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.