BRYMOUNT PTY. LIMITED t/a WATSON TOYOTA (ACN 003 200 459) v. CUMMINS & ANOR.YOUNG SHIRE COUNCIL v. CUMMINS & ANOR. [2004] NSWCA 438

LOWER COURT District Court JURISDICTION : LOWER COURT DC 1898/2002 FILE NUMBER(S) : LOWER COURT Hungerford ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41169/03 CA 41170/03 DC 1898/02

BEAZLEY JA IPP JA McCOLL JA

26 November 2004 BRYMOUNT PTY. LIMITED t/a WATSON TOYOTA (ACN 003 200 459) v. CUMMINS & ANOR. YOUNG SHIRE COUNCIL v. CUMMINS & ANOR.

The plaintiff suffered injuries resulting from a fall as she crossed a public laneway which intersected 2 parts of the business premises of Brymount Pty Limited. She brought proceedings against both Brymount and Young Shire Council in negligence.

The trial judge found that both defendants had breached a duty of care owed to the plaintiff and awarded her damages in the sum of $343,849.70. Brymount and the Council both appealed. HELD per Beazley JA (Ipp and McColl JJA):

(i) The poor nature and condition of the road was obvious and did not constitute a trap.

(ii) There was no evidence to establish that the Shire Council had been responsible for the works that had caused the depression in the laneway where the plaintiff fell.

(iii) The laneway was in need of complete reconstruction. There was no negligence in the Council not carrying out temporary repairs to the laneway where the plaintiff fell.

(iv) There was no negligence in the Council not carrying out roadworks for which funds had been allocated. The allocation of funds was a matter for the Council.

(v) The trial judge erred in finding there were shadows falling across the plaintiff's path at the time of the accident.

(vi) Brymount was not responsible for the conditions of the laneway and did not owe the plaintiff a duty of care in her use of it. ORDERS CA 41169/03 1. Appeal allowed. 2. Set aside orders may by Hungerford ADCJ on 5 December 2003. 3. Verdict and judgment for the appellant. 4. First respondent to pay the appellant's costs of the appeal and of the trial. 5. No order for costs of the second respondent on this appeal.

CA 41170/03 1. Appeal allowed. 2. Set aside orders may by Hungerford ADCJ on 5 December 2003. 3. Verdict and judgment for the appellant. 4. First respondent to pay the appellant's costs of the appeal and of the trial. 5. No order for costs of the second respondent on this appeal. **********

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41169/03 CA 41170/03 DC 1898/02

