Blue Op Partner Pty Ltd v De Roma

Lynda Gabriel De Roma (Respondent) Representation: Counsel:

CP O'Neill (Appellants) M Cranitch SC with L D Robison (Respondent)

Norton Rose Fulbright (Appellants) Turner Freeman Lawyers (Respondent) File Number(s): 2022/312270 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2022] NSWDC 425 Date of Decision: 23 September 2022 Before: Levy SC DCJ File Number(s): 2020/32201

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The respondent was injured when she tripped and fell whilst walking over a steel utility pit lid and frame set in a concrete footpath. At that time, she was walking quickly in order to catch a bus waiting at a nearby bus stop. The appellant partnership (Ausgrid) was responsible for the inspection, maintenance and safety of the steel utility pit lid and frame. The primary judge upheld the respondent's claim to damages for negligence, finding Ausgrid had breached its duty of care as 'occupier' by failing to warn by painting or applying lines on the utility pit's raised surface in order to draw attention to the trip hazard it posed. His Honour also made a finding of contributory negligence on the part of the respondent, reducing the amount of damages by 20%. Ausgrid challenges the primary judge's finding of negligence, including by contending that the risk of tripping was an "obvious risk" within the meaning of s 5F of the Civil Liability Act 2002 (NSW) (the CLA), with the result by the application of s 5H(1) it had no duty to warn. That is the principal and dispositive issue in the appeal. The Court (Meagher JA, Mitchelmore and Kirk JJA agreeing) allowed the appeal, holding:

1. The obviousness of a "risk of harm" may depend on the level of generality or particularity with which it is described. The risk should be specified with a degree of generality, although it must be sufficiently precise to capture the harm which resulted from its materialisation on the facts of the particular case. The risk of harm should also be characterised at the same level of generality when addressing questions of negligence and questions of obvious risk: Meagher JA at [46], [48], [51]-[52]; Mitchelmore JA at [69]; Kirk JA at [70]. Fallas v Mourlos (2006) 65 NSWLR 418; [2006] NSWCA 32; Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65; Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11; Singh v Lynch (2020) 103 NSWLR 568; [2020] NSWCA 152, considered.
2. The primary judge erred in adopting a characterisation of the "risk of harm" for the purpose of determining the question of "obvious risk" that was more specific than the characterisation adopted by his Honour when determining questions of duty and breach of duty. In the primary judge's former analysis, the risk was that of tripping over a raised edge of up to 1cm in the pit lid structure, which was the precise risk that materialised. In the latter analysis, that risk was of tripping on an uneven surface created by the presence of the utility pit in the concrete footpath: Meagher JA at [17], [45]-[46]; Mitchelmore JA at [69]; Kirk JA at [70].
3. As it was maintained that Ausgrid should have provided a warning of the risk of harm, it was necessary to consider the obviousness of that risk at a point which would have allowed a pedestrian in the respondent's position to modify her behaviour and avoid the risk, as would be the case if the pedestrian had received an adequate warning. That risk was of tripping on an uneven surface created by the presence of the utility pit lid and frame within the concrete footpath: Meagher JA at [48]-[53]; Mitchelmore JA at [69]; Kirk JA at [70]. Fallas v Mourlos (2006) 65 NSWLR 418; [2006] NSWCA 32; C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136; Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19; Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11, considered.
4. The question posed by s 5F(1) was whether it was obvious to a reasonable person exercising care for her safety that a risk of that kind might be present and materialise as she walked across the footpath containing the utility pit lid and frame. The primary judge's obvious risk analysis did not address that risk of harm from the perspective of a reasonable person in the respondent's position. To such a person it would have been obvious that there was a steel pit lid in the footpath ahead, that there may have been a gap between the lid and frame, and therefore that there were or were likely to be uneven levels or surfaces within that area which presented a risk of tripping: Meagher JA at [47], [54]-[55]; Mitchelmore JA at [69]; Kirk JA at [70].
5. His Honour's obvious risk analysis proceeded on the basis that a reasonable person in the respondent's position would have acted as she in fact acted; and that analysis was directed to the specific risk of harm which materialised. However, when addressing contributory negligence, his Honour's findings recognised that the respondent had not exercised care for her own safety when approaching and assessing the utility pit: Meagher JA at [47], [56]; Mitchelmore JA at [69]; Kirk JA at [70].
6. From the perspective of a reasonable person in the respondent's position taking care for her own safety, the risk of tripping was obvious because of the fact or likely fact of an uneven surface or surfaces ahead. That was sufficient to satisfy s 5F, thereby engaging the application of s 5H(1). Ausgrid did not owe a duty to warn the respondent of the risk: Meagher JA at [55], [57]-[64]; Mitchelmore JA at [69]; Kirk JA at [70]. Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29; Richmond Valley Council v Standing [2002] NSWCA 359, considered.

