Hawkesbury City Council v Ryan

NEGLIGENCE - liability of local council - plaintiff tripped on uneven kerb - whether an issue of nonfeasance arises - whether Council not liable by reason of a delegation of duty to an independent contractor - appropriate award of damages. The respondent had commenced proceedings in negligence against the appellant Council following an incident in which she tripped on the edge of a footpath while getting into her car. An "Engineering Export Report" prepared on behalf of the plaintiff showed that the edge of the kerb was 22 millimetres higher than the footpath. The respondent suffered serious soft tissue injuries to her ankle, which aggravated a pre-existing back condition. The appellant argued that it had fulfilled its duty by employing an independent contractor to repair the footpath. The trial judge found for the respondent, awarding her $189,168. The appellant appealed against the finding that it owed a duty of care to the respondent, that it had breached that duty. The appellant claimed that the trial judge erred in failing to find it not liable to the respondent by reason of nonfeasance. The appellant also challenged the award of damages. HELD (per Rolfe AJA, Meagher JA and Heydon JA agreeing): (1) Whether the uneven level of the kerb existed when the pavement was installed, or was caused by a subsequent subsidence on an inadequate base, there was misfeasance on the part of the Council. (2) Once the respondent had established that the appellant was negligent in one of these two ways, an evidentiary onus fell on the appellant to rebut this case, and it made no attempt to do so. (3) In particular, the appellant did not establish that it had delegated this work to a person who it reasonably believed was competent to perform it. This was a matter which was peculiarly within the knowledge of the appellant, and a failure to provide evidence on this matter may give rise to a Jones v Dunkel (1959) 101 CLR 298 submission. (4) An argument based on nonfeasance could not be made out since it was agreed by the parties that the pavement had been laid only four or five years before the respondent's accident. For this reason, this case is unaffected by the decision in Brodie v Singleton Shire Council [2001] HCA 29. (5) This case was distinguishable from Ghantous v Hawkesbury City Council. In Ghantous, there was no evidence that the concrete footpath was not constructed properly, the height differential was much less, and the disparity between the concrete footpath and the earthen verge was not concealed. Further, the respondent in this case was keeping a proper lookout. (6) The award of $65,000 for general damages was so high as to be beyond the proper exercise of judicial discretion, and a sum of $45,000 should be substituted. (7) Given the respondent's work history and obvious desire to continue working, the appellant has not demonstrated a miscarriage of discretion in relation to the award for loss of earning capacity. (8) Nor was the award for domestic help inappropriate given the respondent's life expectancy. ORDERS

1. Appeal be allowed in part. 2. In lieu of the verdict for the respondent in the sum of $189,168, there be a verdict in her favour for $169,168 to which interest on the reduced figure of $45,000 will have to be added. 3. The appellant should pay the respondent's costs of the trial and of the appeal. 4. The parties should bring in Short Minutes of Order within seven days giving effect to these reasons and, in particular, calculating the interest on the amended figure for general damages.

