Greater Shepparton City Council v Davis [2004] VSCA 140

1 This appeal by Greater Shepparton City Council (which I shall call "the appellant") challenges a judgment given in the County Court on 25 March 2003 wherein the trial judge ordered damages in favour of Tammy Lee Davis (whom I shall call "the respondent") in respect of injuries suffered by her on 29 November 2000 when she left the premises of her aunt at 9 Ross Street Mooroopna and tripped over a defect in the footpath whilst she was moving to her car which was parked in Ross Street slightly to the south of the gate of the premises whence the respondent had come.

2 The appeal was heard together with another appeal brought by the Boroondara City Council from a further judgment given in the County Court on 30 June 2003, wherein the Council was ordered to pay the respondent, Ellen Cattanach, damages for injuries sustained when she tripped and fell over a defect in the footpath of Gordon Street on 12 December 2000 whilst jogging along the footpath with her two dogs on a leash.

3 Although the issues in the two appeals overlap and involve the application of the principles explained in Brodie & Anor. v. Singleton Shire Council/Ghantous v. Hawkesbury City Council[1], the factual situation in each case was significantly different from the other. Accordingly, we have deemed it desirable to give separate reasons in each notwithstanding that the appeals were argued together and the appellant and the respondent in each of the appeals were represented by the same counsel.

4 The respondent to this appeal was 25 years of age when she tripped and fell, suffering injury, outside her aunt's place in Ross Street. She was at the time pregnant with her second child. She was a qualified hairdresser and had worked as such both in Melbourne and Shepparton. She had also completed courses in "tourism" and "office administration". Following the birth of her first child in 1997 she had worked in Shepparton at the Shepparton Preserving Company. She ceased working in or about May 2000 when she became pregnant with her second child. She had intended to take approximately 12 months off following the birth of that child; but until the time of trial had not returned to work. On the date of the accident - namely 29 November 2000 - the respondent visited her aunt who lives at No.9 Ross Street, which is on the western side of the roadway. It was approximately midday, and the weather was fine. Because the front gates of her aunt's property were closed, she parked in the street, facing north, outside the house, some few metres to the south of the driveway to that property. She had with her her four year old son (Saige); and she and her son walked from the driver's side of the car along the roadway to the driveway of her aunt's property and then up the driveway and through the gate. Although she had visited her aunt on a number of previous occasions, she said that she had always parked in the driveway.

5 The purpose of the visit was to have lunch with her aunt and to cut her aunt's hair. She carried with her from the car her handbag, and another bag, which was about the size of a briefcase, and contained her hairdressing equipment.

6 The respondent left her aunt's house at about 3 p.m., having made an arrangement with her aunt that she would leave Saige behind so that he could play with the aunt's children for a couple of hours when they came home from school. The arrangement was that the aunt would, later in the afternoon, drop off the respondent's child at the respondent's house. She left the aunt's house in the company of her aunt, and they walked down the drive to the front gate which was still closed. She was carrying the same two bags with which she had arrived. Her aunt opened the front gate and she stepped out onto the footpath facing towards her car which was parked at the kerb slightly to her right. In evidence she said:

"I turned my head just to verify that she [i.e. the aunt] was going to bring Saige home and ... I have looked in the direction I was walking, taken a couple of steps and that's when I've tripped."

His Honour: "... You turned to her to speak to her about bringing Sage (sic) home to your place ...?"

Answer: "Yes. Just to confirm that. That's the way I am, I'm very protective of my children."

Counsel: "... So you say you then took a couple of steps?"

Counsel: "In what direction did you take those steps?"

Answer: "I was facing sort of diagonally towards the car so I've turned my head to speak to my aunt, so I would say south-east roughly. In the south direction but more towards the east."

His Honour: "Were you still speaking to your aunt or had you turned back towards the car?"

Answer: "I'd turned back towards the car, looked in front of me to where I was walking."

Counsel: "... how many steps did you take before you tripped?"

Counsel: "Do you recall which foot it was that tripped?"

Counsel: "At that point in time, did you know over what you had tripped?"

Answer: "No, I did not know what I had tripped over at that point of time, no."

The respondent said that she had "subsequently" inspected where it was that she had tripped. It was, she said, "[a] hole in the footpath ... well, two actually big holes". She identified the holes from the photographs tendered to the court.

7 In cross-examination, the respondent said that she had visited her aunt in Ross Street on a number of occasions before this day and was familiar with the street, although not its "layout". She said that on every occasion upon which she had previously visited her aunt's premises she had parked in the driveway, and never in the road. In the course of her cross-examination, she gave the following answers:

Counsel: "Once you got outside [the fence] there was nothing to obscure your line of vision onto the footpath on which you were walking?"

Counsel: "And as you left, you left in broad daylight?"

Counsel: "Would you say that on your departure you did not see either the hole, which is in about the middle of the footpath, or the moon shaped crack, which is next to it and next to the nature strip?"

Answer: "Are you saying once I'm past the gate or before?"

Counsel: "On either occasion, did you see it before you had your fall?"

The witness then said that she would not have been able to see the holes whilst she was behind the fence, because it blocked her vision of the footpath. The questioning continued:

Counsel: "Do you normally look where you're going when you are walking?"

Counsel: "And you're aware that when you are walking ... into a street there are all sorts of hazards over which you can fall?"

