Boroondara City Council v Cattanach [2004] VSCA 139

10. This appeal was heard together with another appeal - Greater Shepparton City Council v. Tammy Lee Davis[1] - which challenged a judgment given in the County Court on 30 June 2003 whereby it was ordered that the appellant pay the respondent damages for injuries she suffered on 29 November 2000 when she tripped over a defect in the footpath while leaving premises that are located in the appellant's municipality. The issues in the two appeals overlap, but, because the factual circumstances in each case materially differ from the other, it was considered appropriate to deliver separate reasons for judgment in each case.

14. The circumstances pertaining to the accident were these. At the time of her fall the respondent was 26 years of age and worked in the tourism industry. She had completed her educational and other qualifications towards the end of 1999 and, having worked in the United States for short periods, returned from there approximately two months before her fall to live with her parents at 91 Gordon Street, Balwyn, which is in the appellant's municipality. As part of her exercise routine, the respondent, from time to time, jogged in the vicinity of her home. On 12 December 2000, at approximately 9.30 a.m., the respondent left her parents' home "to go for a run" with two dogs (a small poodle and a terrier cross), which were on a long lead that had two prongs at its end, each attached to one of the dogs. In her evidence the respondent said that she was easily able to hold and support the lead with one hand and thus control the dogs, and that she was accustomed to doing this given that she had jogged with them two to three times per week since she returned home. The route she took - heading in a westerly direction along Gordon Street -was one that she had taken on two previous occasions. The weather on that morning was clear and the sun was behind her, shining on to the large concrete slabs that made up the footpath. One of the slabs, which was broadly adjacent to the south-eastern part of the driveway of 39 Gordon Street ("the eastern slab"), was cracked and its surface was uneven. It was in that area that the respondent fell awkwardly, dislocating a hip and fracturing her right femur. Within a fortnight of the respondent's fall the uneven part of the footpath was repaired by the appellant and it was common ground before us that the repairs were inexpensive.

17. The learned primary judge did not view the scene of the accident and no precise measurements of the damaged area of the footpath were tendered in evidence. A total of 22 photographs of the site, however, were provided to the court. These photographs were taken on various dates, from different angles and at different times of the day. A number were taken on 12 December 2000 whilst the ambulance officers were attending to the respondent's injuries at the site. Others were taken on 19 December 2000 and on 15 January 2001. These photographs show that approximately one-third of the area of the eastern slab, at its western end, was uneven and had a number of cracks, including one that ran across that part of the slab in a general north-south direction. That area of the slab also rose slightly to its western boundary where it formed a ridge with the adjoining footpath slab. The photographs further show that the eastern one-third or so of the adjoining slab also rose to its eastern boundary so that the ridge at which the two slabs met was approximately 20mm above the remainder of the footpath. There was no significant gap between the two slabs where they met. The evidence also established that the area of the footpath for approximately 50 metres to the east of the accident scene, along which the respondent jogged, was flat and generally had an even surface.

20. The area of the damaged path where the respondent tripped had been brought to the appellant's attention in 1995 and again, in December 1996. The resident at 39 Gordon Street, Terrence Cheshire, had complained by telephone to the council office in 1995 about a tree that was on the nature strip adjoining his driveway and which he said was blocking his sewerage pipes. He added that the tree also obscured his view from his driveway and was causing damage to the footpath. He later made further, like complaints to the council, both orally and in writing. The tree was eventually removed in 1997, but nothing was then done to repair that area of the footpath, although repairs were carried out at other points along the pavement. As I will later explain, the evidence before his Honour made it apparent that the area of the footpath where the respondent fell had deteriorated progressively after 1997 and that it was in a better state when Mr Cheshire complained about it to the appellant.

24. In his reasons for judgment his Honour said that, whilst at a fast jog, the respondent placed her left foot in an area of the damaged footpath and, "[g]iven her momentum, her right leg locked and she moved forward. She twisted and dislocated her hip, fell and also fractured her upper right femur". The judge accepted the respondent's evidence that, at the time she fell, the dogs were running in front of her and were behaving themselves and that the footpath was even for about 50 meters before the point of the accident. The lead was taut as she ran and the respondent could see beyond the dogs. More specifically, said the judge, she could see the path five to ten metres or paces in front of her, although the dogs, without distracting her, obscured her view of the path immediately in front of her. When she was approximately 100 metres from the scene of the fall, said the judge, she increased her speed so that at the time of the accident she was running at a fast jog. His Honour then said:

"The sun behind her brightened the pavement. It did not readily show cracks. She was on a slight downhill gradient just prior to falling. She fell when her left leg caught in the damaged path. She came down fast on her right leg. Her right knee locked. Her waist `bent' and she fell awkwardly. She hit the concrete on her elbow and then rolled forward on her left side. She fell hard."

