31 The later decisions are legion, but firmly establish that the content or breach of the duty of care of a council (or other entity responsible for a public area) involves regard to the obviousness of the risk to a pedestrian exercising reasonable care for his or her own safety. ------."
66 Giles JA referred to a number of what he described as the "legion" of later cases applying the approach, however, it is not necessary for me to go to those cases in the present matter. I do note that Judge Twigg was referred to Stein and that he summarised the judgment of Handley JA in Byrnes as follows:
"In Byrnes the Plaintiff tripped over a concrete paver on a council footpath and fell. One paver had sunk, causing a height difference of 20mm. His Honour Justice Handley, as he then was, outlined the duty of Council to pedestrians to be able to take reasonable care to prevent or eliminate dangers to pedestrians taking reasonable care for their own safety.
He decided that a height differential of 20mm was not an unexpected or unusual danger to a pedestrian taking reasonable care and keeping a proper lookout. (Para 26).
His Honour went on to outline the better position of pedestrians to avoid harm in para 38 of the judgment. I quote:
'Pedestrians on the other hand are in a position of relative advantage because they can generally protect themselves from uneven surfaces on footpaths and other public areas by keeping a lookout and taking care for their own safety.
The position would be otherwise if the surface contained something unusual of unexpected which creates a real danger for ordinary pedestrians.'
Having adopted passaged from Ghantous in the High Court his Honour set out in para 30 the duty of councils to pedestrians:
"A council's duty to pedestrians is therefore to take reasonable care to prevent or eliminate the existence of dangers in the road or footpath. The duty is not to prevent or eliminate 'obvious hazards' which 'could possibly be an occasion of harm'. The standard of care is that which is reasonably required to protect pedestrians who are taking reasonable care for their own safety. The care which pedestrians must themselves take enters into the definition of the duty and is not relevant only to contributory negligence.'"
67 Whilst each case turns on its own facts it is appropriate to note that 19mm of difference is within the difference frequently considered to be obvious and the failure to repair of which has not been held to be a breach of duty. Which is not to say that the outcome has not at other times been otherwise with similar differences in height.
68 Whilst Counsel's submissions did not refer to them it is relevant to consider more recent discussions on the subject of obviousness of risk and the application of the Shirt "calculus" or "judgment" in Vairy v Wyong Shire Council [2005] HCA 62 and Mulligan v Coffs Harbour City Council [2005] HCA 63.
69 Ipp JA examined those cases in considerable detail in Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380. I will not recite again what he had to say, with which Giles JA and Hunt AJA agreed, but express my respectful agreement with the following summation:
"53 A common expression of principle as to the concept of obviousness of risk is manifest from the unanimous decision in Thompson and the judgments of those justices in Mulligan and Vairy who formed a majority on this issue. It can be articulated as follows. Obviousness of risk is not a phrase that denotes a principle or rule of the law of negligence. It is merely a descriptive phrase that signifies the degree to which risk of harm may be apparent. It is a factor that is relevant to whether there has been a breach of the duty of care. I make no comment as to whether it is relevant also to the existence of a duty of care as that was not in issue in this case (and see Ghantous and the comments of Gummow J in Vairy at [55] and [80]). The weight to be attached to the obviousness of the risk depends on the totality of all the circumstances. In some circumstances it may be of such significance and importance as to be effectively conclusive."
70 As I have mentioned the question whether obviousness is relevant also to the existence of a duty of care in not an issue in this case.
71 There is nothing in the more recent case of Neindorf v Junkovic [2005] HCA 75, despite a strong dissent from Kirby J, that effects the operation of the principles stated above to the present matter.
72 In Vairy Hayne J at [105] said:
"The central issue in the appeal is whether the Council breached a duty of care it owed to the appellant by not erecting one or more signs warning against, or prohibiting, diving from the rock platform. Resolving that question, a question of fact, hinges critically upon recognising that what has come to be known as the ' Shirt calculus' is not to be undertaken by looking back at what has in fact happened, but by looking forward from a time before the occurrence of the injury giving rise to the claim. The several questions described by Mason J in Wyong Shire Council v Shirt are to be asked and answered with that perspective. Thus, before the appellant was injured, would 'a reasonable man in the [Council's] position ... have foreseen that his conduct involved a risk of injury to the [appellant] or to a class of persons including the [appellant]'? If the answer to that question is affirmative, 'it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk'. As Mason J went on to point out:
'[t]he perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.' "
73 In Mulligan Gleeson CJ and Kirby J pointed out at [2] as to the Shirt calculus:
"Reference is often made to the ' Wyong Shire Council v Shirt calculus'. In that case, Mason J referred to the way in which a tribunal of fact might determine what a reasonable person would do by way of response to a foreseeable risk. As he made clear, he was describing a process of factual judgment. He referred to such factors as the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action, and any other conflicting responsibilities of the defendant. These, he said, were matters to be balanced out in making a judgment about reasonableness. The later use of the word 'calculus' to describe this passage is unfortunate. A calculus is a method of calculation. What is involved in the process to which Mason J was referring is not a calculation; it is a judgment. In Ridge v Baldwin , Lord Reid observed that '[t]he idea of negligence is ... insusceptible of exact definition'."
