Blacktown City Council v Hocking

1. Appeal allowed. DECISION: 2. Set aside the verdict and judgment for the plaintiff against the first defendant and any accompanying order for costs; in lieu thereof verdict and judgment for the first defendant against the plaintiff and order the plaintiff to pay the first defendant's costs. 3. Cross-appeal dismissed. 4. First respondent pay the appellant's costs of the appeal against the verdict and judgment in her favour; appellant pay the second respondent's costs of the appeal against the verdict in its favour; cross-appellant pay the costs of the cross-appeal .

CATCHWORDS: NEGLIGENCE - Civil Liability Act 2002 - Duty of care - Pedestrian - Footpath under management of Council - Communications pit lid defective - Breach of duty of care at construction and/or subsequently - Negligent inspection - Immunity of councils for non-feasance under s 45 Civil Liability Act - Whether Council had actual knowledge of risk of harm - Whether primary judge made finding of actual knowledge - EVIDENCE - Interpretation of photographs by trial judge - Whether photographs may be used as substantive evidence or merely demonstrative evidence

LEGISLATION CITED: Civil Liability Act 2002 sections 5B, 45

Beaton v McDivitt (1985) 13 NSWLR 134; (1985) 3 BPR 9576 Birch v Australian Mutual Provident Society [1906] HCA 51; (1906) 4 CLR 324 Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512; (2001) 180 ALR 145; (2001) 75 ALJR 992 C Van der Lely NV v Bamfords Ltd [1963] RPC 61 Georgopoulos v Telstra Corporation Ltd [2004] NSWCA 266 Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512; (2001) 180 ALR 145; (2001) 75 ALJR 992 Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 Leichhardt Municipal Council v Montgomery [2007] HCA 6; 230 CLR 22; (2007) 81 ALJR 686; (2007) 153 LGERA 55 Leichhardt Council v Serratore [2005] NSWCA 406 Lindistane Roxsana Aitken v Telstra Corporation District Court, unreported 10 March 1997 CASES CITED: North Sydney Council v Roman [2007] NSWCA 27; (2007) 69 NSWLR 240; (2007) 150 LGERA 419 People v Bowley 59 Cal 2d 855; 382 P 2d 591 (CA, 1963) Reg v Travers (1958) 58 SR (NSW) 85 Rickards v Australian Telecommunications Commission [1983] 3 NSWLR 155 Schmidt v Schmidt [1969] QWN 3 Short v Barrett [1990] NSWCA 164; unreported, 5 October 1990; BC9003193 State v Pulphus 465 A 2d 153 (RI, 1983) Stillwell Trucks v McKay; Stillwell Trucks v TNT [2002] NSWCA 292 United States Shipping Board v The Ship St Albans [1931] AC 632 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Blacktown City Council PARTIES: Sherrie Hocking Telstra Corporation Ltd

A: L King SC / A Abadee COUNSEL: 1R: S Norton SC/ 2R: J E McConachie QC

A: McCabe Terrill, Sydney SOLICITORS: 1R: Bryden's Law Office, Liverpool 2R: Henry Davis York, Sydney

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40824/06 DC 93/05

SPIGELMAN CJ BEAZLEY JA GILES JA TOBIAS JA CAMPBELL JA

Wednesday 25 June 2008 BLACKTOWN CITY COUNCIL v SHERRIE HOCKING & ANOR Judgment 1 SPIGELMAN CJ: In this matter I have had the advantage of reading the judgments of Tobias JA and of Giles JA in draft. It is necessary to separately consider the two alternative bases upon which her Honour found that the Council was negligent: first, at the time of construction of the footpath, and, secondly, by reason of subsequent negligent inspections. 2 With respect to the first matter, subject to my additional observations below, I agree with Tobias and Giles JJA that no negligence on the part of the Council was established at that time. 3 I refer to the reliance by Giles JA in his judgment on the plaintiff's evidence that the lid rotated so that that part of the lid closest to the footpath went down and that part of the lid closest to the grass went up. Her Honour did not appear to accept this particular aspect of the plaintiff's evidence. As quoted by Giles JA, her Honour found that the injury occurred when the lid rotated, but did not, in terms, accept the plaintiff's evidence as to the direction of the rotation. 4 In my opinion it was open to her Honour to proceed in this manner. The precise nature of the rotation was the kind of matter upon which a person who suffered trauma could be wrong and leading questions in cross-examination, which are set out by Giles JA, do not require a trial judge to find in accordance with the replies. Nevertheless, it was necessary to identify negligence on the part of the Council and that could be found to have occurred with respect to either direction of rotation. 5 There was no evidence, indeed her Honour expressly abjured any such finding, that the side of the pit on the grass side was in any way inadequate at the time of construction. The evidence did not establish a basis for a finding of negligence which could be causally related to an injury, caused by rotation of the lid. 6 Accordingly, any errors that might have occurred at the time of construction would have arisen with respect to the defects at the two short ends of the pit as they appeared in 2002. For the reasons given by Tobias JA, those defects could not be found to have existed seven or eight years before on the basis of visual inspection of the 2002 photographs, without expert evidence. 7 Tobias JA sets out the authorities which consider the use of photographs by a trial judge. It is not entirely clear in what circumstances photographs can be used as direct evidence, as distinct from explicating the evidence otherwise given. 8 As Young J said in Beaton v McDivitt (1985) 13 NSWLR 134 at 142-143: " … it seems to me that the law is a little unclear as to just what use may be made of photographs tendered at a trial. In a criminal trial, photographs of the victim may be tendered to enable the jury to understand the medical evidence: see, eg, R v Lobendahn (1980) 5 Petty Sessions Review 2484. Even if photographs are tendered in a motor car accident case, it may be that without concession the photographs can only be used by the judge as descriptive of what the witness who tendered them saw, and that the judge cannot himself make deductions from them: see, eg, Schmidt v Schmidt [1969] QWN 3. However, in R v Ames [1964-5] NSWR 1489 at 1491, the Court of Criminal Appeal seems to me to have made a greater use of the photograph than merely to use it to understand the evidence because their Honours said: '… the photographs … did have some probative value, as distinct from an oral description of what they depicted … They depict the direction of the flow of blood on to the clothing and establish the presence of blood on the mouth …' Very often in equity, photographs are tendered from the Bar table without a witness in the box to give complementary oral evidence, and in my view, when this happens, consistently with R v Ames , the judge treats the photographs as evidence and not merely as material to understand the evidence." 9 Schmidt v Schmidt [1969] QWN 3 was an appeal from the Queensland District Court to the Full Court of the Supreme Court of Queensland. Douglas J, with whom Hart and Lucas JJ agreed, made certain obiter observations on the use of photographs for the purpose of making deductions of fact. His Honour said at 6: "[The primary judge] based a large part of his judgment on what he saw in [the photographs]. He was not entitled to use them in the way he did. He proceeded to make deductions of fact which on the evidence it was not competent for him to make. The greater part of his deductions made from the photographs can be described as conjectural, and to the extent that he used them as a basis for his findings they must be rejected." 10 Douglas J (at 5) cites as authority for his findings Wigmore on Evidence (3rd ed, 1940) vol 3 at 174-175 which states: "… whenever such document is offered as proving a thing to be as therein represented, then it is offered testimonially, and it must be associated with a testifier. Two consequences plainly follow. On the one hand, the mere picture or map itself cannot be received except as a non-verbal expression of the testimony of some witness competent to speak to the facts represented. On the other hand, it is immaterial whose hand prepared the thing, provided it is presented to the tribunal by a competent witness as a representation of his knowledge." 11 In the Chadbourn revision of this text - which was published in the year following Schmidt - the author appeared to recognise a broader role for photographs. After setting out the passage from the third edition, quoted above, the learned author added at 219-220: "This theory which has been aptly dubbed the 'pictorial testimony theory of photographs' was advanced in prior editions of this work as the only theoretical basis which could justify the receipt of photographs in evidence. With later advancements in the art of photography, however, and with increasing awareness of the manifold evidentiary uses of the products of the art, it has become clear that an additional theory of admissibility of photographs is entitled to recognition. Thus, even though no human is capable of swearing that he personally perceived what a photograph purports to portray … there may nevertheless be good warrant for receiving the photograph in evidence. Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness which 'speaks for itself'." 12 The author goes on to quote at length an American case in which this issue is discussed. (People v Bowley 59 Cal 2d 855; 382 P 2d 591 (CA, 1963).) Subsequently see State v Pulphus 465 A 2d 153 (RI, 1983) esp 158, where the Court lists numerous American authorities which "have permitted photographs to be used as substantive evidence as well as merely demonstrative evidence". 13 It appears that Schmidt, which relied on the older version of Wigmore's text, may need reconsideration, as suggested by Young J in Beaton. 14 With regard to the second basis for a finding of negligence, namely the subsequent negligent inspection, relevantly by Mr Shackleton, in my opinion, her Honour was entitled to proceed on the basis that there was rotation and that the process of inspection could have been negligent in whatever direction the rotation occurred. 15 Unlike Giles JA, I believe it was open to her Honour to make the following finding: "[49] It is also probable that the side of the pit in the grass was in an obviously damaged state some time before Ms Hocking's fall given the degree of erosion on that side where it is apparent that there was nothing supporting about a third of that edge." 16 Plainly, the rotation could have occurred by the lid rotating in the direction of the grass. However, the absence of any support for the lid on the grass side of the pit permitted lateral movement of the lid in that direction, so that it was no longer supported by the lip on the footpath side of the pit. Such movement, combined with damage at each short end could, in my opinion, have resulted in rotation at the time of the accident in the manner described by the plaintiff. 17 On either view, the absence of any support on the grass side could have been picked up by an inspection. Insofar as the photographic evidence can be relied upon at all, it is not obvious to an untrained eye that there may be instability because of the absence of an observable concrete lip extending around the side of the pit facing the grass. Nevertheless, I think it was open to her Honour to conclude, on the basis of the evidence of Mr Shackleton's practice, that he should have seen this defect. 18 Her Honour summarised Mr Shackleton's evidence in the following way: "[45] … He said that his work included inspecting roads, footpaths, kerbs and gutters to refer any work for maintenance. He said that during an inspection if he thought that a Telstra pit appeared to be an obvious hazard or risk to public safety, the Council would arrange for a barricade to be placed around it and Telstra notified. It was his practice to park his car in a street to be inspected and then walk up and down the street to inspect the road footpath and drainage pits. He said that he did regular inspections in Restin [sic] Avenue." 19 Although, in my opinion, a finding of negligent inspection was open, the appeal should be determined on the basis of the Council's reliance on s 45(1) of the Civil Liability Act 2002. 20 Contrary to Tobias JA, in my opinion, her Honour made a finding that the Council did not have "actual knowledge" for the purpose of s 45(1). 21 I note, first, that part of Mr Shackleton's statement that is summarised at [45] of her Honour's judgment, and set out above, to the effect that if he thought that a Telstra pit appeared to constitute a risk he would arrange for a barricade and notify Telstra. This did not happen. That is, of itself, indicative of the fact that he did not have actual knowledge of the risk. It is not suggested that any other officer of the Council was relevant in this respect. 22 I do not agree with the conclusion of Tobias JA that her Honour's findings at [47] to the effect of what "would have been plain to someone who was looking [for] hazards" and what "should have put the Council on notice" and the finding at [53] as to what "would have revealed the damaged state of the pit" can form the basis of an inference as to what in fact her Honour found. These are findings of what a properly conducted inspection should have found. 23 I rely on her Honour's ultimate conclusion, with respect to the alternative case of a negligent inspection at [66]-[67] of her Honour's judgment. At [66] she says that if there had been properly conducted inspections "the Council would have been alerted" to the absence of a lip. At [67] she refers to the inspections resulting in the "failure to detect … that the lid was unsupported at both ends". These two references appear to me to indicate a positive finding that there was no actual knowledge, i.e. the Council was not "alerted" and that it did "fail to detect". These failings can only be by Mr Shackleton. 24 It is clear from submissions before her Honour that the Council did rely on s 45(1). It appears that her Honour failed to address the issue in terms. However, her Honour's conclusions on breach at [66]-[67], referred to above, are consistent only with a finding that there was no "actual knowledge". Notwithstanding her Honour's failure to expressly address the issue, I do not think this is a matter which should be remitted. 25 I agree with the reasons of Tobias JA that the plaintiff's cross-appeal against Telstra should be dismissed. 26 I agree with the orders proposed by Giles JA.

27 BEAZLEY JA: I agree with Spigelman CJ. 28 GILES JA: The facts and the issues in the appeal and cross-appeal are described in the reasons of Tobias JA, which I have had the advantage of reading in draft. I agree with his Honour's analysis of the use which can legitimately be made by a trial judge of photographs and his conclusion that the trial judge's interpretation of the photographs was not a sound basis for finding inadequacy in construction of the footpath. In what follows I explain, to similar effect, why negligence in construction of the footpath or in inspection by the Council of the footpath at the time was not made out, and why in my opinion negligence in inspection of the footpath by the Council thereafter or by Telstra was not made out. 29 The Council's appeal as against the plaintiff should be upheld, and its appeal as against Telstra does not arise. The plaintiff's cross-appeal as against Telstra should be dismissed.