28. In the course of his reasons his Honour noted that it was common ground that the criteria for determining whether a local council owes a duty to pedestrians who use footpaths in its municipality that have a fault in their surface, and the content of that duty and whether there has been breach, are set out at paragraphs [150] to [165] of the joint judgment of Gaudron, McHugh and Gummow, JJ. in Brodie v. Singleton Shire Council and Ghantous v. Hawkesbury City Council[2] ("Brodie"). The learned judge then referred to a number of passages in their Honours' judgment and noted that he had also considered a number of other authorities, to which he was referred by counsel, that exemplified the application of the principles stated in Brodie. After dealing with the evidence, which I have summarised, and the respective submissions of the parties, his Honour found that the defect in question was a "real and significant danger", the true level of which would not have been necessarily apparent for a "jogger approaching in the plaintiff's circumstances". Having also found that the appellant knew or ought to have known of the damage to the footpath and noting that the repairs to it were feasible and not unduly costly, his Honour concluded that, in the circumstances, the appellant was negligent. The trial judge said that it "was foreseeable to the [appellant] that the path would be used in the way in which the respondent did [and that the defect] was such that there was a foreseeable risk of harm to a reasonably careful pedestrian using it in the manner in which she did".

32. The appeal against his Honour's decision was essentially grounded in the claims that the primary judge applied the wrong test in considering whether the defect in the footpath would have been obvious to a reasonable pedestrian and that it was not open for him to find on the evidence that the respondent exercised reasonable care for her own safety or that the appellant knew or ought to have known of the damage to the footpath as it existed at or about the time of the accident. It was said that, on the evidence, an ordinary, reasonable pedestrian, keeping a proper lookout, would have found the defect to be obvious.

36. Both parties relied in support of their respective cases on the principles established by the High Court in Brodie as they were applied in subsequent cases, to which reference will be made later. Brodie was concerned with the duty of highway authorities when exercising, or failing to exercise, their powers with respect to the construction and maintenance of roads. The effect of the majority decision in that case was to remove the then existing "immunity" of such authorities for liability arising out of their non-feasance in relation to highways in respect of which they had statutory powers of construction and maintenance, and to recognise that they were subject to a general duty of care in respect of the exercise (or non-exercise) of such powers.[3] In speaking of the content of such a duty, their Honours said[4] that the authorities are

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

The majority went on to say, however, that such a duty did not involve an obligation on the part of the authorities to ensure the safety of all road users in all circumstances. In the application of the principle, said their Honours,[5] "much...will turn upon the facts and circumstances disclosed by the evidence in each particular case." In determining whether the steps taken by the authority to address the perceived risk (or its failure to take any action) was reasonable, various matters had to be taken into account, "in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority".

41. Relevantly for present purposes, in dealing with the question of breach of duty by such authorities, the majority recognised that "a proper starting point may be the proposition that persons using the road will themselves take ordinary care" and, in that context, referred to Miller v. McKeon[6]. It is instructive to note that in that case the court recognised that a road user had an obligation to take reasonable care for his or her own safety. The plaintiff in Miller was injured after he stepped out of his buggy in the darkness in order to check the state of the roadway. He accidentally fell down an unfenced cutting that had been made some 20 years earlier by the government in order to facilitate access to the river by way of road. The plaintiff sued the government in negligence for failing to fence off the cutting but failed essentially because it was held that, in the circumstances, there was no evidence of want of reasonable care by the government. Relevantly for present purposes, and bearing in mind that, as the law then stood, highway authorities were not liable for non-feasance, Griffith, C.J. (with whom Barton, J. agreed) rejected the submission that highway authorities have an absolute duty to construct roads so that they be safe at all times for all users. His Honour said that governments that construct roads are entitled to expect that persons using them will take reasonable care in so doing. The learned Chief Justice said[7]:

"When [governments] make a road they must take into consideration whether, in the state in which they leave it, it is reasonably safe for persons who exercise reasonable care in using it. It was contended that the test is this, whether a total stranger using the locality on a dark night, without having made any inquires as to the state of the road, might walk there with as perfect safety as if he were on a floored passage in a building. There can be no absolute duty on the government as that."

The learned Chief Justice went on to hold that the plaintiff had not taken reasonable care in using the road, because he failed to make enquiries as to its conditions and failed to ensure that his buggy driver used lights. Similarly, O'Connor, J. said[8]:

"The duties, however, of the Government and of the persons using the road are correlative. The Government are entitled to expect that persons using the road will take reasonable care in doing so. And, on the other hand, passengers using the road are entitled to expect that the road will be in a reasonably safe condition to those using reasonable care when going upon it. But the degree of care used by the Government and by the passengers must in each instance depend entirely on the circumstances of the particular case."

