Folkes v Calabaro & Ors [2004] NSWCA 191 | Case summary

Wednesday 16 June 2004 FOLKES v CALABARO & ORS Judgment 1 GILES JA: This is a plaintiff's appeal from verdicts and judgments for the defendants upon a claim in negligence that she was injured because of boarding on a footpath over which she tripped. 2 The first defendants owned 73 Wellbank Street, Concord in the local government area of the third defendant. They obtained a development consent from the third defendant, one of its conditions being that during the carrying out of the works the footpath at the driveway into the property was to be protected against damage "by means of close boarding with chamfered ends". They engaged the second defendant as their builder, and it constructed the boarding. 3 On the evening of 20 April 2000 the plaintiff, who lived in the vicinity, was out walking with her husband and their dog. They were walking briskly. They went along Wellbank Street, and as they passed the property a little after 6.30pm the plaintiff felt her foot come into contact with something hard and fell. She injured her left elbow. She brought proceedings in the District Court against the three sets of defendants, alleging that she tripped on the boarding and that she was exposed to the risk of injury in that way by negligence of one or more of the defendants. 4 There was an issue at the trial over whether all the ends of the boarding were chamfered. Mr Burn, an engineer called for the plaintiff, said that some photographs showed that they were not. He had not seen the boarding prior to its removal, and could go only on the photographs. Neither the plaintiff nor her husband gave evidence that the boarding was or was not chamfered, and the only person who gave direct evidence on that matter was Mr Calabro, one of the first defendants. The judge said that he would not draw "any engineering conclusions as to angle of chamfer, presence or absence of chamfer, and/or extent of chamfer" from the photographs and did not regard them as reliable sources for drawing any "any such inferences". He said - "I accept the evidence of Mr Calabro which he gave about the way in which the platform was constructed. He was present and assisted in its construction. His evidence was that to his recollection all of the edges were chamfered to approximately 45 degrees and nothing subsequently happened to the structure to alter that situation. I regarded Mr Calabro as a careful, reliable and accurate witness, and I accept what he said." 5 This, however, was not the reason why there were the verdicts and judgments for the defendants. There was also an issue at the trial over the lighting at the scene. The evidence of the plaintiff and her husband was varied, although the plaintiff's husband did accept that he could see where he was going and that he and the plaintiff could see what was in front of them. The judge said, and this involved his determination of the proceedings in favour of the defendants - "The photographs show trees along the median strip, and it was suggested the trees obscured such street lighting as was available. Mr Calabro gave evidence that the streetlight was sufficient to illuminate his driveway, and in particular his platform. I preferred the evidence of Mr Calabro on the issue of street lighting and accordingly I find that the street lighting sufficiently illuminated the wooden platform to any pedestrian keeping a proper lookout as he or she proceeded along the pavement or footpath outside number 73 Wellbank Street. I find on the available evidence that had the Plaintiff been keeping a proper lookout, the wooden platform would have been readily visible to her and she would not have tripped over it. Whether by reason of the speed at which she was walking, which I find was in excess of normal walking pace, or whether she was not keeping a proper lookout, for whichever reason she failed to see that which she ought to have seen. I am not satisfied by any of the evidence, that the structure, namely the wooden platform, was per se a hazard or problem for a pedestrian. In those circumstances the Plaintiff has failed to satisfy me that a any of the Defendants were at fault in relation to the presence of the wooden platform on the pavement or footpath outside 73 Wellbank Street Concord, and accordingly her claim fails." 6 It was submitted that the judge had failed to take into consideration all matters relevant to the plaintiff's case. The matters identified were parts of Mr Burn's report in which he referred to planks changing to a grayish colour which under poor lighting conditions could cause them to blend into the concrete paving and increase the difficulty of pedestrians identifying their presence, and some cross-examination of Mr Calabro which it was suggested showed that his evidence that all the edges that were chamfered was not as firm, and his evidence as to sufficiency of illumination was not as clear cut, as it may be thought the judge took it to have been. 7 In the course of submissions it was acknowledged, I think correctly, that notwithstanding these parts of the report of Mr Burn and the cross-examination it was open to the judge to have come to the conclusions to which he came as to chamfering and illumination. Even if that was not acknowledged, in my opinion it was well open to the judge to have come to those conclusions, and also to have come to his ultimate conclusion notwithstanding any weathering effect on the boarding that it would have been less readily visible to the plaintiff. I do not think that a proper reading of the cross-examination of Mr Calabro casts any significant doubt upon the essence of his evidence, which was that the boards were chamfered and there was illumination at night from a street lamp outside 75 Wellbank Street, and Mr Calabro also gave fairly direct evidence that the boarding was visible at night. It was submitted that Mr Calabro knew of the existence of the boarding and so could more readily have seen what he knew of and expected to see. That was put to him, but he maintained his evidence. I do not think that the judge's findings of fact in the respects challenged can be assailed by reason of the matters which it was said he had failed to take into consideration. 