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) No. SC 1000 of 1999

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: EILEEN JOAN GARVAN

Appellant

AND: AUSTRALIAN CAPITAL TERRITORY

Respondent

Judges: Higgins CJ, Crispin P, and Gray J

Date: 27 February 2003

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a decision of the Master handed down on 26 July 2002 dismissing a claim by the appellant as plaintiff for damages for personal injury sought against the respondent as defendant.

2. The appellant’s claim arose out of a fall she suffered in the Garema Place pedestrian precinct in the Canberra City area on 12 June 1996. The fall occurred, the Master found, when the appellant, walking with a friend, tripped on a raised piece of concrete set in the paved pedestrian area. It was described as being circular, 25 to 30 centimetres in diameter, and two centimetres above the general level of the paving. There was a cut-off metal pipe set in the centre of it, standing, approximately, a further two centimetres above the concrete.

3. As the appellant described it: “We were walking along and at that time they had removed most of the bollards to allow the trucks for the building of the Garema Building, I think it’s called. And it was pretty rough round about there, and I mustn’t have been watching my feet, I suppose, and I tripped on the- this remains of what I was told was a bollard, which was a round of concrete, I suppose like a very much flattened down donut that held down the hammered out iron pole which had obviously supported some structure.”

4. Photographs taken a few weeks after the event showed that the concrete had been removed and the pipe cut off or hammered down to ground level.

5. Officers of the Department of Urban Services said that there had been no prior complaint received in relation to the relevant area of any hazard represented by the concrete base. They could not positively confirm that it had supported a bollard. They did not know who removed either the original structure or the residual base.

6. It was submitted to the Master that the evidence did not admit of any conclusion as to who had placed the structure in the pedestrian mall.

7. The Master referred to Waverly Municipal Council v Wagner [2002] NSWCA 10. He endorsed and applied a proposition enunciated by Powell JA in Lake Macquarie City Council v Bottomley (1999) 103 LGERA 77: “If the evidence which is tendered to a court does not disclose when, or by whom, or by which, the relevant work was carried out, the plaintiff’s claim must, without more, fail for want of proof.”

8. It is plain that the Master considered that the evidence did not show that the respondent was responsible for the placement and removal of the structure. However, unlike the factual situation in Waverley Municipal Council v Wagner where the only evidence was that the Council was the road authority, the evidence in this case does permit inferences to be drawn as to the responsibility of the respondent.

9. The Master then considered Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512 (“Brodie” or “Ghantous”) commenting, at [9], that: “On the law as it stood before the High Court decision in [Brodie] a plaintiff may well have been able to recover where they tripped over an irregularity in a pedestrian area, at least where it was a heavily trafficked area, by establishing that the local authority had an obligation to take reasonable steps to inspect the pedestrian area and repair such defects.”

10. Mr Pilkinton, for the respondent, had invited the Master to conclude that the following passages from Australian Capital Territory v Badcock [2000] FCA 142; (2000) 169 ALR 585 (“Badcock”) “no longer represents the law”.

11. Those passages were, per Einfeld J at 593: “A person walking on what is obviously a pedestrian area, designed, installed or permitted to be used for that purpose, need not be permanently on the lookout for hazards on a step by step basis …A variation in the height of the pavers in an area such as existed here created an edge which is more hazardous than undulation or uneven surfaces in a nature reserve.”

12. And at 595: “While people walking in public areas must take general care for their own safety, they cannot be required to assess, as they proceed, which particular paver irregularity may cause them injury and which probably will not. In public areas they are entitled to rely on the areas’ custodians to remedy or otherwise protect them from all recognisable risks of injury.”

13. Those passages affirmed the duty incumbent on a local authority.

14. Before the Master the respondent accepted the existence of that duty but argued that there had been no breach by it of that duty in not removing the obstruction upon which the plaintiff tripped in the paved area.

15. The judgments in Brodie supported the following propositions (per Gaudron, McHugh and Gummow JJ Brodie at 581 [163], citing Callinan J): “…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.”

16. And, per Kirby J at 605 [244]: “Mrs Ghantous did not establish that the original construction of the footpath was negligent; that its design or state at the time of the accident was in any way inappropriate or a cause of her accident or that the respondent’s exercise of its planning powers was defective.”

17. The Master commented, “the same could be said in this matter”.

18. Kirby J continued at 605-6 [245]: “A body such as the Council has little effective control over the use by pedestrians of a footpath and its surrounds, once created. Such structures do not have an infinite lifespan. They are subject to deterioration by reason of the weather, or ordinary traffic use, of subterranean changes, of public utilities that lawfully disturb them and other persons who unlawfully do so. The rate of deterioration will vary. Necessarily it is unpredictable and largely out of the control of a body such as the respondent.”