JUDGMENT

1. MEAGHER JA: On 2 February 2017, towards midday, the respondent (Ms De Roma) was injured when she tripped and fell whilst walking over a steel checkerplate utility pit lid and pit frame set in a concrete footpath surface adjacent to premises in Parramatta Road, Ashfield, a suburb of Sydney. At that time, the respondent was walking "quickly" along the footpath towards her immediate destination - a bus stop and waiting bus. The appellant partnership (Ausgrid) was responsible for the inspection, maintenance and safety of the utility pit, which provided access to its electrical network infrastructure, one of 10,000 such pits within in its Sydney and surrounding areas network as at August 2022 (albeit five years after the incident).

Overview

1. The primary judge held that Ausgrid had breached its duty as 'occupier' of the utility pit in failing to provide any warning which drew attention to there being height differentials of up to 10mm (1cm) between the level of the pit lid and the top edge of its slightly higher surrounding metal frame (De Roma v Inner West Council & Ausgrid [2022] NSWDC 425). This warning was not directed to any further height differential between that top edge and the surrounding concrete surface, the primary judge having found that the pit frame was "flush" with that surface.
2. In considering Ausgrid's defence that it owed no duty of care to warn of an "obvious risk" (Civil Liability Act 2002 (NSW), ss 5F, 5H) (CLA), his Honour found at J[269]: … absent any warnings drawing attention to a height differential within the available walking surfaces ahead, and absent any shadows that might have potentially been cast from differing heights… the risk of tripping over the raised edge within the pit lid / footpath structures would not have been obvious to an ordinary reasonable person in the position of the plaintiff at the time that person walked quickly towards the waiting bus.
3. The precaution which his Honour held a reasonable person would have taken was "painting or applying lines on the raised surface in an obviously bright colour in order to draw attention to the trip hazard so posed" (J[230], [233]). It is not clear whether the "raised surface" to be painted or marked is the inner side and top edge of the pit frame or the concrete footpath immediately surrounding it or both.
4. Having rejected Ausgrid's defence that the risk of tripping was an "obvious risk" and held that Ausgrid had breached its duty of care in failing to give that warning, his Honour turned to the issue of contributory negligence, concluding at J[301], [302]: … I find that an element of a lack of due self-care occurred on the plaintiff's part because as she approached the pit lid there was a need for her to consider whether the pit lid and its structure was a safe thing to walk upon as it may not have been a uniform area of uninterrupted pavement. I find that in those circumstances, the plaintiff failed to observe the height discrepancy of the pit lid and its surrounding frame as it came into closer view at a time when she ought to have done so. Consequently, I find that she failed to take a required avoidant course, which resulted in her tripping on a trip hazard: s 5B and s 5D of the [CLA].
5. In the result, the respondent's damages, assessed at $354,142, were reduced by 20% to $283,314 (J[361]). Ausgrid appeals against that judgment. In the event that its liability is upheld, Ausgrid does not challenge the quantum of damages awarded.
6. The respondent separately seeks leave to appeal against the primary judge's decision not to order that Ausgrid, as unsuccessful fourth defendant, also pay the costs of the first defendant, Inner West Council, against which the respondent's claim failed (De Roma v Inner West Council & Ausgrid (No 2) [2022] NSWDC 562).
7. The issues in the proposed cross-appeal only arise if the appeal is dismissed. If the appeal is allowed, there will be no basis for contending that Ausgrid as successful appellant/fourth defendant should pay, or indemnify the unsuccessful respondent/plaintiff against her liability to pay, the costs of the successful first defendant Council.

Resolution of liability issue as between the respondent as plaintiff and Inner West Council

1. It is convenient at this point to explain shortly the involvement of the first defendant Council in the proceedings below. That, in turn, requires reference in more detail to the utility pit and any relative height differences between the pit lid, the pit frame, and the concrete footpath surrounding the pit frame. The primary judge held that, on the respondent/plaintiff's case, whether the Council had breached any duty of care was dependent on what it knew or ought to have known as to any height difference or differences at the junction of the pit lid and its frame within the surrounding concrete footpath (J[213], [215], [216]).
2. As his Honour noted at the outset (J[7]), it was common ground that the "appearance of the pit cover at the time of the incident" was as shown in the following photograph, which became Ex C and was also part of Ex 1:

Checkerplate steel pit lid, frame and surrounding concrete at time of incident (Ex C)

