Eutick v City of Canada Bay Council [2006] NSWCA 30 (3 March 2006)

CITATION: Eutick v City of Canada Bay Council [2006] NSWCA 30

FILE NUMBER(S):

40990 of 2004

HEARING DATE(S): 21/10/05

DECISION DATE: 03/03/2006

PARTIES:

Merylyn Margaret Eutick - Appellant

City of Canada Bay Council - Respondent

JUDGMENT OF: Giles JA Ipp JA Campbell AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC5553 of 2003

LOWER COURT JUDICIAL OFFICER: Twigg ADCJ

COUNSEL:

Mr B Gross QC with Mr V Jurisich - Appellant

Mr G A Laughton SC and Mr M W Robinson - Respondent

SOLICITORS:

P K Simpson & Co - Appellant

McCullough & Buggy - Respondent

CATCHWORDS:

Torts - Negligence - Tripping case - Obvious danger - Pedestrian crossing - Insignificant risk - Subs 5B(1)(b) of Civil Liability Act 2002.

LEGISLATION CITED:

Civil Liability Act 2002

DECISION:

Appeal dismissed with costs.

JUDGMENT:

HE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40990/04

DC 5553/03

GILES JA

IPP JA

M W CAMPBELL AJA

Friday 3 March 2006

EUTICK v CITY OF CANADA BAY COUNCIL

Judgment

1 GILES JA: The facts are in the reasons of Campbell AJA, which I have had the advantage of reading in draft. They enable me to state briefly the reasons for my concurrence.

2 Was leaving the lip or ridge unrepaired an unreasonable response to a foreseeable risk of injury presented to pedestrians crossing the road? The lip was readily visible, and as one indication of the risk it presented the applicant had crossed the road without incident on over eighty occasions. It had been there for some months, and there was no evidence that any other pedestrian had tripped on it. It was a busy road, with traffic along Great North Road and turning into it from Henry Street a short distance from the crossing to the right of a pedestrian crossing as the appellant crossed the road. The pedestrian could be expected to pay attention to the traffic, but not to the exclusion of paying attention to where he or she was walking; the circumstances were different from those in Newcastle City Council v McShane [2004] NSWCA 425. I agree with his Honour’s opinion that the judge did not consider that the respondent had been unreasonable in not taking action to repair the lip, and his conclusion that the judge was not in error in doing so.

3 I agree that the appeal should be dismissed with costs.

4 IPP JA: I agree with M W Campbell AJA

5 CAMPBELL AJA:

INTRODUCTION

This is an appeal from a judgment of his Honour Acting Judge Twigg QC of the District Court for the respondent in an action brought by the appellant seeking damages for injuries suffered in a fall.

6 Against the possibility of a successful appeal Judge Twigg made findings as to contributory negligence and damages. He would, had the appellant succeeded, have assessed damages at $117,327 and awarded the appellant $47,011 following a sixty percent reduction for contributory negligence.

7 The appellant’s written submissions foreshadow that should she succeed on the issue of liability she would challenge the finding of contributory negligence. An indication that should she fail she would challenge the costs order made by his Honour was not pressed.

8 An indication in the respondent’s written submissions that should the appellant succeed on the issue of liability the respondent would challenge the quantum of damages was not pressed.

THE CIRCUMSTANCES

9 On 30 May 2001 the respondent, who was then 45 years of age, was crossing Great North Road near Barnstaple Road at Five Dock in a pedestrian crossing when, she claims, she tripped on the lip of a gully or depression in the roadway. She claims she fell and injured, in particular, her back.

10 It is common ground that the appellant had the care and control of the roadway and that it had carried out works on the roadway. It was also common ground that at the time of the alleged fall the works had left a depression with a lip or edge.

11 The respondent accepted that she frequently used the pedestrian crossing and that she had been aware of the existence of the gully or depression and the lip for some months prior to 30 May 2001.

12 In the Statement of Claim the respondent alleged negligence, of which the particulars are as follows:

“The Defendant by its servant and agents, was guilty of negligence in that the Defendant:

a) Failed to take any or adequate precautions for the safety of the Plaintiff.

b) Exposed the Plaintiff to a risk of injury which could have been avoided by reasonable care on its part.

c) Failed to see that the portion of the premises where the Plaintiff was required or permitted to be during the course of her walking across the road was safe for use by the Plaintiff.

d) Failed to inspect the premises and in particular the gully of the roadway.

e) Failed to warn the Plaintiff of the dangers incidental to the gully on the road.

f) Invited or required the Plaintiff to cross the road in circumstances when it was unsafe to do so.

g) Failed to keep any or any proper look out.

h) Failed to observe that the Plaintiff was in a position or (sic) peril in the circumstances.

i) The Defendant carried out alterations to the footpath, gutter and roadway in the area where the Plaintiff fell and failed to do such alterations properly and in fact created a trip hazard which caused the plaintiff’s injury.

j) The Plaintiff relies upon the doctrine of res ipsa loquitur.”

