No duty of care
20 The Territory's second attack on the judgment of the Supreme Court was that in the circumstances of the case there was no duty of care to eliminate the rise in the paver. It was said that rather than being a hazard to passing pedestrians, it was simply a matter of some unevenness which ordinary pedestrians might expect to find in a public carpark. The duty does not, it was argued, require the Territory to protect pedestrians from all uneven surfaces especially if not exceptional in size and if manifest and obvious. It was so obvious, the Territory said, that the plaintiff had noticed it, even on the day of her accident.
21 The applicable scope of the duty of care by public authorities was considered in some detail in Romeo v Conservation Commission of the Northern Territory [1998] 192 CLR 431. Romeo was a young woman who fell at night 6˝ metres from the top of a cliff onto a beach in a nature reserve while she was intoxicated. There was a carpark surrounded by a low log fence about 3 metres from the edge of the cliff. Between the carpark and the cliff edge was open space covered with low vegetation. The woman fell at a point where there was a gap in the vegetation. There was no fence or other barrier at the edge of the cliff. The presence of the cliff was obvious. The area was one of natural beauty. The cliff was about 2 kms long. At 478-9 (paragraphs 122-4), Justice Kirby discussed the principles for assessing the appropriate scope of the duty of care:
Scope of the duty
It is one thing to hold that a person owes a duty of care of some kind to another. But the critical question is commonly the measure or scope of that duty. The failure to distinguish these concepts can only lead to confusion.
The ordinary formulation of the common law is that a body such as the Commission must take reasonable care to avoid foreseeable risks of injury to persons entering an area such as the reserve, including the cliffs, as of common right. However, that expression of the duty must be elaborated if it is to be of any practical guidance. The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier. The measure of the care required will take into account the different ages, capacities, sobriety and advertence of the entrants. While account must be taken of the possibility of inadvertence or negligent conduct on the part of entrants, the occupier is generally entitled to assume that most entrants will take reasonable care for their own safety. For example, it would be neither reasonable nor just to impose upon a body such as the Commission an obligation to erect secure climb-proof fencing along the entire elevated headland of the reserve against the risk of injury suffered by the occasional visitor bent on suicide. In judging the measure of the duty which is owed regard will certainly be had to any particular statutory obligations or powers enjoyed by a public authority. But where, as here, the statutory duties are stated in general and permissive terms, the scope of the duty of care imposed by the common law will be no more than that of reasonable care. Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just. In considering whether the scope of the duty extends, in a case such as the present, to the provision of fencing or a wire barrier, it is not sufficient to evaluate that claim by reference only to the area of the Dripstone Cliffs. An accident of the kind which occurred to the appellant might have occurred at any other elevated promontory in every similar reserve under the control of the Commission to which members of the public had access. The projected scope of the duty must therefore be tested, not solely with the hindsight gained from the happening of the accident to the particular plaintiff but by reference to what it was reasonable to have expected the Commission to have done to respond to foreseeable risks of injury to members of the public generally coming upon any part of the lands under its control which presented similar risks arising out of equivalent conduct.
It must never be forgotten that, in defining the measure of the duty of care, a court is not only determining an element essential to the ascertainment of the rights of the particular parties. It is also giving expression to the standards which occupiers of land or premises generally must reach, and possibly insure against, in case similar mishaps befall them.
22 His Honour adopted the test enunciated by Mason J in Wyong Shire Council v Shirt [1980] 146 CLR 40 at 47-8, viz. the fact-finder must ask whether a reasonable person in the defendant's position would have foreseen that the conduct complained of involved a risk of injury to the plaintiff or to a person in a similar position. If it did, it is then necessary to determine what response to the risk was reasonably appropriate for the defendant. This assessment will involve "balancing out" such matters 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 of the defendant's responsibilities which might conflict with doing so. Justice Kirby explained these concepts (paragraphs 128-130):
Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be "balanced out" before a breach of the duty of care may be found. It is here, in my view, that courts have both the authority and responsibility to introduce practical and sensible notions of reasonableness that will put a brake on the more extreme and unrealistic claims sometimes referred to by judicial and academic critics of this area of the law. Thus, under the consideration of the magnitude of the risk, an occupier would be entitled, in a proper case, to accept that the risk of a mishap such as occurred was so remote that "a reasonable man, careful of the safety of his neighbour, would think it right to neglect it". It is quite wrong to read past authority as requiring that any reasonably foreseeable risk, however remote, must in every case be guarded against. Such an approach may result from the erroneous conflation of the three separate inquiries: duty, scope of duty and breach of duty. Although a reasonably foreseeable risk may indeed give rise to a duty, it is the inquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness. Although it is true, as the appellant argued, that an occupier is not entitled to ignore safeguards against dangers because of the absence of past mishaps, it is equally true that years of experience without accidents may tend to confirm an occupier's assessment that the risks of harm were negligible.