The Telstra pit 30 The Telstra pit was a pre-fabricated box set into the ground. The box was made of asbestos cement with a removable cement cover or lid. There was no direct description of it, but I think it was common ground that the lid was ordinarily supported on a lip formed into the topmost part of the sides of the box, the lip having a horizontal face on which the lid rested providing the support and a vertical face abutting the sides of the lid and restraining lateral movement. The top of the sides of the box was approximately level with the top of the lid when the lid was in place. 31 In plan view the pit was rectangular with rounded corners, the two long sides running in the direction of travel of the plaintiff as she walked along the footpath and the two short sides running at right angles to that direction. The pit was about three-quarters within the concrete footpath, but the long side to the plaintiff's left as she walked was in the grassed area between the concrete footpath and the kerb. 32 At least on appeal, it was common ground that when the footpath was constructed in 1994-95 the lid of the pit had to be raised and could no longer be supported on the lip formed into the sides of the box. It was necessary to make a new lip, or at least to provide a different means of support for the lid. 33 There was scant evidence of how this was done. 34 Mr Garofali was asked in his evidence in chief, "What was the position back 11 years ago if the level of a utility pit had to be adjusted in an area where you were building a footpath?" He answered, "I don't know." 35 In cross-examination he gave the evidence - "Q. As at 1995 the fact is that to your knowledge your crews had a fibreglass mould which they could use when laying concrete footpaths in the area where Telstra pits were located, didn't they? A. If you're asking did we have a fibreglass mould, yes. Q. You had that in 1995, correct? A. Mm. Q. And the practice was that let's say you had a Telstra pit in the footpath that was lower than the proposed level of the new footpath, you would use your fibreglass mould to pour the new footpath in such a fashion that a lid [sic: lip] was created to take the old Telstra lid, correct? A. You could draw a conclusion that that's what it's for. Q. Isn't that what it was for, to your knowledge? A. I've never actually seen them use it." 36 Mr Garofali then said, the questions referring to when the new footpath did not "surround" the pit - "Q. So in using your fibreglass mould there's an immediate problem of raising the height. Let's just assume the mould was used for its purpose, if you cast in for the new concrete footpath a lid, it's only got to be on three sides of the structures, isn't it, and support three sides of the lid? A. If you only rely on the part of the footpath that is surrounding the perimeter of the lid then I can see why you're saying that but no lid can be supported only on three sides. Q. Not properly, you'd agree? A. So something would have had to be done. Q. Do you say that because a lid supported only on three sides would be unstable? A. Yes, that's why I say that. Q. It might fall in? A. Yes, that's why I say that. Q. It might fall in? A. Yes, that's why I say that. Q. If on the fourth side, the one where there was no concrete, there was only earth some sort of structure would have to be put in to raise that side of the pit to the same level as the new lip that had been cast in the concrete? A. Yes, I'd agree with that." 37 This was not evidence that a fibreglass mould was typically used to create a new lip. There was no evidence describing how, if it was used, the fibreglass mould created a new lip. However, as a matter of common sense whatever was done to raise the lid of the pit should have provided support on all four sides. 38 The trial judge found that the lid was raised to the level of the footpath, and appears to have found that the method used was by building up the lip formed into the sides of the box, or the sides of the box, with a layer of cement. This appears in particular from her Honour's remarks at [12] - "Mr Garofali said, when shown photographs, that he could see that new cement had been laid over the old pit. A visible division between the new cement and the old lip shown by the different colours in the cement and a line between them is apparent in the photographs." 39 In fact Mr Garofali had spoken of seeing in the photographs "some fresher concrete on top of some what looks like older concrete", "some additional sort of cement or something like that in there that is different from the concrete but I don't know what that is", and of "some inches of concrete laid over the old pit". What had been done was no more clearly explained or found.

The plaintiff's fall 40 The trial judge described the plaintiff's fall at [3] - "She put her left foot in the middle of the lid and towards the side closest to the footpath and that [sic] she felt the lid rotate and fall sideways into the pit." 41 This needs some amplification. The plaintiff said in her evidence in chief that when she put her foot on the lid "it flicked in" and went "into the actual hole", so that her leg went into the pit. In cross-examination the plaintiff said that she believed she put her foot in the middle of the pit, more to the side closest to the footpath, and that the lid rotated and the side she stepped on "tilted down". The evidence included - "REYNOLDS: Q. The side of the lid that was closest to the homes in the street. A. Yes. Q. It went down into the pit, and the side of the lid that was closest to the grass effectively went up in the air. A. Yes. Q. That allowed your foot, did it, to go into the pit with the space that was created between the lid on its side and the opening of the pit. A. Yes."

42 The side of the lid that was closest to the homes in the street was the side within the footpath. The rotation involved the lid tilting down into the pit on the long side within the footpath and tilting up on the opposite long side in the grassed area.

Why did the lid rotate? 43 The trial judge's findings were - "31 It is clear from the photographs and I am satisfied that it is more probable than not that immediately before Ms Hocking stepped onto the lid of the pit, there was almost no lip at either short end of the pit and none along the side of the pit within the grass verge supporting the lid in place. When she stepped on it, the lack of support allowed the lid to swivel and caused her to fall into the pit. 32 I am satisfied that when the footpath was laid it was necessary to create a new lip for the pit to accommodate the difference in height between the position of the pit as originally installed and the level of the new footpath. 33 Whether or not a fibreglass mould was used to create a lip on three sides of this pit, the verge on the other side made it necessary to create a lip in some way. Because of the almost complete collapse of the side of the pit abutting the grass verge it is impossible to determine whether there had been any attempt to make a lip on that side when the footpath was laid. 34 At the time that the footpath was laid in 1995 the lid to the pit was damaged and chipped away at the edges. 35 The photographs show that there is cement filling in the corners of and along the short sides of the pit at both ends. This additional cement corresponds to the damage at the ends of the lid. It is more probable than not that the cement was added to those areas when the footpath was laid so that the lid would sit within the edge of the cement. 36 The effect of the addition of cement at the corners of the pit was to remove the lip completely at both ends. 37 With the lid in place, it can be clearly seen that the footpath extends up to the edge of the lid covering the lip rather than the lid sitting in a discrete lip all around the edge of the pit as shown in Exhibit O. 38 In the result there was no supporting lip under the two short ends of the lip. At the time of Ms Hocking's fall I am satisfied that the lid was not supported on the side of the pit along the grass verge." 44 At a later point the trial judge said -

"44 At the time of Ms Hocking's fall, the lid of the pit was broken and irregular almost all around the edges, the lid of the pit was not accommodated in a discrete lip all around the pit but the cement of the footpath extended up to the edge of the lid. The dirt around the side of the pit had fallen away leaving part of that side of the pit unsupported." 45 There are distinct findings, one that there was no lip at either end of the pit, the other that the lid was not supported on the long side in the grassed area. The former finding is of the condition of the pit as at the time the footpath was constructed and as at the time of the plaintiff's fall, the latter of its condition as at the time of the plaintiff's fall. 46 There are difficulties with these findings. 47 The reasoning in relation to the lip at the ends appears to be that the concrete from the footpath was brought to the perimeter of the lid, and occupied the areas of damage to the lid. (That the concrete came to the perimeter of the lid is to be expected, see below.) The references to cement appear to be to the concrete, although it may be that her Honour had in mind addition of cement as part of building up the original lip or the sides of the box. 48 Whichever be the case, filling in the area of damage could not deprive the lid of support from a lip which had been formed by building up the original lip or the sides of the box. Concrete or cement filling in the damaged areas would have no effect on support one way or the other. If the original lip or the sides of the box had not been properly built up, or if the concrete from the footpath had intruded so as to affect the built-up lip other than by occupying the areas of damage to the lid, then the ends of the lid would lack support or the support would be compromised, but that is a different matter. It is difficult to see how "the effect of the addition of cement at the corners of the pit", being the additional cement corresponding to the damaged areas, was "to remove the lip completely at both ends". 49 Further, assuming that the lip was not supported at the two short ends, it is difficult to see how that would of itself have brought rotation of the lid by tilting down into the pit on the long side within the footpath. If the lid was still supported on its long sides, in particular on the long side within the footpath, lack of support at the two short ends does not seem likely to have permitted the rotation described by the plaintiff. The trial judge's findings did not include that the lid was unsupported on the long side within the footpath. Lack of support or compromised support at the short ends could have contributed to rotation if there was no support on the long side within the footpath, but that again is a different matter. 50 That leads to the finding that at the time of the plaintiff's fall the lid "was not supported on the side of the pit along the grass verge". Accepting that there was no such support, the part its absence played in the fall is not apparent. From the rotation of the lid when the plaintiff stepped on it, lack of support on the long side in the grassed area played no part: that side of the lid tilted upwards. If one were to speculate, it is possible that absence on the long side in the grassed area of a lip with a vertical face restraining lateral movement of the lid played a part, by permitting lateral movement of the lid towards the grassed area so that it was no longer supported by the lip on the long side of the pit within the footpath. But that is not lack of support as the trial judge spoke of it, and not what the trial judge found. 51 It is appropriate to note at this point another matter in the findings. The trial judge said at [37], clearly enough having regard to photographs of the pit taken shortly after the plaintiff's fall, that "the footpath extends up to the edge of the lid covering the lip rather than the lid sitting in a discrete lip all around the edge of the pit as shown in Exhibit O". What her Honour meant is not entirely clear. On one view she meant that because the footpath extended up to the edge of the lid covering the lip, the lid did not sit in a lip at all. On another view she meant that because the footpath extended up to the edge of the lid covering the lip, the lip in which the lid was sitting was not a discrete lip, in the sense of a visible lip, all around the edge of the pit. The former view is suggested by the place of this observation apparently as part of the reasoning to the conclusion that there was no supporting lip at the short ends of the pit. The latter view is suggested by the reference to the photographs in Ex O, as I shortly explain them, and because later in the trial judge's reasons "the fact that there was no visible lip around the top of the pit on which [the lid] could sit together with the footpath having been laid right up to the edge of the lid" (at [47]) was seen as a matter which should have put the Council on notice that the pit was defective. 52 If the trial judge meant that because the footpath extended up to the edge of the lid covering the lip, the lid did not sit in a lip at all, there is again a difficulty. I have referred to the horizontal and vertical faces of the lip formed into the sides of the original box. Making a new lip or at least providing a different means of support for the lid, whether using the fibreglass mould of which Mr Garofali spoke or by building up with cement the original lip or the sides of the box, would require creation of a lip in the sense of a horizontal face providing support for the lid. At least so far as the evidence went, however, there is no reason why the concrete of the footpath should not have provided the vertical face of the lip. Extension of the footpath up to the edge of the lid covering the lip was to be expected, and said nothing about support from a lip in the sense of a horizontal face. 53 If the trial judge meant that because the footpath extended up to the edge of the lid covering the lip, the lip in which the lid was sitting was not a visible lip, it is not clear whether her Honour saw that as going to the condition of the pit causing the plaintiff to fall. It may have gone only to the Council being put on notice that the pit was defective. Whichever be the case, again there is a difficulty. 54 Exhibit O contained four photographs of a Telstra pit or pits other than the pit in question, as can be seen from their location entirely within footpaths. They show pit lids with a line of darker material edging the lids, although whether the tops of the sides of boxes or some kind of filling material is not clear. It also contained four photographs apparently of the pit the subject of the plaintiff's fall after restoration. They are quite obscure, although a darker line can be seen edging the pit. Other photographs of the pit in question after restoration in Ex B are much clearer, and show a lid with darker material edging the pit as in the Ex O photographs of another Telstra pit or pits. I take the trial judge to be referring to this as the discrete lip. 55 The restored pit the subject of the plaintiff's fall was a different shape, and was a completely new pit installed by Telstra. As I have said, in the photographs in Exx O and B it is not clear what the darker material is, but if what they show was a discrete lip it was not necessarily as the pit the subject of the plaintiff's fall would or should have looked in 1994-95 or at the time of the fall. When the lid of the pit the subject of the plaintiff's fall was raised as earlier described, with extension of the footpath up to the edge of the lid covering the lip, at least in the absence of evidence one would not expect the pit to have had the appearance of the pits in Exx O and B. It seems to me erroneous to regard the lack of a discrete lip, in the sense of a visible one as apparently taken by the trial judge from the photographs in Ex O, as indicating a deficiency in the support provided to the lid in 1994-95 or at the time of the plaintiff's fall, or as going to the Council being put on notice that the pit was defective. 56 The support for the lid of the pit on the long side within the grassed area, where the footpath did not extend up to the edge of the lid, is of course another matter. The plaintiff did fall, and the support for the lid of the pit must have been such that, when she trod on it it tilted in the way she described. Save as to the support for the lid on the long side within the grassed area, the trial judge's findings covering the causal deficiencies in the support for the lid were flawed. To return to the speculation earlier mentioned, it seems to me to be the likely explanation for the rotation of the lid when the plaintiff trod on it; but in the state of the evidence, that does not rise above speculation.

The Council's liability for negligent construction of the footpath or negligent inspection at the time of construction 57 Both vicarious liability for negligent construction of the footpath and liability for failure adequately to inspect the footpath when it was constructed depended on deficiency in the raising of the lid of the pit. Her Honour found - "39 I am satisfied that when the footpath was laid it was not done so as to ensure that the lid of the Telstra pit was properly supported by a lip on all sides and that this was not proper practice as described by Mr Garofali. 40 The work done by NCI under contract to the Council was inspected by Council employees after it was completed. There was no evidence nor was it suggested that that course was not followed here. Any inspection, had it been properly conducted, would have shown that the lip of the pit had been obliterated creating a danger of instability in the lid." 58 In finding negligence on the part of the Council the trial judge said (at [62]) that the lid was "inadequately supported" and (at [64]) that adequate inspection of the work would have made the Council aware "that the work had created a danger to pedestrians through the instability of the lid resulting from the failure to create a lip on which it could be supported". 59 So far as the trial judge said that "the lip of the pit had been obliterated", that could only be referable to the findings that there was no lip at either end of the pit. No finding had been made about the lip on the long side within the footpath. The finding about the lip on the long side in the grassed area was that "it was impossible to determine whether there had been any attempt to make a lip on that side when the footpath was laid", so her Honour can not have found that the lip there had been obliterated, and in saying that the lid of the pit was not "properly supported by a lip on all sides", she could not have meant that the lid was not properly supported on a lip on the long side in the grassed area. The absence of proper support must have been that there was no supporting lip at the two short ends. 60 For the reasons I have given, I do not think that the trial judge's conclusion that there was obliteration of the lip at the short ends or no supporting lip at the short ends can be sustained. It follows that it cannot be concluded that there was negligent inspection in failing to detect that deficiency. 61 Her Honour also said (at [42]) that the probable cause of the damage to the side of the pit in the grassed area was the passage of cars onto that area and the pit, and that that - " … reinforces my finding that the laying of the footpath around the pit was not done in accordance with proper practice as described by Mr Garofali which would have required a layer of cement to be added to support the lid at that side of the pit." 62 This cannot stand with the earlier statement that it was impossible to determine whether there had been any attempt to make a lip on that side when the footpath was laid. The earlier statement was correct, and I do not think the trial judge could find the condition of the support for the lid on the long side in the grassed area at the time of construction of the footpath. 63 There was no evidence of what inspection by the Council of its contractor's work should have entailed. Although the trial judge did not at this point in her reasons refer to it, as I have explained the absence of "a visible lip around the top of the pit on which [the lid] could sit together with the footpath having been laid right up to the edge of the pit" (from [47]) was not shown to indicate defective construction which should have been detected on inspection.