His Honour said a little later that the relevant question was:

"whether, in a place of that kind [a country road], the Government in the construction of this road had any reasonable ground for expecting that the persons using the road would take so little care of themselves as not to see that they were not keeping upon that part of the road which the Government had cut down for traffic."

49. In dealing with the duty of care owed by authorities to pedestrians, the majority in Brodie further emphasised[9] that the formulation of the duty by reference to users of roads and public paths who exercise reasonable care for their own safety was more important where the plaintiff was a pedestrian than where the plaintiff was a driver of a motor vehicle or the rider of a motor cycle because, generally, "such persons are more able to see and avoid imperfections in the road surface. It is in the nature of walking in outdoors that the ground may not be even, flat or smooth as other surfaces." They went on to say: "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". (Emphasis added.) Their Honours recognised, however, that some allowance must be made for inadvertence (on the part of the pedestrian) and that certain dangers may not be reasonably perceived because of inadequate lighting or the nature of the danger or the surrounding area where a hole is concealed by grass. The majority also referred in that context to dangers that were in the nature of a trap.[10] Not surprisingly, their Honours went on to emphasise that each case "will, of course, turn on its own facts".

52. In Ghantous, the plaintiff was a 63 year old woman who fell from a concrete path on to an abutting earthen verge when she stepped aside to allow others to pass and, as a result, "... her foot landed partly on the concrete step and partly overhanging the lower earth surface".[11] Traffic, wind and water had eroded the verges so that the earth and surface had subsided to a level that was approximately 50 mm below the level of the concrete strip. The plaintiff suffered injuries in the fall in respect of which she claimed damages in the proceeding against, inter alia, the local council for negligence in not properly maintaining the footpath. The judge below effectively dismissed her case on the basis that the defect in the path was the result of non-feasance, and an appeal from that decision was dismissed by the New South Wales Court of Appeal.

55. Callinan, J., who gave the leading judgment, considered[12] that the footpath was not unsafe and, therefore, there was no failure by the council to maintain it. The plaintiff claimed that the differential in height between the concrete part of the footpath and the earthen part of it created a dangerous situation. His Honour said, however, that

"... 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 diligence is required for this. The [plaintiff] herself admitted in cross-examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernible difference between the curb and the earthen verges. There was no negligence on the part of the [council] either in the construction of the footpath or in not keeping the concrete strip and verges level."

In agreeing with Callinan, J., Gleeson, C.J. noted that not all footpaths were perfectly level, many were unpathed and people were regularly required to walk on uneven surfaces on both public and private land. His Honour also referred,[13] with apparent approval, to English decisions,[14] which, he said, considered that "the fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice". In that context, the Chief Justice cited,[15] with apparent approval, the observation of Cumming-Bruce, J. in Littler v. Liverpool Corporation[16]:

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

The other members of the court also agreed with Callinan, J.[17]

62. Thus, it seems plain enough that a council is not under a duty to prevent or eliminate all dangers in footpaths. Ordinarily, where a council knows, or ought to know, of an impediment in a footpath, it will owe a duty to render it harmless to users of the path only if the danger arising from it would not be obvious to an ordinary, reasonable pedestrian exercising proper care for his or her own safety.[18] Reference has already been made to the recognition in Brodie of the importance in the formulation of such a duty of the obligation of such a pedestrian to exercise reasonable care for his or her own safety. And, as Handley, J.A.[19] pointed out in Burwood City Council v. Byrnes[20], this requirement enters into the definition of the duty and is not relevant only to contributory negligence.[21] It must be borne in mind, however, that whether the fault in the pavement and the danger it poses would have been relevantly obvious depends on the circumstances of the case so that, as the majority in Brodie pointed out, there may be a defect in the path that is not obvious to relevant pedestrians notwithstanding that they exercise due care for their own safety. Nevertheless, it is for the plaintiff to establish that the hazard was not one which, with the exercise of reasonable care by the plaintiff, could have been seen and avoided.[22]

