Hastings Council v Giese

LOWER COURT District Court JURISDICTION : LOWER COURT 131/00 FILE NUMBER(S) : LOWER COURT Delaney J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40025/02

HANDLEY JA SHELLER JA TOBIAS JA

9 July 2003 HASTINGS COUNCIL v SHIRLEY DAWN GIESE Judgment 1 HANDLEY JA: I agree with Tobias JA 2 SHELLER JA: I agree with Tobias JA 3 TOBIAS JA: On 19 December 1997 the respondent, a woman of nearly 65 years of age, fell and was injured when crossing a marked pedestrian crossing provided by the appellant in William Street, between Short and Houghton Streets, Port Macquarie. She commenced action in the District Court at Port Macquarie against the appellant claiming that it owed her a duty of care to make the crossing safe as a means of access which it had breached. The matter came on for hearing before his Honour Judge Delaney who, on 19 December 2001, found in the respondent's favour and entered judgment for her in the sum of $12,278.85. 4 The appellant, with leave, appeals to this Court and challenges the primary judge's findings that it owed the respondent a duty of care and that it relevantly breached that duty.

The facts 5 The evidence established that for a period commencing towards the end of 1995 the appellant undertook in stages improvement works throughout the town centre of Port Macquarie. In or about October 1997 those works had reached the stage where it was necessary to provide a temporary pedestrian crossing in William Street between Short and Houghton Streets. According to Mr Brian Rollinson, a consulting civil engineer who, in 1997, was the Director of Engineering Services of the appellant, the location of the crossing was chosen by him to ensure that it provided safe access across William Street meaning thereby that there was sufficient visibility to ensure that motorists were able to see the crossing in sufficient time to be able to stop and yield to pedestrians who were upon it. 6 The provision of the crossing by the appellant involved only two steps. The first was to determine its location from a traffic safety point of view. The second was to arrange for the painting of the crossing in the usual "zebra" configuration. The latter was performed in October 1997 by Mr William Garlick who was a ganger employed by the appellant. When he was painting the crossing he noted that there were undulations in the surface of that part of the road upon which the crossing was to be located. He was asked to describe those undulations which he did in the following exchange: "Q. Can you describe them please? A. Well it was because of the heavy traffic that was…..it was like a sandhill effect Q. Sand dune? A. Sand dune effect yes. Q. How many sand dunes to get to the middle of the road? A. Two. Q. And at what sort of depth? A. Well probably and inch and a half or -"

In cross-examination by counsel for the respondent he was asked this:

"Q. Were they like sand dunes or sand hills do you think? A. Well no, sand dunes, just a gentle sort of a roll." 7 Mr Garlick was further questioned as to the nature of the undulations in the following exchange: "Q. And did you yourself walk along the undulations and across them? A. Yes. Q. Anything as you were painting or directing the painting appear to be dangerous about walking across that area? A. No. "

When questioned in cross-examination to the effect that the area of the crossing could have been jet patched to even out the surface, he was asked: "Q. Why didn't you at the time request jet patching to be done to even out the sand dunes as you call them? A. Well it didn't seem necessary. It looked good enough to paint. If it had been a danger I wouldn't have painted it." 8 Mr Rollinson was also cross-examined to agree to the proposition that in choosing the location of even a temporary pedestrian crossing it should be safe to walk on. He was then shown some photographs tendered on behalf of the respondent and which appear to be the photographs in Exhibit D. The following exchange then took place: "Q. I want to show you some photographs. Do you identify those as photographs of the pedestrian crossing in William Street. A. Yes I do. Q. What do you say about the level of the roadway where the pedestrian crossing is from those photographs? A. I believe that it's consistent and quite reasonable with other areas in the town area."

After being asked to identify the rise and fall in the photograph of the crossing he was asked this: "Q. You're not suggesting are you that that's an even surface upon which pedestrians can walk? A. No I didn't say that. Q. I am asking you the question, do you suggest that it's an even surface on which pedestrians can walk? A. No, I think it's a reasonable surface that's consistent with what has been applicable throughout the town area. Yes I am."

Later the following further exchange took place: "Q. You see I am suggesting to you that roads of that nature carrying vehicles do have rises and bumps in them don't they? A. That's correct yes. ----- Q. But to an elderly person crossing a roadway which is not level, that would create quite a hazard couldn't it? A. Well depending upon the depth of any undulation and the extent thereof. Q. OK, given that, you'd agree wouldn't you that the location of the pedestrian crossing is purely located to facilitate people crossing a roadway. A. Correct. Q. And that it is important when considering the location of a pedestrian crossing to ensure that that surface is as even as possible on which people can cross? A. Yes, it's a reasonable surface for people to cross, that's correct."

