Greater Shepparton City Council v Davis [2004] VSCA 140

Greater Shepparton City Council v Davis [2004] VSCA 140 - VSCA 2004 case summary — Zoe

[66]

12 There was detailed evidence before the judge, in oral and documentary form, from Mr. Sidebottom, the appellant's "manager of operations" about the steps which had been taken by the appellant to identify and remedy (inter alia) defects in the footpaths in the municipality following the "Shire amalgamations" which had been set in train throughout the State in November 1994. The Greater City of Shepparton had, in that month, been formed by the amalgamation of three former municipalities including the former City of Shepparton. Following amalgamation the new Council had an area of some 24,000 square kilometres to administer which included a footpath network of some 484,000 square metres. Mr. Sidebottom described the appellant's budgetary arrangements for the allocation of funds for inspections, maintenance and repairs to (inter alia) footpaths, kerbs and channels in the municipal district, and the systems employed for rating problem areas and prioritising repairs. In the years between 1995 and 2000, there had been three inspections of the footpath network in the municipal district; the first in 1996 which was an inspection by vehicle; the next in March 1998 by officers on foot; and the third beginning in July 2000, when the inspection was again carried out on foot and, following which, the Council had introduced a "mapping system" across the municipality. The municipality was arbitrarily divided into a series of "zones" of similar size, each of which was given a number. The defects in the footpaths, observed in each zone, were recorded by 2000, and were given a "rating" from 1 to 4, in descending order of perceived gravity. Although the records of the 1996 and 1998 inspections were no longer available at the date of trial, Sidebottom believed that the defect outside No.9 Ross Street would have been identified at the 1998 inspection. That defect was recorded, by the year 2000, as being in Zone 44 and was given a "rating 1" classification (which meant that the defect was 20mm (3/4") in depth or greater).

[128]

37 Although many of his Honour's findings and conclusions are cryptic, in the sense that they are not explained by specific reference to the evidence upon which they are founded, it is tolerably clear that his conclusion that a duty of care was here owed to the respondent was influenced by the fact that the respondent was walking "across" the footpath as distinct from walking along it. But that fact, in itself, cannot alter the formulation of the duty owed; nor the expectation that the ordinary pedestrian using the footpath in that way is to take care for his or her own safety by looking where he or she is going and perceiving and avoiding obvious hazards. Pedestrians use footpaths in all manner of ways. They walk along them; they walk across them either at right angles or diagonally, when they alight from cars to enter premises; or when leaving premises to enter cars; or to walk across the road; when they leave commercial or shop premises to carry purchased items to cars on the other side of the footpath. In Mooroopna, it can be assumed that many or most of the hundreds of thousands of square metres of footpaths which exist in the residential area align the curtilages of houses fronting the streets; into and out of which pedestrians will habitually enter and leave at all hours of the day and night. What is to be expected of the ordinary user, in the formulation of a Council's duty, is that, being mindful of the fact that pavements are not always smooth, he or she will use such vigilance on account of his or her own safety as the circumstances of his or her use will warrant. In my opinion, the fact that the ordinary pedestrian is emerging from premises to cross a footpath to a car at the verge of the road, as distinct from "walking along" that footpath, cannot eliminate that critical component of the duty; nor can it convert the defect from an obvious one into one which is "in the nature of a trap" or "real danger". If that was the view being taken by his Honour in paragraph 37 of his reasons (as it seems to me that it was), I cannot agree with it. The defect in this case - as is apparent from the photographs tendered to the trial court - was an obvious defect of a type commonly found in pavements which ordinary pedestrians would be expected to observe whether walking along the path, or coming from adjoining premises to cross it in order to get to the roadway. The obviousness of the danger was accentuated by the fact that the use being made of the footpath in the instant case was occurring in broad daylight.

[138]

41 These findings are clearly inferences which his Honour has drawn from the evidence to which I have referred earlier in these reasons. It is again apparent, however, that they flow from the view which his Honour clearly held; that the manner of use of the footpath being made by the respondent was a manner of use which would make this defect dangerous to a person using the path in that way. This is a view which I cannot share. The respondent's evidence was that she had stopped at the gate to talk briefly to her aunt before venturing out on to the footpath. She said that she then turned to look to her front in the direction of the car which was parked at the kerb. She took two steps and walked into the defect. It appears to have been his Honour's view, because he acquitted her of not taking reasonable care for her own safety and of not "looking where she was going", that ordinary users of a footpath who emerge from a gate in adjoining premises to walk across it to their cars, are acting reasonably if they fail to examine the surface of the footpath onto which they are emerging, and lift their gaze to the point of destination. Such conduct, in his Honour's view, was - for the relevant purpose - consistent with the respondent "looking where she was going", notwithstanding that the defect would have been obvious to any ordinary user of the footway, whether walking along it or across it. It is this reasoning which I cannot accept. If it is correct, it means - as I have already adverted to - that the defect is, at one and the same time, an obvious danger which should be avoided by the ordinary pedestrian, or a "hidden trap" or "real danger", depending upon the manner of use being made of the footpath by the ordinary pedestrian. In my view, when the authorities speak about a defect which the ordinary pedestrian should be able to perceive and avoid, they are talking about a defect which is there to be seen whether the pedestrian is emerging onto the footpath from adjoining premises or walking along the footpath. Such pedestrians cannot expect the pavement to be smooth and the ordinary pedestrian is expected to watch where he or she is going whatever use is being made by him or her of the footpath. That is why I cannot accept his Honour's findings that the respondent was looking where she was going and that the defect "was not such a defect as could be expected to be seen by her in her circumstances ...". (His Honour's emphasis). His Honour does not appear to have directly resolved the issue which arose on the evidence as to whether the brief conversation, which the respondent had with her aunt before setting off across the footpath, had impacted upon her concentration, although the findings which he made would infer that he had concluded that it had not. It is, however, implicit in his Honour's reasoning that an ordinary user of the footpath in the plaintiff's position is not obliged to look at the surface of that footpath before stepping onto it en route to a car parked at the kerb. It is that reasoning which I cannot accept. There is no doubt that the aunt who was standing at the gate could see the impending problem. Her exhortation of "watch out" does not appear to me to be one consistent only with her familiarity with the defect, but rather with a recognition that the respondent was not looking where she was going.

At a glance

Court

Decision date

Before

Source

Judgment (160 paragraphs)

Parties

Legislation Cited (4)