THE PRIMARY JUDGE’S DECISION

13 Under a heading “The Claim” Judge Twigg noted:

“The Plaintiff was a pedestrian and she was crossing the Great North Road at a pedestrian crossing near Barnstaple Road when she tripped and fell due to a hazard said to have been created by the Defendant’s repair works earlier in the year 2001.”

14 His Honour recorded that the Council accepted that it was responsible for the roadway and that it carried out earthworks prior to 30 May 2001.

15 After noting that the respondent gave oral evidence, tendered medical reports, an expert’s report and documents the Judge said:

“In addition, photographs and sketches amply demonstrated a lip or ridge in the road surface at the pedestrian crossing which the Plaintiff said was about three-quarters of an inch high and extended along the roadway for some distance parallel to the western kerb.”

16 Under a heading “The Law” his Honour referred to the Civil Liability Act 2002 (the Act), particularly sections 5B, 5C, 5F, 5H, 5R, 5S, 5T, ss 12-17 A and s18. He later summarised the effect of some of these sections.

17 The Judge also listed the large number of authorities to which he had been referred and summarised the effect of a number of them.

18 After noting that the respondent worked as an administrative officer with the Optometrists Association of Australia from February 1995 until 30 July 2002 the Judge continued:

“These premises were in Great North Road at Five Dock, near Barnstaple Road intersection. The Plaintiff was familiar with the area where these work premises were situated. She was accustomed to drive to work by taking a turnoff before the intersection of Barnstaple Road and Great North Road, and drove around the block to enable her to enter her car by the entrance to the work place in Barnstaple Road.

On many occasions the Plaintiff used the pedestrian crossing shown in the sketch in exhibit N to cross the Great North Road for a number of reasons.

She said in her evidence that she had made that crossing eighty times in the few months preceding 30 May 2001; she confirmed that she had observed the roadworks constructed along that section of the Great North Road, not only by walking across the street, but also from her office desk, from which she had a good view of the road and shopping centre.”

19 The Judge noted that the respondent was in good health, had good sight and that she engaged in physically active pursuits.

20 Under a heading “The Incident” the Judge said:

“The Plaintiff was aware of the ridge running parallel to the western gutter of Great North Road for many months before 30 May 2001.

Although council had completed the extensive work, see exhibits Q and R, some months before 30 May 2001, there was a noticeable ridge close to the gutter which the Plaintiff estimated to be three-quarters of an inch or about 19mm. Its height varied above and below that height as it ran along the distance of the ridge across the pedestrian crossing and beyond.

Traffic along Great North Road is always busy but particularly at peak time around 9am.

At about 9.30am the Plaintiff began to cross at that pedestrian crossing as she had done without falling on that ridge at least eighty times before. She was conscious of the traffic and looked at its approach before stepping onto the highway.

She looked ahead but did not look down towards her feet on the roadway. She was looking more at the traffic even though she had satisfied herself that it was safe to cross.

She caught her toes or the toe of her footwear on the ridge and fell forward, mainly to her right side. She had marks on her right palm afterwards. She noticed some injury to her right side but did not feel any pain in her back or right leg. She picked herself up and returned to work. There she spoke to a fellow employee about her fall expressing embarrassment about the fall.”

21 His Honour noted that the respondent completed her day’s work on the Wednesday of the accident and also on the Thursday and Friday following. He recorded her evidence that back and right leg pain had occurred over the week end leading the respondent to see her local general practitioner Dr Roncevic. The Judge then said:

“Despite the Plaintiff’s swearing on her oath that she did tell the doctor of her fall, there is no note of that in her notes until 19 June 2001 when the doctor notes

‘19/6/01 fell on footpath on the way to work on footpath – day work – deficient footpath. Merlyn tripped on edge. Fell on outstretched right hand, then developed LBP on31/5/01. (not told about this before).’

I interpret LBP to be lower back pain.

The Plaintiff says that the low back pain developed on the weekend, that is three and four June 2001, yet the doctor notes that incident as occurring on 31/5/01, the day after the accident. There is no note on Monday 5 June 2001 of a fall on the footpath.”

22 His Honour then records that the respondent was off work for about four months, returned on a gradually increasing scale of hours and then resigned to go to Lismore to care for her gravely ill mother.

23 Under the heading “The Submissions” Judge Twigg noted that it was submitted on behalf of the appellant that she should be accepted as honest reliable and candid. Inconsistencies in the medical reports should not lead to the conclusion that she was not a credible witness. It was accepted that neither the respondent nor her expert witness Mr Byrnes took measurements particularly of the height of the ridge. It was pointed out that the defence called no oral evidence. His Honour continued:

“It is submitted the Plaintiff should be excused for not looking at the repaired roadway, because quite properly when crossing a busy road, she was watching the traffic. The Council is at fault for the misfeasance, which is of its own making. It allowed the subsidence to occur, causing a three-quarter of an inch ridge, which is a trip hazard for which the Council is to blame.”