Counsel: "So that, in the normal course of events you'd keep an eye on the footpath on which you're walking along?"

Counsel: "On this occasion you were actually intending to walk diagonally across the footpath onto the nature strip, is that right?"

Counsel: "And you'd never performed that manoeuvre before at your aunt's place?"

Counsel: "So you were walking, as it were, on unfamiliar territory?"

Counsel: "You are aware that where a footpath joins a nature strip, it is not always an even join, is it?"

Counsel: "So, in those circumstances, as we walk along we go from a footpath onto a nature strip we often take particular care that we don't trip or step down onto the nature strip ...?"

Counsel: "Well, given all that , is there any reason you didn't see the crack and the hole ...?"

Answer: "Well, taking into account I had quite a large stomach and my bag in front of me, I'd taken two steps straight into a hole that was not in my view; I did not see it, I was looking where I was going, I just ... I didn't see the hole. And being a footpath, you would expect it to be in a reasonable state, you know, apart from little rises here and there ..."

Counsel: "... You would expect it (the footpath) to be in a reasonable state?"

Counsel: "So is that why you wouldn't have looked?"

Counsel: "Before you left the gate did you turn to talk to your aunt?"

Answer: "I just turned my head, not my body, yes, I did."

Counsel: "Which way were you looking when you stepped off?"

Counsel: "Are you sure of that or do you think you might have still been

Answer: "No, I'm sure I was looking towards ... towards where I was going."

Counsel: "Can I ask the question again: as you stepped off from the gate."

Counsel: "You are not saying that your pregnant state itself could have obscured the crack and the hole?"

Counsel: "So that if you'd been looking straight ahead as you left the gate you would have seen them [i.e. the 'moon shape crack or the hole next to it']?"

Answer: "Not them, the moon shape one I - yes, if I was looking directly at the footpath yes."

Answer: "I was looking where I was walking. I just did not see - I saw - well, no, I didn't see it."

Answer: "If I had've saw it I wouldn't have fallen in it."

Counsel: "That's because you weren't looking at the footpath at that time?"

Later, in the cross-examination, the respondent again said that she did not see the defect before she fell; that she had "presumed" that it was the hole which she had tripped over; and that she had not measured the "moon-shaped crack" or the depression.

9 Photographs of the damaged area of pavement were tendered to the trial judge. The trial was conducted on the basis of the photographs tendered; and no view of the area was sought or taken, presumably because the defects had been remedied by the time of trial. This Court has had the opportunity also of seeing those photographs. The photographs show a damaged paving stone which reveals a crescent shaped crack across the join of two paving stones adjacent to the grass verge between the footpath and the roadway and a damaged area leading from the crescent shaped crack in the centre of the pavement stone which the evidence suggested was about two inches at its deepest and one centimetre at its shallowest. This damaged area was about one foot long. The evidence was that the pavement stone had been in a damaged condition since about 1997 or 1998; that it had been "in a similar state of disrepair" although it may have deteriorated between the time when it first appeared and the time of the accident. The trial judge found that no complaints had been made to the appellant about the state of the footpath until a complaint was made by the respondent's aunt after the accident. Although the respondent's aunt had given evidence to the effect that she had made several complaints to the Council before the respondent's accident, that evidence was not accepted by the judge.

10 In respect of the events surrounding the respondent's fall, the aunt (Suzanne Davis) said that she had accompanied the respondent down to the gate, had opened the gate to allow the respondent onto the footpath; at which point the respondent had stopped to talk to her. The evidence continued:

Answer: "She goes through and she's taken a step and stood there and turned her head to make sure I was bringing her little boy home with me, because he wanted to see my little boys."

His Honour: "There was a bit of a conversation was there?"

Answer: "Yeh, she stood but turned her head just to the side to make sure I was actually bringing him home."

His Honour: "... Turned her head which way ... do you know which way she turned her head?"

Answer: "Yes, she was like - straight down facing down Ross Street that way."

Counsel: "Turning to the right. Do we agree that is turning to the right?"

His Honour: "... You turned your head, it seems to me, across your shoulder or down the line of your shoulder, of your right shoulder?"

Answer: "Then she - just making sure that I was bringing her son home and I said yes, and that is when she went to walk towards her car and she took like two - second step, and she was in - and she was walking towards it, I said 'watch out' but it was too late. She had already stepped into the hole and had fallen. ..."

The gate was in a tin fence (about 3 feet in height) which would, no doubt, have obscured a view of the footpath until the gate was opened, but - as the witness said in cross-examination - she could clearly see the defect in the footpath from where she was standing at the gate; she watched the respondent's foot "go into the hole".

11 It was the witness Suzanne Davis (i.e. the aunt) who had taken the photographs which were tendered. She had also given evidence that her children had fallen when the wheels of their bikes had hit the hole in the pavement on some unspecified time and occasion. In cross-examination, she had agreed that she had not warned her niece about the state of the pavement, even though she had claimed to have fallen in the hole herself. Indeed, as she said, she had watched the respondent walk towards and into the defect.

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).