After further cross-examination in which he agreed that a jet patcher could be used to even out the undulations and that that was not an expensive nor time consuming exercise, he was asked this: "Q. But you are of the view even now that nothing that you see on those photographs requires even the use of a jet patcher to do any evening out? A. I don't believe so." 9 The respondent's evidence, accepted by the primary judge, was that prior to the accident she had been living in Port Macquarie for approximately two years. She agreed that she had used the crossing without incident "maybe once a week". When asked for how long she answered "maybe a year". That would appear incorrect given that the crossing was only provided two months prior to the accident. 10 The respondent in chief described what happened to her in the following terms: "Q. And as you were walking across, something happened to you. Can you tell his Honour what that was? A. Yes my foot went down into a hole and I just fell. I couldn't stop myself falling. Q. When you fell, how did you fall? A. Straight onto my face." 11 The respondent was cross examined as to the "hole" to which she had referred in the following exchange: "Q. Could you describe please Mrs Giese, the hole? A. It was just when I looked at it after, it's just like a little dip in the road. Q. I know that a hole can be many things -- A. Yeah Q. -- but you're not describing are you a hole like where the surface of the roadway is broken? A. No, it wasn't broken. Q. Not a pothole? A. No. Q. It's just at the -- A. Depression. Q. Do you know what I mean by an undulation? A. Yes. Q. That's what it was wasn't it? A. That's right. 12 The respondent was further asked whether she had ever noticed the depression or undulation prior to the accident and she answered in the negative. However, she agreed that she had returned to look at the site of the accident and that, having done so, the undulation was "pretty obvious". 13 For reasons which are not apparent, the primary judge made no reference in his judgment to the evidence of Mr Rollinson to which I have referred above. On the other hand, he did refer to the evidence of a Mr Burn, an engineer called on behalf of the respondent. It was Mr Burn who had taken the photographs and he noticed a number of so-called defects in the crossing generally which he described as "surface problems" at various locations. He identified one hole on the southern side of the crossing but it was not suggested that that contributed to the respondent's fall. The difficulty with Mr Burns' report is that he did not identify the precise location of where the respondent fell so that he was unable to comment upon the state of the surface of the crossing at that location. The best he could do was to describe a photograph forming part of his report and showing an expanse of the crossing as indicating a "smooth and uneven surface near road centre". During the course of her evidence the respondent marked with a cross shown on that photograph where, according to her, she fell. However, it is noteworthy that the cross was placed at a point on the crossing which was unpainted. It is tolerably clear from the primary judge's findings that he did not gain much assistance from Mr Burns' report.

The primary judge's findings on liability 14 The primary judge's findings on the issue of liability are set out in the following paragraphs of his judgment: "Decision on liability 1. The defendant placed a marked (albeit "temporary") pedestrian crossing on a piece of roadway while "general work was being conducted to upgrade the town centre of Port Macquarie". 2. The defendant did not properly inspect the area before deciding to paint the lines. While painting the crossing the ganger Mr Garlick became aware of undulations making the surface uneven by one and a half inches in places. He did not take any action to rectify an obvious defect before the lines were painted and the crossing put into service. 3. To have a pedestrian crossing with such undulations created a foreseeable risk of injury to pedestrians who were being invited to use that area of the roadway to cross from one side to the other. 4. Roadways can subside or be damaged by traffic movement. However, in this case the undulations were present. To place the pedestrian crossing on that was to create a hazard for such pedestrians whether old or young. It could be anticipated that depending on the time of day, weather conditions, and the like that pedestrians would expect that the area designated for them would be as safe as reasonable care could make it. 5. The defendant did not take care, and created a risk of injury which came home as the plaintiff crossed the crossing and fell on the undulations. This was a breach of the duty owed to the plaintiff by the defendant. The risk could have been removed at reasonable cost by either jet patching the area before painting the footpath and allowing pedestrians to use it, or marking the footpath on an even surface."

Although set in the context of an allegation of contributory negligence, the primary judge also said this: "I conclude that in using the crossing with others, and having, as she said used the crossing in William Street for a year, she could not have foreseen the condition of the roadway until it was directly drawn to her attention."

