GEORGOPOULOS v TELSTRA CORPORATION LTD

HELD: per Mason P (Sheller and Beazley JJA agreeing) refusing leave to appeal:

1. The trial judge did not err in concluding that the claimant had failed to establish unreasonableness on the opponent's part. [25] · The content of the duty includes the taking of reasonable steps to inspect and repair: Ghantous v Hawkesbury City Council (2001) 206 CLR 512 referred. [22] · The burden of proof lies on the plaintiff: Brady v Girvan Bros Pty Ltd (t/a Minto Mall) (1986) 7 NSWLR 241 and Kocis v S E Dickens Pty Ltd [1998] 3 VR 408 referred. [23] · There is insufficient evidence from which to infer that the cover had been in its damaged condition for a considerable period of time prior to the accident. [20] · There is an absence of evidence indicative of an unreasonable system of inspection and maintenance, and/or the breakdown of such a reasonable system. [22] - [24]

2. Accordingly, it is unnecessary to resolve the challenge as to whether the hazard was in the nature of a trap.

ORDERS: Leave to appeal refused and summons dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41245 of 2003 DC 11231 of 2001

MASON P SHELLER JA BEAZLEY JA

Andrew GEORGOPOULOS v TELSTRA CORPORATION LTD JUDGMENT 1 MASON P: The claimant seeks leave to appeal against a verdict for the defendant in the District Court. Damages had previously been assessed at $61,995.00. 2 The claimant fell and was injured while jogging along a footpath in Bridge Street Epping. It was after 10pm. The footpath was generally made of brown pavers that created a wide flat surface. 3 The claimant fell because he stood on the damaged and uneven corner of a concrete cover over a Telstra installation in the footpath. The cover is oblong in shape and one of two similar covers laid end to end that rest within what presents as a single oblong-shaped bed of grey concrete. The installation appears uniform in its (grey) colour and is quite distinct from the surrounding sea of brown pavers. The installation was described in an expert report as a pit with a two-part lid with a central bridging beam providing support for the two pre-cast concrete covers. Photographs indicate that it is generally at the same level as the surrounding footpath, slightly raised but generally within what the claimant's expert described as "reasonable tolerances". 4 The damaged corner lies at the north western corner or far right hand end of the installation as it was approached by the claimant jogger. 5 Photographs taken soon after the accident show that the casing and cover were damaged at the corner of the installation. The corner of the cover is cracked diagonally to a width of about 20mm judging by the a cigarette butts lying within it. The triangular corner portion was not however detached or loosened. The neck or band of concrete casing immediately surrounding the concrete cover appears to have been knocked away for about one brick-width in length proceeding each way from the right angled corner of the cover. 6 There is no evidence as to the cause or duration of the damage revealed in the photographs. The expert's report as to its dimension states equivocally: The tripping hazard measures approximately 15 mm.