Liability of the Council for negligence in inspection of the footpath thereafter 64 The trial judge said - "47 The damaged state of the lid and the fact that there was no visible lip around the top of the pit on which it could sit together with the footpath having been laid right up to the edge of the lid were matters which would have been plain to someone who was looking [for] hazards in the footpaths and roads. The outward appearance of the pit of itself should have put the Council on notice that it was defective. 48 In making this finding, I taken into account that the Council would have been aware of the presence of the roll kerb and the probable movement of cars over the grass verge. The Council would also have been aware that the pit was sited partly within the grass verge. 49 It is also probable that the side of the pit in the grass was in an obviously damaged state for some time before Ms Hocking's fall given the degree of erosion on that side where it is apparent that there was nothing supporting about a third of that edge. 50 That Mr Shackleton's inspections were done in the knowledge that the area had roll kerbs, ought to have been [sic] alerted him to the possibility of damage to the pit within the area where cars could be expected to drive." 65 The trial judge said at [54], however, that regular inspections might have demonstrated that "the side of the pit in the grass verge was missing in parts", but that in the absence of evidence on which she could reliably find when the damage occurred she "could not find that a regular regime of inspections would have brought that part of the damaged pit to the notice of Council". This applied also to the absence of a lip on the long side of the pit in the grassed area, and her Honour may have meant to include it in referring to the side of the pit. It could not be determined whether there had been any attempt to make a lip on the long side in the grassed area. It therefore could not be found that it had not been done, and if it had been done it could not be found when the damage to it occurred. It appears that what the trial judge had said at [49]-[50] about the side of the pit in the grassed area was put aside. If it was not then subject to one matter to which I will return, it should have been. 66 In finding negligence on the part of the Council the trial judge said - "66 Further, Council had a system for the inspection of footpaths, which includes the Telstra pits to detect hazards to pedestrians. Had those inspections been properly conducted, the Council would have been alerted to the obvious absence of a lip supporting the lid." 67 There was no detailed evidence of the Council's system for inspections, only that Mr Shackleton could "generally recall carrying out inspections of Reston Avenue". The trial judge could not find that properly conducted inspections would have "alerted the Council to the obvious absence of a lip supporting the lid" without some attention to when inspections should have been or were undertaken and the temporal relationship to when the defective condition of the pit was there to be seen on inspection. It is not clear whether her Honour's reasoning was that the outward appearance of the lip to which she referred at [47], and apparently took up in the reference in [66] to "the obvious absence of a lip supporting the lid", was its appearance from the time of construction of the footpath, so that any inspection during the following years should have alerted the Council that the pit was defective. If it was not, but the outward appearance was (as described in [44]) at the time of the plaintiff's fall, it could not without more be concluded that inspection should have alerted the Council that the pit was defective. 68 I do not think that it was established that inspection should have alerted the Council that the pit was defective. The trial judge referred to the damaged state of the lid, but beyond the damage and chipping away at the edges and associated cement filling at the time the footpath was constructed there was no evidence that its damaged state compromised its integrity or gave notice that the lid was not properly supported. I have explained why the trial judge's finding in that respect was flawed. I have also explained why the footpath extending to the perimeter of the lid was not shown to be indicative of lack of support; rather, the footpath could act as the vertical face of the lip. Nor was the fact that there was no visible lip, understood in the light of the trial judge's earlier reference to a discrete lip, something which was shown to alert an inspector to the absence of a lip supporting the lid. 69 The one matter to which I earlier referred was this. Although the trial judge did not refer to it, the evidence included a Telstra inspection report, of an inspection at some time between the plaintiff's fall on 19 January 2002 and the date of the report of 30 January 2002. The report said, "side of pit facing grass verge squashed in thus pit lid not properly supported". In an attachment it was said, the spelling being in the original - "Pit appeared to have been damaged by being driver over some time ago by unknown person's causing lid to fit poorly The resident of No 19 Reston Ave moved in July 2001 and stated that the pit had looked the same ever since he moved in" 70 From the transcript the report was admitted on the voir dire, but it appears that the voir dire evidence and the report became evidence in the proceedings, including evidence against the Council. It may be noted that the author of the report did not refer to any deficiency in the lip at the ends of the pit or on the long side within the footpath. However, the report could be evidence that it was obvious on inspection from at least July 2001, about six months prior to the plaintiff's fall, that the lid of the pit was not properly supported on the long side in the grassed area; and that, although that was not the reason for the rotation of the lid when the plaintiff trod on it, there was causative negligence in inspection. 71 I do not think this could be found in the absence of evidence of when the Council should have or did undertake inspections. I do not think it can be said without better evidence, even on the basis that absence of evidence from the Council enables inferences adverse to it to be made more comfortably, that an inspection should have been or was carried out in the six months or so prior to the plaintiff's fall. 72 In my opinion, it could not be concluded that there was the negligence found by the trial judge.

Telstra's liability for failing to observe the condition of the pit 73 Tobias JA has explained the respects in which the plaintiff contended that the trial judge erred. The plaintiff's counsel summarised in submissions that "the Telstra people … should have seen what Mr Shackleton should have seen". Again, there was no evidence of Telstra's system for inspection and repair of pits or of attention given to a pit when making a service call, or going to what proper practice of a telecommunications authority was. The reasons for my opinion that the Council was not liable through what Mr Shackleton should have seen apply, even more so when the occasions for Telstra's presence were service calls and works on the other side of the road.

The result 74 The plaintiff failed to establish negligence on the part of either the Council or Telstra. Issues concerned with of the Council's actual knowledge of the risk do not arise. Nor is it necessary to consider the Council's appeal on damages. 75 The appeal papers do not show what costs orders were made by the trial judge. Assuming orders were made that the Council pay the plaintiff's costs and the plaintiff pay Telstra's costs, those orders should be set aside. The cross-claims between the Council and Telstra were dismissed, and since they remain dismissed whatever costs orders were made in that respect should remain. 76 I propose the orders -

2. Set aside the verdict and judgment for the plaintiff against the first defendant and any accompanying order for costs; in lieu thereof verdict and judgment for the first defendant against the plaintiff and order the plaintiff to pay the first defendant's costs.

4. First respondent pay the appellant's costs of the appeal against the verdict and judgment in her favour; appellant pay the second respondent's costs of the appeal against the verdict in its favour; cross-appellant pay the costs of the cross-appeal. 77 TOBIAS JA: On 19 January 2002 the first respondent, Ms Sherrie Hocking (the plaintiff), was walking along the footpath in Reston Avenue, Hebersham within the local government area of the appellant, Blacktown City Council (the Council). The footpath was of concrete construction with a grass verge between the footpath and a layback kerb to the roadway. 78 Set partly within the footpath and partly within the grass verge was a communications pit (the pit) which belonged to the second respondent (Telstra). As the plaintiff walked along the footpath she observed the lid of the pit in front of her but saw nothing to alert her to the fact that it was defective. She placed her foot in the middle of the lid, which then rotated causing her left leg to enter the pit whilst her right leg was splayed out in front of her. The nature of her fall was such that she was seriously injured. 79 The plaintiff sued the Council and Telstra for damages in negligence. On 30 November 2006 her Honour Judge Ainslie-Wallace found negligence on the part of the Council but not Telstra. Accordingly, she entered judgment for the plaintiff against the Council and judgment for Telstra against the plaintiff. Her Honour assessed the plaintiff's damages in the sum of $685,199 and entered a verdict and judgment in her favour against the Council in that sum. Her Honour dismissed cross-claims as between the Council and Telstra. 80 The Council has appealed against her Honour's decision asserting that she erred in finding negligence on its part and/or that it was liable for any negligence on the part of its contractor who constructed the relevant section of the footpath. It also appeals against her Honour's award of damages, alleging that they were excessive. Further, the Council appeals against the dismissal of its cross-claim against Telstra, alleging that her Honour erred in failing to find Telstra liable in negligence to the plaintiff. The latter has cross-appealed against the dismissal of her claim against Telstra.

The construction of the pit and footpath 81 The primary judge found that Telstra had installed the pit between 1975 and 1980. Nepean Concrete Industries Pty Ltd (NCI) as the contractor to the Council had constructed the footpath within which the pit was located in 1994 or 1995. In its answers to interrogatories, the Council affirmed that one or more of its employees had inspected the footpath, presumably after it had been laid by NCI. The kerb separating the roadway from the grass verge within which the pit was partially located and which was apparently constructed at the same time as the footpath was of the layback variety known as a "roll" kerb, its purpose being to allow motor vehicles to park partly on the grass verge and partly on the roadway. 82 The primary judge appears to have accepted the evidence of the principal of NCI, Mr Garofali, who gave evidence that his company's instructions from the Council when laying footpaths was to incorporate existing Telstra pits into the footpath. When this occurred, the lip of the pit was, if necessary, to be raised or recreated up to the point where the lid was supported from underneath and fitted flush with the footpath. For this purpose a fibreglass mould was inserted around the pit during the pouring of the concrete to create the new lip. 83 In the present case one side of the pit was not within the footpath so that the mould would only have created a lip around three sides of the pit, the fourth side being that within the grass verge. 84 It was Mr Garofali's evidence that a layer or collar of concrete should have been poured around that side of the pit within the verge in order to create a lip on which the lid could sit, for otherwise it would not necessarily have been properly supported. That did not occur in the present case. 85 According to her Honour, when shown a number of photographs taken shortly after the accident Mr Garofali said that he could see that new or fresher concrete had been laid over older concrete as evidenced in the photographs by the different colours in the cement and by what appeared to be a line between the old and new cement.

The state of the pit at the time of the plaintiff's fall 86 A number of photographs were tendered with respect to this issue. Her Honour's findings were based on her interpretation of those photographs, particularly those taken by an employee of Telstra on the day following the accident. 87 One of the Council's complaints related to her Honour's findings based upon her own interpretation of the photographs in the absence of expert evidence as to what they depicted and what conclusions could be drawn from them. 88 Notwithstanding the absence of such evidence, her Honour made it clear (at [24]) that she proposed to rely purely upon the photographs depicting the condition of the pit at the time of the plaintiff's fall. It later becomes apparent in her Honour's reasons that she also relied on the photographs for the purpose of determining the condition of the pit at the time of the construction of the footpath some seven to eight years earlier. 89 Her Honour first referred to Exhibit A(5) as "a view down onto the pit with the lid". This photograph was a view of the pit with the lid in place. Her Honour may have been referring to another photograph, which comprised one of a series of photographs taken by a Telstra employee on the day following the accident. 90 In any event, after observing that one long side of the pit ran along the cement footpath whereas the other was in the grass verge, her Honour described (at [17]) what she perceived in the photograph in the following terms: "At the short end of the pit furthest away from the direction in which Ms Hocking was walking when she fell, the lip on which the lid would rest has been obliterated by cement applied to the corner of the pit and the cement extends from the corner of pit towards the middle of that short end. The result is that the lip is removed from that area. The lip is apparent along most of the long side of the pit where it abuts the footpath. There is a clear line visible between the previous lip and the cement of the footpath." 91 At [18] her Honour referred to Exhibit A(2) as showing "the lid of the pit". She observed: "It is worn, chipped and damaged especially in the corner corresponding to where the cement had been added to the corner of the pit as seen in Exhibit A(5). It shows the side of the pit which abuts the grass verge. This is no visible edge to the pit or any surface which would act as a lip on which the lid might rest. The side of the pit was collapsed entirely."

This last observation would appear to have its foundation in other photographs in evidence. 92 At [20] to [22] the primary judge described what she perceived in a number of the photographs taken by the Telstra employee on the day following the accident. Thus Exhibit M(4) was a photograph taken looking down on the pit with the lid in place in respect of which her Honour observed that the edges of the lid were broken and damaged along both the long and short sides, whereas on the side of the pit adjacent to the grass verge there was a hole in the ground under the lid where it seemed that soil had fallen away. 93 As to Exhibit M(5) her Honour observed that it was clear that in the last third of the long side of the lid in the grass verge, there was nothing of the pit to support the lid at that point. A similar observation was made in relation to the photographs in Exhibit M(3) and M(1). In particular according to her Honour (at [21]), the latter: "clearly shows that there is no lip at the end of the pit closest to the direction in which Ms Hocking was walking." 94 Similarly, she considered that Exhibit M(2), which was also a photograph taken looking down into the pit, depicted at the end furthest away from the direction in which the plaintiff was walking, no lip at all so that the cement edge of the footpath and the wall of the pit were flush. 95 At [25] her Honour referred to photograph 11 which was part of Exhibit D1-(1). The photographs in that Exhibit were annexed to a report of a Mr Don Poole, an employee of Telstra, dated 30 January 2002. However, the photographs that followed that report do not have any identifying numbers. This notwithstanding, her Honour described photograph 11 in the following terms: "Around the two short ends, there is no visible edge and the footpath comes directly to the edge of the lid. The short ends of the lid are clearly damaged and broken off in parts. At the side of the pit lid abutting the grass verge, there is no edge visible and the lid appears to be sitting on the dirt of the verge."