1. The "X" in the photograph was placed there by the respondent's solicitor as indicating the general location where the trip occurred. The arrow to the right of the photograph was placed there by the same solicitor as indicating the respondent's direction of travel towards the bus stop, which cannot be seen in the photograph. The somewhat faint line longitudinally bisecting the pit lid was not on the concrete surface at the time of the accident. The dimensions of the utility pit surface were measured and described by the respondent's expert, Dr John Cooke, as follows: The pit lid is a steel checker plate lid measuring 820mm x 520mm, with rounded corners, set into a 10mm wide steel edge.
2. Returning to the primary judge's findings, his Honour found that the pit lid surface was not flush with the top of its "surrounding housing frame" (J[6]). Dr Cooke's evidence was that lid was "not flush with the frame, with a vertical lip of up to 10mm between the lid surface and the top surface of the steel frame". In cross-examination, Dr Cooke explained that the height differential between the pit lid surface and the top edge of the metal frame was between 8 and 10mm. In arriving at that conclusion he took a number of measurements at various points around the lid, but did not have a precise measurement for the end of the pit lid marked with the "X".
3. His Honour found that the top edge of the steel frame was "flush with the surrounding concrete" footpath surface (J[211]). That description of the finding accords with the findings summarised at J[93], which include that the "concrete footpath surrounding the pit was level" (J[93(1)]), that the top edge of the pit lid frame was "flush and level with the concrete surrounds of the footpath" (J[93(2)]), and that the gap between the vertical edge of that metal frame and the adjacent concrete paving was "small, and of itself was unlikely to constitute a trip hazard" (J[93(3)]). None of these findings is challenged, and Dr Cooke's evidence was that the concrete surface of the footpath at the end of the utility pit marked with the "X" had been replaced so that any height difference at the time of the incident could no longer be measured.
4. In addition to these findings, the primary judge held that the Council was "not responsible for the location, position, design or manner of construction of the pit lid and its supporting metal frame". Accordingly, as the respondent's case against the Council was directed to the "uneven nature of the surface at the point where the pit lid and its frame was in close juxtaposition to the surrounding concrete footpath", his Honour concluded that this case should fail, it not having been established that the Council "either knew or ought to have known of the existence of a trip hazard at the location where the plaintiff fell" (J[213], [215], [216], [224], [226]). The respondent does not challenge the dismissal of her claim against the Council.
5. Thus the case against Ausgrid was directed to there being a height differential between the pit lid surface and the top edge of the metal frame in which it was seated at the end of the utility pit marked with the "X". Dr Cooke's evidence was that the height differential at various unspecified points around the whole of the pit lid was between 8 and 10mm, and, accordingly, no more than 1cm. The relationship between the pit lid and that metal frame is shown more clearly in the photograph below. That photograph was also part of Ex 1, and was taken only a month or so before the hearing in August 2022. The only present relevance of this photograph is as showing more clearly the respective positions of the checkerplate lid and the slightly elevated top edge of the pit frame:

The grounds of appeal

1. There is no issue as to the nature of the general duty of care owed by Ausgrid in respect of its utility pits where they form part of the surface of a public footpath, as in this case. That duty was to exercise reasonable care to see that the part of the footpath in which its utility pit was located was safe for users exercising reasonable care for their own safety: Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 at [163] (Gaudron, McHugh and Gummow JJ), [355] (Callinan J); Road and Traffic of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [45]-[46] (Gummow J); see also the recent decisions of this Court in Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103 at [52], [54]; Council of City of Sydney v Bishop [2019] NSWCA 157 at [30]; Russell v Carpenter [2022] NSWCA 252 at [14].
2. The risk of harm formulated by the primary judge was that of tripping and falling whilst walking on the uneven surface of the area of the footpath which included the utility pit (J[191]). Addressing the question of breach by Ausgrid, and the three pre-conditions in s 5B(1) of the CLA, the primary judge held that the risk of injury was foreseeable, not insignificant, and one as to which a reasonable person in Ausgrid's position would have warned.
3. His Honour's findings as to foreseeability and that the risk of harm was not insignificant are challenged by ground 3. The inquiry as to whether a risk of harm is "not insignificant" directs attention at least to the probability of that risk coming to pass, which in turn requires consideration of factors influencing an assessment of the likelihood of its occurrence, including the obviousness of the risk (see South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 at [89]; Bruce v Apex Software Pty Limited t/as Lark Ellen Aged Care [2018] NSWCA 330 at [26]; JFIT Holdings Pty Ltd t/as New Dimensions Health & Fitness v Powell [2021] NSWCA 137 at [39]).
4. The primary judge dealt separately with Ausgrid's defence that the risk of harm was an "obvious risk" (s 5F(1)) and, accordingly, one as to which Ausgrid did not owe a duty of care to warn (s 5H(1)). His Honour's finding rejecting that defence is challenged by ground 2.
5. As to factual causation, his Honour found that if the plaintiff had been warned she would most probably have seen and heeded that warning, and thereby avoided tripping (J[243]). This finding is challenged by ground 6.
6. The remaining grounds of appeal are grounds 1, 4 and 5. Ground 1 is that the primary judge erred in accepting and placing any weight on the evidence of Dr Cooke. No submission is made as to the opinions of Dr Cooke not being admissible (cf Hawkesbury Sports Council v Martin [2019] NSWCA 76 at [27]-[33]). Rather, it is said that Dr Cooke's opinions as to whether something could have been seen or would have caused a pedestrian to focus on the footpath surface were to be given little or no weight, and, in any event, could not preclude this Court from forming its own view about what were in essence matters of fact to be assessed with the benefit of ordinary experience (see Brodie; Ghantous at [355] (Callinan J); Council of City of Sydney v Bishop at [23] (Macfarlan JA)). Understood as supporting that contention, this ground is dealt with when addressing ground 2 to the extent it requires consideration of the evidence of Dr Cooke and the primary judge's reliance on it.
7. That leaves grounds 4 and 5. The former is that the primary judge erred in finding that Ausgrid ought to have been aware of the height differential between the pit lid surface and the top edge of the pit frame had it carried out its inspections properly. Ground 5 is that the primary judge erred in finding at J[234] that the burden of the precaution of painting or otherwise marking the pit lid and frame was "reasonable, relatively inexpensive and not burdensome" (cf ss 5B(2)(c) and 5C(a)).
8. Ausgrid's principal argument focused on grounds 2 and 3. Each, if upheld, would be dispositive of the appeal: in the case of ground 2 because there would have been no duty to warn of the relevant risk (s 5H(1)), and in the case of ground 3 because one or more of the necessary pre-conditions to a finding of negligence would not have been satisfied (s 5B(1)).
9. To assist an understanding of the evidence relevant to the disposition of these grounds, I propose first to summarise some further and uncontroversial facts, as well as the evidence of Dr Cooke. I will then address ground 2. For the reasons which follow, it is unnecessary to consider ground 3 or the remaining grounds.