24 Reliance was placed by the appellant, the Judge noted, particularly upon the cases of Hawkesbury City Council v Ryan [2001] NSWCA 212, Penrith City Council v Parks [2004] NSWCA 201, Turnbull v Alm [2004] NSWCA 173 and Temora Shire Council v Stein [2004] NSWCA 236.

25 The Judge noted that it was submitted on behalf of the appellant that the respondent was an unreliable witness who did not complain that the ridge was the cause of her injury to her general practitioner until 5 (sic) June 2001 and to her employer on 21 June 2001.

26 It was pointed out that no measurements were provided to the Court.

27 It was submitted that the Court should accept as important the note of Dr Roncevic on 19 June that this was the first reference to a fall on 30 May 2001.

28 The Judge noted the submission:

“The ridge the alleged hazard, was obvious. The Plaintiff was familiar not only with the footpath and the roadway, but also the roadworks the subsidence, and the ridge. She had negotiated that same ridge many times before. She had not fallen or had any problems with the ridge before. Hence the Plaintiff had a clear knowledge of the hazard.”

29 He also records the submission that even if it be found that the appellant had breached its duty of care the contributory negligence was overwhelming and should be assessed at as much as ninety percent. Section 5S of the Act was relied upon.

30 Under the heading “Conclusion” Judge Twigg dealt with “Credibility” and “Liability”.

31 Under “Credibility” he said:”

“I found the Plaintiff to be an unreliable witness. She was not candid in her account, either of the fall or her subsequent disabilities. She was reluctant to reveal important matters relating to her rehabilitation.

I watched her carefully in the witness box and whilst sitting in the bowl of the Court. This an advantage denied to an appeal court.

On my estimate the Plaintiff was evasive, less than frank, and unwilling to concede when facts contrary to her interest were put to her.”

32 The Judge found it significant that Dr Roncevic would deliberately make a note on 19 June 2001 that it was the first time she had been told of the fall on 30 May 2001.

33 The Judge drew an adverse comparison between the claims of the respondent, who was on Worker’s Compensation and the views of Dr Levington as to her back incapacity.

34 Under “Liability” the Judge said:

“I cannot accept this edge was a hazard for the Plaintiff in the circumstances around this incident. She was familiar with the hazard, and had crossed it so many times without any problem that it must have been well in her mind on 30 May 2001.

On my finding a three-quarters if an inch or 18mm ridge should have been obvious to the Plaintiff in the clear light and circumstances on the day of the incident.

There will be a verdict for the Defendant.”

35 The importance attached to Dr Roncevic’s note and demeanour suggests that the Judge doubted the fall or the occurrence of a back injury in the fall. However, the Judge appears to accept “this incident” and the appeal was conducted on the basis that the relevant issue was responsibility for it.

36 In respect of the precautionary finding as to contributory negligence his Honour said:

“It is difficult to assess contributory negligence of the Plaintiff when the essential finding is that there has been no breach of duty of care. But the Plaintiff must accept a substantial blame by her action in not looking at the roadway which she knew was flawed.

I assess contributory negligence at sixty percent.”

37 It is convenient to note that Mr Jurisich submitted at the trial that the appellant “wasn’t being inadvertent”. Judge Twigg accepted that submission and the concept of inadvertence does not receive further attention in address or in the judgment.

38 His Honour then proceeded to deal with damages on the same precautionary basis.

GROUNDS OF APPEAL

39 The Grounds of Appeal are:

“1. His Honour erred in failing to find that the Respondent had breached the duty of care it owed to the Appellant by creating a trip hazard at the pedestrian crossing which caused the Plaintiff to be injured.

2. His Honour erred in failing to find that the Respondent was guilty of negligence that caused or materially contributed to the Appellant’s injury, loss and damage.

3. His Honour erred in finding that the Appellant was guilty of contributory negligence by inadvertently misplacing her foot and failing to avoid the trip hazard while she was keeping a proper lookout for oncoming traffic at the pedestrian crossing.”

APPELLANT’S SUBMISSIONS

40 Mr Gross of Queens Counsel, who appeared with Mr Jurisich of Counsel for the appellant, took the Court to the evidence as to the features of the pedestrian crossing and the surrounding streets. He submitted that the Great North Road was a very busy road and drew attention to Henry Street and Barnstaple Road which were close to the intersection and from which vehicles could enter Great North Road. He pointed out that there were no relevant traffic lights.

41 He submitted that the appellant, exercising reasonable care for her own safety, would have to take into account the risks of cars on Great North Road and coming from Henry Street.

