", or any other expert evidence to support the trial judge's conclusions.

34 Before examining that question, it is necessary to consider what use can be made of certain photographs taken by Dr Adams when he visited the site in the company of the plaintiff on 20 March 1999, nearly two years after the accident on 19 June 1997. Those photographs were reproduced in his report of 30 March 1999, and comprised exhibit A. On the face of it the photographs give a useful impression of the scene both generally and in relation to the obviousness or otherwise of particular features such as cracking and the existence of the hole in which the plaintiff tripped. Counsel for the plaintiff objected to this Court relying on the photographs for the latter purpose, on the ground that they were taken merely to illustrate and depict the scene and had been taken for the forensic purpose of highlighting the hazard. But they were taken on behalf of the plaintiff, they were relied on extensively by both experts in their strongly worded attacks on the defendant, the plaintiff accepted that the hole in which she fell, photographed on 20 March 1999, "looked the same" as it did on the day she fell, the plaintiff gave her evidence of what happened on the day she fell by detailed reference to the photographs taken on 20 March 1999, the plaintiff accepted that the photograph of the hole revealed that the path as so photographed "looks very much like the path [she] looked at on the day of the accident", the experts (relying on inferences which their expertise permitted them to draw from the construction and other features of the site) treated the photographs as a sound representation of the scene on the day of the accident, and the trial judge concluded that they were a sound representation of the scene on the day of the accident. Accordingly it is appropriate to take the photographs into account in evaluating the reasoning of both the experts and the trial judge.

35 The trial judge said: "There is much in Dr Adams' report that establishes very little", a mild but entirely justified observation. Dr Adams called the hole a "trip hazard" at points in his report well before he endeavoured to demonstrate that it was. At one point he said that two of the most common circumstances in which a trip and fall could occur were:

"(i) When the trailing foot is swinging forward and the toe or heel of that swinging foot encounters a vertical face which obstructs its forward movement. In that situation the person may lose balance and fall forward or may be able to lift the swinging foot, despite its having been obstructed, and bring the foot forward quickly enough to avoid an outright fall. Such a trip may result in no more than a minor interruption to the rhythm of movement. It may result in a stumble and recovery or it may result in an outright fall.

(ii) The other most common cause of a trip occurs when the trailing foot is trapped at the location at which it had come down at the conclusion of the preceding pace. As the person begins to bring that foot forward its entrapment prevents its movement and unless the person can either skip forward on the leading foot which was supporting most of the weight or is able to free the trapped foot then a forward fall of some kind is almost inevitable. One possible outcome is similar to that experienced by Mrs Standing where the entrapment of the trailing foot as the person's body continues to move forward causes them to drop to the knee of that trailing foot. It is by no means uncommon when a trip or slip results in the person dropping to one knee for the patella of that knee to be fractured."

36 The trial judge made no finding about which, if any, of these two possibilities applied. The plaintiff's evidence did not permit any finding. All she said was:

"Q. When you say you tripped, do you remember where your right foot was in relation to your left foot, where was your right foot when your left foot went into the hole as you say?

A. It would've been in the air.

Q. Do you recall or are you just guessing?

A. No, I don't know.

Q. You don't know?

A. No.

Q. Did your right foot - did you attempt to - did you stumble after you say you tripped?

A. No, I just went down."

There was a degree of argument in the course of the oral hearing of the appeal about precisely how the plaintiff came to fall, but it cast no greater light on the subject than was cast by her evidence.

37 Dr Adams said, in relation to "cognitive ergonomics":

"I understand that Mrs Standing had no particular knowledge of or familiarity with that driveway or the condition of the join between the edge of the driveway and the footpath. When she had entered the school she had, of course, been walking in the opposite direction and the trip hazard was not evident or noticeable. She had no basis for expecting that there was a trip hazard at that location and hence was not prepared for or aware of the fact that she might need to exercise greater care as she crossed that driveway."

38 Dr Adams said, in relation to "perceptual ergonomics":

"As Mrs Standing was walking down the footpath her visual attention was directed further down the footpath towards the location where the vehicle was parked. In common with most people when walking through the built environment Mrs Standing was not giving close direct visual attention to the pavement immediately in front of her feet.