13 Sidebottom said that defects were remedied on a "zone by zone" basis with priority being given to those zones with the greatest number of defects. Such a modus, he said, was cost-effective and best catered for the budget allocation negotiated between Government and Council. It would, he said, be very expensive to move machinery from zone to zone in a random fashion to attend to and remedy defects on an individualized basis. However, he said, there was also a "complaint re-active" system pursuant to which priority attention was given by his organization to defects about which complaints were made. Thus, in respect of the complaint made by Ms. Suzanne Davis, after the respondent had fallen outside 9 Ross Street on 29 November 2000, inspections were made and preliminary grinding and hot-mix filling was carried out in March 2001; and new concrete slabs were laid in May 2001.

14 The judge described the circumstances of the respondent's fall in the following way:

"On leaving her aunt's house the plaintiff went outside carrying two bags : her handbag and a bag described as her hairdressing bag, the size of a brief case. She had decided to leave her son to play with her aunt's children who were about to come home from school. On leaving, her aunt opened the gate. The plaintiff stepped out of the gate carrying her handbag, and also the hairdressing bag under her left arm and slightly in front of her stomach. She turned towards her aunt to briefly verify the arrangements to bring her son home. She then turned, took a couple of steps towards the car, looking in the car's direction and tripped by her right foot and fell. She placed her foot and twisted her ankle, she says, in what (sic) felt to be a hole in the footpath. She arched her back, attempted to put her hands out and hit the ground. The hairdressing bag was under her stomach and she struck the pavement. She was quickly helped up by her aunt and went inside.

After the fall the plaintiff inspected the area where she had tripped and fallen. She found two things. Firstly, a big, crescent moon-shaped crack on the nature strip side of the footpath. This had a depression. Secondly, a hole in the middle of the footpath close by. She says that she tripped in the hole. Exhibits A, B and C are photographs of the area. The plaintiff says that the hole was, at its deepest point, about two inches. The photographs show, consistent with her evidence, that the hole was about one foot long. She didn't know that the hole or crack was there. She had never parked outside, that is, in the street, before. Just as, or very soon before she tripped, she recalls her aunt calling out 'Watch out', or something similar. It was a warning cut short by the fall."

15 The judge then described, in some detail, the injuries suffered by the plaintiff. She complained of pain in her lower back and also in her neck. She was first taken to the Shepparton Hospital and then placed in the care of her own obstetrician in Kyabram who monitored her pregnancy. Initially, X-rays were taken of her ankle and wrist, which were normal. No X-rays were taken in relation to her back pending the birth of the child. Late in the year 2000 the baby was delivered by caesarean section; and, following the birth, the respondent's back pain became worse. Ultimately, her back was X-rayed, and subsequently she had an MRI scan in Melbourne. The scan indicated disc injuries to three discs in the lumbar/sacral spine. Her treating surgeon discussed resolution of the disc injuries by surgery; but the respondent was unable to undergo such surgery up until the time of trial because of its cost. At trial, the respondent described her pain in the lower back as "chronic". She described receipt of pethidine injections for her migraine headaches, and claimed depression and anxiety which had been aggravated by alleged sexual abuse of her son in or about April 2002. She had been placed on anti-depressant medication. His Honour described her condition at trial in the following way:

"As to her lower back she continues to have pain, including in both legs, particularly on the right side. Her circulation has been affected. Her legs are 'tender', not stable ... . Her back has worsened over time. She walks with a limp. She cannot walk long distances. She cannot stand for any significant period. She has difficulty driving. ... She drives very rarely now. She has lost confidence generally. As to housework she is restricted to very light duties. She washes dishes and can fill the washing machine. She needs help to pick up things. She is limited in relation to making beds. She can cook tea. Her children are six and two. She cannot do much with the younger child ... . She has been forced to enrol her in day care a few days per week. She has received help from her mother, her aunt and her ex-partner. She could not cope on her own. She was keen and active at sports. As to sport, significantly that included netball, basketball and, socially, indoor cricket. She played "A" grade basketball in Shepparton at 16. Whilst living in Melbourne she was placed for a time in a Victorian squad. On returning to Shepparton she resumed netball and basketball. She continued both after the birth of her first child. She is embarrassed about her weight. She has put on two and a half stone. As to sleep, she has significant trouble because of the back pain. She cannot 'get comfortable'."

16 His Honour then turned to what he described as "the duty of care". He noted that the plaintiff's claim was in negligence, even though the respondent had initially alleged a breach of occupier's liability under the Wrongs Act. The respondent's case was conducted on the basis that there had been a breach by the appellant of its duty as explained by the High Court in Brodie & Anor. v. Singleton Shire Council/Ghantous v. Hawkesbury City Council (supra). His Honour noted that the High Court, in those cases, had removed the so-called "highway immunities rule". It was accepted at trial that the principles explained in those cases were the applicable principles governing the respondent's claim, notwithstanding that the Victorian Parliament had subsequently sought to re-introduce the "highway immunities rule" by the introduction of s.37A of the Transport (Highway Rule) Act 2002, the provisions of which have subsequently been re-enacted in Part 12 of the Wrongs Act 2004. As his Honour said:

"That does not matter here. It is common ground that, given the timing of this proceeding, the duty of care set out in Brodie applies."

It was also common ground that the scope and content of the relevant duty and standard of care were those stated in paragraphs 150 to 165 (pp. 577-582) of the joint judgment of Gaudron, McHugh and Gummow, JJ. in Brodie. His Honour then referred to several passages in the joint judgment at paragraphs 150, 151, 159, 160 and 162, 163 and 164. In particular, his Honour referred to the joint judgment at paragraph 163 where their Honours referred (in terms to which I will later return) to the formulation of the authority's duty to pedestrians.