The primary judge's findings of fact 96 Having described what she perceived from the photographs, her Honour's findings were encapsulated in the following paragraphs of her judgment: "31. It is clear from the photographs and I am satisfied that it is more probable than not that immediately before Ms Hocking stepped onto the lid of the pit, there was almost no lip at either short end of the pit and none along the side of the pit within the grass verge supporting the lid in place. When she stepped on it, the lack of support allowed the lid to swivel and caused her to fall into the pit. 32. I am satisfied that when the footpath was laid it was necessary to create a new lip for the pit to accommodate the difference in height between the position of the pit as originally installed and the level of the new footpath. 33. Whether or not a fibreglass mould was used to create a lip on three sides of this pit, the verge on the other side made it necessary to create a lip in some way. Because of the almost complete collapse of the side of the pit abutting the grass verge it is impossible to determine whether there had been any attempt to make a lip on that side when the footpath was laid. 34. At the time that the footpath was laid in 1995 the lid to the pit was damaged and chipped away at the edges. 35. The photographs show that there is cement filling in the corners of and along the short sides of the pit at both ends. This additional cement corresponds to the damage at the ends of the lid. It is more probable than not that the cement was added to those areas when the footpath was laid so that the lid would sit within the edge of the cement. 36. The effect of the addition of cement at the corners of the pit was to remove the lip completely at both ends. 37. With the lid in place, it can be clearly seen that the footpath extends up to the edge of the lid covering the lip rather than the lid sitting in a discrete lip all around the edge of the pit as shown in Exhibit O. 38. In the result there was no supporting lip under the two short ends of the lid. At the time of Ms Hocking's fall I am satisfied that the lid was not supported on the side of the pit along the grass verge. 39. I am satisfied that when the footpath was laid it was not done so as to ensure that the lid of the Telstra pit was properly supported by a lip on all sides and that this was not proper practice as described by Mr Garofali." 97 The proper practice as described by Mr Garofali to which her Honour referred was his evidence that a lid supported on only three sides would be unstable and might fall in. He was adamant that no lid could be supported only on three sides. 98 Although Mr Garofali acknowledged when shown Exhibit A(5) that he could not see a lip where concrete had been poured at the top end of the pit, he was not prepared to accept that the absence of a lip originated from when the footpath was laid. Asked whether, if the fibreglass mould had been used, there would have been a lip at the end where he said the lip was missing, he responded that there were a whole lot of cracks which suggested that any such lip could have cracked off, presumably at some time subsequent to its construction: after all, seven years had passed between the time the work was done and the date of the plaintiff's accident.

The primary judge's findings with respect to the Council's negligence 99 The primary judge found (at [40]) that the work of laying the footpath in 1994 or 1995 had been carried out by NCI under contract with the Council and had been inspected by Council employees after it was completed. She found that any inspection, had it been properly conducted, would have revealed that the lip of the pit had been obliterated, thereby creating a danger of instability in the lid. 100 Her Honour also found (at [41]) that the most probable cause of the damage to the side of the pit where it abutted the grass verge was the passage of a car or cars onto and over the verge and the pit lid. The presence of the roll kerb invited vehicles to drive onto the verge in circumstances where the Council had been aware that a vehicle could potentially pass onto the footpath as it had directed that the footpath in this particular area be made thicker than in other areas in order to accommodate the extra weight. In so finding she took account of the proximity of the pit to the kerb and that it was partially within the verge. 101 In [42] her Honour held that the fact that the side of the pit which adjoined the verge had collapsed reinforced her earlier finding that the laying of the footpath around the pit was not carried out in accordance with proper practice as described by Mr Garofali, which would have required a layer of cement to be added to the support of the lid on its verge side. 102 Her Honour concluded in the following terms (at [44]): "At the time of Ms Hocking's fall, the lid of the pit was broken and irregular almost all around the edges, the lid of the pit was not accommodated in a discrete lip all around the pit but the cement of the footpath extended up to the edge of the lid. The dirt around the side of the pit had fallen away leaving part of that side of the pit unsupported." 103 Under the heading "Inadequate inspection", her Honour referred (at [45]) to parts of a statement of Mr John Shackleton who was employed by the Council as a maintenance inspector at the time of the plaintiff's accident and had been so employed since approximately 1997. According to his statement his duties included the inspection of roads, footpaths, kerbs and gutters for defects which he would then refer "to maintenance" (presumably a reference to the Council's road maintenance department). The only substantive parts of Mr Shackleton's statement that were admitted into evidence on their tender by Telstra were the following: "However, if the condition of the pits or the lids of any utility were to present as an obvious hazard and risk to public safety by either being missing or broken, then it was past practice for Maintenance Inspectors of Council to request a Blacktown City Council barricade to be placed at the site immediately, in order to make the area safe. The process then involved immediately contacting Telstra or the relevant service provider by phone to advise them of the broken or missing pit lid and request their urgent attention to that repair. … As I have been directly involved and responsible for inspections of the [Hebersham] area, I can generally recall carrying out inspections of [Reston] Avenue. I cannot state with certainty at which inspection I may have walked up and down the length of [Reston] Avenue when conducting an inspection, however, it was my usual practice to drive into the street, either part way or whole of the way and get out of the car to inspect the road, footpath and drainage pits." 104 Mr Shackleton was not called by the Council to give evidence. In these circumstances her Honour found (at [47]) that: "The damaged state of the lid and the fact that there was no visible lip around the top of the pit on which it could sit together with the footpath having been laid right up to the edge of the lid were matters which would have been plain to someone who was looking [for] hazards in the footpaths and roads. The outward appearance of the pit itself should have put the Council on notice that it was defective."

She also added (at [50]): "That Mr Shackleton's inspections were done in the knowledge that the area had roll kerbs, ought to have alerted him to the possibility of damage to the pit within the area where cars could be expected to drive." 105 At [52] the primary judge noted that the Council had neither called evidence as to how frequently Mr Shackleton made his inspections nor as to when he had last inspected the pit prior to the plaintiff's accident. She then concluded this part of her judgment in the following terms: "53. The Council was in a position to call evidence about the frequency of inspections conducted by Mr Shackleton and when he made inspections in [Reston] Avenue. There is no obligation on the Council to call that evidence. It is for Ms Hocking to prove her case. However, in its absence, I can more comfortably draw the conclusion urged by Ms Hocking that a regime of regular inspections and a properly conducted inspection by the Council would have revealed the damaged state of the pit lid and that there was no visible lip around it which would have caused them to notify Telstra or take some step to barricade it and thus avoid the injury to Ms Hocking. 54. Regular inspections may also have demonstrated that the side of the pit in the grass verge was missing in parts. However, in the absence of any evidence on which I could reliably find when the damage occurred to that side of the pit, I cannot find that a regular regime of inspections would have brought that part of the damaged pit to the notice of Council." 106 After referring (at [56]) to the well-known passage in the judgment of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 which, she noted (at [57]), had to a large extent been incorporated into s 5B of the Civil Liability Act 2002 (NSW) (the CL Act), her Honour (at [60]) found that it was "entirely foreseeable" that if a pit covered by a lid was built into the footpath and the lid inadequately supported, pedestrians might be at risk of injury as a result of the lid giving way or moving underneath their weight. 107 In the present case the Council had, her Honour found (at [62]), taken steps to address the foreseeable risk of injury to pedestrians from hazards in footpaths by having a regime of inspections with any hazards noted and repaired. 108 So far as the original construction of the footpath was concerned, her Honour noted (at [63]) that the Council owed a non-delegable duty of care to the plaintiff and although NCI had made inadequate provision for a lip on which to sit the lid of the pit when it laid the footpath, it was the Council that bore liability for its negligent construction. 109 The foregoing reference by her Honour to the Council having a non-delegable duty of care was founded upon the decision of this Court in Leichhardt Municipal Council v Montgomery [2005] NSWCA 432. However, after her Honour had delivered judgment in the present matter, the decision of this Court in Montgomery was reversed by the High Court: Leichhardt Municipal Council v Montgomery [2007] HCA 6; 230 CLR 22; (2007) 81 ALJR 686. That Court held that since its decision in Brodie v Singleton Shire Council (2001) 206 CLR 512, the common law liability of highway authorities to road users had been subsumed under the general law of negligence as a consequence whereof a council did not owe a non-delegable duty of care to such users. However, in my view nothing turns on this point. 110 The primary judge's findings with respect to the Council's breach of its duty of care were articulated as follows: "64. The Council did not challenge the position that NCI's work was inspected on completion by Council officers. Had that inspection process been adequately performed, the Council would have been notified that the work had created a danger to pedestrians through the instability of the lid resulting from the failure to create a lip on which it could be supported. 65. I find that the Council breached its duty of care to Ms Hocking in this respect and was negligent. 66. Further, Council had a system for the inspection of footpaths, which include the Telstra pits to detect hazards to pedestrians. Had those inspections been properly conducted, the Council would have been alerted to the obvious absence of a lip supporting the lid. 67. The negligent failure by Council to ensure that the work was conducted properly in the first place and the failure to detect through inspections that the lid was unsupported at both ends materially contributed to the lid turning when Ms Hocking stood on it and thus caused her to fall." 111 It is thus apparent that the Council was found to be in breach of its duty of care in two respects. The first was its failure to adequately inspect the footpath when it was constructed in a manner that would have revealed that Council's contractor had failed to create a lip on all four sides of the pit on which the lid could be properly supported. The second was its failure, despite having a regime of inspections in place, to properly inspect the area of the footpath within which the pit was located, to detect that the lid was unsupported at both ends, that it was unstable and therefore a hazard to any pedestrian who might place his or her weight upon it.

The primary judge's findings with respect to negligence on the part of Telstra 112 The plaintiff alleged that Telstra owed users of the footpath including herself a duty of care which, in the present case, was breached by its failure to regularly inspect and maintain the pit and its lid. Further particulars of negligence alleged a failure to observe that the pit lid was damaged and that the Council had laid the footpath over the supporting edge of the pit and had modified the cover to fit the altered space; its failure to replace the pit and lid when access was gained to the pit for repair and maintenance work and its failure to install a pit and lid which could withstand the weight of vehicles which might drive over it. 113 Notwithstanding that the pit had been installed more than 20 years prior to the plaintiff's accident, Telstra argued that there was no obligation upon it to have a system of inspection, repair and maintenance of the pits which it had installed and which amounted to many thousands in number. Reliance was placed upon an unreported judgment of Howie DCJ (as his Honour then was) in March 1997 in Lindistane Roxsana v Telstra Corporation in which he relied upon the decision of this Court in Rickards v Australian Telecommunications Commission (1983) 3 NSWLR 155. In that case it was held (by Priestley JA with whom Hutley and Glass JJA agreed), that applying the decision of the High Court in Birch v Australian Mutual Provident Society (1906) 4 CLR 324, a non-highway statutory authority who lawfully installed a structure in a public road was not only under no statutory duty to keep the structure in repair, but also under no obligation at common law to keep the structure in repair. Accordingly, such an authority was not liable in an action for injuries caused by defects in the structure that arose subsequently through non-repair and which were not attributable to negligence in its original installation. 114 In Roxsana the trial judge had accepted that given the magnitude and the risk of serious injury through broken pit lids and the probability of their occurrence, it would not be reasonable to require Telstra to undertake routine inspection and repair of the pits due to the difficulty, expense and inconvenience which such inspections would entail. It is apparent that these findings were based upon the Shirt formula (as so described by McHugh J in Vairy v Wyong Shire council (2006) 223 CLR 422 at 433 [27]) to which reference has already been made which is, at least in part, now encapsulated in s 5B of the CL Act. 115 The primary judge observed (at [73]) that the plaintiff did not challenge these principles or their application to the present case, although she now does. In any event, her Honour (at [74]) held that the plaintiff had not made out a case of negligence on the part of Telstra based on its failure to inspect and maintain the pit and its lid. Thus upon the assumption that the pit had not been opened by Telstra at any material time after its installation for the purposes of repair and maintenance or otherwise, the plaintiff had not made out any case of negligence against Telstra based upon its failure to inspect where there was no reason so to do. 116 The primary judge then turned to the allegation that Telstra technicians had attended the property nearest the pit but had negligently failed to observe the damaged lid and that the footpath extended up to its edge. Although the Council called no evidence in its case, Telstra did. It not only called Mr Garofali but also Ms Christine Triantis, who had been employed by the second respondent as a customer relations manager for some eight years. She gave evidence that she worked in Telstra's complaints department and looked after public liability issues. 117 Relevantly, Ms Triantis produced a log of complaints which had been made about the telephone service to the house nearest the pit, No.19 Reston Avenue (No.19). Her Honour recorded (at [81]) the plaintiff's submission that Telstra would have been well aware of the damaged and dangerous state of the pit before the plaintiff's accident as its technicians would have had to access the pit for the purpose of conducting repairs or attending to complaints with respect to the phone line at No.19. In this context Ms Triantis accepted that there were occasions when pits were accessed by technicians responding to complaints with respect to phone lines. 118 Exhibit J was a summary of complaints made about the phone service to No.19 and the action taken on each complaint. The document covers complaints made between 31 August 1996 and 21 June 2001. At [84] her Honour referred to the attendance by a Telstra technician at No.19 on 22 June 2001 in response to a complaint made the day before about the landline to those premises. However, there was no indication as to whether on that date the technician had accessed the pit in order rectify the problem. Ms Triantis said that if a technician opened a pit, a particular code would appear on the log of that call. 119 Although her Honour observed (at [84]) that Ms Triantis did not say that the code appeared on the record of complaints and calls to No.19, her evidence was that the particular code indicating whether a technician had accessed the pit did not appear on the record of attendance on 22 June. After agreeing that she had looked through all the entries in the document, she was asked: "Q. Are you able to say whether there is any entry there that a technician has entered the pit on any of the occasions referred to? A. No." 120 I take this answer to mean that there was no record with respect to any of the attendances referred to in Exhibit J that a technician had opened the pit. Ms Triantis confirmed this evidence when she indicated that she was unable to find a notation indicating that a technician had entered the pit outside No.19 and that her search went back as far as 1995. 121 Her Honour recorded (at [85]) that the plaintiff had argued that even if the pit had not been opened by a technician, a skilled tradesman such as a Telstra technician would have noted that the lid was apparently damaged and chipped, that one side appeared eroded and that this would have been noticeable when the technician was walking to and from No.19 to repair a fault on the line. She rejected this argument, concluding (at [87]) that she was unable to find on the evidence that a Telstra technician attending No.19 to deal with a fault in the landline would have necessarily noticed the condition of the lid or the side of pit as he or she passed to and from that property. I would interpolate that the position of Mr Shackleton was different as it was his specific job to look for hazards in the footpath which, in the present case at least, included the pit and, particularly, the stability of its lid. 122 Thus her Honour found (at [88]) that there was no evidence to permit a finding that at some time after the footpath was made and before the plaintiff fell, a Telstra technician opened the pit and the inadequate support for the lid was revealed. Accordingly, she was unable to find that Telstra had knowledge of the damaged and dangerous state of the lid before the plaintiff's accident. 123 The third particular of negligence alleged against Telstra was its alleged failure to install a pit that could withstand the weight of vehicles being driven over it. The submissions based on this allegation were rejected by her Honour (at [91]) as she found that Telstra was not to know that the pit would end up being partly in the footpath and partly in the grass verge or that there would be a roll kerb requiring the pit to be reinforced in order to withstand the weight of a vehicle passing over it. 124 The fourth and final particular was Telstra's alleged failure to replace the lid and pit during renovation work in Reston Avenue. In November 2001, Telstra had embarked on a maintenance program in that street which involved accessing the pits in the street, installing cables and attending to "repairs and general maintenance to Telstra facilities, upgrade cable boxes …". The work was carried out adjacent to Nos.14-28 Reston Avenue on the opposite side of the road to the pit into which the plaintiff fell. No other information was available to indicate where the work was conducted, what stage it had reached or which pits were in the vicinity of where the work was being conducted at the time of the plaintiff's fall. Nor, according to her Honour (at [92]), was there any evidence that there had been some general inspection of the pits in that street before the decision to renovate and replace them was made, and which would have alerted Telstra to the defects in the pit and lid. 125 As I have indicated, the plaintiff has cross-appealed against her Honour's finding in favour of Telstra whereas the Council has appealed against the dismissal of its cross-claim against Telstra. Both these appeals raise the same question: was the primary judge correct in finding that Telstra was not in breach of any duty of care it owed to the plaintiff?