42 Mr Gross drew attention to the unchallenged evidence of the civil engineer Mr Byrnes, whose report was tendered for the respondent, that the lip was 0.9 of a metre from the point of stepping onto the road and put that a usual step would be less than that.

43 Mr Byrnes did not measure the height of the lip no doubt because he did not inspect the site until some three years after the fall and because some filling in work had been done.

44 Judge Twigg found that the height of the lip at the point where the appellant fell was 18 millimetres. From what appears elsewhere it is likely that the Judge meant 19 millimetres as that was said to be the equivalent to the three quarters of an inch which the appellant had estimated.

45 Mr Gross referred to Mr Byrnes’ quotation from the “Guide Traffic Engineering Practice Part 13 Pedestrians Austroads/Standards Australia 1995” which said, amongst other things:

“It is important for many people that surface is the flat. This is particularly so people in wheelchairs, on crutches or who are unsteady on their feet as small ridges and protrusions as the low as 6mm can cause these people to stumble and fall. Surfaces should not deviate more than 5mm from a 500mm long straight-edge layed anywhere in the surface. (sic).”

46 He accepted that the appellant had seen work being done in the relevant area up to about two months before her fall and that “she had observed that there was a depression constituted by the trench along that area”.

47 Mr Gross referred to Judge Twigg’s references to Byrnes, Ryan, Watkins and Lombardi and submitted that it appeared that his Honour had focused upon mere questions of height difference and as to whether that height difference was an obvious risk. It was submitted that Judge Twigg accepted that these matters alone led to a verdict for the respondent. Mr Gross put:

“Your Honour, what his Honour left out of the equation was in effect that a reasonable council would not cause such a hazard to exist at such a location when a capacity to see the hazard doesn’t adequately protect a pedestrian who, at that point, is forseeably engaged upon a distraction by the task of looking out for traffic, and your Honours – “

48 It is convenient to note that Counsel had argued the matter before Judge Twigg on the basis that the issue was whether there had been a breach of duty of care rather than whether, in the circumstances, a duty of care existed. It is accordingly unnecessary to consider the debate surrounding that issue. (Stein per Giles JA at [37], [38].)

49 Mr Gross accepted that the real issue was whether the council was entitled to leave the lip as it was because people who take reasonable care for their own safety would not fall. He submitted that the Judge’s conclusion on this issue was wrong.

50 Mr Gross relied upon Webb v State of South Australia (1982) 56 ALJR 912.

51 Mr Gross put that Webb deals, favourably from the point of view of the appellant, with a situation where the injured person may not take precautions in respect of a hazard which that person knows to be present or can see because that person is engaged on another task that occupies their attention.

52 Mr Gross referred to Ghantous [2001] HCA 29; (2001) 206 CLR 512 to which I shall come later. He emphasised the references to “inadvertence”, “circumstances”, “Webb” and “concealed danger”. I should mention that Mr Jurisich expressly conceded at the trial that the lip was not a hidden trap.

53 Mr Gross submitted that the appellant was not guilty of contributory negligence and that her actions should be considered “inadvertence”. As I have mentioned at [35] this submission departs from that put by Mr Jurisich at the trial.

54 Mr Gross took the Court to the case of Hastings Council v Giese [2003] NSWCA 178 which I shall come to later. He submitted that that case, which also concerned a pedestrian crossing, could be distinguished on the facts as the injury did not occur at the point of entry to the crossing and in a location where there was a difficult intersection.

55 Mr Gross put:

“His Honour does use the expression “circumstances” and he does recognise it is a busy road. However, the formulation of his reasoning, stated in two paragraphs on page 24 (see [32]) would seem to indicate that the ridge should have been obvious to the plaintiff. That appears to be the foundation of the reason. True his Honour used the expression “in the circumstances”. She knows in advance over the preceding two months that there is a ridge there.

The real problem is not whether it should have been obvious to her. His Honour really hasn’t looked at the question from the point of view of the defendant as to whether the defendant, exercising reasonable care, should have taken it into account her being occupied by the task of looking out for other traffic.”

56 In his submissions in reply Mr Gross emphasised the extent of the depression and the need to cross it. He referred to the need to check for cars and to an adjacent pole as something to be clear of before doing so.

THE RESPONDENT’S SUBMISSIONS*

57 Mr Laughton of Senior Counsel, who appeared with Mr M W Robinson of Counsel for the respondent, submitted that the nature and surrounds of the crossing were not such as to lead to a conclusion that a pedestrian or more specifically the appellant would be distracted to a degree such that it could be said that she had not failed to take care for her own safety.

58 He submitted that the considerations applicable to pedestrian walkways applied equally to pedestrian crossings pointing to possible collision with other pedestrians, people pushing strollers, skateboarders and others.

59 Mr Laughton submitted that if breach of duty by the respondent were found there should be a finding of 100 percent contributory negligence.