As to the expense of taking alleviating action, it is increasingly recognised that courts must "bear in mind as one factor that resources available for the public service are limited and that the allocation of resources is a matter for" bodies accorded that function by law. Demanding the expenditure of resources in one area (such as the fencing of promontories in natural reserves) necessarily diverts resources from other areas of equal or possibly greater priority. Whilst this consideration does not expel the courts from the evaluation of what reasonableness requires in a particular case, it is undoubtedly a factor to be taken into account in making judgments which affect the operational priorities of a public authority and justify a finding that their priorities were wrong … even in so-called operational decisions, which are subject to court assessment, it is necessary to evaluate more than simply the cost of preventing the particular accident. Inherent in the suggestion of the obligation of prevention is the cost that would be incurred in the measures necessary to prevent all equivalent accidents of a like kind and risk.
In the reference to "other conflicting responsibilities" regard may be had to consideration such as the preservation of the aesthetics of a natural environment and the avoidance of measures which would significantly alter the character of a natural setting at substantial cost and for an improvement in safety of negligible utility.
23 Justice Higgins distinguished Romeo on the facts. He said (paragraphs 45-46):
[Romeo] involved the approach to a natural coastal cliff. Admittedly it was foreseeable that visitors to the area would approach the cliff edge. The risk of one of them doing so in the dark and whilst intoxicated, though foreseeable, was considered slight, though the consequences of a fall could be severe. The counter-measures to avoid the risk were not regarded as appropriate or required. Effectively, it would have required fencing off the approach to the cliff edge. That would have been environmentally inappropriate. Additionally, the cost of such fencing, to be effective, would have been quite prohibitive.
It would be similar to an attempt to reduce drownings at beaches by fencing them off from the public.
24 I respectfully agree with his Honour. The existence of the danger prevailing on a natural coastal cliff was obvious and not brought about or increased by the actions or inactions of the Commission. The area was not, as Justice Kirby pointed out at 477 (paragraph 120), a suburban park or, his Honour might have added if he had been hearing this case, a busy city walkway. A person walking on what is obviously a pedestrian area, designed, installed or permitted to be used for that purpose, need not be permanently on the lookout for hazards on a step by step basis: see Webb v South Australia (1982) 43 ALR 465 at 467, lines 5-11, per Mason, Brennan & Deane JJ, or behave in the same way as would be expected on approaching the edge of a natural coastal cliff. A variation in the height of the pavers in an area such as existed here created an edge which is more hazardous than undulation or uneven surfaces in a nature reserve.
25 As regards the "magnitude of the risk", it is axiomatic that a person falling on concrete pavers will most likely sustain injury, particularly if of advancing years. As for the "probability of the occurrence", it is clear from the evidence that once the paved surface was uneven, it created a 90 degree edge which was demonstrably more likely to cause sudden tripping, falling and injury than a flat if uneven surface. Likewise, in my view, Franklins Selfserve Pty Ltd v Bozinovska [1998] NSWSC 456, a decision of the New South Wales Court of Appeal which applied Romeo, is also distinguishable on the facts. The case involved a shopper in a supermarket who, to bring down a product on an upper shelf beyond her normal reach, stood on a wire or steel mesh basket intended to hold merchandise for sale and not as a stepping platform.
26 The Territory's argument that it was not necessary to warn about the raised pavers "as the very obviousness of them supplied its own warning" strikes me as having a sizeable element of contradictory ambivalence. On the one hand, the Territory said that the rise in the pavers was so slight, and so expensive to fix, that it could not reasonably be required to remove it. On the other hand, the rise was said to be so obvious that no duty of care to fix, fence or warn about it attached. If these contentions can stand together, I reject them both. As explained by the Master in his reasons for judgment (at paragraphs 17-19), there was no evidence of any great "expense, difficulty and inconvenience of alleviating action" to rectify the problem which led to Mrs Badcock's injury. Rather, the Master had the benefit of evidence from the Territory's officer Leigh Grant Palmer that it had signs, which could be simply erected, to alert the public to potential danger and that such signs would cost between $100 and $300 depending on how the sign was to be affixed and for how long. The Master also had the evidence of an expert witness Paul Scholtens, called in the plaintiff's case, that appropriate remedial action would have been half a day's work in removing the uplifted pavers and sand bedding, adjusting the gravel base course, and pruning the offending tree roots.
27 Moreover, any claim that the Territory had made a reasonable response to the risk posed by raised pavers in the carpark where the plaintiff was injured, was severely diminished by the complaint it received of the incident on 22 February 1994, recorded as: "Paver has been lifted by tree root location opp Donaldson St pathway goes through carpark on the third … refuge is where the paver is. An old lady triped [sic] over this." This complaint related to an area near where the plaintiff fell but nothing of substance was done, or done effectively, to remove the risk of injury. Thus, as the Master correctly found, the Territory was clearly aware of the specific risk that raised pavers could cause and yet no remedial action of the kind taken 11 months after the plaintiff's fall, when the risk and danger were the same, was taken prior to her fall. A public authority does not make a reasonable and proportionate response to a recognisable risk of injury by waiting for two falls by persons of advancing years in the same place and for the same reason before taking remedial action. In fact the Territory waited for three.