The authorities 15 It was common ground that the proper approach to the existence and extent of any duty of care owed by a road authority such as the appellant towards pedestrians has been authoritatively determined by the High Court in Ghantous v Hawkesbury City Council (2001) 206 CLR 512. In that case there was a drop from a concrete footpath to the surrounding dirt surface of about 50mm, approximately 2". The plaintiff lost her balance when she moved to step onto the dirt surface but caught her heel on the edge of the concrete. Gleeson CJ referred to the abolition of the non-feasance rule in England by statute and continued [6-7]: "…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. In Littler v Liverpool Corporation (1968) 2 All ER 343, 345 Cumming-Bruce J said: 'Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but no such characteristics have to be accepted . A highway is not to be criticised by the standards of a bowling green'." (emphasis supplied) 16 Gaudron, McHugh and Gummow JJ said [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 in 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 perceiving 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 (as in Webb v South Australia (1982) 56 ALJR 912) or the surrounding area (as in Buckle where the hole was concealed by grass). 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 …'of a kind calling for some protection or warning'."

At [166] their Honours agreed with the finding by Callinan J that Mrs Ghantous failed "because the footpath was not unsafe for a person taking ordinary care". 17 Hayne J also agreed with Callinan J [339] and said [355]: "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….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." 18 These passages from Ghantous have been consistently applied by this Court in a number of cases involving pedestrians injured on a highway: Hawkesbury City Council v Ryan (2001) NSW CA 212; Parramatta City Council v Watkins (2001) NSW CA 364; Lombardi v Holroyd City Council (2002) NSW CA 252; Roads & Traffic Authority v McGuinness (2002) NSW CA 210; Burwood Council v Byrnes (2002) NSW CA 343 and Richmond Valley Council v Standing (2002) NSW CA 359. In both Byrnes and McGuinness the leading judgment was delivered by Handley JA. Having referred to the facts of Brodie v Singleton Shire Council (2001) 206 CLR 512 which was argued and decided with Ghantous, his Honour contrasted the position of pedestrians to other road users in the following terms: Byrnes at [28] "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." 19 After citing the passages from Ghantous to which I have referred in [15], [16] and [17] above, Handley JA continued (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' ……………. 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." 20 Finally, reference should be made to the following passages from the judgment of Heydon JA (with whom Handley and Sheller JJA agreed) in Standing: 54. 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 criticised. 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. 55. 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 to avoid, in view of the fact that surfaces which pedestrians use may be uneven, not flat and not smooth. …" 21 The foregoing authorities have, it is suggested, clearly recognised that a foreseeable risk of injury to a pedestrian from some imperfection in the surface of a footpath or, in my opinion, a pedestrian crossing within a roadway which, like a footpath, is used for pedestrian access, 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 recognising and avoiding such imperfections upon the basis that, firstly, a pedestrian has no expectation that the surface of a pedestrian way (be it footpath or pedestrian crossing) 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 and crossings 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 on to the pedestrian. 22 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 on to 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. It is in light of the foregoing considerations that, in my opinion, the issues in the present appeal are to be resolved.

The respondent's submissions 23 The respondent conceded that the tests on the issue of liability adopted by the primary judge particularly in paragraphs 4 and 5 of that part of his judgment which I have recited in [14] above were erroneous. The test adopted by his Honour that pedestrians would expect "that the area designated for them would be as safe as reasonable care could make it" may be appropriate to the situation where an occupier of premises agrees for reward to allow a person to enter the premises for some purpose but is entirely inappropriate as a touchstone of liability in a case such as the present: cf Watson v George (1953) 89 CLR 409 at 415; Calin v Greater Union Organisation Pty Limited (1991) 173 CLR 33 at 38. 24 Furthermore, the primary judge seemed to have considered that any duty of care was breached provided only that the risk of injury could be removed at reasonable cost which he found to be the case. This is a truncated and inaccurate application of what is known as the Shirt calculus: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. In particular and relevantly for present purposes, there was no consideration by the primary judge of the magnitude of the risk of injury which he had identified, or the degree of the probability of its occurrence. On the contrary, he only considered the expense, difficulty and inconvenience of taking alleviating action. 25 The respondent nevertheless sought to uphold the primary judge's decision upon the following bases:

