Boroondara City Council v Cattanach [2004] VSCA 139

Boroondara City Council v Cattanach [2004] VSCA 139 - VSCA 2004 case summary — Zoe

[29]

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".

[30]

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.

[31]

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.

[42]

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.

[49]

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.

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Judgment (81 paragraphs)

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Cases Cited (1)