66. Although his Honour did not, in terms, elaborate in his reasons (beyond what I have set out earlier) the basis on which he implicitly concluded that the appellant owed the respondent a relevant duty of care, it is plain enough from his findings that he did so because he considered that the defect in the footpath would not have been an obvious danger to a user who was in the plaintiff's position. On one reading of his Honour's reasons, he considered this issue from the subjective view point of the respondent, but even if, as I think, it is more likely that the learned judge dealt with the matter from the position of a reasonable user of the footpath in the respondent's position, I consider that he applied the wrong test in determining this issue. It is plain enough from the passages in the judgments in Brodie, to which I have referred, that questions such as whether a defect in the path gives rise to a reasonable forseeability of harm, including whether the hazard is obvious, are to be resolved by reference to the ordinary, reasonable pedestrian keeping a proper lookout and not, as the trial judge did, by reference to a particular user of the pavement. Moreover, in the circumstances, it was not to the point, contrary to what his Honour thought, that the respondent's use of the path was foreseeable by the appellant. The reference by their Honours in Brodie to "pedestrian" was intended to be a reference to a person who walks and does not include one who jogs or runs on it, or on which he or she uses a skateboard or a scooter. I say that because this is the ordinary meaning of "pedestrian"[23] and it is plain enough that this is the sense in which their Honours in Brodie used that word. For example, when speaking of a person such as the plaintiff in Ghantous, the majority observed[24]: "It is in the nature of walking in the outdoors that the grounds may not be even, flat or smooth as other surfaces". (Emphasis added.) Moreover, in the passage from the reasons of Callinan, J., to which I have referred, his Honour said that it was "not unreasonable to expect people to see, in broad daylight, what lies ahead of them ... as they walk along". (Emphasis added.) His Honour noted that "[n]o special vigilance is required for this." Similarly, Gleeson, C.J. spoke, as I have mentioned, of people required to "walk on footpaths that are not perfectly level".

69. That such issues are to be resolved by reference to a reasonable pedestrian, of normal physical capacity, who exercises reasonable care for his or her safety, seems to have been accepted by the New South Wales Court of Appeal in a number of cases that were decided after Brodie, where the particular characteristics of the pedestrian plaintiff were held not to be relevant for the purpose of determining if the council owed a duty and in which emphasis was placed on the responsibility of users of public paths to take reasonable care for their own safety. Thus, in Richmond Valley Council v. Standing[25] and in Hastings Council v. Giese[26], for example, the court considered the content of the duty of a council to those using public paths in circumstances where, in each case, the plaintiff was a woman over 60 years of age. The court effectively declined to hold that the council owed a duty of care to elderly pedestrians that was higher than that owed to the ordinary pedestrian, recognising that elderly persons must exercise a higher degree of vigilance for their own safety in relation to hazards that are obvious to the ordinary pedestrian. In the first case, Heydon, J, A. considered[27] that, because the plaintiff was 62 years of age "and thus more vulnerable to the consequences of falls than younger persons and less likely to be able to regain her balance if she slipped or stumbled than younger persons, [she] should have been seeking to observe closely the area in front of her feet as she moved along". This observation was cited with approval by Tobias, J.A. in Giese[28]. In Roads and Traffic Authority of N.S.W. v. McGuinness[29] the court was concerned with an injury sustained by a woman who suffered from weakness in each of her legs who tripped on the upstanding corner of a manhole cover in a footpath adjacent to a hotel and TAB shop. Handley, J.A. said[30] that the duty of care was to be defined by reference to pedestrians taking reasonable care for their own safety, and that the council did not owe her a higher duty because of her weak legs. In Parsons v. Randwick Municipal Council[31] the plaintiff tripped on a broken kerb at night while intoxicated. Counsel for the plaintiff argued, unsuccessfully, that in the circumstances the council's duty was enlarged to require it to protect intoxicated persons using the footpath at night on the basis that it should expect that this use would be made of the footpath. Sheller, J.A., with whom Beazley, J.A. and Ipp, A.J.A. agreed on this point[32], held that a council's duty in relation to the maintenance of the footpath did not extend to a requirement to protect intoxicated persons. Rather, his Honour said, a council's duty is defined by reference to a pedestrian taking reasonable care for his or her own safety, intoxication being relevant only to arguments surrounding causation and contribution. I add that Percy v. Noosa Shire Council[33] was a case in which the unsuccessful plaintiff, while jogging on a grass verge adjoining the public path, suffered injury when he put his foot on a tuft of grass that concealed a tree root. It was implicit in the reasoning of White, J. that, in determining whether the council owed a relevant duty to the plaintiff, his Honour did so by reference to the ordinary, reasonable pedestrian and not by reference to a jogger in the position of the plaintiff.