Normally, as people move through the built environment they do not give close regard to the pedestrian surface in front of their feet. Commonly, as we enter a new area we make a general visual scan of the terrain ahead, locating any significant obstacles or hazards as well as determining the position of our goals or objectives in that particular area. Thereafter, we tend to direct our visual attention to items of particular interest such as displays in shop windows, or to other pedestrians or even vehicles that may have to be avoided. I base this comment about `normal' human pedestrian behaviour on my detailed observation and analysis of some 25,000 episodes of pedestrian movement. These were video taped for analysis in the course of consultancy research carried out for City Rail in respect of pedestrian movement over stairways and concourses in the underground railway system of the city.

On the basis of the foregoing I can fully appreciate that Mrs Standing would neither have been aware of nor noticed the trip hazard at the edge of the driveway until she actually tripped and fell because of it."

39 Dr Adams then said:

"The broken condition of the concrete pavement at the edge of the driveway and as shown in several of my photographs does constitute a significant trip hazard. It does appear that the broken condition of the concrete, particularly along the join between the paving of the footpath and the side of the ramp, may be a consequence of the passage of vehicles over that concrete and the adjacent surfaces. ... Whatever the cause of that condition, it is quite obvious that it now has produced a significant trip hazard."

40 The reasoning appears to be that the hole in the crack was a trip hazard because if the plaintiff did not see it she was capable of tripping on it, and she did not see it.

41 Dr Adams' explanation for the failure of the plaintiff to see the hole, even though it was there to be seen, rested on two propositions: first, that she was not looking at the pavement immediately before her, but further on; secondly, that pedestrians commonly do not look at the pedestrian surface in front of their feet, but make a general visual scan before concentrating on shop windows, other pedestrians or vehicles.

42 The first of these propositions was expressed as a statement of historical fact, not an assumption on which Dr Adams' opinion might be based. The only person who could have proved that historical fact was the plaintiff. She did not. All she said was:

"Q. Did you observe the footpath in front of you as you walked?

A. I was looking where I was walking."

Later she said:

"Q. And you said you were looking where you were going, that's correct?

A. Yes.

Q. And you would've seen - well firstly I show his Honour and my friend, that line or division between the cement slabs in the footpath?

A. I would have.

Q. And you would have seen that line or division between the slabs of concrete?

A. Yes I would have."

And later still she said she saw the rise (ie the rise at the top of which her foot became caught), or "would have". The plaintiff gave no specific evidence whatever about "her usual attention" being "directed further down the footpath towards the location where [her] vehicle was parked" or about "not giving close direct visual attention to the pavement immediately in front of her feet". It is also to be noted that to some extent the plaintiff's evidence on this issue appeared to rest on reconstruction based on the probabilities, rather than on a clear recollection of a specific observation. Thus she said more than once she "would have" seen the crack and she also said she "would have" seen the rise up to it. It is no criticism of the plaintiff either as a witness or as a person to note these facts: it is understandable that she may not have made specific observations or, if she did, that the shock of her painful injury distorted any clear recollection of them.

43 The present point is simply that the plaintiff's evidence does not support Dr Adams' dogmatic assertion about what the plaintiff was looking at. If that dogmatic assertion was intended to be an assumption, the evidence does not correspond with it. If it was intended to be a conclusion in the nature of a circumstantial inference, it was a piece of testimonial impertinence on Dr Adams' part to offer it. If it was intended to be a statement of what was in her mind, it was absurd.

44 Dr Adams' second explanation for the plaintiff's failure to see the hole is based on conclusions drawn from observations of a very different scene from that which in fact confronted the plaintiff. The scene before her consisted of a pavement interrupted by the "drive-in" or "driveway", which moved down to gutter level and up again. Another plain feature of the scene was that there were cracks in the sense of straight lines of division between the paving blocks, other non-straight cracks moving in the approximate direction in which the plaintiff was walking, in directions approximately at right angles to it, and in other directions, and holes at numerous points along all these cracks. The photographs reveal a lot of pebbles, stones and gravel lying around. Initially the plaintiff could not recall whether they were there when she fell, though later she said there were pebbles in the hole. The plaintiff denied slipping on pebbles on the footpath, and did not recall telling a doctor that she had. The trial judge accepted her denial. There is no reason to disturb that finding. But since no other aspect of the surface had changed between the time of the fall and the time when Dr Adams' photographs were taken, and since the plaintiff said there were pebbles in the hole, it is probable that there were pebbles, stones and gravel on the surface in the same way as revealed in the photographs.

45 It would be difficult for this Court to describe the scene as revealed in the photographs, and as Mr Moir considered it was at the time of the accident, better than Mr Moir did. He said:

"The concrete vehicle crossing was of the same width across the footpath as the concrete footpath itself. The length of the crossing, measured along the line of the gutter, was estimated as some 6 metres. As a consequence of the vehicle crossing being constructed some time after the concrete footpath and infill the footpath, the infill and the kerb had to be broken out to permit the construction of the vehicle crossing.