Was the primary judge correct in finding that the Council was liable for its failure to detect that the pit was defective at the time the footpath was constructed and inspected in 1994 or 1995? 126 The Council accepted that immediately before the plaintiff stepped onto the lid of the pit, it was inadequately supported. However, that conclusion only spoke of the condition of the pit in 2002, some seven to eight years after the footpath was laid. It therefore challenged the primary judge's finding that when the footpath was laid in 1994 or 1995 the lip, contrary to proper concreting practice, did not properly support the pit lid. In particular, it challenged her Honour's finding at [34] that at the time the footpath was laid, the lid to the pit was damaged and chipped away at the edges. It submitted that there was no evidentiary foundation for that finding. 127 As I have already observed, the primary judge found negligence on the part of the Council on two bases. The first was its negligent inspection of the footpath at the time it was laid in 1994 or 1995. The second was the failure of Mr Shackleton to detect the defect in the pit in circumstances where, first, the outward appearance of the pit of itself should have put him on notice that it was defective and, second, his knowledge that the area had roll kerbs ought to have alerted him to the possibility of damage to the pit by vehicles which may have driven over it. 128 Although in accordance with this Court's decision in Montgomery her Honour held that the Council owed a non-delegable duty of care with respect to the construction of the footpath, at the end of the day she appears to have based her finding as to the Council's breach of duty relating to the construction of the footpath not upon her finding that it had been negligently constructed by NCI, but upon the failure of the Council's inspection of the new work to detect the inadequacies in the reconstruction of the pit by not providing a four sided lip upon which the lid to the pit could be supported. 129 So far as her Honour's finding was based upon the inspection of the new work in 1994 or 1995, the Council submitted that there was no evidence that that work was in fact negligently performed by NCI at the time. Although the photographs upon which her Honour relied established, through Mr Garofali's evidence and to a lesser extent that of Ms Triantis, that there had been a failure of the concrete lip of the pit on its long side within the grass verge and one side of its short end and possibly on part of the other short end, it was submitted that no evidentiary basis existed for the primary judge to infer that that condition of the pit as depicted in photographs taken in January 2002 existed in 1994 or 1995 when the footpath was constructed. 130 In particular, although the Council in its answers to interrogatories identified NCI as the contractor, Mr Garofali did not accept that his company was the contractor at the time. Also there was no concession on his part that upon the assumption that his company had carried out the work in 1994 or 1995, it had left it in the state in which it appeared in the photographs taken in 2002. Although he acknowledged that it was necessary for the lid to be supported on all four sides and that had the work been carried out in 1994 or 1995 in a manner which left it in the condition depicted in the photographs, such work would have been inadequate, he emphatically denied that his company, if it had carried out the work at that time, would have done so in that manner. 131 In fact, as I have already noted, Mr Garofali disagreed with the proposition that whomever carried out the work did a "hopeless" job of laying concrete around the edge of the pit on the short sides. Although he accepted that the photographs indicated that the lip was missing around parts of the perimeter of the pit, there was also evidence that any new concrete lip might well have cracked off at a later point in time. 132 Mr Garofali also insisted that all he could see from the photographs was cracked pieces of concrete but that he could not tell for certain whether it was new or old concrete or what had been done at the time when the work was originally carried out. When it was suggested to him that the pit was totally unsuitable if anyone was going to drive over it, he responded: "I would say that if somebody's driven over it that's a reason why it's been cracked." 133 It would seem that her Honour accepted this evidence. At [41] she found that the most probable cause of the damage to the side of the pit where it abutted the grass verge was the passage of a vehicle crossing the verge onto and over the lid of the pit. The presence of the roll kerb invited vehicles to drive onto the verge and, in fact, the photographs revealed a widening of the driveway to No.19 which would permit a motor vehicle to turn into those premises in a manner which would allow the driver's side wheels to cross over approximately one half of the pit when proceeding onto the extended portion of the driveway to those premises. 134 If it be correct that the evidence does not support a finding that the condition of the pit as depicted in the 2002 photographs was also the condition of the pit when the construction of the footpath was completed in 1994 or 1995, then it would follow that any inspection of the new work by a Council officer at that time would not have revealed any defect in the carrying out of the work to the pit. 135 The plaintiff relied upon Mr Garofali's evidence that it was his experience that Telstra pits were not commonly located in driveways for the fairly obvious reason that, if driven over, the pit was likely to collapse under the weight of the vehicle. However, I interpolate that although the owner of that property widened the original driveway to No.19, it is unknown when that occurred. There was, therefore, no evidentiary basis for a finding that the widening had taken place before the footpath was laid. 136 Mr Garofali stated that his company would not move a pit belonging to Telstra but that if it needed adjustment, the Council would be notified and it in turn would inform Telstra, who would then move the pit as required. The fact that the pit in the present case was not moved from its original position is therefore indicative of the fact that the widening of the driveway to No.19 occurred after the footpath was laid in 1994 or 1995. 137 The plaintiff submitted that as Mr Garofali conceded the photographs showed both old and new concrete, the primary judge was entitled to draw the inference that there had been no adequate lip constructed on that side of the pit within the grass verge and, further, was entitled to draw this inference more comfortably given the failure of both the Council and Telstra to call any evidence from those who repaired the pit after the plaintiff's accident. 138 However, although Mr Garofali volunteered that in the photograph with which he was then dealing he could see that there were cracks in the concrete "where the old concrete and new concrete" met and that there were some inches of new concrete laid over the old pit, he was not asked as to whether that indicated that the new concrete had been laid over the old at the time that the footpath was constructed. 139 I reiterate that Mr Garofali was adamant that if his company had carried out the original footpath construction work (which he was not prepared to admit to as he had no records) a concrete lip would have been provided for there were indications from the photograph that any such lip "could have been cracked off". As I understand his evidence, the "cracking off" of the concrete lip could well have occurred when the lid of the pit was driven over by a vehicle accessing the widened driveway to No.19. This is consistent with the primary judge's finding that the most probable cause of the damage to the side of the pit abutting the grass verge was the passage of vehicles over the roll kerb, onto the verge and thence onto the lid of the pit. 140 Although it is true that the primary judge did not limit the potential use of the grass verge to vehicles seeking access to the driveway of No.19 and that the existence of the roll kerb may well have encouraged vehicles to drive onto and park on the verge itself, to the extent to which the evidence permits, the more likely scenario is that vehicles passing over the roll kerb and onto the lid of the pit did so to gain access to the extended width of the driveway to No.19. This was not an activity that in my view was encouraged by the Council insofar as the evidence would not permit of the inference that the widened driveway existed at the time that the footpath was constructed. As I have said, the positioning of the grass verge and its relationship to that driveway indicates to the contrary. 141 The plaintiff submitted that an inspection of the footpath after it was constructed would have shown that one long edge of the pit was outside the footpath and in the grass verge which would raise the possibility that it was not adequately supported on that side. Particular care would have been required in the inspection because of the presence of the roll kerb which would encourage vehicles to park on the verge including where it overlapped with the pit. 142 The difficulty with this submission is that it assumes that at the time of any inspection the lid was not adequately supported on that side of the pit that bordered on the grass verge. Although as the photographic evidence indicates, the wall of the pit adjacent to the grass verge had collapsed at some point in time, in my view the evidence did not establish that that was its condition at the time that the footpath was constructed. More probably, the collapse of that wall of the pit was due to a vehicle's weight upon it. 143 Nevertheless the plaintiff relied heavily on the fact that the Council called no evidence from the officer or officers who inspected the work when it was completed in 1994 or 1995. Given that that was seven to eight years prior to the accident (and some ten years prior to the filing of the original Statement of Claim in 2005), it is perhaps not surprising that no such evidence was called. It was not suggested that the Council had records that would reveal the identity of the officer who carried out that inspection: certainly, the plaintiff tendered no such records. 144 In the circumstances, any inference that can be drawn from the absence from the witness box of the Council officer who inspected the work some ten years previously would in my view have carried little weight. In any event the absence of evidence from the inspecting officer is of no moment unless there was evidence from which the inference could be drawn that the work was carried out by NCI in an inadequate fashion. 145 Although the primary judge held that that was the case, she did so solely upon her interpretation of the photographs: see the opening sentence of [31] and [35] of her judgment, recorded at [96] above. 146 The primary judge did not make any findings with respect to the permissibility of her interpreting the photographs without the assistance of expert evidence in order to come to the conclusion she did. However counsel for the Council submitted at trial that in the absence of expert evidence, it was not open to her Honour to use the photographs as evidence that the work on the pit performed at the time the footpath was constructed was carried out negligently. As I have indicated, her Honour did not address this submission, which was squarely before her. It is necessary to do so now. 147 The Council submitted that the primary judge was not entitled to reason backwards from the photographic evidence to reach the conclusion that at the time of construction of the footpath, the pit was in the same condition as appeared in the photographs with respect to the existence or non-existence of a lip capable of supporting the lid. It submitted that the photographs did not provide a secure evidentiary foundation for such a conclusion. If the photographs were to be interpreted in the manner undertaken by the primary judge, then that had to be through the evidence of an expert. 148 Although Mr Garofali was to an extent an expert, his evidence did not provide any foundation for her Honour's conclusion. That this is so is evidenced by the fact that her Honour did not rely upon Mr Garofali's evidence in coming to her conclusion but solely upon the photographs. 149 Leaving to one side the authorities on this issue, the danger of judges attempting to interpret photographs was illustrated by the exchanges between members of the Court and counsel in this appeal. The transcript of argument reveals an expression of differing views by different members of the Court according to their perception of what a particular photograph depicted. Various theories or possibilities were advanced in an attempt to explain what appeared in particular photographs. For example, there appeared to be some agreement between counsel and a member of the Court that Exhibit M(3) and Exhibit A(5) revealed the absence of a lip at the bend between the long side and the short side of the pit when looking in the direction in which the plaintiff was walking. Both those photographs indicated the existence of a lip on the long side of the pit within the footpath. However, the critical question which those photographs could not answer was whether there had been a lip in the location in question at the time the footpath was constructed which had broken off at some later point in time due, for instance, to a vehicle travelling over that section of the pit's lid; or whether when the concrete for the footpath was originally poured, any lip that had originally been there had been obliterated. 150 Mr Garofali accepted that he could see that there was some fresher concrete on top of what looked like older concrete or some additional "sort of cement or something like that in there that is different from the concrete, but I don't know what that is". When it was suggested to him that a lip would have been visible at the top right hand corner of the pit as depicted in Exhibit M(3) if a mould had been used as he had earlier suggested would have been the case, Mr Garofali responded that: "[T]here's also a whole lot of cracks and things around there which suggest to me it could have cracked off."

At all times he denied that whoever carried out the work did a " pretty poor job of laying the concrete around the edge of " the pit. 151 One possibility that was advanced by a member of the Court by reference to the photographs was the suggestion that as they depicted a jagged edge to that portion of the lid which would have rested upon a lip at the top right hand corner where the lip had disappeared, part of the lid had broken away and had actually jammed in the corner above the lip thus obliterating it. 152 A further possibility that was suggested during argument by a different member of the Court was that the lid had been pushed out of position towards the grass verge thereby, presumably, taking away the support from the lid on its right hand side in the direction of the plaintiff's travel. 153 This possibility was suggested by Giles JA who then made this telling observation: "It is not terribly evident from the photos and even if that was the original construction, possibly - and I'm simply postulating things - that was not the result of the raising of the lip, but the raising simply ended up with a flat top so that lateral displacement was possible. Behind this I suppose is the question, did anyone give any evidence that helps decide whether this possibility might have been a probability?"