60 He relied upon the Judge’s finding that the lip should have been obvious to the appellant at the time of her fall and on the following passages of evidence:

“Q. Knowing it was there was there some reason that you say you tripped on it? On this day?

A. Well I was actually looking up the road, taking caution of the cars coming down the road.

HIS HONOUR: I don’t quite follow that, Ma’am?

A. Well as I walked on the pedestrian crossing I was looking up the road for cars coming down.

Q. So you weren’t looking at the roadway?

A. I wasn’t looking at that particular spot when I fell.

ROBINSON. Q. But having done that perhaps 80 times before and being aware of it did you not think about looking where you were going, perhaps even before stepping onto the road?

A. Well the first step I took onto to it was the cement part where it wasn’t actually on the roadway and it was the next step when I went over.

HIS HONOUR: The question put to you was did you think, knowing the existence of a hazard, you ought to look at it before you stepped off the gutter onto the road?

A. No.

ROBINSON: Q. You said that you estimated the height of the lip had about three quarters of an inch?

A. Yes.”

61 Whilst dealing with the evidence it is convenient to refer to a passage which occurred a little earlier. In cross-examination the appellant said speaking of the lip:

“Q. Did you recognise it as a hazard before your accident.

A. Not really, no, I never thought about it as a hazard.”

62 The appellant, a woman of some 45 years of age, had no doubt walked about the streets of Sydney for a long time. The lip in the location it was did not strike her as a hazard. This suggests or at least supports the view that situated as it was it was not something a pedestrian would be concerned about. This in turn supports the view that to take no action about it was not unreasonable.

63 Mr Laughton relied upon the appellant’s evidence in cross-examination as to obviousness as follows:

“Q. When you first noticed before they completed work it was very obvious, was it not?

A. It seemed to be, yes.

Q. And it remained obvious to you every time you crossed it thereafter.

A. Yep.”

THE AUTHORITIES

64 It was accepted before this Court that the proper approach to the existence and extent of any duty of care owed by a road authority such as the respondent towards pedestrians has been authoritatively determined by the High Court in Ghantous.

65 That approach has conveniently and comprehensively been set forth by Giles JA in Stein as follows:

“26. In Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512 the position of a highway authority, which includes a council in which footpaths are vested, was brought within the ordinary principles of negligence. The ordinary principles of negligence included the consideration of the reasonable response to a foreseeable risk of which Mason J spoke in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-8. In their joint judgment Gaudron, McHugh and Gummow JJ said (at [150]-[152], under the heading “Content and breach of the duty of care”) -

‘150 The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon 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.

151 The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt 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. ... ‘

27 When dealing with failure to repair their Honours said (at [158]) that “the recognition of a duty of care in terms expressed above with reference to Wyong Shire Council v Shirt does not necessarily involve the imposition of an obligation in all cases to exercise powers to repair roads or ensure they are kept in repair”. They said (at [159]–[161] -

‘159 The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works, from a failure to remove unsafe items in or near a road, or from the placing of items upon a road which create a danger, or the removal of items which protect against danger.

160 In dealing with questions of breach of duty, whilst there is to be taken into account as a ‘variable factor’ the results of ‘inadvertence’ and ‘thoughtlessness’, a proper starting point may be the proposition that the persons using the road will themselves take ordinary care.

161 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. Although it has been said many times that the digging of a hole in a roadway constitutes an actionable misfeasance, the size and location of such a hole may vary and must be considered when determining, on the facts of the particular case, whether it will reasonably foreseeably lead to injury or harm to a user of the road. Depending on the conditions of the road, a ‘hole’ caused by removal of a portion of the road surface may not pose any foreseeable risk to cars; signs may provide adequate warning against whatever risks it poses to motor-cyclists or cyclists. On the other hand, a trench in the roadway, whether arising from active digging or decay of the road or structures within it, will more readily give rise to a foreseeable risk of injury, particularly where it cannot easily be seen or avoided by a road user. The nature of the defect, and not the question of whether it arose by action or ‘non-feasance’, should be significant. ... “

28 Specifically referring to pedestrians, their Honours said (at [163]) -

‘63 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), or the surrounding area (as in Buckle, 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’. 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. 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’. Each case will, of course, turn on its own facts.’

29 In the joint judgment their Honours agreed with Callinan J’s conclusion that there was no breach of duty in Ghantous v Hawkesbury City Council ‘because the footpath was not unsafe for a person taking ordinary care’ (at [166]-[167]). Callinan J, with whom Gleeson CJ and Hayne J relevantly agreed (at [8], [339]) said (at [355]) -

‘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. 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.’

30 Kirby J agreed with the joint reasons as to the existence of a duty of care (at [243]), but did not come to his conclusion in Ghantous v Hawkesbury City Council ‘upon any enlarged assumption about a pedestrian’s need for vigilance for his own safety’ (at [247]). His Honour considered that no breach of duty had been shown, and that the mishap was ‘simply an accident’ (at [248]). The observations in the joint judgment, taken with those of Callinan J, have prevailed in later decisions where pedestrians have fallen on imperfect footpaths or other public areas.