72. That the duty of care of a council to repair faults in its pavements is to be resolved by reference to a reasonable pedestrian, of ordinary physical capacity, and not by reference to any reasonable user of the path, is unsurprising. Had the position been otherwise, the content of the duty owed to a user of a footpath would vary according to his or her particular physical attributes and authorities would be under an obligation to maintain footpaths to the standard of jogging and, possibly, running tracks, skateboard paths and the like. The relevant test formulated by the courts simply means that users of pavements other than ordinary pedestrians, such as joggers or those running to catch public transport or to get out of the rain, must pay greater attention to the state of the path given that, ordinarily, it is more difficult to see faults when walking in haste or running. This additional burden on such users of paths reflects no more than the fact that footpaths are provided essentially for ordinary, reasonable pedestrians and that members of the community who use them for other purposes, albeit lawfully, must play their part in exercising proper care for their own safety when using them and should not expect councils, and thus, the rate-payers, to maintain public paths to a higher standard than the essential purpose for which the facility has been provided, namely, walking. After all, as the courts have recognised, it is well known that footpaths have cracks and uneven surfaces for a variety of reasons that are unrelated to their construction by the council and it is incumbent upon those using them to exercise a reasonable degree of vigilance and look out for these defects. The extent of the vigilance that may be required to constitute a reasonable lookout will usually increase where the footpath is used for a purpose beyond that for which it was primarily constructed. Whether the particular defect is obvious to an ordinary, reasonable pedestrian, and whether the plaintiff exercised a proper lookout will depend, as was made plain in Brodie, on the circumstances of the particular case.

75. It follows from what I have said that I consider that his Honour erred in the test he applied in determining whether the appellant owed a duty of care to the respondent (and whether it was negligent). For that reason alone, the appeal must be allowed and the decision below set aside.

Not open on the evidence to find appellant owed duty

79. In any event, I consider that the trial judge erred in respect of a number of factual findings. More specifically, I think that it was not open to find on the evidence that the respondent exercised reasonable care for her own safety at the time of the accident or that the appellant knew or ought to have known of the fault in question. Moreover, I consider that the trial judge ought to have concluded on the evidence that the defect in the footpath was a hazard that would have been obvious to an ordinary, reasonable pedestrian exercising a proper lookout.

82. It was argued for the respondent that this Court was not in as good a position as the trial judge to resolve such factual matters because, counsel said, in large part, the resolution of them depended on the oral evidence of the respondent as to the circumstances surrounding the accident. It seems to me, however, that at trial his Honour resolved these issues essentially on the basis of the photographs that were before us and the respondent's evidence, the credibility of which was not challenged. It is also relevant to note for present purposes that, as I have said, his Honour's analysis of these factual issues was undertaken without the benefit of a view. In these circumstances, it is difficult to see how it could be concluded that the trial judge had a relevant advantage over this Court in respect of the assessment of the evidence for the purpose of determining whether the fault would have been obvious to the relevant pedestrian and whether the respondent had taken reasonable care for her safety. The answers to these questions are really conclusions or inferences that are drawn from the facts established by the evidence, which was before us in much the same form as it was before his Honour. None of the basic facts were, or are, in dispute. In those circumstances, as the High Court has said on numerous occasions, the appellate court is in as good a position as the trial judge to draw the necessary inference and is under an obligation to review factual findings to determine if the impugned conclusions of the primary judge are correct. Recently, for example, Callinan and Heydon, JJ. in Pledge v. Roads and Traffic Authority; Ryan v. Pledge[34], quoted with approval the following passage from Warren v. Coombes[35]:

"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inferences to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusions of the trial judge but, once having reached its own conclusion, will not shrink away from giving effect to it."

The "natural limitations" that apply to an appellate court in forming its own decision wholly or substantially on the record below, which include the disadvantage it has "when compared with a trial judge in respect of the evaluation of witness' credibility and of the `feeling' of a case which an appellate court, reading the transcript, cannot always fully share"[36], do not apply in this case. As I have said, there was no issue here that was dependent on the evaluation of the credibility of any witness and the "atmosphere" of the trial was not a matter relevant to the resolution of the question now under consideration. Moreover, unlike the position in Pledge, the trial judge here, as I have already noted, did not view the scene of the accident. Thus, his Honour gained no particular advantage by reason of having seen or heard witnesses give their evidence that might explain or justify his conclusion on the critical issue.[37] In the circumstances, I consider that we are obliged to conduct "a real review of the trial and ... of the judge's reasons" and, in doing so, draw our own inferences and conclusions.[38]

Respondent's failure to establish proper lookout

88. On the question whether the respondent established that she kept a proper lookout at the time of the accident, I consider that she failed to discharge the burden of proof in that regard. The fact that she was jogging and that her view of the path was, at least in part, obscured by the two dogs, raised the level of her obligation to maintain a proper lookout for hazards. In her evidence she said that she had no recollection of the last five to ten paces before she fell. Relevantly, she said that "all I can remember really is [that] my left leg got caught in the footpath and without knowing what happened and because of my speed and motion I have come down very fast on my right leg but unfortunately my knee locked and I bent [and fell forward]". A little later she said that before the accident she did not "see the area on which [her] foot became caught". It was only when she looked back after the fall to see what caused it that she said that she saw "the damaged footpath area". By reference to photographs the respondent then pointed to the crack in the footpath where she said her "left foot got lodged". This and other evidence of the respondent make it apparent that she reconstructed the circumstances of the accident.