17 In applying the principles stated in the joint judgment at paragraph 163 of Brodie, his Honour appears to have drawn a distinction, in the formulation of the duty of the Council, between a pedestrian who is walking across a footpath and a pedestrian who is walking along a footpath. His Honour said (at paragraph 37 of his reasons):

"I find that the principles set out in paragraph 163 (that is, the expectation that a pedestrian will exercise ordinary or reasonable care in using the footpath) accepts as 'expected' the use made by the plaintiff of the Ross Street footpath in this case. In other words, as to the defendant's primary duty of care, it is reasonably foreseeable that a pedestrian would, in a residential area with provision for kerbed parking outside homes, upon leaving after visiting, walk a short distance across the footpath towards a vehicle close by. The concept of ordinary care is not confined to the 'classical' use of a footpath by walking a significantly longer distance along it with, for example, the better opportunity of vision along that route. ... However the Council would not be expected to foresee or expect more peculiarly subjective factors such as very advanced age, frailty and, as here, late pregnancy." (my emphasis)

18 His Honour then considered the respondent's "system" of inspection and repair and referred to various aspects of the evidence of Mr. Sidebottom. In particular, he referred to Sidebottom's evidence, in cross-examination, that the 1998 "inspection" would have picked up the defect outside 9 Ross Street; and also referred to the fact that the 2000 inspection had identified that defect as a "rating 1". His Honour said that "notwithstanding that the problem had been given a 'rating 1', no plan had been made to rectify the damage". That, perhaps, was not surprising because the inspection of the footpaths of Mooroopna had revealed many defects throughout the 484,000 square metre network, including 24,000 square metres of rating 1 and 2 defects throughout the Greater City of Shepparton. Indeed, 15 defects had been identified in the footpaths of Ross Street alone, of which six were "rating 1".

19 Having discussed Sidebottom's evidence, his Honour then returned to the circumstances of the respondent's fall. He indicated that the plaintiff's aunt, Suzanne Davis, had essentially supported the plaintiff's version of the fall. He further noted that Suzanne Davis had given evidence of the presence of the defects over time from 1997 or 1998 when she moved into Ross Street, and evidence of occasions when she and her children had fallen as a result of the footpath's condition. She said that she had tripped over the defect about a year before the respondent. However her evidence in relation to the children appeared to be of a hearsay nature. She said that her children had fallen off their bikes as a consequence of the defect; but it seemed clear from the tenor of that evidence that she had not witnessed such incidents.

20 His Honour then went on to make what he called "findings". Those findings, relevantly, included the following:

• That the plaintiff had tripped and fallen in the hole located in the middle of the footpath as opposed to the crescent shaped crack at the nature strip edge.

• That the plaintiff did not know, nor could have been expected to know, that the hole was placed where it was across her proposed route to the car. At most she knew that her sister (sic) had fallen in the area of the footpath in the street outside her home. There was no reason why that fact should have been presently or consciously in her awareness at the time she walked towards the car.

• The hole had been there since 1997 or 1998 when her sister (sic) moved into 9 Ross Street. It had been in "a similar state of defect" (sic), but also in a state of deterioration over that time.

• That there were no complaints about the state of the footpath made to the Council by Suzanne Davis before the plaintiff's fall. [His Honour said that he did not regard the aunt as "an utterly discredited witness" and that he had accepted her evidence on many things; for example that people, including herself, had earlier fallen in the area. However his Honour went on to say that because the Council recorded in computerised form all complaints made about defects in footpaths, and the lack of any recording of any complaint of the defect outside 9 Ross Street until after the plaintiff had fallen, he was unable to find that any such earlier complaints had been made.]

• That the Greater Shepparton City Council had come into being as a result of amalgamation in 1994; at which time it was aware that the footpaths in Mooroopna were in a state of disrepair.

• That the appellant Council had been aware of the defect outside 9 Ross Street since 1998.

• That the cost of repair to the defects outside 9 Ross Street was $300 to grind and/or fill the hole or crack and about $1,000 to $1,500 to replace the two slabs.

21 In respect of what he described as "liability", his Honour drew the following conclusions:

• The use made by the [respondent] was an expected or foreseeable one from the viewpoint of the defendant. It was an "ordinary use" in accordance with Brodie.

• The plaintiff was exercising reasonable care for her own safety. His Honour said that such an assessment had to be made "in a realistic way" and "applying common sense". He said that the respondent had used the footpath in an ordinary way and that she had "looked where she was going". His Honour said that it was "a short route across the footpath to her vehicle. The hole was not such a defect as could be expected to be seen by her in her circumstances or in the circumstance of any such reasonable or ordinary user of the area." (his Honour's underlining)

• His Honour found that the hole was "dangerous". That is, it presented a foreseeable risk of harm even to a person taking reasonable care for their own safety. It was not "obvious" in the sense meant by Brodie v. Singleton Shire Council. The hole, his Honour said, had been dangerous "in the way I describe since at least 1998". In making that finding his Honour said that he had taken into account:

(i) His observation of the photographs and the evidence of the description of the hole.

(iii) Its visibility looking at the photographs and considering the evidence, but "bearing in mind the circumstances of use by the plaintiff".