The photographs suggested that even when the existing footpath was broken out, the cuts across the concrete footpath and infill were made by a percussion or chipping tool which left a ragged, broken edge lacking in a neat workmanlike finish. It is noted that good practice required that the existing concrete be first cut with a diamond saw along the intended joint before the unwanted concrete was broken out.

The vehicle crossing was constructed in three sections.

(a) The main body of the slab for the crossing proper. It was a large slab trapezoidal in shape (almost rectangular) extending from the outer face of the gutter to the line of the inner edge of the footpath. The back edge of the slab was at the same level as the inner edge of the footpath slab and the level of the outer edge or roadside edge of the slab was slightly higher than the gutter invert.

(b) and (c) Two narrow wedge-shaped fillets at each end of the main slab. The fillets acted as transitions between levels of the original footpath, and the levels of the main body of the crossing slab. The wedge base length at the kerb was estimated as some 1/3rd metre long and the other two sides across the footpath each some 2 metres long.

It was also noted that:

(i) The junctions between the fillets and the original footpath and the fillets and the main body of the slab were sharp edged and without rounding transitions.

(ii) The main body of the slab and the fillers were not constructed in panels, or marked out in panels, to control the shrinkage cracking that would subsequently take place.

At the date of the accident the main slab and the end fillets were badly cracked and fragmented. It was the opinion of the undersigned that cracking had commenced shortly after the construction and had progressively worsened with time. The cracks were considered to be due to failure of the concrete slab and its foundation as structural members. The principal cracks roughly quartered the main slab while lesser cracks cut across section corners or further fractured the principal segments. Settlement and tilting also occurred in places.

The wedge of the eastern end of the slab was badly cracked as would be expected from its proportions. It had broken into at least 5 segments with major cracks along each side of the wedge. The trip lip which caused the accident had been formed by double cracks, spalling of concrete, and settlement at the joint between the wedge and the original footpath concrete.

The number of the cracks, their width, their positions, their directions, the tilting and level differences between some sections indicated that the following defects had existed:

(a) The foundation for the vehicle crossing had not been properly constructed, nor was it strong enough to serve the purpose required of it.

(b) The concrete was too thin for the purpose required of it, and for the size of the panels.

(c) The concrete was too weak.

(d) The concrete lacked steel reinforcement.

(e) The wedge-shaped fillets should never have been constructed as separate sections of concrete. These sections had not been correctly proportioned, profiled or graded. (Wedge-shaped fillets such as those present at the site could not but crack, and break up).

Other design/construction defects observed were:

(a) Failure to use formwork to hold the back edge of the concrete pour straight and true.

(b) Failure to construct a properly proportioned dish crossing at the gutter.

(c) Failure to remove the existing kerb and gutter back to a pre-existing construction joint.

(d) Incorrectly constructing the slab for the vehicle crossing as a continuous member over the base of the original kerb.

(e) Failure to use compression/expansion membranes at construction joints with the original concrete.

(f) Failure to design the junctions with the original concrete so that no differential movement would take place and create trip lips.

It was also considered that it was probable that there had been a failure to properly cure the concrete after it was poured. This omission would have led to a more rapid onset of cracking failure.

It was the opinion of the undersigned that the cracking, the gaps in the concrete, the missing pieces of concrete, the differential settlements and tilting of the crossing slab, the formation of trip lips, and the existence of a trip lip 15 millimetres in height (the trip lip which caused the accident) were the direct consequences of defective design and construction of the slab."

46 Obviously the plaintiff would not have drawn the conclusions which Mr Moir's expertise enabled him to draw, but it was plainly open to the plaintiff, as a lay observer, to see the "ragged broken edge", the junctions which were "sharp edged and without rounding transitions", the "badly cracked and fragmented" slab and end fillets, consisting of "principal cracks" which "roughly quartered the main slab while lesser cracks cut across section corners or further fractured the principal segments", the settlement and tilting, the "gaps in the concrete", "the missing pieces of concrete" and the "trip lip 15 millimetres in height".