91. The photographs make it plain that the cracks and undulation in the eastern slab, and its general uneven surface, would have been apparent to a pedestrian keeping proper lookout, given that it was broad daylight. The respondent chose to jog along the footpath while holding a lead at the end of which were two dogs that ran in front of her, thereby obscuring, as she herself admitted, the area immediately at her feet (and that just in front of her). She increased her pace shortly before the scene of the accident. These circumstances, I consider, obliged her to pay greater attention to any possible defects in the path along which she proceeded and the fact that she did not see the faults in the pavement, and that she could not say what made her trip, lead to the irresistible inference that she did not keep a sufficient lookout, and thus, in the circumstances, did not take reasonable care for her safety.

94. The respondent's counsel before us relied on a number of cases in which local authorities were held liable to a pedestrian plaintiff who was injured after tripping over and falling at an impediment in a public thoroughfare that the plaintiff had not observed. In particular, reference was made to Hawkesbury City Council v. Ryan[39], Parramatta City Council v. Watkins[40], Sutherland Shire Council v. Pallister[41], Ryde City Council v. Smith[42] and Wellington Shire Council v. Steedman[43]. The respondent also referred to and relied on the dicta of Eames, J.A. in Cehner v. Borg[44]. But, as the appellant's counsel pointed out, these cases, which are briefly examined below, are clearly distinguishable from the present situation and are of no assistance in resolving the key question here, namely, whether the fault was obvious and whether the respondent kept a proper lookout. As Brodie and the other authorities to which I have referred make plain, these and associated issues must be determined on the particular facts and circumstances applicable to the present case.

97. In Hawkesbury City Council there was a concealed differential of 22 millimetres between the kerb and the path that was not noticed by the plaintiff notwithstanding that she kept a proper lookout. She tripped at that point and fell, injuring herself. The Court of Appeal upheld the finding below that the concealed defect was the result of the council's negligence in the construction of the pavement. In Parramatta City Council it was the council's negligent repair of the relevant part of the road surface in the vicinity of a busy car park at a shopping centre that resulted in a manhole cover not being level with the road surface. The plaintiff tripped on the protruding cover and fell, thereby injuring herself. The Court of Appeal held that the appellant, in resurfacing the road, had created a hazard that was not obvious to persons using the car park. In Sutherland Shire Council the growth of nearby tree roots created an uneven and dangerous surface and the shadows thrown by those trees made it difficult for pedestrians to discern this situation. The council had been informed of the problem, but after inspecting the area, decided that no repairs were necessary. The Court of Appeal upheld the judge's finding that the council breached its duty of care by its failure to rectify a known, dangerous situation because of the "inflexible application" of its policy. In Ryde City Council the raised portion of a grate at a busy shopping centre, at which the plaintiff fell and injured herself, was essentially regarded by the Court of Appeal as being in the nature of a trap and, in this circumstance, their Honours upheld a finding of negligence on the part of the council. Similarly, in Wellington Shire Council, a speed-hump in a dark, undercover council car park, at which the plaintiff tripped and injured herself, was held to be in the nature of a trap. The council admitted that it owed the plaintiff a duty of care and it was apparent that the hump was difficult to see for a pedestrian, particularly for one coming from sunlight into the cavernous, darkened area of the car park. The Court of Appeal considered that the council had not acted reasonably in failing to render the area safe for pedestrians.

100. In Cehner this Court concluded that the appellant was not the occupier of the uncovered opening of an inspection shaft of a sewerage pipe located immediately outside the respondent's shop and into which the plaintiff stepped, injuring himself. The majority[45] went on to hold by way of dicta that, even if the plaintiff had established that the respondents were the occupiers of the shaft, it was not open to the Magistrate on the evidence before him to have found that they were negligent. Eames, J.A. said that he was not confident that, had the respondents owed a duty of care to the plaintiff as occupiers of the shaft, the evidence would have fallen short of demonstrating that the injury occurred by reason of a breach of that duty. His Honour went on to discuss some of the tripping cases involving pedestrians that have been referred to here and then analysed whether it would have been open to the Magistrate to have found breach by the respondents as occupiers of the shaft, acknowledging[46] that "liability will be determined by a close consideration of the facts in each case...". But no statement of principle in that regard was made by his Honour which is relevant to this case.