No such evidence was forthcoming. 154 Certainly it was accepted by the Council that Exhibit A(5) revealed that there was no real lip upon which the lid could sit at what was referred to in argument as the "top right hand corner of the pit". But that left for determination the question of how that situation came about and when. The primary judge was left to speculate this, as there was no expert evidence upon which she could rely for the purpose of coming to an informed conclusion. 155 A further example of what, with respect, I would regard as pure speculation was the following observation made during the course of argument on appeal with respect to Exhibit A(5): "All of which is consistent with the lid having cracked so that there was a piece of lid which was quite thin that sat on top of the lip leaving the lip - the edge of lid after the crack had formed, so that it was in pretty well a vertical line with the internal wall of the pit. And of course something is going to tip if it has a weight put on it in that situation. All of which is consistent with the lid having had a corner sliced off it as is revealed if you carry out the straight edge exercise." 156 The following exchange between senior counsel for the Council and the Bench is also instructive: "JUDGE: But her Honour's findings do have a causal mechanism that could explain them as well which is that the corner of the lid had been broken away before the footpath was made, and that left a bit of lid that was pretty well flush with the internal wall of the pit, that then the concrete was constructed up to the edge of the lid so that it partly came onto the lip at that particular corner. COUNSEL: A5 I think supports that. JUDGE: Yes and that is the sort of thing that would happen if the lid had been driven over by a car before the concrete was laid. COUNSEL: Possibly your Honour." 157 The difficulty that these exchanges evidence is that they really involve speculation. What the judge observed from the photograph may have been correct but the conclusion was based upon an interpretation of not only what was perceived in the photograph but also what the judge considered may have been the cause of that which was observed in it. 158 In my respectful view it is not open in a case such as the present for a judge to settle on such conclusions unless there is some evidentiary foundation for them. In the present case such a foundation simply did not exist in the absence of expert evidence. 159 To add to the speculation was senior counsel for the Council's suggestion that: "a real possibility is that when that happened [i.e. when the plaintiff stepped onto the lid] the whole lid was able to shift a bit to the left so that it lost support along the right side. I reckon that's the best theory, far better than anything else I've heard this morning. But it's absolutely inadmissible legally in my submission, it's just like her Honour's conclusions." 160 Senior counsel's theory gained some support from the following observation made by a member of the Court: "One thing that you do have running for you here is that even if it is correct that the corner of the lid was broken and was moulded up with cement, that is still going to leave the lid sitting on a lip for 80% of it length, so it's probably not going to tip into the pit unless there is some lateral displacement towards the grass side." 161 Although the plaintiff gave evidence that she did not see anything untoward with respect to the lid as she approached it, her evidence in cross-examination was that she put her left foot down at approximately the middle of the lid, slightly towards the footpath side, as a result of which the sides of the lid rotated in so that, taking the plaintiff's direction of travel, the right hand long side of the lid rotated inwards, whereas the long side on the grass verge side rotated upwards. If this be so, then on one view, at the time the plaintiff stepped onto the lid it was not only unsupported at the top right hand corner but also unsupported along its right hand long side notwithstanding that the photographs appear (at least to this observer) to indicate that there was a lip capable of supporting the lid along its length until the point was reached where the pit curved to the left. However, I am conscious that in including this last observation, I am also indulging in what I regard as impermissible speculation. 162 Accordingly, a real question of causation arose which was left unresolved, namely, how did the lid so rotate when, in the photographs which were the subject of close examination by both her Honour and this Court, the pit appeared to our untrained eye to be only missing a lip over the length of the corner between its short and long sides. 163 The theory that the lid had somehow moved laterally towards the grass verge so that it no longer was fully supported by the lip clearly visible down the pit's long side, thus gained some traction. If that was the cause of the plaintiff's accident then it does not appear to have arisen out of the negligent construction of the footpath in terms of its relationship to the pit. 164 In these circumstances, the central proposition of the Council was that in the absence of expert evidence it was not open to the primary judge to rely merely upon her interpretation of the photographs in coming to her conclusion that at the time the footpath was laid in 1995, not only was the condition of pit the same as that depicted in the photographs taken in 2002 so far as those photographs depicted the lip upon which the pit's lid was to be supported, but also that that part of the pit was negligently reconstructed at that time. 165 As I have indicated, it is apparent that her Honour did not rely upon Mr Garofali's evidence in terms of his interpretation of the photographs but on her own which, in my view, she was not entitled to do. 166 Accordingly, in my opinion the Council's submission that there was no basis for a primary finding by her Honour of inadequate construction of the path and, therefore, no basis for the allied finding that a proper inspection would have revealed that the pit was defective, should be accepted. I therefore now turn to the decided cases which, in my view, support that conclusion. 167 The use of photographic evidence has been the subject of discussion in this Court. Its admissibility as a visual reproduction is beyond doubt: Reg v Travers (1958) 58 SR (NSW) 85 at 108. However, in Short v Barrett, Court of Appeal, 5 October 1990 (unreported), Meagher JA, with the concurrence of Clarke and Handley JJA, observed that in relying on his own interpretation of photographic evidence, the trial judge had overlooked the "sage advice" of Lord Reid in C Van der Lely NV v Bamfords Ltd [1963] RPC 61 at 71. His Lordship said: "Lawyers are expected to be experts in the use of the English language, but we are not experts in the reading or interpretation of photographs. The question is what the eye of the man with appropriate engineering skill and experience would see in the photograph, and that appears to me to be a matter for evidence. Where the evidence is contradictory the judge must decide. But the judge ought not, in my opinion, to attempt to read or construe the photograph himself; he looks at the photograph in determining which of the explanations given by the witnesses appears to be most worthy of acceptance." 168 In Stillwell Trucks Pty Ltd v McKay & Ors [2002] NSWCA 292, Campbell AJA, with the agreement of Handley and Beazley JJA, also referred (at [71]-[72]) with approval to this passage from Lord Reid's speech, observing that although his Lordship was concerned with a patent case concerning a hay rake and the issue was anticipation, the passage gave guidance on a wider basis. Campbell AJA then observed (at [73]): "In my view the use of other components in the photograph or series of photographs to identify objects in a photograph is an appropriate procedure. Upon occasion it may be a matter of common sense. In a case involving machinery parts, as here, it would normally require an expert to make the identification." 169 It should be noted that the use by a trial judge of photographs is nothing new. They can, as the authorities to which I have referred confirm, be descriptive of what a witness says he or she saw, being a representation of the witness' knowledge and observations. But they should not be used by a judge to make findings of fact which are otherwise unsupported by the evidence and are therefore no more than conjectural: Schmidt v Schmidt [1969] QWN 3 at 6; Beaton v McDivitt (1985) 13 NSWLR 134 at 142. 170 Thus in United States Shipping Board v The Ship St Albans [1931] AC 632 Lord Merrivale, in delivering the advice of the Judicial Committee of the Privy Council, observed (at 642) that the use of photographic evidence must be the subject of "careful delineation" particularly as a means of proof of matters of fact. This is not to say that photographs can have no probative value of themselves even in the absence of an oral description of what is depicted; only that care must be taken to ensure that they are not used as the sole source from which a primary fact is to be inferred where that fact is not revealed on the face of the photographs such as the condition of a structure at a time significantly removed from that when the photographs were taken.

171 In my opinion the photographs in the present case obviously depict the condition of the pit at the time they were taken. Whether or not they indicate the presence of a lip at that time may well be a matter of common sense and common observation of the photographs. But her Honour did not merely use the photographs for the purpose of determining the condition of the pit and its lid at the time of the plaintiff's accident. Such a use would have been perfectly legitimate. Rather, she sought to interpret them as establishing, apart from the collapsed side of the pit adjoining the grass verge, the condition of the lip or the lack of a lip around parts of the perimeter of the lid of the pit at the time the footpath was constructed some seven or eight years previously. She did so without the assistance of any expert evidence except, perhaps, that of Mr Garofali which did not establish the conclusion for which the plaintiff contended and her Honour accepted. This was impermissible. 172 In my view it required the evidence of an expert to so interpret the relevant photographs. In the absence of any such evidence, it was not open to her Honour to substitute her own view as a lay observer over the evidence of an expert. This being so, the consequence is that there was no evidence capable of supporting her Honour's finding that the work carried out to the pit at the time the footpath was constructed left the pit without adequate support for its lid. 173 Absent the legitimacy of her Honour's finding of negligent construction, the conclusion follows that proper inspection of the work by a Council employee on completion may not have revealed any defect in the pit. In my opinion, therefore, the first basis upon which the primary judge found that the Council was in breach of its duty of care should be rejected.

Was the primary judge correct in finding that the Council was liable for Mr Shackleton's failure to detect that the pit was hazardous? 174 Her Honour's findings on this issue are encapsulated at [47] and [50] of her judgment which I have recorded at [104] above. Essentially, she found that the fact that there was no visible lip around the top short end of the pit (looking in the direction in which the plaintiff was travelling) on which the lid could sit and the fact that the footpath had been laid right up to the edge of the lid at that point, were matters which "would have been plain" to someone in the position of Mr Shackleton who was looking for hazards in the footpath. The outward appearance of the pit itself should, her Honour found, have put Mr Shackleton on notice that the pit was defective especially when coupled with his inferred knowledge that the roll kerb permitted the movement of vehicles over the grass verge in which part of the pit was located (at [48]). 175 It is convenient to repeat the following findings of the primary judge with respect to breach of duty and causation: "66. Further, Council had a system for the inspection of footpaths, which includes the Telstra pits to detect hazards to pedestrians. Had those inspections been properly conducted, the Council would have been alerted to the obvious absence of a lip supporting the lid. 67. …the failure to detect through inspections that the lid was unsupported at both ends materially contributed to the lid turning when Ms Hocking stood on it and thus caused her to fall." 176 It is in the context of these findings that the Council raised by way of defence to this part of the plaintiff's claim, s 45 of the CL Act. That section provides a complete defence to what otherwise would be a council's liability for a failure to carry out repairs to a road (including a footpath). It is in these terms: "(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm. (2) This section does not operate: (a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or