47 This is an "environment" which, though "built", is radically different from the condition of the "stairways and concourses in the underground railway system of the city" of Sydney. It was the behaviour of pedestrians in those stairways and concourses which Dr Adams used as the basis for his statements about the likely behaviour of persons moving along the footpath where the plaintiff fell. Judicial notice may be taken of the fact that those stairways and concourses are extremely smooth and, except where there are steps, level: there are hardly ever any uneven cracks or holes or pebbles or height differentials. What is more, the stairways and concourses are commonly thronged with busy pedestrians moving with speed and determination to and from their places of employment or about their affairs. And the concourses are bordered by shops and advertising hoardings. The effect of the entire arrangement is to permit and encourage pedestrians, subject to not running into other pedestrians, or persons handing out leaflets or free papers, or persons soliciting charitable donations, or prams, or wheelchairs, or the occasional delivery vehicle, and subject to avoiding any slippery patches ahead, to look at the shop windows and the advertising signs to be seen on walls and stair risers. It is not possible to take the way pedestrians do behave or ought to behave in those conditions and infer from it any valid conclusion about how the plaintiff behaved or ought to have behaved just after she left the grassy schoolyard and began walking with her daughter along the cracked and pebbly pavement, including the area of the pavement where there was the driveway, towards her car. This is particularly so since she had only been there twice before, and since she, being 62 and thus more vulnerable to the consequences of falls than younger persons and less likely to be able to regain her balance if she slipped or stumbled than younger persons, should have been seeking to observe closely the area in front of her feet as she moved along.

48 Dr Adams' report, then, did not justify any conclusion that the "footpath was in an unsafe condition and would pose a danger to somebody such as the plaintiff" or that it was "a significant trip hazard" if the plaintiff had been looking out for what lay ahead of her.

49 Turning to Mr Moir, his description of the physical features which he noted and his explanations for the existence of those features have already been set out. Under the heading "The Hazard Created By The Trip Lip" he said:

"It was normally recognised by safety engineers and experts on pedestrian safety that trip lips and level discrepancies having a height of 10 millimetres or more in a footpath presented a potential safety hazard for pedestrians. It is noted that the trip lip at the accident site was somewhat greater than the minimum lip height considered to be a potential tripping device and safety hazard.

Further, if the trip lip were effectively disguised or concealed by changes in slope between panel sections, or by spalling of concrete and broken areas containing loose stones adjoining the trip lip, or by a multiplicity of cracking and textural effects in the nearby concrete, or in some situations, by a build up of leaves and soft debris against the trip lip, then the potential hazard became much greater and the likelihood of a tripping accident increased.

Because a number of these factors acted at this site, it was the opinion of the undersigned that the existence of the trip lip which caused Mrs Standing to trip would have [been] virtually undetectable to her if she had not been previously alerted to the hazard and not specifically looking out for it. The trip lip would have effectively been a hidden trap.

The trip lip at this site was a much more serious hazard than its 15 millimetre height might, at face value, suggest.

For a pedestrian walking across the vehicle crossing from west to east the operative height of the trip lip was increased by the level difference between the slab for the vehicle crossing and the slab for the footpath on the longsection where the lip was located. The longsection where the accident occurred was some third to halfway across the footpath from the gutter. The level difference between the respective slabs was estimated to be some 50 millimetres. Thus the top of the trip lip would have been some 65 millimetres above the level of the walking plane on the approach to the trip lip from the western end of the vehicle crossing, and the chances of the swinging foot clearing the lip were lessened.

The slope across the fillet of concrete was itself hazardous. The slope was 2:1 and gave a ramp that was only some 100 millimetres long for a pedestrian such as Mrs Standing. This slope was too steep and the fillet too narrow for it to function safely as a ramped section of footpath pavement. The sharp cornered and untransitioned fillet or ramp was, of itself, potentially quite hazardous and unacceptable, even without the 15 millimetre trip lip at the top of it.

Alternatively, if the level difference at the fillet were considered to function as a single step in the footpath the single step was, of itself, quite unacceptable and unsafe because of the intrusion of the fillet into the normal tread area of a step and more particularly because of the accidents resulting at single steps, single steps were specifically prohibited under most construction codes."

50 Mr Moir then offered some opinions about when the defects and hazards should have been noticed and how they should have been remedied. Among these opinions was the statement that the hazard was "effectively a hidden trap on the footpath, particularly for an older pedestrian".

51 The trial judge did not appear to accept this evidence at its face value. The trial judge said:

"I take it to be that all he is saying really is that the hole being placed where it was at the top of the fillet made it less visible and therefore potentially more of a danger to a pedestrian particularly since that pedestrian would have to be stepping up over the fillet which, as Mr Moir has indicated, was not capable of being a ramp because it was too narrow and too steep.