19. We would observe that these passages are directed to two issues. First, whether the want of perfection in the walking surface is such as to pose a hazard to a pedestrian exercising reasonable care. Second, whether, if it does, the relevant public authority has in fact sufficient knowledge of and notice of the hazard in time to remove it before a person suffers injury.

20. The Master considered that the remarks of Einfeld J in Badcock (supra) were inconsistent with the remarks cited from Brodie (supra), though he conceded that Badcock could stand as correctly decided by reason of the fact that the Department of Urban Services had received repeated complaints concerning the uneven paving in the relevant area and the fact that the irregularities did constitute a hazard, as Einfeld J pointed out, even to pedestrians exercising reasonable care for their own safety.

21. The Master was not satisfied that the respondent had been aware of the hazard in this case. As he put it at [18]: “It can not (sic) be said that a public authority in such circumstances acts unreasonably merely because it is not aware of a 2 centimetre irregularity at one point in the network of paths, even if that point is in a highly trafficked area.”

22. He also stated, at [19]: “It seems to me that Mrs Garvan, like Mrs Ghantous, had the misfortune to accidentally trip on an irregularity in the paving area that was clearly visible.”

23. However, this is not a case where there was an irregularity in the paved area that might be expected. Rather, it was by all accounts an evenly paved area which had the remains of a cement structure upon it. That is clear from the plaintiff’s description as well as that given by Mrs Cox who was with her when the accident occurred. Although Mrs Cox said that the plaintiff tripped “on the pavings” she was asked what the plaintiff tripped on and she answered, “There was a lot of paving around and there was a higher bit in the middle with a metal piece in it. And she tripped on the cement part around the metal.”

24. It should be observed that the existence of such an obstruction in a heavily trafficked area traversed by pedestrians is potentially a trap for them. Further, there was no evidence as to how obvious it was to an approaching pedestrian that the obstruction existed. The plaintiff did not see it and it appears, neither did her friend. The photographs do not assist in that respect as the obstruction had been removed. But the photographs do otherwise indicate the evenness of the paved area. In these circumstances the existence of the cement addition was not necessarily expected or obvious. The real question to be addressed was who created or authorised the creation of what can be fairly described as a pedestrian hazard. SUBMISSIONS

25. The contentions of counsel divided over the question whether the respondent could be regarded as responsible for the hazard that had been created.

26. It was common ground that the respondent could be held responsible only because, if the hazard was created accidentally, adventitiously or as an act of malice by an unknown person or agency, the respondent had negligently failed to notice and remedy the hazard or, of course, if it authorised or carried out the removal and failed to ensure it was done appropriately. THE EVIDENCE

27. The fundamental question raised is whether the Master was correct in concluding that the respondent had no responsibility for the presence of the concrete base in the area of Garema Place. It was submitted by the respondent that it had not authorised the removal of any bollard or similar structure in the area.

28. That contention was based on the evidence of Mr Lorenz Mercieca. He was, in June of l996, Manager of Operations for the Department of Urban Services. He agreed that the area where the remains of the pipe were to be seen was adjacent to a building development. Indeed the adjacent building site and fencing is clearly visible in the tendered photographs. He checked “the file”. He suspected that there may have been some structure removed to enable the builders to access the site. He said at AB 72: “…I wanted to check the file to see whether there was any approvals given that would indicate that heavy vehicles were, you know, using that access and maybe there was a possibility that one of these things may have been knocked by a vehicle or something like that.”

29. He found no information on the file.

30. This evidence was led to found an argument by the respondent that it had no knowledge of this hazard before the appellant’s fall and, in effect, no reasonable opportunity to become aware of it before the appellant’s own complaint following her fall. This contention does not address the issue of the respondent’s responsibility in respect of the partial removal of the structure that had been there.

31. Mr Mercieca had inspected the area with a Mr Neil King following that complaint, who took photographs of the relevant location. The pipe had been, as Mrs Garvan attested, by then flattened down to pavement level though it seems they may not at first have inspected the precise point where the concrete had been.

32. The bollards in the area had delineated purely pedestrian areas from a vehicle access way to the building then under construction. Indeed, it appeared that, on the side nearest the building site, a whole row of bollards had been removed and the pipes that had supported them cut off flush with the surrounding pavers or concrete kerbing. The kerbing was also flush with the paving. Whether those additional bollards had been removed before or after Mrs Garvan’s fall is not able to be determined on the evidence. Nor is it clear whether any other removal of a bollard had left a raised base behind.