(b) to affect any standard of care that would otherwise be applicable in respect of a risk. (3) In this section: carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993 . roads authority has the same meanings as in the Roads Act 1993 ." 177 Two issues initially arise with respect to the application of this provision to the facts of the present case. The first is whether an officer or officers of the Council (in this case Mr Shackleton) had actual knowledge of the particular risk the materialisation of which resulted in the plaintiff's injuries. The second, which only arises if the first question is answered affirmatively, is whether that officer or those officers had delegated (or statutory) authority to carry out the necessary roadwork to eliminate the relevant risk or to consider carrying out such roadwork. That the officer or officers with the relevant "actual knowledge" were required to have that authority follows from the decision of the majority of this Court (Basten and Bryson JJA) in North Sydney Council v Roman [2007] NSWCA 27; (2007) 150 LGERA 419. 178 In the present case it was accepted that Mr Shackleton did not have the authority to either carry out the necessary roadwork or to consider carrying it out and so his knowledge would not be that of the Council for the purposes of s 45(1) if the majority judgments in Roman are to be followed. Accordingly, the plaintiff sought the leave of the Court to argue that Roman should be reconsidered, that the majority judgments should not be followed and that the opinion of the dissenting member of the Court, McColl JA, should be adopted as stating the law. It was due to the proposal to seek such leave that the Court was constituted with a Bench of five judges. 179 Although s 45 is part of a group of 14 provisions of the CL Act pleaded by the Council as a complete defence to the plaintiff's claim, the application of the section was not the subject of submissions by the Council to the primary judge although the fact that it had been pleaded was referred to by the plaintiff in her submissions in reply in an exchange between counsel and her Honour. This notwithstanding, the section was not referred to by her Honour in her reasons and appears to have been overlooked. This is of significance given that it was submitted that the primary judge did not make a finding that Mr Shackleton had actual knowledge of the defective pit. It was thus submitted that her Honour's findings only established constructive knowledge on his part, which was insufficient to displace the exemption from liability provided by s 45(1) irrespective of the correctness of the majority decision in Roman. Accordingly, before any question arises with respect to Roman, the anterior question as to the nature of Mr Shackleton's knowledge of the defects in the pit must be determined. 180 As I have observed, her Honour made no express finding of actual knowledge on the part of Mr Shackleton of the defective pit. The closest she came to such a finding was at [47], where she found that the damaged state of the lid and the fact that there was no visible lip around the top of the pit on which the lid could sit, together with the footpath having been laid right to the edge of the lid, were matters which "would have been plain" to someone such as Mr Shackleton who was looking for hazards in the footpath. However, a finding of what "would" have been visible to someone such as Mr Shackleton is ambiguous and is not necessarily a finding that it was visible in the sense that it could be inferred that he actually saw it. 181 Nevertheless, three other paragraphs of her Honour's reasons may be considered to throw some light on the findings she in fact made. At [50] she found that Mr Shackleton's inspections in the knowledge that the area had roll kerbs "ought to have … alerted him" to the possibility of damage to the pit within the area where vehicles could be expected to drive. 182 Having noted (at [53]) that Mr Shackleton was not called by the Council notwithstanding that it was in a position to do so, her Honour considered that she could therefore more comfortably conclude that a regime of regular inspections and a properly conducted inspection by the Council "would have revealed the damaged state of the pit lid and that there was no visible lip around it". Finally, in [67] her Honour referred to "the failure to detect through inspections that the lid was unsupported at both ends" as materially contributing to the lid rotating when the plaintiff stepped upon it. 183 The foregoing findings do not, in my view, constitute a finding that Mr Shackleton had actual knowledge of the hazard posed by what her Honour referred to as the "obvious absence of a lip supporting the lid". The absence of such a lid would, in any event, only be "obvious" if the pit was carefully inspected and, possibly, if the lid were removed. Be that as it may, her Honour's finding at [53], whether intentionally or not, was couched in the language of constructive knowledge rather than actual knowledge. That this was so is confirmed by her finding at [66] that the Council had a system for the inspection of footpaths, including Telstra pits, to detect hazards to pedestrians and that: "Had those inspections been properly conducted, the Council would have been alerted to the obvious absence of a lip supporting the lid." 184 Further, the exchange between counsel for the plaintiff and her Honour to which I have referred in [179] above related to the question of imputed knowledge, it being submitted that this Court's decision in Leichhardt Council v Serratore [2005] NSWCA 406 "gave short shrift" to the argument in that case that the council inspectors may have been "stupid" and not noticed the relevant defects. Nevertheless, her Honour recognised that s 45 required actual knowledge. 185 There can be little doubt that the primary judge was cognisant of not only the fact that s 45 required a plaintiff to prove actual knowledge but also that such knowledge could be presumed, in the sense of inferred. She so held in Roman (decided on 16 February 2006) where she was the trial judge, citing (at [33]) Giles JA in Serratore at [14] and [15]. In that case her Honour (at [34]) made a specific finding of actual inferential knowledge on the part of a street sweeper who worked in the relevant area but who was not called to give evidence. 186 The foregoing makes it all the more strange that her Honour did not in the present case apply s 45 in accordance with her approach in Roman some nine months previously. The only explanation is that she either considered that the section was not relied on by the Council as it had not addressed upon it in final submissions, or she simply overlooked it. Whatever be the position, it is clear that her Honour considered that a finding of constructive knowledge on the part of Mr Shackleton was sufficient to render the Council liable for the plaintiff's injuries. 187 In fairness to her Honour and the parties, it should be said that the impact of s 45 at the time of the hearing at first instance (15 September 2006) may not then have been fully appreciated. Although an appeal had been lodged in Roman it was not heard until 10 October 2006 and not decided until 27 February 2007. Her Honour delivered judgment on 30 November 2006. It is, I think, fair to say that it was this Court's decision in Roman that brought s 45 into sharp focus. 188 In the foregoing circumstances I am not prepared to conclude that the primary judge made a finding of no actual knowledge on the part of Mr Shackleton. She simply did not address that issue. Rather than remit the matter for a new trial on this aspect of liability, in my opinion this Court can and should now determine the issue. 189 The plaintiff made the following written submission: "Admissions by Mr Shackleton suggest it [the footpath] was inspected on a number of occasions after [it was constructed] but prior to the [plaintiff's] accident. Clearly during any adequate inspection the warning signs of a potential problem should have been clear. It must have been obvious that vehicles drove over and parked on the footpath, the one long edge of the pit was not supported by any visible surrounding cement and there was a gap between the lid and the grass. These warning signs should have prompted [the Council] to investigate further and/or to take steps to prevent vehicles driving onto the footpath and further damaging the pit." 190 Reliance was then placed by the plaintiff upon the decision of this Court in Leichhardt Council v Serratore [2005] NSWCA 406 in which Giles JA, with the agreement of Hodgson and Ipp JJA, said: "14. The appellant said also that, even if it inspected the footpath, inspection which could have brought knowledge of the trip hazard was less than actual knowledge of the trip hazard. … 15. It will often be the case that a plaintiff does not have direct evidence of a road authority's knowledge of the risk. Like all facts, knowledge can be inferred from other facts and if the inference is fairly available and the road authority calls no evidence to rebut it, the Court can comfortably find knowledge." 191 The plaintiff therefore submitted that, fortified by the absence of Mr Shackleton from the witness box, her Honour ought to have inferred, if she had not already done so, that in his capacity as a maintenance inspector whose job it was to inspect the condition of footpaths including the pits and lids of any utility located therein and which presented as an obvious hazard or as a risk to public safety by, in the case of pits and their lids, either being missing or broken, Mr Shackleton had actual knowledge of what her Honour in the present case found to be plain: namely, the damaged state of the lid of the pit and the fact that there was no visible lip around its top on which the lid could sit, together with the footpath having been laid right up to the edge of the lid. 192 Those parts of Mr Shackleton's statement which were admitted into evidence on the tender of Telstra established that it was his usual practice to drive into the street, get out of his car to inspect the footpath and that he recalled carrying out such inspections in Reston Avenue although he could not with certainty state at which inspection he had walked up and down the length of that street. 193 Accordingly if, as her Honour found, it would have been plain to someone such as Mr Shackleton who was looking for hazards in the footpath that the pit was defective, then there was an available inference that he had actual knowledge of the defective state of the pit which in my view gained strength by the Council's failure to call Mr Shackleton in circumstances where, as that part of his statement which was admitted into evidence made clear, he was as at 15 February 2006 (being the date of the statement) still employed by the Council as a maintenance inspector. 194 Although not elaborated upon in oral argument, the Council contended in its written submissions that there was no evidentiary basis for a finding that at any particular time prior to the plaintiff's accident, but long enough for the Council reasonably to have become aware of it, some defective condition of the pit or lid to visual inspection existed. It was thus submitted that her Honour's finding that the defective nature of the pit "would have been plain" to someone like Mr Shackleton who was looking for hazards in the footpath, was unsupported by the evidence. 195 The Council also submitted that no reason existed why Mr Shackleton would lift up the lid to inspect the pit to see if the lid was properly supported for otherwise the lid was sitting flush with the footpath and appeared to be properly supported. In this respect it is to be remembered that the plaintiff herself gave evidence that there was nothing to indicate that there were any problems with the lid to the pit and that there was nothing that caused her to have any concern about the lid before she stepped upon it. 196 To be added to the foregoing evidence of the plaintiff is her Honour's finding (at [54]) that she could not find that a regular regime of inspections would have brought the fact that the side of the pit in the grass verge was missing in parts to the notice of the Council's inspector. Although she found (at [42]) that a layer or collar of cement was not added to support the lid on its grass verge side, the effect of the finding at [54] was that even if that were so, an inspection of the lid of the pit would not have revealed the absence of that added support. 197 Although the plaintiff submitted that if the added cement support had been provided it would have extended out from the lid over the grassed area, the evidence does not support a finding to that effect. In other words, the evidence does not indicate whether, if the wall of the pit on the side of the grass verge had been supported by the addition of a cement collar, the top of that cement would have been visible around the perimeter of the lid: it may well have been beneath the grass which had apparently grown to the edge of the lid. Thus an inspection of the lid would not have revealed one way or the other whether the added cement support within the grass verge had been provided when the footpath was constructed. 198 For that additional reason in my view the plaintiff's attempt to challenge her Honour's refusal to find that a regular regime of inspections would have brought that part of the damaged pit to the notice of the Council should be rejected. 199 The plaintiff nevertheless submitted that her Honour's finding at [54] was directed to the missing side of the pit where it abutted the grass verge rather than to the absence of a cement collar to provide a lip on that side. Her Honour had made a finding that no cement collar was provided but it does not necessarily follow that she was required to find that an inspection of the lid by Mr Shackleton would have revealed that there was no cement collar provided to support the lid on the grass verge side of the pit. 200 As I have indicated, Mr Garofali's evidence did not go so far as to establish that such a cement collar would have been visible if it had been provided. It may well have been constructed below the surface level of the grass verge which then extended over it to be flush with the lid. In these circumstances it is unsurprising that her Honour was only prepared to find (at [47]) that it would have been plain to Mr Shackleton who was looking for hazards in the footpath, that there was no visible lip around the top end of the pit on which the lid could sit and that the footpath had been laid right up to the lid's edge. 201 Her Honour's reference in the same paragraph to the fact that the outward appearance of the pit of itself should have put Mr Shackleton on notice that it was defective, appears to be a reference to the appearance of the lid and the pit as depicted in Exhibit M(4) and, possibly, Exhibits A(1) and A(2). 202 Her Honour may also have been referring to the photographs being part of Exhibit D1-(1). Assuming that the condition of the lid and its surrounds as depicted in those photographs was also their condition at the time of any such inspection, then her Honour's finding (which, in my view, was open to her) was that the general appearance of the lid and its surrounds as depicted in those photographs was such as to put an officer such as Mr Shackleton looking for obvious hazards on notice that the pit was defective or, at least on notice to investigate the pit more closely to ascertain whether its lid was in fact properly supported to ensure its stability for pedestrians using that part of the footpath in which most of the pit was located. 203 Clearly it would have been open to the Council to call Mr Shackleton, to have shown him the photographs to which I have referred and then to have asked him first, whether at the time he carried out any inspection of this section of the footpath, he had observed the pit in the condition in which it appeared in the photographs and, second, whether if he had, he would have regarded the pit and its lid as potentially defective and either reported the matter to Telstra to check and rectify and/or lifted off the lid himself for the purpose of ascertaining whether the lid was in a stable condition. 204 In my opinion, the failure of the Council to call Mr Shackleton to give such evidence enabled her Honour to more comfortably draw the inference at [53] that a regime of regular inspections and a properly conducted inspection by Mr Shackleton would have revealed the damaged state of the pit lid and that there was no visible lip around it and which, in turn, would have caused him to notify Telstra or to take steps to have a barricade placed around the pit so as to prevent pedestrians walking upon its lid until it was repaired. 205 Although as her Honour noted at [52] there was no evidence as to when Mr Shackleton made his last inspection before the accident, or how frequently his inspections occurred, nevertheless that part of his statement which was admitted into evidence established that he did carry out inspections in Reston Avenue from time to time as he worked extensively in the Council's western area which included the suburb of Hebersham. As his statement indicated, he had been a maintenance inspector for that area since 1997 and could generally recall carrying out inspections of that street. 206 In the foregoing circumstances I would conclude that although the primary judge did not in terms of s 45(1) make an express finding that Mr Shackleton had actual knowledge of the damaged pit, the findings she did make were tantamount to such a finding, being one which was clearly available to her. Alternatively, the findings of primary fact made by her Honour in turn made actual knowledge by Mr Shackleton of the defective lid of the pit an available inference which she should have drawn in the absence of Mr Shackleton from the witness box. 207 When one compares the photograph of the pit and its lid at the time of the plaintiff's accident with those of its appearance after its repair, the contrast between the two is such, in my view, as to have justified a finding that Mr Shackleton was aware of the damaged appearance of the pit and its surrounds and, therefore, of the hazard it posed to a pedestrian stepping onto a lid which gave every indication of possible instability. 208 It follows from the foregoing that the plaintiff has established that Mr Shackleton had actual knowledge of the risk of harm posed by the pit and its lid for the purposes of s 45(1).

Should the Court reconsider its decision in Roman and, if so, with what outcome? 209 There can be no doubt that on the basis of the majority judgment in Roman Mr Shackleton was not an officer within the Council having delegated (or statutory) authority to carry out necessary repairs to the footpath including the pit or to consider the carrying out of such repairs. On the other hand, Mr Shackleton was designated by the Council as one of its maintenance inspectors whose specific responsibility it was to inspect the condition of footpaths for the purpose of ascertaining whether they or any pits located therein presented an obvious hazard and risk to public safety by either being broken or otherwise defective, in which event it was his duty to refer the defective area "to maintenance". 210 The relevant part of Mr Shackleton's statement admitted into evidence established that upon ascertaining such a hazard or risk, it was the practice of maintenance inspectors to request a council barricade to be placed immediately at the relevant site in order to make the area safe and, in the case of a defective pit lid, to contact Telstra or the relevant service provider by phone to advise them of the broken or missing pit lid and request their urgent attention to its repair. 211 On the basis of the dissenting judgment of McColl JA in Roman, Mr Shackleton's knowledge would be that of the Council so that the "actual knowledge" exception to its statutory immunity under s 45 of the CL Act for a failure to take steps to have the pit and its lid repaired would be engaged. 212 In my opinion the Court should reconsider its decision in Roman. For that purpose it is necessary to shortly recite the reasoning advanced to support the different conclusions of Basten and Bryson JJA on the one hand and McColl JA on the other. 213 The issue which arose in Roman related to the construction of the phrase "the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm" in s 45(1). In that case the plaintiff was injured at night when she fell as a result of a pothole in the road. She brought proceedings against the council alleging that it had been negligent in failing to maintain the road by repairing the pothole. The evidence established that the council street sweepers regularly swept the gutters in the street in the vicinity of the subject pothole and that they had been instructed as part of their induction to identify hazards needing attention and to report them to their supervisor. The defendant council did not call any of its street sweepers but did call evidence from their supervisor and officers responsible for repairing potholes. All said they had no knowledge of the subject pothole although if they had they would have regarded it as a hazard. 214 The trial judge (who coincidentally was the primary judge in the present case) inferred that the street sweepers had actual knowledge of the pothole and that, for the purposes of s 45(1) of the CL Act, their knowledge could be attributed to the council. 215 On appeal Basten JA, with whom Bryson JA agreed, held that for the purposes of s 45(1), actual knowledge must be found in the mind of an officer within the council who had delegated (or statutory) authority to carry out or to consider carrying out the relevant roadwork, in that case, the repair of the pothole. As the evidence demonstrated that no such officer at a decision-making level had "actual knowledge" of the particular pothole, it followed that the council did not have such knowledge so that the exception to s 45(1) was not engaged and the statutory immunity prevailed. 216 Basten JA acknowledged (at 450 [145]) that the issue in relation to the knowledge of the street sweepers depended upon the factual premise, not in dispute, that one of their roles was to look out for and report on hazards that might require repair. However, he rejected the submission of the plaintiff that that was sufficient to render their stated knowledge to be that of the council for the purposes of s 45(1). 217 After referring to the decision of the High Court in Brodie v Singleton Shire Council and observing that that decision was sometimes described as abolishing the "immunity" of a roads authority for non-feasance as opposed to active "misfeasance" in carrying out its statutory powers, Basten JA noted (at 451 [152]) that the amendment to the CL Act which introduced s 45 was stated by the Minister in his Second Reading Speech as being required to protect a roads authority which had not exercised a discretionary power to repair a pothole from being liable unless it actually knew about the particular risk that led to the relevant injury. 218 At 452 [156] his Honour observed that to the extent that s 45 was designed to "reintroduce a protection for certain 'non-feasance' on the part of road authorities", being the language of the Minister, "it would seem that actual knowledge must be found in the mind of an officer within the council having delegated (or statutory) authority to carry out the necessary repairs". Such a conclusion was, his Honour said (at 452 [157]), consistent with the language of the section. 219 His Honour (at 453 [157]) then concluded in the following terms: "…The section confers an immunity on a roads authority where harm arises 'from a failure of the authority to carry out road work'. The exception only arises where 'at the time of the alleged failure' the authority had actual knowledge of the particular risk. A purposive construction would require that the relevant knowledge exist in an officer responsible for exercising the power of the authority to mitigate the harm. The existence of the power is only coupled with a duty to act in circumstances where such knowledge exists. Accordingly, the knowledge must exist at or above the level of the officer responsible for undertaking necessary repairs. The knowledge of others without such responsibility will not, relevantly for the purposes of the provision, constitute 'actual knowledge' of the roads authority itself; at best it could give rise to 'constructive' or imputed knowledge. The use of the term 'actual' precludes reliance on constructive or imputed knowledge. It follows that, even if a street sweeper having a duty to note and report defects, was aware of the pothole, the immunity is engaged absent proof on the balance of probabilities that the officer in charge of maintenance works received that information." 220 Bryson JA agreed with Basten JA essentially on the basis that liability of a roads authority "from harm arising from a failure of an authority to carry out roadwork, or to consider carrying out roadwork" could only be addressed by examining the authority's organisation and identifying the persons who had in fact the function of carrying out roadwork or of considering carrying it out. 221 Accordingly, s 45(1) was directed, so his Honour held (at 447 [130]), to those persons within the authority's organisation whose function it was to carry out roadwork or to consider carrying out roadwork but whose failure to do either had resulted in the relevant risk of harm materialising. According to the workings of s 45(1) it was therefore only those persons whose actual knowledge of the particular risk was relevant. 222 McColl JA acknowledged (at 435 [51]) that the use of the expression "actual knowledge" in s 45(1) was plainly intended to prevent a roads authority being civilly liable merely because of constructive knowledge of a risk. She reasoned as follows (at 435-436): "55 It is a reasonable inference that s 45 was intended to prevent roads authorities from being held liable in Brodie circumstances merely for failing to take reasonable steps to look for such risks as might reasonably be expected to arise. On the other hand, s 45 presupposes a system of inspection by which a roads authority can acquire actual knowledge of particular risks. That system of inspection must exist as an essential adjunct to the roads authority's obligation to keep roads in a reasonable state of repair at least implicit, if not expressed, in its function of carrying out road work. 56 Section 45, in my view, indicates a legislative intent to strike a balance between the community's legitimate expectation that public roads will be reasonably safe to traverse, and the extreme consequences which would flow, in revenue terms, if a roads authority could be found prima facie liable for injuries arising from risks of which it had only constructive knowledge. So much, at least, is evident from the structure of the provision and the Second Reading Speech. 57 Nothing in s 45, in my view, precludes the conclusion that the actual knowledge which will be attributed to the roads authority will at least be that of those relevantly involved in the authority's system of inspecting roads who have a duty to report their knowledge of a particular risk and/or who have a responsibility for repairing the road, or to consider repairing the road, if such a risk is brought to their attention. 58 This is not a case where the 'directing mind or will' concept should apply to designate the person or persons whose actual knowledge will be attributed to the appellant. The appellant's argument that the relevant rule of attribution is that only the knowledge of the person(s) able to, but who failed to, carry out the road work which would have avoided the harm which materialised, would, in my view, frustrate the policy of the Civil Liability Act . On that approach, and taking the evidence in this case, not only would the knowledge of the street sweepers be irrelevant but so, too, would be the knowledge of Mr Wetherill, who was responsible for reporting hazards to the responsible person, presumably whoever's duty it was to consider the repair of the reported hazard. 59 Such an interpretation would discourage roads authorities from setting up effective risk reporting systems. As counsel for the appellant conceded on his argument the more incompetent the street sweeper at reporting hazards, the better the appellant's position. 60 In my view, for the purposes of s 45, the knowledge of those persons who, acting within the scope of their duties, learn of the particular risk under an obligation to report it as part of the roads authority's system of maintaining the roads under its jurisdiction, should be attributed to the roads authority. On the facts of this case, such people were sufficiently 'relevantly connected' with discharging the appellant's responsibility for carrying out road work to hold it prima facie liable in tort where it can be found, whether by direct proof, or inference, that they had actual knowledge of the particular risk which materialised in harm to the plaintiff. Attributing those persons' knowledge to the roads authority is consistent with the language of s 45, the context in which it appears and the policy discernible in its enactment." 223 In my opinion the reasoning of McColl JA is to be preferred over that of Basten and Bryson JJA. I am of this view for the following reasons: (a) Brodie was a case where, according to Gaudron, McHugh and Gummow JJ (at 584 [178]), the evidence disclosed: "[T]he conduct of periodic inspections but the failure to take in the course of those inspections reasonable steps to look for such dangers as might reasonably be expected to arise."