Whether it is necessary say to [sic - scil "necessary to say"] that I am not sure. It does appear to me, however, to be consistent with common sense that there would be an extra danger involved in that situation in a place such as this as demonstrated in the photographs and it is really the combination of the trip lip and the fact that it is elevated which is the matter for determination in this case. The fact of its elevation, of course, goes not only to its visibility but also to the fact that a pedestrian would need to step up in negotiating the footpath."

52 In view of the very limited finding made by the trial judge which may or may not have been made on the strength of Mr Moir's report, and which was said by the trial judge to be no more than "consistent with commonsense", it is not necessary to devote much attention to Mr Moir's report. The essential weakness in both the report and the conclusion which the trial judge stated after summarising parts of it is that it is impossible to conclude on the balance of probabilities that there was an "extra danger", let alone a "hidden trap", in view of the condition of the site and the numerous obvious aspects of the surface which were not even, flat or smooth. Mr Moir himself said that before railings were installed along the edge of the footpath at the points where there was no driveway, "the cracking and trip hazard for pedestrians would, more probably than not, have been present in the footpath and readily observable ...." If they were readily observable then, they were readily observable to pedestrians using reasonable care for their own safety on the day of the accident.

53 What were the circumstances of the accident? The light was good, since the "accident occurred in the middle of the day [at about 1.20 pm] in broad daylight". The crack was of sufficient dimensions, in depth and across the top, for the plaintiff to see it, and she did see it. The hole in which the plaintiff's foot was caught appears quite clearly in the photographs in evidence. Though the plaintiff's evidence that she did not see the hole was accepted, the size of the hole was large enough to permit the plaintiff to see it if she had been looking. The whole area was so covered by cracks and was so uneven that a pedestrian taking reasonable care for his or her own safety would have to keep a lookout as to ground conditions in the area just in front of the feet. The hole was of a depth which was only 60% of the inch referred to by Cumming-Bruce J and Gleeson CJ as something which pedestrians had to accept. A pedestrian exercising reasonable care for his or her own safety ought to have seen the hole. If the hole had been seen, a pedestrian of that kind would not have placed his or her foot in it.

54 Almost any injury that happens is an injury in respect of which there can be said to have been a foreseeable risk. In that sense, there was a foreseeable risk of injury here. But it was not a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety. The plaintiff, like pedestrians generally, was in an excellent position to see and avoid imperfections in the surface. There could have been no expectation on her part that the surface would be smooth. The unevenness in the paving slabs, the cracks and the holes at the place where the plaintiff was moving were as obvious as similar features all over the country, and as obvious as other common features like raised tree roots and manhole covers. There was no concealment of any of the features of the site which the trial judge criticised. There was no inadequacy in the lighting, or obscuring of the hazard by grass or otherwise. It was reasonable to expect the plaintiff to have seen what lay ahead of her as she walked along in broad daylight: what was there was obvious and called for no special vigilance.

55 So far as there was any hazard it was both not only obvious but insignificant and common. The condition of the pavement was typical of innumerable kilometres of pavements in the cities, suburbs and towns of this country. The imperfection was of a kind which users of footpaths have from childhood habituated themselves to look out for and avoid, in view of the fact that surfaces which pedestrians use may be uneven, not flat and not smooth. The imperfection was not a danger, a hazard or a trap. Neither Mr Moir nor the trial judge demonstrate how Mr Moir's figure of 10 mm depth in the hole as the criterion of liability was crucial, and, if it was, how that view could be reconciled with the reasoning in Brodie's and Ghantous's cases. Though Mr Moir referred to other experts, he did not explain their thought processes.

56 The reasoning of Hodgson JA (Foster AJA and Brownie AJA concurring) in Lombardi v Holroyd City Council [2002] NSWCA 252 at [32] applies here:

"I do not accept that a plainly visible step of 25 millimetres in a footpath is correctly regarded as high risk or unacceptable risk. It is desirable that even obvious steps of 25 millimetres in footpaths be avoided and eliminated if possible; but that is not to say that the failure of a Council to detect and eliminate all such risk is negligent. As a general rule, in my opinion it is not."