Respondent's evidence

1. The respondent was wearing flat shoes with no heels. As she was crossing Parramatta Road, and before she turned right to walk along the footpath to the bus stop, the respondent caught the bus driver's attention, and he indicated to her to proceed to the bus stop, where he would wait for her to board (J[104]). The respondent then had to negotiate the area which included the pit lid and frame. It was just before midday, and visibility was good.
2. The respondent was walking "quickly", faster than was usual for her, but not running (J[107]). In cross-examination, she agreed that she was "anxious" because she did not want the people in the bus to have to wait for her. However, the primary judge rejected the suggestion that she was "preoccupied with the need to avoid being impolite to the passengers waiting" (J[295]); and described her failing to look to see "whether the pit lid and its structure was a safe thing to walk upon" (J[301]) as a momentary instance of inattention (J[307]).
3. The respondent's evidence was that she tripped and fell. She could not remember whether her leading foot was her right or left foot. She thought it was her right foot because her right knee hit the ground first. The primary judge found that it was not known which part of her "flat-heeled" shoes had made contact with the raised portion of the pit lid frame and caused her to trip (J[93(12)]). In circumstances where the respondent's shoes had no heels, for her to trip on the inside edge of the pit frame, which was not more than 10mm (1cm) higher than the pit lid surface, the front of her right or left shoe, moving forward whilst in contact with the pit lid surface, must have struck that inside edge, causing her to fall forward as his Honour described.

Dr Cooke's evidence

1. Dr Cooke expresses two conclusions. The first is that the height differential between the pit lid surface and the concrete footpath was "more than 10mm" and, as such, posed a "recognised trip hazard". The second is that such a height discrepancy was a surface transition "not easily noticed". The latter expression is used but not defined or discussed in the WorkCover Guide, Preventing Slips, Trips and Falls (2007), an extract of which is Appendix E to Dr Cooke's report.
2. As to his first conclusion, Dr Cooke's evidence that the difference between the height of the pit lid surface and concrete footpath was more than 10mm is contrary to the primary judge's finding that the only height differential was between the pit lid surface and the top edge of the pit lid frame, which as measured by Dr Cooke was between 8 and 10mm.
3. Dr Cooke's opinion that such a height differential constituted a "recognised trip hazard" is drawn in part from the Guide to Traffic Engineering Practice Part 13 - Pedestrians, Appendix D to his report, and in part from the WorkCover Guide. The starting point is the Guide to Traffic Engineering Practice, which suggests that height differentials of 6mm or more may pose a trip hazard: "for people in wheelchairs, on crutches or who are unsteady on their feet as small ridges and protrusions as low as 6mm can cause these people to stumble and fall". The latter guide is relied on as establishing that it is possible to trip on a height discrepancy in a floor or pavement which is equal to or greater than the thickness of the sole of the shoe being worn. Dr Cooke then refers to an article in the Journal of the American Geriatrics Society, Appendix F to his report, which includes the results of experiments testing the effect on balance of the thickness or thinness of "shoe soles", the range tested being from 7 to 14mm. With that information, he concludes without further explanation that for a person who does not have "impaired mobility" a pavement height differential of 10mm or more poses a "potential trip hazard".
4. Adopting the primary judge's finding as to the maximum height differential between the pit lid and frame edge of 10mm, Ausgrid's utility pit represented a potential trip hazard only at the very bottom of Dr Cooke's range. His opinion was that a height differential of 10mm or more was sufficient to pose a trip hazard.
5. Dr Cooke's reasons for his second conclusion, that such a height discrepancy was a surface transition "not easily noticed", were: In relation to the question of whether or not a trip hazard is easily noticed, Purcell (1974) illustrates the different fields of vision for a pedestrian aware of the need to pay attention to the ground surface (and therefore directing vision towards the ground) (diagram (c)); and the field of vision for a pedestrian unaware of a potential trip hazard at low level and therefore not paying close attention to the ground surface (diagram (b)): Appendix G. In a pedestrian surface with the general appearance, to a pedestrian on approach, of being even, the field of vision of a pedestrian will therefore tend not to be focused closely on the pavement surface, with the consequent risk that an isolated raised edge may not be observed, unless a strong visual cue is provided to draw the eye down to ground level at that point. It is commonplace for utility pit lids to be located in footpath surfaces. In this case, the height discrepancy between the pit lid and the adjacent surfaces would not have been such as to cause a pedestrian to focus vision closely on the footpath surface at that location, on the basis of the photograph in Appendix A and on the basis of my observations on site on 7 September 2020, by which time part of the concrete surface had been relaid. (Emphasis added)
6. This reasoning makes two groups of assumptions. They are: (1) that, from the respondent's perspective walking along the concrete footpath, the utility pit in the footpath surface gave the general appearance of having an even pavement surface; that the relevant risk of tripping was equivalent to "an isolated raised edge in that field of vision"; and that there was no "strong visual cue" to draw the respondent's eye down to the utility pit as it appeared at the time of the accident; and (2) that the "height discrepancy between the pit lid and the adjacent surfaces would not have been such as to cause a pedestrian to focus vision closely on the footpath surface".
7. Neither of these groups of assumptions is consistent with the evidence as to the appearance of the utility pit lid in the footpath surface from the perspective of a pedestrian such as the respondent. As is shown in the photograph, and as was Dr Cooke's evidence, from that perspective it was immediately apparent that there was a gap between the edge of the steel plate and steel frame in which it sat and that there appeared to be a height differential between the level of the plate and the top of the frame and concrete footpath. That evidence no doubt informed the primary judge's finding at J[301] that as the respondent "approached the pit lid there was a need for her to consider whether the pit lid and its structure was a safe thing to walk upon as it may not have been a uniform area of uninterrupted pavement". His Honour then found at J[302] that the respondent "failed to observe the height discrepancy of the pit lid and its surrounding frame as it came into closer view at a time when she ought to have done so".