31 The later decisions are legion, but firmly establish that the content or breach of the duty of care of a council (or other entity responsible for a public area) involves regard to the obviousness of the risk to a pedestrian exercising reasonable care for his or her own safety. ------.“

66 Giles JA referred to a number of what he described as the “legion” of later cases applying the approach, however, it is not necessary for me to go to those cases in the present matter. I do note that Judge Twigg was referred to Stein and that he summarised the judgment of Handley JA in Byrnes as follows:

“In Byrnes the Plaintiff tripped over a concrete paver on a council footpath and fell. One paver had sunk, causing a height difference of 20mm. His Honour Justice Handley, as he then was, outlined the duty of Council to pedestrians to be able to take reasonable care to prevent or eliminate dangers to pedestrians taking reasonable care for their own safety.

He decided that a height differential of 20mm was not an unexpected or unusual danger to a pedestrian taking reasonable care and keeping a proper lookout. (Para 26).

His Honour went on to outline the better position of pedestrians to avoid harm in para 38 of the judgment. I quote:

‘Pedestrians on the other hand are in a position of relative advantage because they can generally protect themselves from uneven surfaces on footpaths and other public areas by keeping a lookout and taking care for their own safety.

The position would be otherwise if the surface contained something unusual of unexpected which creates a real danger for ordinary pedestrians.’

Having adopted passaged from Ghantous in the High Court his Honour set out in para 30 the duty of councils to pedestrians:

“A council’s duty to pedestrians is therefore to take reasonable care to prevent or eliminate the existence of dangers in the road or footpath. The duty is not to prevent or eliminate ‘obvious hazards’ which ‘could possibly be an occasion of harm’. The standard of care is that which is reasonably required to protect pedestrians who are taking reasonable care for their own safety. The care which pedestrians must themselves take enters into the definition of the duty and is not relevant only to contributory negligence.’”

67 Whilst each case turns on its own facts it is appropriate to note that 19mm of difference is within the difference frequently considered to be obvious and the failure to repair of which has not been held to be a breach of duty. Which is not to say that the outcome has not at other times been otherwise with similar differences in height.

68 Whilst Counsel’s submissions did not refer to them it is relevant to consider more recent discussions on the subject of obviousness of risk and the application of the Shirt “calculus” or “judgment” in Vairy v Wyong Shire Council [2005] HCA 62 and Mulligan v Coffs Harbour City Council [2005] HCA 63.

69 Ipp JA examined those cases in considerable detail in Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380. I will not recite again what he had to say, with which Giles JA and Hunt AJA agreed, but express my respectful agreement with the following summation:

“53 A common expression of principle as to the concept of obviousness of risk is manifest from the unanimous decision in Thompson and the judgments of those justices in Mulligan and Vairy who formed a majority on this issue. It can be articulated as follows. Obviousness of risk is not a phrase that denotes a principle or rule of the law of negligence. It is merely a descriptive phrase that signifies the degree to which risk of harm may be apparent. It is a factor that is relevant to whether there has been a breach of the duty of care. I make no comment as to whether it is relevant also to the existence of a duty of care as that was not in issue in this case (and see Ghantous and the comments of Gummow J in Vairy at [55] and [80]). The weight to be attached to the obviousness of the risk depends on the totality of all the circumstances. In some circumstances it may be of such significance and importance as to be effectively conclusive.”

70 As I have mentioned the question whether obviousness is relevant also to the existence of a duty of care in not an issue in this case.

71 There is nothing in the more recent case of Neindorf v Junkovic [2005] HCA 75, despite a strong dissent from Kirby J, that effects the operation of the principles stated above to the present matter.

72 In Vairy Hayne J at [105] said:

“The central issue in the appeal is whether the Council breached a duty of care it owed to the appellant by not erecting one or more signs warning against, or prohibiting, diving from the rock platform. Resolving that question, a question of fact, hinges critically upon recognising that what has come to be known as the ‘Shirt calculus’ is not to be undertaken by looking back at what has in fact happened, but by looking forward from a time before the occurrence of the injury giving rise to the claim. The several questions described by Mason J in Wyong Shire Council v Shirt are to be asked and answered with that perspective. Thus, before the appellant was injured, would ‘a reasonable man in the [Council's] position ... have foreseen that his conduct involved a risk of injury to the [appellant] or to a class of persons including the [appellant]’? If the answer to that question is affirmative, ‘it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk’. As Mason J went on to point out:

‘[t]he perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.’ “

73 In Mulligan Gleeson CJ and Kirby J pointed out at [2] as to the Shirt calculus:

“Reference is often made to the ‘Wyong Shire Council v Shirt calculus’. In that case, Mason J referred to the way in which a tribunal of fact might determine what a reasonable person would do by way of response to a foreseeable risk. As he made clear, he was describing a process of factual judgment. He referred to such factors as the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action, and any other conflicting responsibilities of the defendant. These, he said, were matters to be balanced out in making a judgment about reasonableness. The later use of the word ‘calculus’ to describe this passage is unfortunate. A calculus is a method of calculation. What is involved in the process to which Mason J was referring is not a calculation; it is a judgment. In Ridge v Baldwin, Lord Reid observed that ‘[t]he idea of negligence is ... insusceptible of exact definition’.”