33. Nevertheless, it is clear that the bollards were removed deliberately and, obviously, for the legitimate purpose of providing access to the nearby building site. To have left a two centimetre raised concrete base, particularly with a further two centimetre pipe was to create an unacceptable hazard in a public and well-trafficked walkway.

34. Who then was responsible?

35. Mr King was a Technical Officer, Roads and Bridges Management, with the ACT Department of Urban Services.

36. Having inspected the area with Mr Mercieca he wrote a memo which stated (19 November 1996): “As previously reported in condition report of 25 September, the structures that were on the pipes have been removed by unknown persons or authorities. We have investigated the reason for the pipe and concrete slab, but have been unable to find what the structure may have been.”

37. However, the only enquiry that had occurred to Mr Mercieca, according to Mr King, was to ask the “Maintenance Authority” for information.

38. Mr Mercieca, in addition to giving oral evidence, had also answered interrogatories on behalf of the defendant. Interrogatory 3 (and answers) was as follows: “3. During 1996, and prior to 12 June 1996, had there been a line of ‘bollards’ in the general area described in the Statement of Claim in Canberra City, and if so: 3.1 Had they been removed; 3.2 What had been their purpose; 3.3 Had the defendant put them in place; 3.4 As at 12 June 1996, describe any remnant of them in the area in which the plaintiff alleges that she fell. Answer 3 3. Yes 3.1 … unable to answer … 3.2 To delineate access to the rear of the then BMI building. 3.3 Yes. 3.4 … unable to answer …”

39. Thus, whilst neither Mr Mercieca nor Mr King had any positive information as to who removed the relevant bollard, they were able to conclude that bollards had been removed. Given the adjacent building site it was apparent that they had been removed to facilitate access to the building site.

40. It was conceded that lawful removal of the bollards would have required the permission of an appropriate Territory officer. Officers supervising construction works (known as “building inspectors” or “certifiers”) are appointed and empowered under the Building Act 1972 (ACT) and the regulations made thereunder to approve and supervise such works including removal of bollards to permit access to a building site.

41. There was no evidence that Mr Merceica or Mr King had made enquiries of the Building Section of their department. In any event, it may be that oral approval was given by a building inspector supervising the construction in question.

42. There were only two reasonable hypotheses in our view. First, that the builders had, without permission, removed and damaged public infrastructure to facilitate access to the building site. The second is that they obtained permission to do so from a relevant supervising officer or requested the latter to arrange for the Territory to do so.

43. It should not be assumed that the builders would have acted unlawfully as the first hypothesis suggests. It is, therefore, more probable that the builders had the bollards removed either by or, at least, with the approval of a building inspector.

44. In that case, as public safety was involved, it is a reasonable conclusion that the relevant supervising officer or officers should have specified the mode of removal and inspected the result to ensure public safety.

45. It follows that, contrary to the Master’s apparent conclusion that the respondent was not responsible for the placement or removal of the structure, it was open to him to find that the respondent had been responsible for the removal of the bollards in question and had failed to ensure that a tripping hazard had not been left in a public place.

46. If he had so found, he would, of course, have needed to consider whether the appellant had been guilty of any and, if so, what degree of contributory negligence. Whilst none was found in Badcock, each case turns on its own facts and, to a degree, on the assessment of the relevant witnesses by the tribunal of fact.

47. We acknowledge that, after the hearing concluded, on 8 November 2002, the respondent’s solicitor forwarded three authorities for consideration. Each had been handed down on 4 November 2002 and each was a decision of the New South Wales Court of Appeal.

48. The first, RTA v McGuinness [2002] NSWCA 210 (4 November 2002), involved a trip on the upstanding corner (13 mm above surrounding pavement) of a manhole cover. However, the plaintiff also had a physical disability which made her leg “heavy”.

49. In that case Handley JA noted that the trial judge had concluded that the RTA was well aware of the state of the manhole cover and that it was an obvious risk to members of the public. Hence the RTA was liable. The duty of the RTA, as stated by the trial judge, was “to ensure that this manhole … did not become dangerous.” That, in the opinion of Handley JA, significantly overstated the duty.

50. It was pointed out that it had not been proved that the RTA had actual knowledge of the upstanding corner. Thus it was erroneous to have concluded that the RTA had or ought to have had knowledge of the hazard. Further, there was no evidence as to when the corner came to be upstanding. It had not been constructed so. Had it been in that state for a significant time frame, his Honour observed, many more persons would have fallen over it.