Obvious risk of harm (ground 2)

1. As to the relevance of the obviousness of a risk to questions of breach of duty under the general law, the Court (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) said in Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 at [36]: The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response. There are, for instance, no risk-free dwelling houses. The community's standards of reasonable behaviour do not require householders to eliminate all risks from their premises, or to place a notice at the front door warning entrants of all the dangers that await them if they fail to take care for their own safety. This is not a case about warnings. Even so, it may be noted that a conclusion, in a given case, that a warning is either necessary or sufficient, itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care. The whole idea of warnings is that those who receive them will act carefully. There would be no purpose in issuing warnings unless it were reasonable to expect that people will modify their behaviour in response to warnings.
2. Part 1A of the CLA applies to a "claim for damages for harm resulting from negligence" (s 5A(1)), and requires for negligence to be made out that there be a failure "to take precautions against a risk of harm" (s 5B(1)). Section 5H relieves of any duty of care with respect to warning of an "obvious risk" as defined in s 5F. In doing so, it implicitly assumes that knowledge of the obvious risk is equivalent to the receipt of a warning as to the existence of that risk.

Findings of the primary judge

1. For the purpose of addressing the matters in s 5B(1) and (2), the primary judge described the relevant risk of harm as being (J[191]): … tripping whilst walking on an uneven surface of a footpath where the footpath surface comprised varied surface levels and textures, such as concrete and steel plate [and] where the levels of the walking surface were not all at an even level.
2. The primary judge was required to be satisfied that the risk of harm was "foreseeable", "not insignificant" and that in the circumstances a reasonable person in the defendant's position would take a precaution or precautions against that risk of harm (s 5B(1)(a), (b), (c)). In determining the third of these matters, the Court was required to consider, among other things, the "probability that the harm would occur if care were not taken" and the "likely seriousness" of the harm (s 5B(2)(a), (b)). All of these matters are to be considered prospectively and from the perspective of the reasonable person in the defendant's position.
3. The primary judge found that the risk of harm so described was "not insignificant" (J[229]); and that a reasonable person in Ausgrid's position would have taken the precaution of "warning pedestrians by painting or applying lines on the raised surface in an obviously bright colour in order to draw attention to the trip hazard so posed" (J[230]). As to factual causation (s 5D(1)(a)), the primary judge found that, had the respondent been warned of the existence of the "trip hazard by the application of paint or some similar warning having the effect of drawing attention to a height differential within the walking surface of the footpath surface", she would "most probably have seen and heeded that warning, and avoided stepping on or over any area of unevenness", and "would have taken special care not to trip" (J[243]). His Honour described that warning as a "precautionary" one, in the sense that it drew attention to the need for care in negotiating a footpath surface consisting of the steel utility pit lid and frame and its surrounding concrete.
4. The inquiry as to whether the "risk of harm" was an "obvious risk" was to be undertaken from the perspective of the respondent as the "person who suffer[ed] harm" and before the occurrence which resulted in that harm (s 5F(1)). That inquiry is whether that risk of harm would at that time "have been obvious to a reasonable person" in the plaintiff's position.
5. The primary judge considered the obviousness issue between J[247] and [271]. At the outset, his Honour accepted the respondent's submission that "whether an obvious risk" existed was "dependent upon the [position] from which one looked at the pit lid". Whereas Dr Cooke's close inspection at ground level revealed a "non-flush height differential of 10mm" (J[257]), the respondent's view "from eye level whilst walking on the footpath" did not involve carrying out a close inspection of the edges of the utility pit frame and its surrounding concrete surface (J[258]).
6. The primary judge then made the following 'findings' as to what would or would not have been apparent to a reasonable person in the respondent's position as she walked quickly towards the steel checkerplate lid and frame in the concrete surface (J[260]). First, that person would appreciate that an uneven walking surface involving "significant" height differences could constitute a risk of injury from tripping (J[264]). (His Honour described a height differential around the edge of the pit lid surface of up to 10mm as "extraordinary". The description of such a height differential in a footpath setting as unusual or remarkable was not supported by the evidence and is not consistent with ordinary experience, as was supported by exchanges during the evidence.) Secondly, that person could easily have had their attention divided between "several concurrent activities whilst walking on the footpath" (J[265]). Thirdly, such a person could have seen the pit lid surface as she approached it but not have seen any "obstacles or trip hazards in the path ahead" (J[266]). Fourthly, such a reasonable person "walking and looking to where she was placing her feet, intermittently glancing towards the bus… could not have simultaneously maintained close attention to both of those visual tasks" (J[268]).
7. In those "circumstances", the primary judge concluded at J[269]: … absent any shadows that might have potentially been cast from differing heights (because it was midday at Eastern Standard Time), I find that the risk of tripping over the raised edge within the pit lid / footpath structures would not have been obvious to an ordinary reasonable person in the position of the plaintiff at the time as that person walked quickly towards the waiting bus.