BEAZLEY JA IPP JA McCOLL JA

26 November 2004 BRYMOUNT PTY. LIMITED t/a WATSON TOYOTA (ACN 003 200 459) v. CUMMINS & ANOR. YOUNG SHIRE COUNCIL v. CUMMINS & ANOR. Judgment 1 BEAZLEY JA: The first respondent in each appeal (Mrs. Cummins) fell as she crossed Lighting Lane, a public road in Young which ran between two separate parts of the business premises of Brymount Pty. Limited t/a Watson Toyota (Brymount). She suffered substantial injuries and brought proceedings against both the Young Shire Council and Brymount in negligence. The trial judge found that both defendants had breached their duty of care to Mrs. Cummins and awarded her damages in the sum of $341,161.34. 2 The defendants had cross-claimed against each other and his Honour made orders on the cross-claims apportioning the damage between each defendant. 3 The Young Shire Council and Brymount have both appealed against the verdicts against them. 4 Lighting Lane was a low speed/low traffic thoroughfare used essentially as a service road to various businesses along its length. Relevantly, for present purposes, it intersected two parts of the business premises of Brymount. Its bitumen surface was in poor condition with undulations and pot holes. 5 It was customary for persons who wanted to move from one part of Brymount's business premises to the other to do so by crossing the lane. This is what occurred on the day of the accident. The Cummins family had gone to Brymount's premises to take delivery of a second hand Toyota utility. At about 5.05 pm, they went from the used car section of the business and were intending to go to the new car premises across the laneway to complete the paper work for the purchase. Mrs. Cummins' husband and 13 year old son went first, walking with the sales manager, Mr. Maloney. Mrs. Cummins and her 12 year old daughter were about 2 to 3 paces behind. Mrs. Cummins had nearly crossed the width of the laneway when she fell. She suffered a significant injury to her left arm which she stretched out in an attempt to break the fall. 6 The appellants' essential challenge to the verdicts found against them was that they were based on findings of fact that the appellants contend were either erroneous or not supported by the evidence. 7 The trial judge held, correctly, that Lighting Lane was a Crown road for which the Young Shire Council was not the relevant roads authority. Rather, the Minister was the relevant roads authority under s.7(2) of the Roads Act 1993 (NSW). Section 71 of the Roads Act provides that a roads authority may carry out road work on any public road for which it is the roads authority. The trial judge held however that because the Young Shire Council had carried out work on the road it had "a duty of care towards the plaintiff to take reasonable care for her safety as she legitimately used the laneway". 8 His Honour's finding was based upon the decision of this Court in Berryman v. Joslyn (2001) 33 MVR 441; [2001] NSWCA 95. In that case, although the road was a Crown road, the Shire Council had been found to owe a duty of care to persons using the roadway because it had constructed the curve upon which the accident had occurred. Here, the trial judge found that "the uncontroverted evidence was that the Young Shire Council sealed Lighting Lane in 1981; that in 1998 it restored the laneway's surface after a gas line had been installed; had expected its employees to report any deficiencies in the surface of the laneway for repairs to be programmed; from time to time repaired pot holes in the laneway by patching them and; in 1996 had allocated funding to reseal the entire surface although that work had not been carried out". 9 The Young Shire Council challenges the first two of these factual findings on the basis that there was no evidence to support them and contends that the other findings have no causal relevance to Mrs. Cummins accident. 10 The evidence in relation to the resealing was that the roadway had been last resealed in 1981. That evidence came from an entry in Council's records. Senior Counsel for Mrs. Cummins submitted that, given the source of this evidence it was open to the trial judge to infer that the Council had carried out that work. That may be so. However it is not necessary to dwell on it as a more fundamental issue arose in relation to the work that was carried out in 1988 when a gas line was installed near the southern shoulder of the laneway. 11 There was no evidence as to who installed the gas line nor who sealed the road after the installation. The photographic evidence clearly showed some subsidence along the gas line trench and from Mrs. Cummins' marking on the photographic evidence in the case, it appears that this is where she fell. Senior counsel for Mrs. Cummins, in the course of his submissions, frankly conceded that it had not been established that the Council had installed the gas line or repaired the surface after the installation and that, "the implications of [this were] of some significance". It was apparent that senior counsel clearly accepted that there was no evidence to support the trial judge's finding. 12 Senior counsel for Mrs. Cummins further conceded, frankly and correctly, that his case therefore "stands or falls as a nonfeasance non- repair of that condition" in order to be able to establish that the Council should have carried out repairs to the road. For that proposition, he relied entirely upon the evidence that funds had been allocated by the Council in 1996 but it had not carried out the work. 13 His Honour's finding on this issue was that the Council should and with minimum expenditure could have repaired this particular part of the roadway. The difficulty with this finding however was that there was unchallenged evidence that the entire surface of this laneway had reached the end of its design life and required reconstruction. As the laneway was a low traffic area, the Council had allocated the reconstruction low priority, having regard to the other demands upon its funds. His Honour's finding that a small expenditure in the vicinity of $1,250.00 would have been sufficient to repair this portion of the laneway failed to take into account the need for total reconstruction and the temporary ameliorating effect that such immediate expenditure would have had. Accordingly, the Council's failure to undertake a temporary repair was not, in this case, unreasonable. 14 However, there are more fundamental reasons why the Young Shire Council contends the verdict against it cannot stand. In particular, it contends that his Honour made three findings of fact that were not supported by the evidence and which ought to have been determinative of the claim. 15 First, his Honour found that the sun was behind Mrs. Cummins which "cast shadows on the grey, uneven surface thereby, I accept, clouding a clear vision of the laneway's unevenness". This finding was erroneous. Photographs had been taken of the laneway at about the same time on the second anniversary of the accident. Those photographs clearly show that the shadows were cast "up the laneway" away from the direction in which Mrs. Cummins was walking. They did not affect her vision of the laneway. 16 His Honour next found that he was "comfortably satisfied that the plaintiff was taking care for her own safety as she crossed Lighting Lane when she encountered a risk or hazard in the uneven surface of the laneway which was foreseeable and known to the first defendant - the particular unevenness on which she fell was obscured from the plaintiff so as to be a trap for pedestrians using the laneway in the circumstances of the plaintiff". It seems that his Honour considered that the unevenness was obscured because of the shadowing. As I have indicated that finding cannot stand. 17 But in any event, the evidence in its totality was that the nature and condition of the road was obvious. Mr. Cummins said that before he commenced walking across the lane he noticed that it was uneven. He was asked whether, having noticed the uneven surface he adjusted his gait or method of walking to take that into account. He responded "Yeah, I just, I walked across there and I was talking to my son … I just, natural instinct, you look as you walk. I was just talking to Nicholas and kept walking". 18 Mrs. Cummins conceded that she was probably not looking at the ground in front of her immediately prior to stumbling. She agreed that had she been looking at the ground in front of her she would have seen the pot holes and uneven ground. She also accepted that if you do not look where "you put your feet you are liable to stumble which could lead to a fall". 19 It should be remarked that even though Mrs. Cummins was cross-examined about pot holes, her evidence was quite clear that she did not fall in a pot hole, but rather on an uneven part of the roadway near the gutter which appears to have been the depression caused by the failure of the road surface over the gas pipeline that was installed in 1988. This is important for two reasons. The expert evidence admitted in Mrs. Cummins' case was to the effect that she had fallen in a pot hole which involved a depression of some 70 mm. This was not the case. Secondly, there was no evidence of the depth of the depression on which she did stumble. The evidence went no higher than that the surface underneath her footing was uneven. 20 In these circumstances, and contrary to the finding of the trial judge, this was an obvious hazard of the kind referred to in Brodie v. Singleton; Ghantous v. Hawkesbury City Council (2001) 206 CLR 512. In that case Gaudron, McHugh and Gummow JJ said at [163]: "… 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 … or the surrounding area … 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' or, … 'of a kind calling for some protection or warning'. In Romeo [v. Conservation Commission of the Northern Territory [1998] 192 CLR 431], 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."