51. Even so, his Honour concluded, at [26]: “… A vertical face of about ½" or 13mm where a manhole cover abuts the bitumen surface is not an unexpected or unusual danger to a pedestrian in the Sydney metropolitan area who is taking reasonable care and keeping a proper lookout.”

52. His Honour contrasted that situation, of “obvious hazards”, with that in Parramatta City Council v Watkins [2001] NSWCA 364 (now reported (2001) 35 MVR 102) where the plaintiff stumbled over a drop from a manhole cover, flush with the bitumen on the kerb side but 50 mm below with a steep drop on the other side. There was a partial concealment of that drop both by reason of parked vehicles and, perhaps, (our interpolation) the presentation to a pedestrian approaching from the direction the plaintiff took. The Court of Appeal supported a verdict for the plaintiff in that case. It did so also in the case of Hawkesbury City Council v Ryan [2001] NSWCA 212 (5 July 2001). The plaintiff tripped on a stone kerb laid 22 mm higher than the paved footpath whilst attempting to step over it into the gutter. That discrepancy was a result, the Court considered, of faulty workmanship in laying the footpath. The work done by the defendant had created the “trip hazard”. It may be said that this latter case has some similarity to the case under appeal here.

53. In Lombardi v Holroyd City Council [2002] NSWCA 252 (1 August 2002), by contrast, the pedestrian failed. As Handley JA explained, (in RTA v McGuinness at [37]), that decision: “This Court upheld the decision of Patten DCJ who found that the difference in height [one slab 25 mm above another] was plainly visible and could not be categorised as a concealed hazard. Hodgson JA, who delivered the principal judgment in this Court, said (para 32): ‘that a plainly visible step of 25 mm in a footpath is [not] correctly regarded as high risk or unacceptable risk’.”

54. His Honour then concluded (in RTA v McGuinness at [38]): “In my judgment the Authority was not liable to this plaintiff for her fall and its consequences. The upstanding corner was obvious. It was not in the nature of a trap and the modest difference in height did not make the footpath unsafe for a person taking ordinary care. There was no evidence that the Authority knew or ought to have known of the upstanding corner. Even if the Authority did become aware of the difference in height, it would not have been obliged to take any action.”

55. Foster AJA agreed but pointed out that in Ghantous the High Court had expressly drawn attention to the fact that an allowance must be made for a pedestrian’s inadvertence. However, there was no evidence to support a finding that the RTA knew or ought to have known of the hazard. Mason P simply agreed with Handley JA.

56. The second decision referred by the respondent’s solicitor was Burwood Council v Byrnes [2002] NSWCA 343 (4 November 2002). A 20 mm height difference between two pavers was held not to be a danger to a pedestrian taking reasonable care for his or her own safety.

57. Handley JA (Beazley and Hodgson JJA agreeing) noted that the Council had a reasonable system in place for inspecting footpaths and a budgetary necessity to prioritise their repair. His Honour further noted at [25]: “The accident occurred in broad daylight in fine weather. The plaintiff had a good view of this part of the footpath and there was nothing to prevent her seeing the uneven surface. She was familiar with the area and had walked over or around this damaged section a number of times before … If the plaintiff had been keeping a proper lookout she could have passed in safety ….”

58. The difficulty posed by this formulation is in determining whether it is directed to the extent of the duty to prevent foreseeable injury to an ordinarily vigilant pedestrian, or to its breach by reason of failure to appreciate that the unevenness represented a tripping hazard to pedestrians generally, and/or failure to take reasonable steps to remedy the situation or merely to contributory negligence.

59. If a local authority was knowingly to set up a tripping hazard in a well-trafficked public place, that hazard might be concealed from a person approaching it either by the throng of pedestrians, casting of shadows by trees or buildings or the ordinary distractions of discourse. The latter could also amount to contributory negligence, depending on the circumstances.

60. It is clear that Ms Byrnes failed at the threshold of breach of duty of care. To create or permit, at [26]: “A height differential of 20 mm is not an unexpected or unusual danger to a pedestrian in the Sydney metropolitan area who is taking reasonable care and keeping a proper lookout.” The same proposition was also posed as follows, at [33]:

“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’ [para 29 above]. 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.”

61. That may be contrasted with the factual situation in respect of this case where an obstruction is found in an otherwise even and extensive pedestrian walkway in Garema Place, Civic.

62. The third case that the respondent’s solicitor asked that the Court consider is Richmond Valley Council v Standing [2002] NSWCA 359 (4 November 2002) (“Standing”).