Disposition of ground 2

1. There are fundamental difficulties with this assessment and conclusion.
2. The first difficulty is that the "risk of harm" which the primary judge identified for the purpose of considering s 5F - that someone might trip over a raised edge within the pit lid structure (J[269]) - described the very facts that materialised, which may not have been able to be discovered in that detail by a pedestrian walking towards the pit lid. That characterisation of the risk of harm was more specific than that adopted for the purpose of determining negligence. It was also more specific than the risk which was the subject of the "precautionary" warning that would have resulted in the respondent avoiding the trip and fall. The effect of that warning was of there being "a height differential within the walking surface of the footpath surface" (J[243]).
3. The correct approach to the characterisation of the risk of harm in the application of the provisions of the CLA dealing with obvious risk, as well as with breach of duty, is addressed by the majority (Gordon, Edelman and Gleeson JJ) in Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11, esp at [110]-[116]. In Tapp, the question was whether the defendant was not liable for harm which it argued was suffered as a result of the materialisation of an obvious risk of a dangerous recreational activity pursuant to s 5L(1), a provision in which the term "obvious risk" has the same meaning as it does in s 5F. The majority said that there are four significant matters that should guide the reasoning process concerning the selection of the correct level of generality in describing the risk of harm. They are: [110] … First… the "risk" with which s 5L is concerned will usually need to be assessed after a determination that there is prima facie liability for negligence. Secondly, the s 5L risk should be characterised at the same level of generality as the risk is characterised in the course of assessing whether the defendant has breached a duty of care. Thirdly, the generality at which the risk in s 5L is stated should include the same facts as established the risk for the purposes of the breach of duty which caused the harm to the plaintiff, but no more. Fourthly, and consequently, the characterisation of the risk does not need to descend to the precise detail of the mechanism by which an injury was suffered if that detail is unnecessary to establish a breach of duty.
4. The second difficulty with the primary judge's reasons concerns his Honour's consideration of whether the risk of harm would have been obvious to a reasonable person exercising care for her safety. That consideration does not engage with the inconsistent findings at J[300]-[303] with respect to the contributory negligence defence that requires attention to the "standard of care required of the person who suffered harm [being] that of a reasonable person in the position of that person" (s 5R(2)(a)). The "trip hazard" referred to in J[303] is the same hazard as caused the respondent to fall: [300] On my assessment of the plaintiff's evidence as a whole on this topic, she most probably momentarily glanced away from the view of the footpath and its surrounds which were ahead as she continued to walk towards the bus instead of maintaining a more constant or a more frequently checked view of the component parts of the footpath surface on which she was walking. [301] In those circumstances, I find that an element of a lack of due self-care occurred on the plaintiff's part because as she approached the pit lid there was a need for her to consider whether the pit lid and its structure was a safe thing to walk upon as it may not have been a uniform area of uninterrupted pavement. [302] I find that in those circumstances, the plaintiff failed to observe the height discrepancy of the pit lid and its surrounding frame as it came into closer view at a time when she ought to have done so… [303] In those circumstances, although the plaintiff was in a general sense keeping a proper lookout, in that particular respect she failed to keep a proper lookout at the time she traversed the pit lid and its surrounding frame whilst she momentarily looked towards her destination which was further away. At that time, because she looked away she remained unaware of the existence of the trip hazard because it was not observable to her as being an obvious risk… (Emphasis added.)
5. Returning to the first of the difficulties with the primary judge's analysis, as Basten JA observed in Fallas v Mourlos (2006) 65 NSWLR 418; [2006] NSWCA 32 at [153], the obviousness of a risk of harm may depend on the level of generality or particularity with which the risk is described. In considering the specification of the risk of harm at the stage of determining whether there was a liability for negligence, his Honour suggested "one might need to determine the circumstances and the position of the plaintiff at a time when he had a reasonable opportunity to avoid the risk" (at [154]). As to Basten JA's first observation, see also Tapp at [110], citing Bryson JA in C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [173], and Tapp at [108], citing the statement of the Court in Chapman v Hearse (1961) 106 CLR 112 at 121; [1961] HCA 46 that "it would be quite artificial to make responsibility depend upon… the capacity of a reasonable man to foresee… the precise events leading to the damage complained of".