74 Also in Mulligan McHugh J drawing attention to the relevant time at which the decision to take action should be made, said at [22]:

“Their duties had to be determined looking forward to what was ‘reasonably foreseeable’, not by looking back at what happened on this occasion. Nor were they to be determined by reference to the appellant's knowledge of the risks, except in so far as his knowledge might indicate the knowledge of channel users generally. His knowledge went to the issue of contributory negligence, not to the respondents' duties.”

75 In Mulligan the primary judge had referred to the fact that the plaintiff was an “experienced swimmer, a strong swimmer and experienced in diving.” Gummow J at [37] did not think it inappropriate to take that matter into account in considering the scope of the duty “having regard to the way in which the plaintiff’s case was presented.”

76 As noted at [50] and [51] Mr Gross relied upon Webb.

77 In that case the High Court by a majority of three to two upheld an appeal from the Full Court of the Supreme Court of South Australia which had dismissed an appeal from the primary judge.

78 A pedestrian had injured his foot when he jammed it in an open gap between a permanent kerb on the edge of the footpath and a temporary false kerb constructed by the highway authority in the roadway close to the footpath, as he was stepping on to the footpath from the roadway to reach the bus stop which was adjacent to the kerb.

79 Mr Gross relied upon the following passages from the Judgment of Mason, Brennan and Deane JJ at 912:

“In this case the issue, essentially one of fact, was whether the respondent was in breach of its duty of care to the appellant as a pedestrian by so constructing a false kerb as to leave an open gap between the false kerb and the permanent kerb which might cause injury to a pedestrian.

..........

The primary judge found that the false kerb and the intervening space was “a very obvious feature”. And so it was. The primary judge also found that the false kerb was not dangerous. This finding seems to have been based on its obviousness and on the circumstance that in the seven years that elapsed since its construction there was no record of any previous accident. But obviousness and the absence of accident over this period does not mean that the construction presented no risk of injury. As the false kerb was adjacent to a bus stop there existed the distinct possibility that a pedestrian, because he was in a hurry to catch a bus or was intent on observing an approaching bus or because his attention was distracted for some other reason, would fail to take sufficient care to avoid injury to himself. The happening of the accident demonstrated, if demonstration be needed, that the construction had the potential to cause injury.

Of course a pedestrian could avoid the possibility of injury by taking due care. However, the reasonable man does not assume that others will always take due care; he must recognize that there will be occasions when others are distracted by emergency or some other cause from giving sufficient attention to their own safety. It seems to us that the courts below gave undue emphasis to the circumstance that injury could be avoided by a pedestrian who took reasonable care for his own safety.

The question then is: What is the response which the reasonable man, foreseeing the risk, would make to it? Is the risk so small that a reasonable man would think it right to neglect it? In Wyong Mason J said (ALR at 221; ALJR at 285):

‘The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.”

80 The judgment went on to observe that the highway authority created the danger by its artificial construction on the highway. However, that reference was to deal with the then relevant question of misfeasance as opposed to non-feasance.

81 Webb was referred to in Ghantous by Gaudron, McHugh and Gummow JJ at [163] in the following context:

“Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v The State of South Australia (1982) 56 ALJR 912) or the surrounding area (as in Buckle, 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.....” of a kind calling for some protection or warning”

82 This reference and the principles established by Ghantous as set out earlier [62] indicate a qualification of the observations of the majority in Webb in so far as they go beyond the situation specifically mentioned.

83 In Neindorf Kirby J said at [80]:

“The arguments of the appellant in this appeal harken back to the opinions of the dissenting judges in Webb. For my own part, I would adhere to the approach and reasoning of the majority in Webb for it correctly states the doctrine of the law of negligence which this Court has hitherto applied.”

The arguments of the appellant were accepted by the remainder of the Court.