Callinan J said at [355]: "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. A court is not obliged to accept an expert, especially when his or her evidence is evidence purportedly resolving and concluding an issue of the kind which arose here. A court is not bound to accept that a matter of ordinary observation such as the readily apparent state of the footpath is a matter calling for expert opinion. But in any event the expert's opinion (uncontradicted as it was) did not go so far as to say that the 'poor maintenance' which caused the 'hazard' actually caused one of such a nature that to leave it unrectified was negligent. 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 applicant 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 kerb and the earthen verges. …" 21 This case involved an obviously uneven surface in respect of which the appellant was required to take care for her own safety. She gave evidence that she had been looking ahead towards where Mr. Maloney was going and not looking at the road that she knew to be in a poor state of repair. Its poor state of repair did not constitute a trap. Rather, in broad daylight, it was an obvious hazard. It follows that his Honour erred in finding that the Young Shire Council breached its duty of care to Mrs. Cummins. 22 That leaves the case against Brymount. Senior counsel for Mrs. Cummins submitted that this was a case where a commercial relationship existed between Brymount and Mrs. Cummins and that Brymount was familiar with this roadway and had knowledge of its poor condition, whereas Mrs. Cummins did not. It submitted that in the circumstances, Brymount should have warned Mrs. Cummins of the poor condition of the road. However, as already explained, the condition of the road was obvious. It was also said that Brymount, through its sales manager, Mr. Maloney, could have guided her across the road pointing out individual unevenness and pot holes. Again however, those matters were there for Mrs. Cummins to see for herself. It was also submitted that Mr. Maloney could have gone across and got the paper work himself and brought it back to the used car yard so that it was not necessary to cross the lane. However, that appears to be no more than a variation of a case put at trial that Brymount could have modified its business practices to avoid use of the lane. That case was rejected by the trial judge and there is no Notice of Contention seeking to uphold the judgment on this basis. 23 Brymount was not in the position of an occupier in its use of the roadway. It owed no duty of care to Mrs. Cummins in her use of the roadway. Accordingly, his Honour erred in finding that Brymount breached its duty of care to her. 24 In deciding the case in this way I have focused on a number of factual circumstances which compel the conclusion that the verdicts against the Young Shire Council and Brymount should be set aside. Other factual matters were raised on the appeal but they do not, in my view, call for exposition. They would not have overcome the essential bases upon which I consider that Mrs. Cummins cannot succeed, notwithstanding her serious injury. I have also not attempted to engage in a determination of the question whether the statement in Ghantous at [160] "that the persons using the road will themselves take ordinary care" relates to duty or breach. As I understand it, this question has arisen in a number of cases in this Court. The question did not arise in this case, which, whether it be viewed as one of duty or one of breach, is one where the respondent must fail. 25 Accordingly, I propose the following orders:

2. Set aside orders may by Hungerford ADCJ on 5 December 2003.

4. First respondent to pay the appellant's costs of the appeal and of the trial.

5. No order for costs of the second respondent on this appeal.

2. Set aside orders may by Hungerford ADCJ on 5 December 2003.

4. First respondent to pay the appellant's costs of the appeal and of the trial.

5. No order for costs of the second respondent on this appeal. 26 IPP JA: I agree with Beazley JA. 27 McCOLL JA: I agree with Beazley JA. **********

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