8 In this respect the appellant's submission really came down to absence of reasons (although there was no such ground of appeal). It was said that even if the judge had been entitled to come to the conclusions to which he came, it was necessary for him to have referred to (for example) the parts of the report of Mr Burn, or the cross-examination of Mr Calabro in which he was caused to describe in more detail how the illumination of the boarding came about, and having done so to have made clear that notwithstanding whatever assistance there may have been thought to be to the plaintiff's case the judge nonetheless came to the conclusions he expressed. 9 I do not agree. The judge's obligation to give reasons was satisfied by his making his findings of fact, firmly founded upon acceptance of evidence of Mr Calabro. It was not incumbent upon him to canvass every piece of evidence for and against his findings, and to go in the detail required by the submission to the matters to which we were taken. Quite the contrary. The authorities say that it is not necessary for a judge to go into that kind of detail. 10 The key to the outcome of the proceedings was the judge's finding that the street lighting sufficiently illuminated the boarding, such that it would have been readily visible to any pedestrian keeping a proper lookout. It was sought to outflank this finding by the submission that the case against the first and second defendants was not governed by the principles to be found in Ghantous v Hawkesbury City Council (2001) 206 CLR 512 so far as those principles referred to pedestrians keeping a proper lookout and taking care for their own safety. It was submitted that what were called "the ordinary rules of negligence" applied, that the ordinary rules were not to be formulated in terms of pedestrians exercising reasonable care for their own safety, and that according to the calculus in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 it was sufficient that in the present case there was a foreseeable risk of injury created by the first and second defendants which could readily enough have been averted by chamfering (if in fact there had not been adequate chamfering), or other methods such as laying a bitumen substance as a ramp at the edge of the boarding, providing a warning sign, or painting the edge of the boarding to improve its visibility. 11 Brodie v Singleton Shire Council (2001) 206 CLR 512 and Ghantous v Hawkesbury City Council did away with the non-feasance rule which had placed highway authorities in a special position. They brought the liability of highway authorities as such within mainstream principles of negligence. I do not think that there is any reason to distinguish in approach between the third defendant, which in any event on the facts of the present case may not have been in the position of a highway authority under the law as it was prior to Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council, and the other defendants. For all of them their duty of care and the discharge of their duty of care were to be found and assessed on the basis of pedestrians exercising reasonable care for their own safety. As was said at 525; [6] by Gleeson CJ, referring to the abolition in England of the common law immunity of highway authorities and the consequent position whereby pedestrians could more easily succeed against authorities responsible for maintaining and repairing roads and footpaths - "Even so, when general principles of negligence, unqualified by any rule of immunity, were applied, the courts insisted that an injured plaintiff had to show that the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land." 12 In the joint judgment of Gaudron, McHugh and Gummow JJ in the same cases at 581; [163] it was pointed out that 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. It was added that some allowance must be made for inadvertence, but that clearly meant what their Honours then referred to, that certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger or the surrounding area such that there might be a foreseeable risk of harm even to persons taking reasonable care for their own safety. 13 I do not see any reason why the judge should not have approached the decision of the proceedings on the basis that the plaintiff was to be seen as a pedestrian exercising reasonable care for her own safety. 14 In my opinion the appeal should be dismissed with costs. 15 TOBIAS JA: I agree. 16 CRIPPS AJA: I agree. 17 GILES JA: That will be the order of the court. **********

Folkes v Calabaro & Ors

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