(b) As McColl JA therefore observed (at 435 [55]), it is a reasonable inference that s 45 was intended to prevent roads authorities from being held liable in Brodie circumstances merely for failing to take reasonable steps to ascertain such risks as might reasonably be expected to arise.

(c) Accordingly, it is apparent that s 45 was intended to provide protection for, as the Minister indicated in his Second Reading Speech, " certain " cases of non-feasance on the parts of roads authorities, but not all such cases. So much was recognised by Basten JA in Roman where he correctly observed (at 451 [152]) that: "The purpose of the Bill [and now s 45] is to leave untouched the potential liability of the council for harm resulting from a hazard of which it was aware, but to remove liability for such matters as failing to undertake reasonable inspections to ascertain the existence of such risks." (d) In other words, the section was intended to reinstate a roads authority's immunity in respect of its failure to carry out inspections or, when such inspections had been carried out, its negligent failure to ascertain hazards that a careful inspection would have revealed.

(e) Section 45 was not intended to protect a roads authority which had not only carried out inspections but in the course of doing so had in fact ascertained the existence of a hazard but had then failed to carry out repairs to eliminate that hazard or otherwise warn of its existence.

(f) Although the construction of s 45(1) adopted by the majority in Roman was consistent with the language of that provision, that construction was not mandated by that language. The construction adopted by McColl JA was equally consistent with the language of the provision.

(g) Although as Basten JA correctly observed at 453 [157] the exception to the immunity conferred on a roads authority by s 45(1) only arises where at the time of the alleged failure of the authority to carry out road work it had actual knowledge of the particular risk, it does not follow, as his Honour concluded, that such knowledge must exist in the officer or officers responsible for that failure. It may, but not necessarily so. Certainly, the relevant knowledge must repose in an officer of the authority who is part of the authority's organisation, if any, set up to ascertain the existence of hazards and to " carry out road work " for the purpose of eliminating or mitigating them. Provided actual knowledge of the existence of the hazard can be attributed to an officer within that part of the authority's organisation, it matters not that that knowledge must repose in an officer whose immediate responsibility is to receive notice of a particular hazard for the purpose of exercising his or her authority to require road works to be carried out to rectify that hazard: the language of s 45(1) does not mandate such a construction.

(h) The critical consideration is the requirement in s 45(1) that knowledge of the relevant risk must be " actual " as distinct from " constructive ". The fact that an officer of an authority whose responsibility it is to inspect roads for the purpose of ascertaining the existence of hazards would, had such an inspection been carried out carefully, have discovered the existence of a hazard is insufficient in the absence of actual knowledge on the part of that officer of its existence. The fact that such an officer should or ought to have had knowledge of such a hazard is insufficient: actual knowledge must be established, either directly or by inference from proven facts.

(i) Accordingly, the observation of Basten JA (at 453 [157]) that the knowledge of those without responsibility for undertaking necessary repairs will not relevantly, for the purposes of s 45(1), constitute " actual " knowledge of the roads authority itself but at best could give rise to " constructive " or imputed knowledge cannot, with respect, be sustained. Of course I agree with his Honour that the use of the term " actual " precludes reliance on constructive or imputed knowledge but the issue is: the " actual " knowledge of whom? Whilst there must be actual knowledge, it does not follow that it must be that of the officer whose responsibility it is, having become aware of the existence of the hazard in a roadway, to authorise that the hazard be repaired.

(j) It is true that even actual knowledge on the part of an officer of the authority whose responsibilities are unassociated with those whose task it is to inspect roadways for the purpose of ascertaining hazards which require repair is insufficient. As McColl JA correctly observed (at 436 [57]), the actual knowledge required by s 45(1) must be that of those officers of the authority whose responsibility it is to inspect roads and who have the duty to report their knowledge of the particular risk to those responsible for repairing the road or to consider repairing the road when such a risk is brought to their attention. The construction adopted by the majority in Roman is, in my respectful view, too narrow. It is not mandated by the language of the provision and would unnecessarily and unjustifiably place a premium on ignorance which the language of the section does not require and which finds no support from the intention of the legislature as articulated in the Minister's Second Reading Speech. 224 In my opinion, therefore, this Court should reject the reasoning of the majority in Roman and should confirm as the law of this State the construction of that provision adopted by McColl JA essentially for the reasons that she gave. 225 As Mr Shackleton was part of the Council's organisation in inspecting its roads for the purpose of ascertaining hazards which required repair by the Council's maintenance department, it follows that s 45(1) does not protect the Council from its failure to carry out repairs to, or otherwise to erect a barrier around, the hazard constituted by the unstable lid to the pit. The Council's defence based on s 45 therefore fails. 226 It follows from the foregoing that the Council's challenge to the primary judge's finding of liability in favour of the plaintiff should be rejected. Was the primary judge correct in finding that Telstra was not liable to the plaintiff? 227 The plaintiff's cross-appeal with respect to the primary judge's finding in favour of Telstra alleged two errors which, with amendment, I would express as follows. The first was that her Honour erred in failing to find that a Telstra technician should have observed the damage to the pit after the footpath had been installed and prior to the plaintiff's accident given that its records produced on subpoena revealed that its technicians had attended the area and carried out work at No.19 on a number of occasions. It was further alleged that the damage to the pit should have been observed when Telstra upgraded its services in November 2001 on the opposite side of Reston Avenue. 228 The second error was predicated upon her Honour's finding (at [80]) that the documents tendered through Ms Triantis in response to a subpoena to Telstra to produce its records relating to "repair, maintenance records and records of complaint in relation to the footpath (notwithstanding the telecommunications pit located within the footpath) on Reston circuit (sic), Hebersham for the period 2001 to 2003" were incomplete. It was asserted that given the incompleteness of the documents so produced, her Honour should have found that a Telstra technician was likely to have opened the pit after the footpath had been laid and before the plaintiff was injured. 229 Notwithstanding the authorities to which I have referred at [113] above, the plaintiff submitted that since the decision of the High Court in Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512, Telstra owed the plaintiff a duty of care which included the taking of reasonable steps to inspect and repair its installations. Reliance was placed upon a statement to that effect by Mason P, with whom Sheller and Beazley JJA agreed, in Georgopoulos v Telstra Corporation Ltd [2004] NSWCA 266 at [22]. 230 I cannot detect any relevant difference between the statement of Mason P in Georgopoulos as to the content of Telstra's relevant duty of care on the one hand and the proposition for which Rickards is said to be authority on the other, namely, that a non-highway statutory authority such as Telstra is under no obligation at common law to keep its installations in repair. In that case the trial judge (Yeldham J) rejected, as did this Court, the plaintiff's submission that the Commission had a duty to inspect its pits regularly. However, both Yeldham J and this Court, accepting that the Commission owed the plaintiff a duty of care, determined the question of breach of duty by application of the Shirt formula. I do not understand that the President in Georgopoulos was suggesting that the question of whether or not there had been a failure on the part of Telstra to take reasonable steps to inspect and repair its pits should be determined otherwise than in accordance with that formula. 231 The plaintiff did not seek to elicit any evidence, expert or otherwise, of any Telstra system of inspection and maintenance of its installations, let alone any evidence of the breakdown of any such system in the present case. She administered interrogatories to Telstra but none were directed to the adoption or otherwise of such a system. Accordingly, the plaintiff's submissions on her cross-appeal were confined to the following:

(a) Between 1996 and 2001 the occupiers of No.19 from time to time made at least 21 complaints to Telstra about their landline telephone service and Telstra's technicians attended the premises in response to those complaints on at least five occasions;

(b) The pit was very close to the entrance to No.19 so that it should be inferred that technicians visiting those premises would have walked within a metre of the pit on their way to or from the dwelling;

(c) It should be inferred that on one or more of those occasions when a technician visited No.19, he or she ought to have observed the condition of the pit including the existence of the roll kerb which invited vehicles to park on the grass verge in close proximity to the pit;

(d) Although there were 21 recorded complaints to Telstra by the occupiers of No.19, the records produced by Ms Triantis related to only 19 of those complaints so that it should be inferred that there were at least two occasions, not recorded in the documents produced by Ms Triantis, when a Telstra technician may have visited No. 19 in addition to the five occasions which the documents recorded as having involved such a visit;

(e) Furthermore, during the major upgrade in November 2001 of its services on the opposite side of Reston Avenue, the opportunity arose for Telstra workmen to inspect the pit on the opposite side of the road which they ought to have done. 232 Of the 21 complaints recorded in the Telstra documents, the first occurred on 31 August 1996 and the last on 9 September 2001. Ms Triantis' evidence was that the majority of the faults were tested by Telstra's automatic system and did not require the attendance of a technician at the complainant's premises. In fact, the plaintiff's own chronology of attendances by Telstra in Reston Avenue tendered on the appeal revealed that a Telstra technician attended No.19 on only four occasions being on 3 September 1996, 29 January 1997, 19 February 1997 and 22 June 2001. In 2000/01 there were six complaints of which only the one made on 22 June 2001 resulted in a Telstra technician attending at No.19. 233 The plaintiff's accident occurred on 19 January 2002 some seven months after the date on which a Telstra technician attended No.19 in response to a complaint. Ms Trianis' evidence was that on none of the occasions when a Telstra technician attended No.19 was the pit opened. In these circumstances, the plaintiff was forced to rely primarily upon the attendance on 22 June 2001 as being the occasion when a Telstra technician, although having no occasion to open the pit, would have walked sufficiently close to it to have noticed its condition. A similar argument was advanced to, and rejected by, the primary judge. She concluded (at [87]) that she was unable to find on the evidence that a Telstra technician attending No.19 to deal with a fault in the landline would have necessarily noted the condition of the lid or the side of the pit as he or she passed to and from that property. 234 As I noted at [121] above, the position of such a technician was different to that of Mr Shackleton whose specific job it was to look for hazards in the footpath which, in the present case at least, included the pit and, in particular, the stability of its lid which formed part of the pedestrian way. The same cannot be said of a Telstra technician attending premises in response to a service complaint relating to a landline. 235 In my opinion the primary judge's finding to which I have referred was one which was clearly open to her. No error has been demonstrated in her rejection of the plaintiff's case based, in particular, upon the attendance of a Telstra technician at No.19 on 22 June 2001. The earlier attendances in 1996 and 1997 were clearly too remote in time, there being no probative evidence as to the condition of the pit in those years. 236 The position is a fortiori with respect to the plaintiff's contention that Telstra workmen ought to have inspected the pit on the opposite side of Reston Avenue to where it was undertaking a major upgrade in November 2001. I have referred to her Honour's finding in this regard at [124] above which, in my view, was one which was clearly open to her. Again, no error has been demonstrated in the making of that finding. 237 Accordingly, in my view the primary judge was correct in finding that there was no breach of duty on the part of Telstra to the plaintiff. It follows that both the plaintiff's cross-appeal and the Council's defensive appeal against that finding should be rejected.

Were the damages awarded by the primary judge to the plaintiff excessive? 238 Since writing the foregoing, I have had the benefit of reading in draft the judgments of the other members of the Court in which they have determined that the Council was not in breach of its duty of care to the plaintiff in either of the respects found by the primary judge. In these circumstances, being in the minority on the issue of liability, it is unnecessary for me to deal with the Council's appeal on damages.

Conclusion 239 In my opinion the Council's appeal on the issue of its liability to the plaintiff should be dismissed, as should its appeal against the dismissal by the primary judge of its cross-claim against Telstra. The plaintiff's cross-appeal against Telstra should also be dismissed. However, in the circumstances it is unnecessary for me to formulate formal orders, particularly as I have not addressed the Council's appeal on the primary judge's assessment of damages. 240 CAMPBELL JA: I agree with the reasons of Spigelman CJ. The modern proliferation of surveillance cameras and closed circuit television cameras that record events that nobody sees, or sees properly, provides a reason why Schmidt may need reconsideration.

241 I agree with the orders proposed by Giles JA.

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