103. In the circumstances, as I have said, I consider that it was not reasonably open to his Honour to find on the evidence that the respondent discharged the burden of proving that she exercised reasonable care for her own safety at the time of the accident.

Finding that appellant aware of fault not open

107. I am also of the view, as I have said, that it was not open for the judge to find on the evidence that the appellant knew, or ought to have known, that the path was in a state of disrepair at the relevant time yet failed to take reasonable steps to remedy the situation. Thus, even if the respondent had established that the appellant owed a relevant duty, it was not open to the judge to find on the evidence that it was breached. As the majority in Brodie explained[47]:

"Where the danger could not reasonably be suspected to exist or could not be found except by taking unreasonable measures, generally there will be no breach of duty by the authority. On the other hand, there will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, or of which the authority has been informed or made aware, and, if they are found, fails to take reasonable steps to correct them". [Citations omitted].

Here, there were only two items of evidence on which his Honour could have based his finding that the appellant had, or ought to have had, the relevant knowledge. The first was, as I have noted, that the council was told by Mr Cheshire between 1995 and 1997 that the roots of the tree on the nature strip in the vicinity of his driveway were causing damage to the footpath. It seems that council officers inspected the area at about the time that the tree was removed but did not repair it. But there is no suggestion in the evidence that, at that time, the footpath was in the same state of disrepair as it was at the time of the respondent's accident. On the contrary, there was evidence which strongly suggests that when the council officers inspected the footpath it was in a materially better condition than when the respondent fell there. The evidence of Mr Cheshire, both in evidence-in-chief and during cross-examination**,** was that this part of the footpath deteriorated progressively after the removal of the tree. And there was no evidence of complaints from Mr Cheshire or anyone else about the state of the footpath after the time the tree was removed. It is also relevant that the thrust of Mr Cheshire's complaints to the appellant about the tree was not so much that it caused faults in the footpath, but that it obscured the view of the road from his drive and thus posed a danger to traffic exiting from it. The only other evidence about the appellant's activities concerning the physical state of the footpath was its repair of it, at relatively little cost, shortly after the respondent's accident. This action, however, does not demonstrate that the appellant knew of the state of the footpath before the respondent's accident. Moreover, there was no evidence that it failed to have a system of inspecting footpaths for faults, or that such system as it did have was unreasonable.

113. Furthermore, as I have said, I consider that, if the judge had applied the correct test to which I have referred, having regard to the following, he would have been bound to find on the evidence that the defect in question would have been obvious to an ordinary, reasonable pedestrian exercising a proper lookout. First, it is notorious that footpaths in Melbourne have areas of deterioration, such as cracking and undulation, caused by wear and tear, the weather, the movement of tree roots underneath them and other causes not relevantly connected with their construction and maintenance. Thus, the ordinary, reasonable user of the footpath would expect to come across such imperfections. Secondly, the photographs to which I have referred make it apparent that the defects in the footpath that existed here were not of such magnitude as to be out of the ordinary and that the imperfections were clearly visible in broad daylight. Importantly, I consider that the defects cannot be properly characterised as being in the nature of a trap. It seems to me that neither his Honour's reference in his reasons to the sunlight being on the pavement, nor his observation that the danger arising from the fault would not have been necessarily apparent to someone in the respondent's position, amount to a finding that, because of the sun shining on the footpath, the fault was in the nature of a trap to an ordinary, reasonable pedestrian. But even if his Honour did so find, I consider that such a finding was not open on the evidence. As the judge noted, the respondent did not say in her evidence that the sunlight on the footpath disguised the extent of the unevenness of the area in question and caused her to trip. Rather, the respondent's suggestion in her evidence that the colour of the slabs and the sunlight on them at the time of the accident had the effect of "blending" the appearance of the footpath's surface - making it appear level - and that this may have been the cause of her not seeing the cracks, was recognised by his Honour as being a mere reconstruction of the circumstances. Consequently, there was nothing in the evidence that could reasonably lead to the conclusion that the fault was relevantly in the nature of a trap because the sunlight on the pavement disguised the defects.

117. For these reasons, I consider that not only did his Honour err by applying the wrong test in determining the relevant issues before him but that, on the evidence, he ought to have found that the respondent did not exercise a proper lookout at the time of the accident and that, in any event, the defect in the footpath where the respondent tripped would have been obvious to an ordinary, reasonable pedestrian exercising proper care for his or her safety. Consequently, the appeal should be allowed, the order below set aside and in lieu of it, judgment should be entered for the appellant.

122. I agree the appeal should be allowed for the reasons given by Chernov, JA whose judgment I have read and that the orders made below should be set aside and that in lieu thereof there should be judgment for the appellant.