57 Hodgson JA's reasoning in Parramatta City Council v Watkins [2001] NSWCA 364 at [27] also applies; speaking of a 50 mm change of level from the surface of a road to a manhole cover, he said:

"I am inclined to think that sudden variations in level of this magnitude may generally be expected at the edge of footpaths, at transitions between different paths or surfaces, and even between footpath slabs in the vicinity of trees; and also between paved and unpaved areas of road. However, the same may not be true within the paved surface of an apparently well-maintained road, particularly where the change of level is not obvious; and the circumstance that the change in level in this case was in a designated parking area, where it could be partially obscured by a parked car, would add to the risk."

Here there was no obscuring of the imperfection by a parked car or otherwise; the case did not concern the paved surface of an apparently well-maintained road, but a cracked pavement; the fact of the crack between the pavers was obvious enough actually to be seen by the plaintiff, and the change in level sufficiently obvious that she ought to have seen it; and the imperfection was similar to one occurring between footpath slabs in the vicinity of trees.

58 The proposition that there was no reasonably foreseeable injury is supported by two other matters of fact. The fact is that Mr Radnidge had not received a complaint about the imperfection in the form of an "action request" in his twelve years with the Council. The second matter of fact is that there is no evidence that any person had ever stumbled or fallen at the site where the plaintiff was injured. The vehicle crossing and the pipe railings lining the pavement in the areas where there was no vehicle crossing had been there from a time prior to 1972, according to Mr Moir. Mr Moir thought that the "defects and hazards" he identified should have been detected when the railings were installed, ie before 1972. He thought that the defects and hazards had been there, possibly, for more than thirty years. These aspects of Mr Moir's report may safely be relied on, since the plaintiff relied on them herself for particular parts of her argument. The relevant section of the pavement was near a school, a golf course and shops. Access to the footpath from the school existed through a gap in the school fence, through which the plaintiff and her daughter had actually passed just before the fall. Though the gap was later closed, it is a safe inference that school children frequently used it. It may be inferred that pedestrians of all ages passed along the footpath and over the site where the plaintiff fell many times a day, and had done so for up to twenty-five or thirty years. Mr Radnidge's direct evidence on the point was that there was "a very large volume of" pedestrian traffic along the footpath, including 500 or 600 school children. It may be inferred that there would also be parents picking them up, in addition to other users of the footpath. The absence of evidence of any stumbling, and the absence of any recorded complaint, strongly supports an inference that the site was not dangerous or hazardous or risky to pedestrians, and that injury to them was not reasonably foreseeable.

59 The conditions of the site were so obvious and so typical of those commonly to be encountered in daily life that the defendant was not under any duty to undertake inspections to identify them. Even if the defendant had become aware of the particular conditions of the site, it had no duty to alter them in view of their obviousness.

60 In short, the defendant did not owe the plaintiff a relevant duty of care either to identify the features of the site or to remove them.

Breach of duty

61 If there had been a duty, it would be necessary to consider the evidence and arguments bearing on the trial judge's reasoning in relation to the financial capacity of the defendant. But even if the risk of injury was sufficiently foreseeable to trigger the type of breach analysis referred to in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48, the degree of probability of the risk of the occurrence was so low that the expenses of taking alleviating action and the defendant's other responsibilities were likely to be such that the defendant was not in breach of duty. The defendant did not prove specifically or in detail what the defendant's other responsibilities were, and the burden of proving breach lay on it. The repair budget was $10,000. The cost of repairing all pavements was at least $50,000. The plaintiff did not establish why it was a breach of duty to have a repair budget of only $10,000. Indeed Mr Radnidge, though he was cross-examined briefly on why he only regarded a 20 mm gap as dangerous and not a 15 mm gap, was not cross-examined as to why the defendant only had a budget of $10,000 for repairs, when for $50,000 or more the defendant could have fixed all the cracks with 20 mm gaps. Nor was he cross-examined on what it would cost to fix all cracks with 15 mm gaps, or 10 mm gaps, if the latter figure selected by Mr Moir was the decisive badge of danger. Counsel for the plaintiff said that it was for Mr Radnidge to have given evidence on these topics in chief, but that is not so given that his position was that a 15 mm gap was not dangerous. In short, even if the plaintiff had demonstrated that there was a duty of care, it cannot be said that she demonstrated that the defendant was in breach of it.

Orders

62 It follows that the defendant bears no liability to the plaintiff in relation to her unfortunate accident. The following orders are proposed.

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The orders of the trial judge are set aside.

4. In lieu of the orders of the trial judge, the Statement of Claim is dismissed.

5. The respondent is to pay the appellant's costs of the trial and of the appeal.

6. The respondent is, if qualified, to have a certificate under the Suitors Fund Act.

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LAST UPDATED: 04/11/2002