The trial judge interpreted this as a measurement of the "lifting" of the fractured cover, and I take this to be a reference to the depth of the hole formed at the most substantial part of the damage, ie around the casing and the right angled corner of the damaged concrete cover. 7 There is a light pole whose base was about two metres from where the claimant fell. The light that it supported was over the street and not the footpath, but it provided some illumination of the footpath. The claimant described visibility as "poor", a proposition effectively embraced by the opponent. The opponent points out (correctly) that the obviously limited visibility was relevant to the care that persons such as the claimant would be expected to have exercised for their own safety, which in turn is relevant to the reasonableness of the opponent's response to the risk that the damaged installation presented to night-time joggers. 8 The only witness at trial was the claimant. In addition, a report from consulting engineers, HL Burn & Associates, was tendered. Some of the views expressed in that report are clearly beyond the demonstrated expertise of the witness or are otherwise unsupported by necessary primary evidence. 9 The claimant was questioned extensively as to where he was looking prior to the fall. He did not see the damaged portion of the installation that was found to have caused his fall. He readily admitted that he was looking some distance ahead as he jogged, asserting (most credibly) that it would have been unnatural and dangerous to have run with his eyes looking down at his feet. 10 His evidence as to whether he actually saw what was described as the "manhole pit" was somewhat equivocal (cf Tr pp9.15, 12.22, 13.12). To my mind nothing turns on this. What is clear is that the installation as a whole was quite obvious since it presented as a grey oblong set in a sea of brown pavers. It was equally clear that the claimant did not see the damaged section at what was to him the far right hand extremity of the Telstra installation. The leading edge of the 15mm "lifting of the fractured cover" faced away from him as he ran. Its fairly small dimension would only have been visible to him as he ran onto the damaged section if he had had his eyes glued downwards, pointing towards his feet. That would have been quite unreasonable given that he was jogging, not putting at golf. 11 Some reference was made to provisions of the Telecommunications Act 1997 (Cth) prescribing Telstra's power to install and maintain the installation and its obligation to take all reasonable steps to act in accordance with good engineering practice, protecting the safety of persons and property (Schedule 3, Pt 1, Div 5, Cl 10). But, as pointed out by the learned trial judge, Certoma ADCJ, these statutory requirements did not substantially add to the content of the duty of care owed by authorities having powers in the nature of those conferred by the Local Government Act 1993 (NSW). It was common ground that the opponent owed a duty of care whose content was to be ascertained by reference to Ghantous v Hawkesbury City Council (2001) 206 CLR 512 and the case law following that decision. 12 In this Court there was debate as to the opponent's responsibility for the state of lighting. Some of the judge's reasons suggest that a case was run below (and rejected) that the opponent bore direct responsibility for any lighting inadequacies. In my view this is a sterile issue. Assuming that street lighting was not Telstra's statutory concern, the state of lighting in the particular area was part of the backdrop against which the opponent's conduct referable to this particular hazard was to be judged as to its reasonableness. 13 On my reading of the judgment, the claimant failed for two distinct reasons. 14 First, the hazard was not in the nature of a "trap" or a danger "of a kind calling for some protection or warning" (cf Ghantous at 581 [163]). The primary judge described the hazard as "obvious" and "a typical imperfection found in daily life". 15 Some of his Honour's reasoning (at pp7, 8 of the judgment) has been criticised because of inappropriate emphasis upon the cause of the accident being the claimant's failure to look "immediately in front of him" and because of reference to the claimant's failure to exercise reasonable care for his own safety in all of the circumstances. The claimant is correct to point out that the opponent's duty of care is not necessarily discharged by the presence of these circumstances (see generally Ghantous at 580[160], 581[163]). 16 This said, the conclusion that there was no danger in the nature of a "trap" or "of a kind calling for some protection or warning" stands independently of these remarks suggestive of the claimant's lack of care for his own safety. His Honour said (at p8): The plaintiff sought to derive some comfort from the observation referred to earlier in [ Ghantous at 581[163]] that some dangers may not readily be perceived because of inadequate lighting but the risk of inadequate lighting at night is ordinary and the danger obvious. There were no factors additional to the ordinary cover of night to make the lighting inadequate. 