74 Also in Mulligan McHugh J drawing attention to the relevant time at which the decision to take action should be made, said at [22]:
"Their duties had to be determined looking forward to what was 'reasonably foreseeable', not by looking back at what happened on this occasion. Nor were they to be determined by reference to the appellant's knowledge of the risks, except in so far as his knowledge might indicate the knowledge of channel users generally. His knowledge went to the issue of contributory negligence, not to the respondents' duties."
75 In Mulligan the primary judge had referred to the fact that the plaintiff was an "experienced swimmer, a strong swimmer and experienced in diving." Gummow J at [37] did not think it inappropriate to take that matter into account in considering the scope of the duty "having regard to the way in which the plaintiff's case was presented."
76 As noted at [50] and [51] Mr Gross relied upon Webb.
77 In that case the High Court by a majority of three to two upheld an appeal from the Full Court of the Supreme Court of South Australia which had dismissed an appeal from the primary judge.
78 A pedestrian had injured his foot when he jammed it in an open gap between a permanent kerb on the edge of the footpath and a temporary false kerb constructed by the highway authority in the roadway close to the footpath, as he was stepping on to the footpath from the roadway to reach the bus stop which was adjacent to the kerb.
79 Mr Gross relied upon the following passages from the Judgment of Mason, Brennan and Deane JJ at 912:
"In this case the issue, essentially one of fact, was whether the respondent was in breach of its duty of care to the appellant as a pedestrian by so constructing a false kerb as to leave an open gap between the false kerb and the permanent kerb which might cause injury to a pedestrian.
……….
The primary judge found that the false kerb and the intervening space was "a very obvious feature". And so it was. The primary judge also found that the false kerb was not dangerous. This finding seems to have been based on its obviousness and on the circumstance that in the seven years that elapsed since its construction there was no record of any previous accident. But obviousness and the absence of accident over this period does not mean that the construction presented no risk of injury. As the false kerb was adjacent to a bus stop there existed the distinct possibility that a pedestrian, because he was in a hurry to catch a bus or was intent on observing an approaching bus or because his attention was distracted for some other reason, would fail to take sufficient care to avoid injury to himself. The happening of the accident demonstrated, if demonstration be needed, that the construction had the potential to cause injury.
Of course a pedestrian could avoid the possibility of injury by taking due care. However, the reasonable man does not assume that others will always take due care; he must recognize that there will be occasions when others are distracted by emergency or some other cause from giving sufficient attention to their own safety. It seems to us that the courts below gave undue emphasis to the circumstance that injury could be avoided by a pedestrian who took reasonable care for his own safety.
The question then is: What is the response which the reasonable man, foreseeing the risk, would make to it? Is the risk so small that a reasonable man would think it right to neglect it? In Wyong Mason J said (ALR at 221; ALJR at 285):
'The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have."
80 The judgment went on to observe that the highway authority created the danger by its artificial construction on the highway. However, that reference was to deal with the then relevant question of misfeasance as opposed to non-feasance.
81 Webb was referred to in Ghantous by Gaudron, McHugh and Gummow JJ at [163] in the following context:
"Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v The State of South Australia (1982) 56 ALJR 912) or the surrounding area (as in Buckle, where the hole was concealed by grass). 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….." of a kind calling for some protection or warning"
82 This reference and the principles established by Ghantous as set out earlier [62] indicate a qualification of the observations of the majority in Webb in so far as they go beyond the situation specifically mentioned.
83 In Neindorf Kirby J said at [80]:
"The arguments of the appellant in this appeal harken back to the opinions of the dissenting judges in Webb . For my own part, I would adhere to the approach and reasoning of the majority in Webb for it correctly states the doctrine of the law of negligence which this Court has hitherto applied."