(iv) It was in the middle of the footpath which was along an expectedly short route across the footpath to the plaintiff's car. Sensibly viewed, his Honour said, "one's focus would be on the close destination of the car".

(v) There had been other falls on this part of the footpath.

22 It seems to me that these were the bases upon which his Honour concluded that the appellant owed a duty of care to the respondent. Thereafter, his Honour went on to make findings that the appellant was in breach of that duty by failing to have proper systems of inspection, recording or repair, and failing to have appropriate systems in place to identify and prioritise dangers so as to enable reasonable and appropriate rectification. Further, that the appellant had failed to take appropriate steps to repair the hole within a reasonable time. His Honour went on to say that the "underlying feature of the defendant's failure to meet a duty of care" was that it had, over a substantial period, the knowledge of a major general disrepair in the area such that this type of danger was reasonably likely.

23 His Honour then turned to the question of damages and, having reviewed the evidence and the relevant authorities, awarded sums (so far as are now relevant) of $130,000 for pain and suffering and loss of enjoyment of life and sums of $16,000 and $90,000 respectively for past and future loss of earning capacity. The total sum of damages awarded was $281,861.74.

24 His Honour then directed his attention to the issue of contributory negligence, and said that he could find none. He referred in particular to his finding that the respondent could not have been expected to know that the hole was where it was - that is across a proposed route to the car. Furthermore he referred to his finding that the hole was dangerous and presented a foreseeable risk of harm even to a person taking reasonable care for his or her own safety. Further, the hole was "not obvious" in the sense referred to in Brodie's case.

Issues on Appeal - Application of Law to Facts

25 On this appeal the appellant council contended that the trial judge had erred in his conclusion that the Council had - in the circumstances of this case - owed a duty of care to the respondent. This was the primary issue in contention on the appeal, although challenges were also made to his Honour's findings in relation to breach of duty; that there was no contributory negligence; and also to his Honour's assessment of damages for the respondent's pain and suffering and future loss of earning capacity.

26 In support of the contention that the trial judge erred in concluding that the appellant owed to the respondent a duty of care, counsel submitted that his Honour had made erroneous factual findings which had led him into further error in applying the law to those facts. It was submitted that, because there was no dispute about the evidence from which his Honour drew his conclusions, this Court was in as good a position as the trial judge to draw appropriate inferences and to make its own conclusions. Although, in their written submissions, counsel for the respondent were inclined to challenge this proposition, it was accepted during the course of argument, although somewhat "reluctantly", that this Court was in no different position from that of the trial judge in drawing inferences from the evidence which is not in dispute. It is the inferences which his Honour drew in reaching his conclusions which are under challenge, not the evidential facts upon which they are based. Furthermore, as I have already indicated, his Honour was working from photographs which this Court also has before it; and it is not suggested that there is anything about the way in which the relevant witnesses gave their evidence, or the nature of the evidence which they gave, which places this Court in a position disadvantageous to that occupied by his Honour[2].

27 As the learned trial judge accurately identified, the principles of law which were applicable to this case were those set out in the judgments of the majority judges of the High Court in the cases of Brodie and Ghantous (supra). In discarding the so-called "nonfeasance immunity rule" for highway authorities, the majority made it clear that the duty of care which the highway authority owed to highway users was a restricted one. Such restrictions were necessary for obvious logistical reasons which included the expense, difficulty and inconvenience to the authority of alleviating emerging defects to the highway, and the competing and conflicting demands upon time and resources of those authorities. The duty of such authorities could not extend to "ensuring the safety" of road users[3]. Thus, as their Honours said (at paragraph 162) the formulation of the duty of care had to include "consideration of competing or conflicting responsibilities of the authority".

28 In relation to those aspects which had to be taken into account in formulating the duty of care, the majority judges in the cases of Brodie and Ghantous made it clear that the formulation of the duty in terms requiring a road to be safe "not in all circumstances but for users exercising reasonable care for their own safety" was even more important where the plaintiff was a pedestrian[4]. The significance of these principles relevant to formulating the duty owed by road authorities to pedestrians has been explained by Chernov, J.A. in Boroondara City Council v Cattanach[5] at paragraphs [9] to [14] inclusive of his reasons for judgment. I gratefully adopt what his Honour has there said.

29 The formulation of the duty of care in respect of pedestrians is based to a large extent, as it seems to me, on principles of common sense. No doubt each case will depend upon its own individual circumstances but, as Gaudron, McHugh and Gummow, JJ. emphasized in their joint judgment in Brodie in relation to pedestrians (at paragraph 163):

"The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan, J. points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger ..., or the surrounding area ... . 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' or, as Jordan, C.J. put it[6] 'of a kind calling for some protection or warning'. In Romeo, Toohey and Gummow, JJ. noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby, J. pointed out in the same case that even an occupier of premises 'is generally entitled to assume that most entrants will take reasonable care for their own safety. Each case will, of course, turn upon its own facts." (footnotes omitted)

30 Even though Gleeson, C.J. and Callinan, J. disagreed with the abolition of the nonfeasance immunity rule, they each, nevertheless, made significant comments about the circumstances in which pedestrians might recover in relation to the condition of footpaths. Gleeson, C.J. (at paragraph 6) noted that the nonfeasance immunity was abolished in England by statute in the early 1960's, and went on:

"... 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."

