Breach of duty
14Mr Hunter lives in Mount Vernon Street, Glebe, which intersects with Catherine Street at an angle of approximately 45 degrees. Part of the area between the two streets is open space, which is grassed and planted with trees to constitute a small park. The open space forms an approximate isosceles triangle. The photographs and plans in evidence suggest that the sides of the triangle are around 50 metres, although the apex is rounded and the base of the triangle is not quite straight, but has a slight bend in the middle. A bitumen path crosses the open space from Mount Vernon Street to Catherine Street. The photographs and plans in evidence suggest that the path is approximately ten metres from the base of the triangle.
15At the point where the Catherine Street side of the triangle meets the base of the triangle, there is a substantial Moreton Bay fig tree that was planted probably more than 100 years ago. As at 25 November 2011, the roots of the fig tree had caused disruption of the bitumen surface of the footpath of Catherine Street. The extent of the disruption is not entirely clear from the evidence. Photographic evidence indicates that an area close to the kerb was relatively free from disruption, although the extent of that area is also unclear.
16On the day in question, Mr Hunter was intending to visit the premises of Officeworks located on the corner of Ross Street and Parramatta Road, a short distance from the footpath in question. Mr Hunter had visited those premises previously. He said that his usual route to the Officeworks premises was to walk through the small park, cross Catherine Street to Seamer Street, which joins Catherine Street approximately halfway along the Catherine Street side of the triangle, and then walk along Seamer Street towards Parramatta Road. Mr Hunter said that, on the day in question, he walked along the bitumen path that crosses the small park but, because there were cars parked close together in Catherine Street, he decided not to cross Catherine Street to Seamer Street, but to turn right into Catherine Street from the bitumen path.
17Mr Hunter said that, as he turned right from the path into Catherine Street, towards the tree roots, he could see them ahead of him. He said it was "really rough, the roots were all up and down and there was quite a few of them". He said that, at the time, it was overcast. He said that he could see the tree roots ahead of him but did not take steps to avoid the roots because "there was just a whole lot, there was [sic] lots of them that ... had ripped up the footpath". He said that he had to manoeuvre over the top of them and he "just hit one of them and went over".
18In the course of his evidence in chief in the witness box, Mr Hunter indicated with his hands the height of the root on which he had tripped. It was common ground that the height he indicated was roughly ten centimetres. A photograph taken by Mr Hunter of the root on which he said he had tripped is not conclusive as to its height. Further, a photograph taken by an officer of the Council some months after the alleged fall, before any repairs were done to the footpath, suggests that the height of the root may have been no more than approximately 30 millimetres.
19Mr Hunter said that, after he fell, he got up, turned around and went back home. He said that he was limping and that he was experiencing pain in his right knee, his lower back and his hip. He took a pain-killing tablet when he reached home and lay on the couch and rested that afternoon. He said that, over the next few days, there was no improvement in the way he was feeling and swelling started to develop on his knee.
20In his evidence in chief, Mr Hunter said that, at that time he had a local doctor, Dr Helena Berenson, and that he went to see Dr Berenson a few days after his fall. He said that he reported the way he was feeling in relation to his right knee and that the doctor gave him medication and arranged for him to have an X-ray. Mr Hunter said that he was very sore and in pain with his knee over that Christmas period. He said in his evidence in chief that he also saw Dr Berenson in January 2012. At that point, he said that he had been under the care of another doctor, Dr Lesley Peter, before he saw Dr Berenson, but that he saw Dr Berenson in mid-January or February: "somewhere around there". He again said that Dr Berenson gave him medication and wrote a request for an X-ray on his right knee.
21As will become apparent, it is clear that Mr Hunter's evidence, about when he saw Dr Berenson about his knee and was sent for an X-ray, was entirely wrong. He did not in fact see Dr Berenson about his knee until 2 February 2012. Dr Berenson then referred him to Dr Mark Horsley, a knee surgeon. He was also referred to the rheumatology clinic at Royal Prince Alfred Hospital where he came under the care of Professor Jane Bleasel. In September 2012, Dr Horsley operated on Mr Hunter's right knee. Mr Hunter said that there had not been any improvement in his right knee since the operation. He said that his right knee gives way and that he is constantly falling over. He said that that had not been the case before the operation.
22In cross-examination, Mr Hunter said that the place where he tripped was "all up and down and broken ... all uneven". He said that, as he was walking, he tripped and "went straight over". He said that when he fell, he tried to save himself and he saw a big root and thought he was going to hit it and then he did hit it. Mr Hunter said that, when he was walking, the footpath was "all uneven ... it was like a maze" and that he was actually trying to go through without hurting himself. He said that he had "never seen that big root" and that when he did, it was too late: by that stage, he was already on the ground and his knee had hit the top of the root.
23When asked whether he had walked past the area on a number of occasions before the day in question, he said that he had always walked to Officeworks by crossing the road. He said that one can go either to the back or to the front of Officeworks. On the day in question, he did not cross Catherine Street and go down "the other street" (presumably a reference to Seamer Street) towards Parramatta Road. He asserted that, despite having lived in Glebe for eight years, 25 November 2011 was the first time that he had walked along the particular section of the footpath on Catherine Street in question.