[1] [2004] VSCA 140.

[2] [2001] HCA 29; (2001) 206 C.L.R. 512.

[3] It seems that this "immunity" was restored in Victoria by legislation in the form of the Transport (Highway Rules) Act 2002. This enactment was itself substantially, if not wholly, overtaken by Part XII of the Wrongs Act 1958, as inserted by s.3 of the Wrongs and Other Acts (Law of Negligence)Act 2003. It was common ground, however, that these legislative changes did not bear on the issues raised in the appeal.

[6] [1905] HCA 33; (1905) 3 C.L.R. 50 at 60.

[10] In Temora Shire Council v. Stein [2004] N.S.W.C.A. 236, Giles, J.A. observed at [40] that it was not clear whether in the above passage their Honours meant that inadvertence "was failure by a pedestrian exercising reasonable care to perceive a danger where perception of it was diminished, for example, because of inadequate lighting or concealment by grass, so that the danger was `in the nature of a trap' ". His Honour suggested that "the line between failure to take reasonable care and inadvertence was a fine one and an expectation that pedestrians will exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards left little room for inadvertence." The learned judge noted that in Newcastle City Council v. Lindsay [2004] N.S.W.C.A. 198 the plaintiff unsuccessfully argued that she was distracted by unusual objects adjacent to the defects in the footpath.

[14] Meggs v. Liverpool Corporation [1968] 1 W.L.R. 689; Littler v. Liverpool Corporation [1968] 2 All ER 343.

[17] The majority at 528, Kirby, J. at 606-607 and Hayne, J. at 636. It should be noted that although it was only the majority that spoke, in terms, of the obligation of pedestrians to take reasonable care for their own safety as being relevant to the determination of the existence and content of a council's duty of care to pedestrians, it was implicit in the reasons of the learned Chief Justice and Callinan, J. that they were of the same view.

[18] An example of a case where the appeal court overturned a decision in favour of a plaintiff who tripped on a defect in the footpath and suffered injury because the hazard was obvious, is Newcastle City Council v. Lindsay [2004] N.S.W.C.A. 198.

[19] With whom Beazley and Hodson, JJ.A. agreed.

[20] [2002] N.S.W.C.A. 343 at [33].

[21] See also Richmond Valley Council v Standing [2002] N.S.W.C.A. 178 at [54]- [55] per Heydon, J.A. and Hastings Council v Giese [2003] N.S.W.C.A. 178 at[21]-[22] per Tobias, J.A.

[22] See Temora Shire Council at [43] per Giles, J.A.

[23] The Shorter Oxford English Dictionary, 3rd edn.; The Macquarie Dictionary, 3rd edn.

[25] [2002] N.S.W. C.A. 359.

[26] [2003] N.S.W. C.A. 178.

[29] [2002] N.S.W. C.A. 210.

[31] [2003] N.S.W. C.A. 171.

[32] Beazley, J.A. dissented in the finding that the Council had breached its duty, although she defined it on the same basis as the other members of the court.

[33] [2002] Q.C.A. 245.

[34] [2004] HCA 13 at [43].

[35] [1979] HCA 9; (1979) 142 C.L.R. 531 at 551 per Gibbs, A.C.J., Jacobs and Murphy, JJ.

[36] Maynard v. West Midlands Regional Health Authority [1984] 1 W.L.R. 634 at 637 per Scarman, L.J. See also Chambers v. Jobling (1986) 7 N.S.W.L.R. 1 at 25 per Samuels, J.A., Graham Barclay Oysters Pty Ltd & Anor v. Ryan & Ors [2002] HCA 54; (2002) 211 CLR 540 at 619-620 as per Kirby, J., and Pledge at [43] per Callinan and Heydon, JJ.

[37] See, for example, Walsh v. Law Society of N.S.W. [1999] HCA 33; (1999) 198 C.L.R. 73 at 92 per McHugh, Kirby and Callinan, JJ.; Devries v. Australian National Railways Commission (1993) 177 C.L.R. 472 at 479 per Deane and Dawson, JJ.

[38] Fox v. Percy [2003] HCA 22; (2003) 77 A.L.J.R. 989 at 994 per Gleeson, C.J., Gummow and Kirby, JJ. See also Devries at 479-481 per Deane and Dawson, JJ.

[39] [2001] N.S.W. C.A. 212.

[40] [2001] N.S.W. C.A. 364.

[41] [2002] N.S.W. C.A. 66.

[42] [2003] N.S.W. C.A. 57.

[43] [2003] VSCA 115.

[44] [2003] VSCA 72 at [32-41].