His Honour went on (at paragraph 7) to approve the statement made by Cumming-Bruce, J. in Littler v. Liverpool Corporation[7]:

"Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. The highway is not to be criticized by the standards of a bowling green."

31 Callinan, J. (at paragraph 355, and with the approval of Hayne, J.) said:

"Even if I were to assume that an action in negligence lay against the respondent for any failure to maintain or improve the footpath to keep or make it safe, whether as a matter of misfeasance or otherwise, I would conclude that there was no failure in that regard because the footpath was not, despite what the expert witness was allowed to say, unsafe. The case of the applicant in negligence was that a differential in height between the concreted path of the footpath and the earthen part of it created a dangerous situation. ... There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this. ... "

32 These passages from Brodie and Ghantous have frequently been applied by the Court of Appeal (New South Wales) in a number of cases involving pedestrians injured on the highway[8]. In the case of Byrnes, the leading judgment was given by Handley, J.A. His Honour, at paragraph 28 of his reasons, contrasted the position of pedestrians to other road users in the following terms:

"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 will be otherwise if the surface contains something unusual or unexpected which creates a real danger for ordinary pedestrians."

After citing the passages from Brodie and Ghantous to which I have previously referred, his Honour continued (at paragraph 33 of his reasons):

"The 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."[9]

33 In the case of Richmond Valley Council v. Standing (supra), the leading judgment was given by Heydon, J.A. (as he then was), with whose reasons Handley, J.A. and Sheller, J.A. agreed. Again, having referred to the passages in Brodie and Ghantous to which I have previously made reference , his Honour said (at paragraphs 54 and 55):

"Almost any injury that happens is an injury in respect of which there can be said to have been a foreseeable risk. In that sense there was a foreseeable risk of injury here. But it was not a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety. The plaintiff, like pedestrians generally, was in an excellent position to see and avoid imperfections in the surface. There could have been no expectation on her part that the surface would be smooth. The unevenness in the paving slabs, the cracks and the holes at the place where the plaintiff was moving were as obvious as similar features all over the country, and as obvious as other common features like raised tree roots and manhole covers. There was no concealment of any of the features of the site which the trial judge criticized. There was no inadequacy in the lighting, or obscuring of the hazard by grass or otherwise. It was reasonable to expect the plaintiff to have seen what lay ahead of her as she walked along in broad daylight : what was there was obvious and called for no special vigilance.

So far as there was any hazard it was both not only obvious but insignificant and common. The condition of the pavement was typical of innumerable kilometres of pavements in the cities, suburbs and towns of this country. The imperfection was of a kind which users of footpaths have from childhood habituated themselves to look out for and avoid, in view of the fact that surfaces which pedestrians use may be uneven, not flat and not smooth. The imperfection was not a danger, a hazard or a trap. ..." [10]

34 In Hastings Council v. Giese[11], the leading judgment was given by Tobias, J.A., in whose reasons Handley, J.A. and Sheller, J.A. agreed. Tobias, J.A. referred to the passages in Brodie and Ghantous, to which I have previously referred, and also to a number of the authorities in New South Wales. At paragraphs 21 and 22 of his reasons for judgment, his Honour concluded, in the light of the authorities, as follows:

"The foregoing authorities have, it is suggested, clearly recognized that a foreseeable risk of injury to a pedestrian from some imperfection in the surface of a footpath ... is insufficient to give rise to a relevant duty of care on the part of the road authority. Furthermore, they have placed fairly and squarely upon the pedestrian the responsibility of recognizing and avoiding such imperfections on the basis that, firstly, a pedestrian has no expectation that the surface of a pedestrian way ... will be smooth and lack imperfections and, secondly, because a pedestrian is in a position of advantage because he or she is able to protect himself or herself from the uneven surfaces of footpaths ... by keeping a proper lookout for the purpose of taking care for his or her own safety. In other words, the courts have generally shifted the responsibility for his or her safety back onto the pedestrian .

That responsibility will, however, shift to the road authority where the relevant defect, subject to that authority's knowledge of it, constitutes not only a hazard but also one which is concealed or obscured and thus not obvious to the user so that it constitutes a form of trap. The reason for shifting the responsibility back onto the road authority in these circumstances is because a pedestrian, using reasonable care for his or her own safety, is not in a position to see and avoid such a defect. ..."[12]

Analysis of His Honour's Reasons in the light of the Authorities

35 There seem to me to be a number of aspects of his Honour's findings and conclusions which are at odds with the principles of law to which I have referred, and which his Honour himself had cited. The emphasis of his Honour's findings appear to me to concentrate upon what the Council could have "expected" having regard to the use which the respondent was making of the footpath at the time when she fell. Thus, as I have previously observed, his Honour (at paragraph 37 of his reasons) refers to the principles in accordance with which the High Court in Brodie (supra at paragraph 163) stated the formulation of the duty of care owed by highway authorities to pedestrians; namely that:

"the formulation of the duty in terms which require that a road be safe, not in all circumstances, but for users exercising reasonable care for their own safety, is even more important where ... the plaintiff was a pedestrian_. In general, such persons are more able to see and avoid imperfections in a road surface ... . As Callinan, J. points out in his reasons in Ghantous, 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."_ (my emphasis)