24Mr Hunter agreed that, on a number of occasions before 25 November 2011, he had walked through the open space with the fig tree on his immediate right. He agreed that the unevenness and breaking of the bitumen that he described covers some distance immediately to his right as he came past the end of the bitumen footpath through the open space. Mr Hunter agreed that, when he had walked on the path through the open space on previous occasions, the problems that he described with the bitumen and the tree roots and the tree itself were to his immediate right.
25Mr Hunter was shown a photograph of the footpath of Catherine Street taken after part of the disrupted bitumen had been repaired. He agreed that the photograph showed a section of the bitumen path as it was on the day in question and agreed that there was nothing wrong with that section of the bitumen. He agreed that he could walk over that section as he went past the fig tree. However, he would not agree that there was plenty of room to do so. He said that where the roots were, the footpath was "all broken up".
26Mr Hunter was then shown another photograph taken before any repairs were made to the footpath. He agreed that that photograph was a fair representation of what the footpath looked like on the day of his alleged accident. He asserted that the footpath was "rougher" on the day, but agreed that the photograph "looks about right". The photograph showed that there was a section of footpath close to the kerb, and to the left of the undulating cracked part of the footpath, that did not appear to have any cracking or other tree root damage. When asked whether he could have walked through that section of the footpath on the day, his response was "it was very narrow". He said that there were vehicles parked close to the kerb and that he had no choice but to walk over the rough part of the footpath.
27In re-examination, Mr Hunter said that the footpath where the roots were located was "quite a big area" and that it was "all unstable". He said that the footpath was all cracked and that small and big roots were protruding where he was going to walk. He said that he had to be very careful because it was "just all ripped up". He said that there was "just nowhere I could go".
28Apart from his own evidence concerning his injury, Mr Hunter also relied on the evidence of Mr Tyrone Smith, a friend of his. Mr Smith gave evidence that he received a telephone call from Mr Hunter some time before Christmas 2011. He said that they had previously made arrangements to go Christmas shopping and he was surprised to receive the telephone call a few days before the pre-arranged date. He said that Mr Hunter had told him that he was in pain because he had fallen over some roots. Mr Smith said that he advised Mr Hunter to consult a doctor. He agreed in cross-examination that Mr Hunter had had problems with his back but said that he was unaware of problems in his right hip or his shoulder. Mr Smith gave evidence that Mr Hunter's knee was swollen when he accompanied him to see the doctor. He would not agree that Mr Hunter had not complained about knee problems before the end of January 2012.
29The trial judge accepted that Mr Hunter was, in general terms, aware that the footpath where he was walking was disturbed by tree roots. Her Honour accepted that he did not see the actual root on which he tripped "until the trip had commenced". Her Honour found that, as Mr Hunter turned right into the area, the lighting "was not good" and that Mr Hunter did not realise the extent of the danger until he was in the middle of it.
30The only evidence as to the lighting was that it was overcast. It was not suggested by Mr Hunter that he had difficulty in seeing the roots. His evidence was that he saw the roots but had to find his way through them. Indeed, the fact that the conditions were overcast may well have improved visibility. The photographs in evidence suggested that, when the sun was shining, a significant dappling effect was created over the area under the fig tree, which may well have made it more difficult to see tree roots. However, when the sky is overcast, that problem does not arise.
31The trial judge accepted that Mr Hunter was aware, soon after he turned right into Catherine Street from the path leading out of the small park, that he was in an area of danger. Her Honour found that Mr Hunter took that route because it was difficult for him to get through parked cars and cross Catherine Street. Her Honour accepted that it was possible that, if Mr Hunter had inspected the area more carefully, prior to turning right, he may have been able to avoid the danger. While her Honour did not find that the Council was relieved from its breach of duty of care, her Honour concluded that, in the circumstances, it was reasonable to reduce Mr Hunter's damages by 20%, for his contributory negligence.
32It is not easy to follow the reasoning of the trial judge in concluding that the Council was in breach of a duty of care. Her Honour appears to have found that the Council owed to Mr Hunter a duty to repair the bitumen of the Catherine Street footpath damaged by tree roots. Indeed, the Council did carry out such repairs at some time after May 2012. However, the photographic evidence indicates that, even prior to the repairs, there were substantial parts of the footpath that were easily passable by a pedestrian without stepping on the part of the bitumen damaged by tree roots.
33The evidence indicates that a pedestrian taking reasonable care for himself or herself would have no difficulty at all in walking along the bitumen path that passes through the small park and then turning right onto the bitumen of the Catherine Street footpath. If Mr Hunter tripped and fell on tree roots on 25 November 2011, it can only be because he was failing to take reasonable care for his own safety. There was no breach of duty on the part of the Council in failing to repair the bitumen path damaged by the tree roots in circumstances where it was clearly open for a pedestrian to pass by without treading on the roots and disrupted bitumen. The trial judge erred in concluding that the Council was in breach of any duty owed to Mr Hunter as pleaded by him.