84 Mr Gross properly took the Court to the case of Hastings Council v Giese [2003] NSWCA 178; (2003) 127 LGERA 109. In that case, Tobias JA, with whom Handley and Sheller JJA agreed, considered a submission that [25]:

“This particular crossing, not being controlled by traffic lights, could result in pedestrians seeking to use it being distracted from looking where they are going and focusing their attention on ensuring that oncoming vehicular traffic would yield:”

85 His Honour observed [28]:

“As to the third, there is no reason to believe that a pedestrian upon a marked pedestrian crossing would be any less focussed upon where he or she is walking than a pedestrian on a footpath. A pedestrian on such a crossing, as distinct from one crossing the road outside a marked crossing, would expect that oncoming vehicular traffic would yield to those on the crossing. The suggestion that such a pedestrian’s focus would be on oncoming traffic rather than on where he or she is walking, with respect, fanciful.”

86 If this passage conveys the meaning that attention is not required in such circumstances to oncoming vehicles I, with respect, would have some difficulty with it. If its meaning is that a pedestrian is expected to and normally does have regard both to oncoming vehicles and the surface of the road over which he or she is to pass I have no such difficulty.

87 I have earlier referred to Mr Gross’s submission that the crossing on the Great North Road presented a pedestrian with a more complicated situation than was the case in Giese. Acceptance of that proposition does not, however, determine that a pedestrian could not by the exercise of reasonable care deal with the situation that existed on the Great North Road.

88 Human beings routinely perform far more complex tasks than observing a road surface over which they pass and approaching vehicles. Pedestrians deal constantly and in very large numbers with more dangerous and complex crossings than the one in Great North Road.

CONSIDERATION.

89 Appropriate allowance should be given for the pressures under which Judges of the District Court are placed by the volume of cases coming before them (Maviglia v Maviglia [1999] NSWCA 188). There is in this matter no ground of appeal based upon an absence of reasons.

90 Judge Twigg’s determination under the heading “Liability” is short but it must be read with the judgment as a whole including the Judge’s account of the relevant duty and the submissions put to him. Importantly he was clearly well aware of the nature of the traffic using Great North Road and the features of the crossing and its surrounds. There is no basis to conclude that he did not take these matters into account.

91 The Judge did not refer, beyond noting the submission, to misfeasance on the part of the respondent. There was no need to do so. There was no issue as to the respondent’s responsibility for the presence of the lip or as to its having the relevant knowledge of it. (See Ghantous per Gaudron, McHugh and Gummow JJ at [150]) quoted in [62]).

92 The absence of express reference to the Shirt “calculus” or “judgment” (see [72]) and the attention paid to the appellant’s knowledge is to be explained “having regard to the way in which the plaintiff’s case was presented” (see [75]).

93 In my opinion the Judge’s verdict, having regard to the whole of his judgment, implied that he did not consider the respondent had been unreasonable in not taking action to repair the lip.

94 I consider that it was open to the Judge to so find. The obviousness of the lip to pedestrians generally was clearly established by the evidence, quite apart from the fact of knowledge by the appellant. It was open to the Judge to conclude that the presence of potential traffic was not a matter which should reasonably be considered to cause a pedestrian, taking care for his or her safety, to fall on the lip.

95 I do not consider that it has been shown that Judge Twigg has fallen into error or that the conclusions he has reached were not open to him.

96 I would add that had it been necessary for the Court to consider the issue for itself I would, for myself, have reached the same view as the Judge.

97 Apart from the Judge’s finding, the evidence of the appellant established that the lip was very obvious. Her own view, as an experienced pedestrian, that she had not regarded it as a hazard suggests that positioned as it was and of the height it was it posed no great risk to a person crossing the road in traffic as she had done many times.

98 Crossing over pedestrian crossings is a normal incident of life, particularly in cities and, as with footpaths, they are by no means uniformly smooth and often contain defects, cracks, repaired patches misplaced tiles and other obstacles. Many are raised and some have gutters

99 In my view an application of the principles adumbrated in Ghantous and following cases to the facts of this matter produces the same result as that reached by Judge Twigg.

100 I do not consider that the appellant has shown that the respondent should have taken action in respect of the lip in the roadway. It was entitled, having regard to the obviousness of the lip and the limited nature of the hazard posed by it, as deposed to by the appellant, to expect that the exercise of reasonable care for their own safety by pedestrians would obviate the need for any further response.

101 As Mr Gross has pointed out, little attention, beyond identifying them, was paid to the relevant provisions of the Act. Were I to decide this case for myself I would have regard, amongst other things, to the requirement of s 5B(1)(b).

102 Section 5B relevantly provides:

“5B General Principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable ( . . . . .), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) . . . . . .“

103 The appellant carries the onus of establishing that the lip was a “not insignificant risk”. Having regard, in particular, to her description of it I do not consider that she has discharged that onus. I should observe that neither the fact that she fell nor the evidence of Mr Byrnes is determinative of the issue Ghantous per Callinan J at [355]).

104 Were the Court to reconsider this matter for itself my view would be that the appellant is not entitled to succeed.

CONCLUSIONS AND PROPOSED ORDERS

105 In my opinion the appeal should not succeed. I propose that the Appeal be dismissed with costs.

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LAST UPDATED: 27/03/2006