36 His Honour's reasons record (at paragraph 37) that "this principle", which his Honour then describes as "the expectation that a pedestrian will exercise ordinary and reasonable care in using the footpath", accepts as "expected" the use made by the plaintiff of the Ross Street footpath in this case. As I have already noted, his Honour said:

"In other words, as to the defendant's primary duty of care, it is reasonably foreseeable that a pedestrian would, in a residential area with provision for kerb parking outside homes, upon leaving after visiting, walk a short distance across the footpath towards the vehicle close by. The concept of ordinary care is not confined to the "classical" use of a footpath by walking a significantly longer distance along it with, for example, the better opportunity of vision along that route." (His Honour's emphasis)

In so reformulating the principle enunciated by the High Court, it is not entirely clear to me what his Honour had in mind. The essence of the reasons of the majority judges in Brodie (at paragraph [163]) was that it was to be expected of the ordinary and reasonable pedestrian that he or she would exercise sufficient care to see where they were going, and perceiving and avoiding obvious hazards. That "expectation" was not necessarily confined by the particular use being made of the footpath by the ordinary pedestrian[13].

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.

38 Accordingly, although his Honour does not explicitly say so, it seems to me that he has taken the view that the formulation of the Council's duty of care to a pedestrian will alter depending upon the nature of the use which is being made of the footpath by the ordinary pedestrian. In this regard I am of the view that his Honour has fallen into error; error which seems to me to have infected his subsequent conclusions found at paragraphs 59 and 60 of his reasons. Inter alia, they include following:

• "That the plaintiff did not know, nor could have been expected to know, that the hole was placed where it was across her proposed route to the car" (paragraph 59.2).

• That "the particular use of the footpath by the plaintiff (see earlier) was an expected or foreseeable one from the point of view of the defendant. It was 'ordinary use' in accordance with Brodie" (paragraph 60.1).

(In using the words in parenthesis, namely "see earlier" I assume that his Honour was referring to the remarks that he had made in paragraph 37 of his reasons, to which I have already referred.)

• That the plaintiff "was exercising reasonable care for her own safety. Such an assessment must be realistic and apply common sense. She used the footpath in an ordinary way. She looked where she was going. It was a short route across the footpath to her vehicle. The hole was not such a defect as could be expected to be seen by her, in her circumstances, or in the circumstances of any such reasonable or ordinary user of the area" (paragraph 60.2).

• "The hole was dangerous. That is, it presented a foreseeable risk of harm, even to a person taking reasonable care for their own safety. It was not obvious in the sense meant by Brodie v. Singleton Shire Council. The hole had been dangerous in the way I describe since at least 1998" (paragraph 60.3).

In coming to these conclusions his Honour said that he had taken into account, inter alia, his observations of the photographs, the depth of the hole, its "visibility" - bearing in mind the circumstances of use by the plaintiff; the fact that it was "along an expectedly short route" across the footpath to the plaintiff's car, and that, "sensibly viewed, one's focus would be on the ... destination of the car".

39 In some respects I regard his Honour's findings as reflective of error in the quest for determining whether the appellant owed to the respondent a duty of care. In other respects I find myself unable to agree with his Honour as to the inferences which he drew. The emphasis of his Honour's findings, as it seems to me, was directed towards the subjective circumstances confronted by the respondent as distinct from what would be expected of the ordinary prudent pedestrian. That much seems to me to be clear from the findings to which I have referred in paragraphs 59.2, 60.2 and 60.3, insofar as they relate to the circumstances of use made by the respondent. Mr. Kendall, in the course of his submissions made on behalf of the respondent, referred to the fact that his Honour had qualified his reference to the plaintiff's "circumstances" by reference also to the "circumstances of any such reasonable or ordinary user of the area". Although that qualification was made, it seems to me that the thrust of his Honour's reasons and conclusions in relation to the primary issue of "duty of care" tended to look to the subjective circumstances of the respondent and not to the objective circumstances of the ordinary reasonable pedestrian.

40 Although, as I have previously adverted to, many of his Honour's findings are based on inference without reference to the specific evidence from which the inference is said to flow, once again I find myself in disagreement with his Honour as to the inferences which do flow from the unchallenged evidence. His Honour's conclusion was that the respondent was exercising reasonable care for her own safety, that she "looked 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". According to his Honour the respondent did not know, nor could have been expected to know, that the hole was placed where it was across her proposed route to the car (see the findings in paragraphs 60.2, 59.2). Thus, found his Honour, the defect presented a foreseeable risk of harm, even to a person taking reasonable care for their own safety. This defect, so his Honour concluded, was "not obvious in the sense meant by Brodie v. Singleton Shire Council" (see finding 60.3).

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.

42 For the reasons advanced, it is my view that on the evidence before him, his Honour ought to have found that the defect over which the respondent tripped was one which should have been obvious to the ordinary pedestrian taking reasonable care for his or her own safety and watching where he or she was going. Accordingly, I am of the view that his Honour was in error in concluding that the appellant owed or was in breach of a duty of care to the respondent by failing to repair the defect prior to the time when the respondent tripped. The appeal should, therefore, be allowed, the orders below set aside and in lieu thereof judgment entered for the appellant.