17 In my view, the question whether the particular hazard was in the nature of a "trap" or otherwise called forth a reasonable regime of corrective maintenance is fairly evenly balanced. The situation presented to a night jogger exercising reasonable care for his safety was one in which the grey Telstra installation appeared to be in sound condition and reasonably uniform in its flatness of surface. In fact it was neither, and the sudden and uneven drop presented by the damaged corner of the installation was arguably so unexpected that the bodies charged with its maintenance ought reasonably to have done something about it the damaged corner. There was evidence from the claimant as to the "deceiving" nature of the defect (Tr pp6.40, 14.21). It is one thing to acknowledge, as this claimant did in his evidence (see Tr p12), that pedestrians do not expect and are not entitled to expect perfectly level walking surfaces. It is arguably another thing to say that the relevant statutory authorities can reasonably choose to do nothing at all about this type of possibly unusual and unexpected irregularity. Arguably this situation is distinguishable from the commonly encountered height differentials that occur between slabs of concrete footpath or are caused by the activities of tree roots and/or subsidence. The photographs suggest that the damage to this particular cover was more than the product of ordinary wear and tear. 18 In my view it becomes unnecessary to resolve the challenge to the first broad ground of the primary judge's reasons. 19 Judge Certoma dismissed the claim for an independent second reason expressed as follows: The evidence, including the report of Mr Burn, discloses insufficient facts to determine the reasonableness or otherwise of the failure to inspect and ascertain the damage to the pit cover by Telstra. It may be assumed as a matter of common knowledge that there are innumerable pits in the authority's jurisdiction. It may be that it is unreasonable and difficult for the authority to inspect such utilities frequently. There was no evidence of how long the cover was damaged or whether it was the subject of any complaints. There are therefore insufficient facts to determine the reasonableness or otherwise of Telstra's failure to inspect and ascertain the damage to the pit cover which caused the injury to the plaintiff. For this reason also the proceedings would fail. 20 The claimant assailed this reasoning by inviting the Court to infer that the Telstra installation would have been in its damaged condition for a considerable time before the accident. In my view that would be to prefer speculation for inference. I have not overlooked the claimant's evidence describing the condition of the Telstra grate as (Tr p4) "fairly old, it was years old, it was all dirty and there was just a piece of it missing out of the corner …". The photographs taken shortly after the accident that went into evidence on the basis that they represented the state of the installation at the time of the accident do not take the matter any further. The whole installation is of a mottled grey appearance that suggests something other than the first flush of youth. A reasonable inference may be that it was laid at the same time as the surrounding pavers, which appear to be newish, although this may possibly be because they have been cleaned. The problem for the claimant is that there is no way to determine the age of the damage to the corner. 21 Sometimes in cases of this nature one encounters evidence of earlier complaint or at least observation of a long standing hazard. Here there was no such evidence. This may simply be the claimant's misfortune, but the law places the onus of proof on his shoulders. There was no attempt to adduce expert evidence about the age of the damaged portion of the installation. Mr Burn's general comments were silent on this issue, yet he is a consulting engineer who might perhaps be expected to have inspected the damage more closely than he did or to have had access to technical information that could have assisted in determining the cause and age of the damage. 22 The second difficulty for the claimant is the absence of any evidence indicative of an unreasonable system of inspection and maintenance and/or the breakdown of a reasonable such system. It is clear that the content of the relevant duty includes the taking of reasonable steps to inspect and repair (Ghantous at 577[150], 579-81[158]-[162]). The claimant could have garnered information about the opponent's system through the processes of discovery, interrogatories or subpoena. The barest of evidence could have been most potent in a trial like this where the defendant chose not to go into evidence. Of course, had the claimant led any such evidence, the defendant itself might have taken a different stance at trial. 23 This difficulty feeds into a further problem for the claimant, one of causation. To succeed, he must establish the probability that lack of a reasonable maintenance regime caused the injury. If the damage occurred shortly before the claimant's fall then the claimant would fail unless he could show that a reasonable inspection system would probably have detected and rectified the damage before the particular accident occurred. Each case must be decided on its own facts, but there is helpful discussion of the principles involved, including affirmation that the burden of proof lies upon the plaintiff in Brady v Girvan Bros Pty Ltd (t/a Minto Mall) (1986) 7 NSWLR 241 and Kocis v S E Dickens Pty Ltd [1998] 3 VR 408. 24 Here there was simply an absence of evidence upon which to infer that the accident was probably caused by some unreasonably deficient system of inspection and maintenance or the breakdown of a reasonable system. 25 Judge Certoma was not persuaded that the claimant had established unreasonableness on the opponent's part as regards any failure to inspect or ascertain the damage to the pit cover which caused the accident. I am unpersuaded that his Honour erred in this conclusion. 26 Accordingly I would refuse leave to appeal and dismiss the summons with costs. 27 SHELLER JA: I agree with Mason P. 28 BEAZLEY JA: I agree with Mason P. **********

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