63. The plaintiff suffered injury when her foot caught in a crack in the pavement in the area of a junction between a footpath and a driveway. In that area work had been done to grade the footpath to provide a drive-in over the gutter from the driveway. That caused or led to cracks and pitting of the concrete.

64. Heydon JA (Handley and Sheller JJA concurring) contrasted that environment with that of stairways and concourses, such as those in the underground railway system of the city of Sydney. He stated, at [47]: “Judicial notice may be taken of the fact that those stairways and concourses are extremely smooth and, except where there are steps, level: there are hardly ever any uneven cracks or holes or pebbles or height differentials. What is more, the stairways and concourses are commonly thronged with busy pedestrians moving with speed and determination to and from their places of employment or about their affairs. And the concourses are bordered by shops and advertising hoardings. The effect of the entire arrangement is to permit and encourage pedestrians, subject to not running into other pedestrians, or persons handing out leaflets or free papers, or persons soliciting charitable donations, or prams, or wheelchairs, or the occasional delivery vehicle, and subject to avoiding any slippery patches ahead, to look at the shop windows and the advertising signs to be seen on walls and stair risers.”

65. This passage draws attention to the importance of the environment in which the “tripping hazard” is to be found. The concourse in City Walk (Garema Place) had many similarities to that described by Heydon JA in the above passage. It would certainly not be expected that someone, to gain access to a building site would carelessly leave in the pathway of a pedestrian, liable to the various distractions referred to above, a 2 to 4 cm obstruction for such a hapless pedestrian to stumble across.

66. In contrast to that environment the actual place of the accident in Standing’s case posed no such risk (at [54]): “what was there was obvious and called for no special vigilance”. The unevenness and cracking was neither concealed nor obscured. It was not reasonably foreseeable that a pedestrian with normal faculties exercising due care for her own safety would fail to see and avoid such hazard as the cracked and pitted concrete surface presented.

67. Further, as Hodgson JA in Parramatta City Council v Watkins (supra) at [27] noted, whereas changes in level may be expected at the junction between different surfaces: “…the same may not be true within the paved surface of an apparently well-maintained road, particularly where the change of level is not obvious; and the circumstance that the change of level in this case was in a designated parking area, where it could be partially obscured by a parked car, would add to the risk.”

68. Nor could it be said, in the present case, that the “trip hazard” had been in place for a long time with no evidence of any prior mishap. That was the case in Standing. That consideration supported the inference that the concrete “drive-in” did not, though imperfect, create an unacceptable risk of harm to the ordinary reasonable pedestrian. That is not so in the present case.

69. In the present case there remain unresolved issues. It seems to us clear enough that, if the respondent left, or, being in control of the relevant area, caused or permitted to be left on a pedestrian walkway the obstacle described in evidence then that has created an unacceptable risk of injury to pedestrians proceeding reasonably, even in daylight, given the foreseeable presence of the distractions such as those referred to by Heydon JA in Standing. It follows that whoever left this obstacle in the path of the large numbers of persons using the area, talking together, looking at shops, advertising, the occasional spruiker, had created an unacceptable hazard to some of those persons.

70. It will be noted that the obstacle in question here might well not be a hazard in broad daylight in a deserted or semi-deserted walk way. It might well, subject to shadowing or other factors not be the effective cause of the plaintiff’s fall. It may have been her own failure to keep a proper look-out.

71. In this case, it was at a busy time that the plaintiff fell. She was chatting to a friend. It was open to the Master to have found not only that the defendant was responsible for the presence of the obstacle in City Walk (Garema Place) but also that the plaintiff was one of the specific group for whom it represented an unacceptable hazard.

72. If, in fact, the conditions in City Walk (Garema Place) at the time of her fall were such as to distract her attention from the presence of a hazard she had no prior reason to expect to be there it can be said that the negligence of the defendant caused the plaintiff’s fall and injury.

73. There is also an issue as to whether, even if the defendant had been in breach of its duty to the plaintiff, her inattention had been shown to be in breach of her own duty of care towards herself.

74. In our view the matter must be remitted to the Master to make appropriate further findings of fact.

75. We would uphold the appeal with costs, set aside the verdict for the defendant and remit the matter to the Master for further findings of fact to be made according to law and having regard to these reasons. I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 27 February 2003

Counsel for the Appellant: Mr G Lunney

Solicitor for the Appellant: Higgins Solicitors

Counsel for the Respondent: Mr S Pilkington

Solicitor for the Respondent: ACT Government Solicitor

Date of hearing: 1 November 2002

Date of judgment: 27 February 2003

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