6. As to Basten JA's second observation, because the present case is one in which it was maintained that Ausgrid should have provided a warning of the risk, it was necessary to consider the risk of harm at a point in time when the giving of any warning would have allowed a pedestrian in the respondent's position sufficient time to "modify" her behaviour in response to the warning (Thompson at [36]). It is not necessary to decide, in a case to which the CLA applies, whether because the risk of harm was "obvious" there was no duty to warn, that being the effect of s 5H(1).
7. Under s 5F, a risk may be "obvious" notwithstanding that it is a matter of common knowledge (s 5F(2)); notwithstanding that it is something which has a low probability of occurring (s 5F(3)); and notwithstanding that the condition or circumstance that gives risk to the risk is not prominent, conspicuous or physically observable (s 5F(4)).
8. In Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65, Leeming JA (with whom Payne and White JJA agreed) made the following observations concerning the specification of an "obvious" risk of harm: [70] … First, the obvious risk is in principle to be specified with a degree of generality. There may well be no single "correct" specification of the obvious risk, and the statute proceeds on the basis that a greater level of generality is sufficient. [71] Secondly, the specification of the obvious risk must be sufficiently precise as to capture the harm which resulted from its materialisation on the facts of the particular case. If it is too generally expressed, such that the nature of what occurred is mischaracterised, then a greater degree of specificity is required. [72] Thirdly, a combination of foresight and hindsight is in play here. The obviousness of the risk is to be considered from the perspective of the plaintiff, prior to the incident occurring. However, the causal connection can only be satisfied after the risk has materialised and the resulting harm has been suffered, and determining the appropriate level of particularity in the formulation of the risk of harm requires looking at the position with the benefit of hindsight.
9. These propositions are not inconsistent with the four 'guiding' matters identified in Tapp and extracted at [46] above, and the characterisation of the risk of harm in Menz is described by the majority in Tapp at [117]-[118] as an example of the correct application of those matters. The propositions in Menz were also cited with approval by Basten JA at [49] and Payne JA at [150] in Singh v Lynch (2020) 103 NSWLR 568; [2020] NSWCA 152. Leeming JA at [141] not unexpectedly agreed with that reasoning of Basten JA and Payne JA. The dissenting judgment (McCallum JA and Simpson AJA) (at [195]) takes no issue with these statements and in particular the proposition that an "obvious risk" should be specified with a "degree of generality".
10. Thus, the risk which materialised and resulted in the respondent's injury was that of tripping on an uneven surface created by the presence of the utility pit lid and frame within the concrete footpath.
11. With respect to that risk of harm, the relevant question posed by s 5F(1) was not whether it was obvious that there was a risk that the respondent would trip in the way that she did. Rather, it was whether it was obvious that a risk of that kind might be present and materialise as she walked across the footpath containing the utility pit lid and frame. That this is so is confirmed by the operation of s 5G(2), which provides that an injured person is presumed to be aware of an obvious risk of harm if he or she is aware of the presence of that type or kind of risk, even if not aware of the precise nature, extent or manner of its occurrence: see also Kempsey Shire Council v Five Star Medical Centre Pty Ltd (2018) 99 NSWLR 98; [2018] NSWCA 308 at [12] (Basten JA, McColl JA and Simpson AJA agreeing); and Singh v Lynch at [149] (Payne JA).
12. The primary judge's obvious risk analysis does not address that risk of harm from the perspective of a reasonable person in the respondent's position. Walking towards the utility pit lid and frame, the following matters were readily apparent and obvious. There was a checkerplate steel lid which was set in some sort of a steel frame in the concrete footpath ahead. The rusty colouration of the edges of the steel plate surface and frame suggested that there was a gap between the steel plate and frame, and that there might be height discrepancies between the level of the plate and the frame edges, and between those edges and the surrounding concrete. That meant that there were or were likely to be uneven levels or surfaces within that area which presented a risk of tripping.
13. Conversely, in his consideration as to whether the risk would have been obvious to a reasonable person in the respondent's position, his Honour took account of matters particular to the respondent that were not consistent with her exercise of care for her own safety, as his Honour's findings in relation to contributory negligence demonstrate. Those matters included that she was walking quickly towards the waiting bus, "intermittently glancing towards the bus" so that she "could not have simultaneously maintained close attention" to the visual task of looking to where she was placing her feet (J[267]-[269]). His Honour then addressed the question whether the risk of "tripping over the raised edge" would have been obvious to a reasonable person in the position of the plaintiff. In answering that question, his Honour assumed that such a person would have acted as the plaintiff in fact acted, and concluded that the specific risk of harm which materialised would not have been obvious to that person. This analysis is flawed for the reasons given above.