a) A pedestrian crossing was essentially different from a footpath because whereas there might be tens of kilometres of the latter there was probably less than a kilometre of the former; b) The subject crossing had been recently marked and thus constituted an invitation by the appellant for its use by pedestrians including the respondent; c) This particular crossing, not being controlled by traffic lights, would result in pedestrians seeking to use it being distracted from looking where they are going and focussing their attention on ensuring that oncoming vehicular traffic would yield; d) The downside of the undulation where the accident occurred was sufficiently steep to cause the respondent to miss her footing and pitch forward and thus constituted a trap of which the appellant, through Mr Garlick, was aware. 26 In my opinion, none of the foregoing submissions has substance. With respect to the first, there is no proper basis, so far as any question of a duty of care is concerned, upon which it would be proper to distinguish between footpaths provided by a road authority such as the appellant for pedestrian use and a pedestrian crossing so provided for the same purpose. It is clear that a road authority provides both footpaths and pedestrians crossings and invites the pedestrian public to use the same for an identical purpose. 27 As to the second, the fact that the pedestrian crossing had been recently created is beside the point. So also is the fact that, like a footpath, a marked crossing provides a means of pedestrian access which the public are invited to use. 28 As to the third, there is no reason to believe that a pedestrian upon a marked pedestrian crossing would be any less focussed upon where he or she is walking than a pedestrian on a footpath. A pedestrian on such a crossing, as distinct from one crossing the road outside a marked crossing, would expect that oncoming vehicular traffic would yield to those on the crossing. The suggestion that such a pedestrian's focus would be on oncoming traffic rather than on where he or she is walking is, with respect, fanciful. 29 As to the fourth, although Mr Garlick's evidence, accepted by the primary judge, was that the undulations or dips were "about an inch and a half deep", that evidence, although it may have been an estimation of the vertical difference between the crest and trough of a dip, undulation or depression, told one nothing as to the steepness of the downside of the undulation which, of course, would depend upon its width from crest to crest. 30 The surface of the subject crossing may have been uneven but it constituted no more, as the respondent herself described it, as "a little dip in the road". The surface of the crossing was not broken; there was no pothole. She described it, when she subsequently returned to the site of the accident, as "pretty obvious". To Mr Rollinson, it was a quite reasonable surface consistent with other areas in the town centre. The undulation or dip where the accident occurred did not involve a sudden differential in level. It could not be suggested that the change in level, such as it might have been, constituted by the undulation was one that could not have been expected by a pedestrian using reasonable care for his or her own safety. 31 There was no suggestion that the respondent was not looking where she was going or that she was distracted. As Heydon JA pointed out in Standing [47], a 62 year old woman, by virtue of being more vulnerable to the consequences of falls than younger persons, and less likely to be able to regain her balance if she slipped or stumbled than younger persons, should have been seeking to observe closely the area in front of her feet as she moved along. Even making allowance for inadvertence as adumbrated in the joint of judgment in Ghantous [163], in the present case the undulation or depression in question did not constitute an unreasonable hazard or danger giving rise to any duty of care on the part of the appellant to eliminate it.

Conclusion 32 Accordingly, for the foregoing reasons, I am of the opinion that the primary judge erred in holding that the appellant owed a duty of care to the respondent and that that duty had been breached. It follows that the appeal should be upheld. The judgment of the primary judge in favour of the respondent should be set aside and the proceedings dismissed with costs. 33 The question of costs of the appeal was the subject of some debate before us. When this Court granted leave to appeal on 30 July 2002 it did so conditional upon the appellant paying the respondent's costs of the appeal in any event. It was submitted by the appellant that this Court should relieve the appellant of that condition and order the respondent to pay the costs of the appeal. It was recognised that the Court on the leave application had not reserved to the appellant the right on the appeal to move to delete the condition. Nevertheless, it is clear that there is power in this Court to do so if proper reasons be demonstrated. 34 In support of its application that the condition of the grant of leave be revoked, the appellant tendered a letter from its solicitors to the solicitors for the respondent dated 6 November 2002 which, after referring to the decisions of this Court in Lombardi, McGuinness, Standing and Byrnes and arguing that in the light of those decisions the appellant would be successful on the appeal, sought to make an offer to settle the proceedings by the entry of consent orders in this Court pursuant to which the appeal would be allowed, the judgment in favour of the respondent in the court below set aside and, with respect to costs, that each party bear its own both in the District Court and in the Court of Appeal. The offer was not accepted. 35 In my opinion the effect of the offer, had it been accepted, would be that the respondent would have been required to pay two sets of costs being its own costs of the District Court hearing as well as it own costs in the Court of Appeal on the summons for leave to appeal. By way of contrast, if the condition imposed by this Court on the grant of leave stands, then the respondent will still be required to pay two sets of costs being those of its own as well as those of the appellant in the District Court but, on the other hand, will have its own costs both in respect of the summons for leave to appeal as well as the hearing of the appeal paid by the appellant. 36 In these circumstances, I am of the opinion that there was no financial advantage of any relevance to be gained by the respondent in accepting the appellant's offer contained in the letter of 6 November 2002. Accordingly, the condition with respect to costs upon which the grant of leave was made should be confirmed. 37 Accordingly, I propose the following orders:

a) Appeal allowed; b) Set aside the judgment in the District Court and in lieu thereof enter judgment for the defendant with costs; c) The appellant to pay the respondent's costs of the proceedings in this Court.

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