43 The other issues raised on the appeal - namely breach, damages and contributory negligence - are unnecessary to resolve. However I should, perhaps, say this. If, contrary to my view, his Honour was correct in concluding that, in the circumstances in which this accident occurred, this defect was in the nature of a "hidden trap" or "real danger", then - because the Council was and for some time had been aware of the defect - it could scarcely be contended that it was not in breach of its duty in failing to repair it. Although I do not share all of the views

expressed by his Honour, which appear to me to be over critical of the system which had been put in place for repairing pavement defects in the Greater City of Shepparton, I think his Honour was correct to say - on the basis that the defect was in the nature of a "trap" - that the system was deficient in allowing it to remain where it was for such a long period of time after it had been identified. The same comments can be made, I think, about his Honour's finding of "no contributory negligence". If his Honour's conclusions about the danger of this defect to an ordinary user of the footpath are correct, which I do not think they are, then no doubt he was correct in finding that there was no contributory negligence. The other complaint made by the appellant related to his Honour's assessment of general damages and damages for future economic loss. I have read, with some care, his Honour's reasons for assessing the damages in the amounts which he did, and the evidence upon which his Honour's conclusions were based. For my own part I would not be prepared to interfere with the assessments made by his Honour, which I think were open to him.

44 I have had the benefit of reading the draft reasons for judgment of Winneke, P. in this case and agree that, for the reasons given by his Honour, the appeal should be allowed and orders be made as he proposes.

45 I have read the judgment of Winneke, P. and I agree that the appeal should be allowed, the orders made below set aside and in lieu thereof there be judgment for the appellant for the reasons given by His Honour. I also agree with Winneke, P. that the trial judge's assessment of damages was not inappropriate.

[1] [2001] HCA 29; (2001) 206 C.L.R. 512.

[2] See Warren v. Coombes (1979) 142 C.L.R.531 at 551 per Gibbs, A.C.J., Jacobs and Murphy, JJ.; Pledge v. Roads and Traffic Authority [of New South Wales]; Ryan v. Pledge [2004] H.C.A. 13 at [33].

[3] Cf. Brodie at paragraph 151 per Gaudron, McHugh and Gummow, JJ.

[4] See Brodie at paragraph 163 per Gaudron, McHugh and Gummow, JJ.

[5] [2004] VSCA 139

[6] Searle v. Metropolitan Water Sewerage and Draining Board (1936) 13 L.G.R. 115 at 116.

[7] (1968) 2 All.E.R. 343 at 345.

[8] See, for example, Hawkesbury City Council v. Ryan (2001) N.S.W.C.A. 212; Roads and Traffic Authority v. McGuinness (2002) N.S.W.C.A. 210; Burwood Council v. Byrnes (2002) N.S.W.C.A. 343; Richmond Valley Council v. Standing (2002) N.S.W.C.A. 359; Newcastle City Council v. Lindsay [2004] N.S.W.C.A. 198 (22 June 2004); Temora Shire Council v. Stein [204] N.S.W.C.A. 236 (21 July 2004).

[9] This case was the subject of an application for special leave to the High Court on 14 November 2003 ([2003] HCA Trans. 462). In particular, it was the contention of counsel for the applicant that Handley, J.A. had "overstated" the duty of care in paragraph [33] of his judgment; and that "to formulate the duty in that way has the unintended effect of shutting out the scope for the application of the apportionment legislation in relation to contributory negligence". In rejecting the application the Court (McHugh and Kirby, JJ.) said that they could see "no error in the reasoning of the Court of Appeal". They also said that they disagreed with the applicant's contention; namely one which "seeks to exclude entirely from the consideration of the existence of the duty of care owed by the highway authority the postulate of a plaintiff's obligation to take reasonable care for his or her own safety."

In Temora Shire Council v. Stein, Giles, J.A. raised the query (at [37] ff.) whether the "obviousness of the defect" to the ordinary careful pedestrian is relevant to the formulation of the duty of care or "as going to the breach of duty of care". His Honour said (at [38]):

"In most situations it will not matter, but for a number of reasons it seems to me that the preferable approach is that obviousness of the risk to the careful pedestrian goes to the breach of the duty ... "

The better view, as it seems to me, is that the "obviousness" of the defect goes to the content of the duty of care.

[10] There can, of course, be defects in paths or highways which will present to pedestrians hazards in the nature of a "trap" or "real danger"; e.g. the concealed raised manhole cover in the parking area in Parramatta City Council v. Watkins [2001] N.S.W.C.A. 364; the "not obvious" elevation of the kerbing above the level of the footpath in Hawkesbury City Council v. Ryan [2001] N.S.W.C.A. 212.

[11] [2003] N.S.W.C.A. 178 (17 June 2003).

[12] In the recent decision of Newcastle City Council v. Lindsay (supra), Tobias, J.A., giving the leading judgment, made the following comments about the duty of an authority to a pedestrian. At paragraph [49], his Honour said:

"It is clear from the authorities referred to that any duty to take reasonable care for the safety of pedestrians by warning them of, or protecting them from, a defect in a footpath only arises if the defect is not obvious. The defective pavement slab in question was not in shadow or otherwise obscured or concealed. It was not in a location where it would not be looked for or expected but was in full view of a pedestrian keeping a reasonable lookout as they went about their business."

[13] In the case of Temora Shire Council v. Stein [2004] N.S.W.C.A. 236, the Court of Appeal did not regard as relevant to the question whether a pavement defect was a "concealed trap" the fact that the pedestrian had only a limited time to see the defect after rounding a corner; even when the use being made of the footpath was at night.