14. Walking on and over the utility pit lid and frame in the concrete footpath carried with it a risk of tripping and falling because of an uneven surface or surfaces. That was sufficient to satisfy s 5F(1) in relation to the risk that materialised, and to engage the application of s 5H(1), with the consequence that Ausgrid did not owe a duty of care to the respondent to warn of that risk. The primary judge erred in concluding otherwise.
15. The circumstances which the foregoing analysis as to what would have been obvious to a reasonable person in the position of the respondent address cannot be described as unusual or unexpected from the perspective of such a pedestrian; as was emphasised by the High Court in Brodie; Ghantous and by this Court in Richmond Valley Council v Standing [2002] NSWCA 359.
16. In Brodie; Ghantous, Gleeson CJ, agreeing with Callinan J that there was no negligence made out against the Council in relation to the condition of the footpath, said at [6]: Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land.
17. The plurality (Gaudron, McHugh and Gummow JJ) said at [163] of the position of the plaintiff pedestrian in Ghantous: In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger… In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a "trap"… In Romeo [v Conservation Commission (NT) (1998) 192 CLR 431; [1998] HCA 5 at [52]], Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises "is generally entitled to assume that most entrants will take reasonable care for their own safety" [Romeo at [123]].
18. Finally, at [355] Callinan J said of that pedestrian: The case of the applicant in negligence was that a differential in height between the concreted part of the footpath and the earthen part of it created a dangerous situation… There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this… The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the earthen verges.
19. To the same effect, in Richmond Valley Council v Standing [2002] NSWCA 359, the plaintiff was injured on an irregular paved concrete surface in the vicinity of a school. The surface contained cracks and holes of various sizes, and some differences in height between its various portions. One of those holes was 15mm deep, another 10mm deep, and another 8mm deep. The differences in the levels of the respective concrete slabs were up to 50mm.
20. At [54]-[55], Heydon JA (with whom Handley and Sheller JJA agreed) said: But it was not a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety. The plaintiff, like pedestrians generally, was in an excellent position to see and avoid imperfections in the surface. There could have been no expectation on her part that the surface would be smooth. The unevenness in the paving slabs, the cracks and the holes at the place where the plaintiff was moving were as obvious as similar features all over the country, and as obvious as other common features like raised tree roots and manhole covers. There was no concealment of any of the features of the site which the trial judge criticised. There was no inadequacy in the lighting, or obscuring of the hazard by grass or otherwise. It was reasonable to expect the plaintiff to have seen what lay ahead of her as she walked along in broad daylight: what was there was obvious and called for no special vigilance. So far as there was any hazard it was both not only obvious but insignificant and common. The condition of the pavement was typical of innumerable kilometres of pavements in the cities, suburbs and towns of this country… (Emphasis added.)
21. It follows that Ausgrid did not breach any duty of care requiring a warning by painting or applying lines on the raised surface of the utility pit so as to draw attention to the trip hazard which it posed (cf J[230]).
22. Ground 2 should be upheld and the appeal allowed.

Conclusion

1. It is not necessary to consider grounds 3, 4 and 5.
2. Nor is it necessary to consider the respondent's proposed cross-claim, which would only arise if the appeal was dismissed.
3. In the result, the following orders should be made: 1. Appeal allowed. 2. Set aside orders 3, 4 and 5 of the District Court. 3. In lieu therefore, order that the proceedings against the appellant partnership (as fourth defendant) be dismissed and that the respondent (as plaintiff) pay the appellants' costs of those proceedings. 4. Summons seeking leave to cross-appeal dismissed. 5. Respondent pay the appellants' costs of the appeal and proposed cross-appeal. 6. Grant leave to the appellants to apply by motion to vary the costs order in order 3. That notice of motion is to be filed and served in accordance with Uniform Civil Procedure Rules 2005 r 36.16.
4. MITCHELMORE JA: I agree with Meagher JA.
5. KIRK JA: I agree with Meagher JA.

Amendments 26 July 2023 - Added all parties to appellant partnership in coversheet and updated judgment accordingly; corrected typographical errors in [7] and [11] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2023