1 MEAGHER JA: I agree with Rolfe AJA. 2 HEYDON JA: I agree with Rolfe AJA. 3 ROLFE AJA: Introduction .

The first defendant/appellant, Hawkesbury City Council, for which Mr P.J. Deakin of Queen's Counsel and Mr P.E. Nolan of Counsel appeared on the hearing of the appeal but not in the Court below, was sued in the District Court by the plaintiff/respondent, for whom Mr L. King of Senior Counsel appeared on the appeal with Mr J.T. Kearney of Counsel, the latter of whom also appeared in the District Court. 4 The appellant also sued, as the second defendant, Charlie Moussa & Sons Constructions Pty Ltd. Williams DCJ, who heard the proceedings, stated that the appellant had not sought to proceed against the second defendant "although an employee of the second defendant appeared". The District Court file discloses that on 28 July 2000 the solicitors for the respondent had filed a form of order for judgment pursuant to Part 11 rule 1 of the District Court rules. It does not appear that such an order was made but, on the same date, the Registrar wrote to the second defendant stating that it had been with the consequence that the second defendant was deemed to have admitted liability, and that the action had been set down for the hearing of the assessment of damages on 3 October 2000. Certain other information about procedural matters, including the effect of filing a defence, was given. However, the respondent did not pursue her claim against the second defendant. At the conclusion of the hearing counsel then appearing for the appellant sought leave to issue a cross-claim against the second defendant "should that become necessary", to which application his Honour acceded. No other orders were made against the second defendant, which was not a party to the appeal. 5 The respondent, who was born on 6 November 1948, sued the appellant to recover damages for personal injuries sustained in an accident, which occurred at approximately 12.45 pm on 3 July 1996, when she tripped on the southern footpath of Windsor Street, Richmond, which is within the municipality of the appellant. Prior to that she, her husband and at least one of their children, had driven to Windsor Street and their vehicle was parked adjacent to and parallel with the footpath. They left the vehicle and did some shopping. The accident occurred when they returned to it and the respondent was moving from near the edge of the footpath towards the front passenger door. 6 It is desirable, first, to describe the footpath, the kerb and the gutter. The scene was visited by Mr Alan Brown of Civil & Forensic Pty Ltd on 3 July 1996, i.e. the day of the accident, at which time photographs and measurements of the site were taken, and on 15 January 1997. According to its letterhead, Civil & Forensic Pty Ltd carried on business as "Structural and Accident Reconstruction Engineers". Mr Brown wrote a report on 30 November 1998, to which I shall refer in more detail, which report, it was conceded, was served on the respondent on 29 June 1999, i.e. some three and a half months before the hearing. At the commencement of the hearing, the report, which was described as an "Engineering Expert Report", and which incorporated the various photographs taken by Mr Brown, in the presence of the respondent, was tendered and "admitted without objection" as Exhibit B. The footpath, as the photographs depict, had a paved brick surface abutting a sandstone kerb on the top of which kerb was a layer of asphalt. The gutter was also of sandstone and, at the point where the respondent tripped, it was deep and the asphalt covering the kerb stone, and, perhaps, a small part of the top of the sandstone kerb, was measured as being twenty-two millimetres higher than the brick paving, thus creating a lip on which the respondent alleged she caught her right foot causing her to fall forward towards her vehicle. 7 The appellant had suffered for a considerable time prior to the accident from a back problem, which caused her quite severe pain. None-the-less, she had remained in permanent employment as a nursing sister. As she approached the vehicle she appreciated that she would have to step down from the footpath into the gutter so that she could enter it. 8 By reference to the photographs annexed to Mr Brown's report, and particularly that numbered 3, the respondent identified where she fell. It was not in issue that a car was parked in the same position as the delivery van, which appears in photographs 3, 4 and 5, nor that the van shown in photographs 4 and 5 is the same as that shown in photograph 3; nor that it was parked in the same position when the three photographs were taken. 9 The respondent gave evidence of the depth of the gutter and she described, in her evidence in chief, how the accident occurred: Black AB pp 7-8:- "Q. And were you intending to step down into the gutter? A. Carefully yes. Q. And did you move one foot in order to do that? A. I moved, once I studied where to place my foot safely because of the unevenness of the pavement I moved my right foot forward to step down into the gutter. Q. And what do you recall happening next? A. My foot caught, I teetered on top of the footpath, fell forward, tried to hold on to the car to support myself and fell, be leaning a little heavily towards the right and my right foot went down into the gutter first. Q. Right, so your right foot went down into the gutter? A. Yes. Q. And ... A. I fell forward and a little to the side, to the right side". 10 As a result the respondent sustained quite severe soft tissue injuries to her right ankle, which aggravated her pre-existing back condition. 11 Subsequently, Black AB p 8, the respondent was shown photographs 4 and 5 and confirmed that the pavement shown in them was "the same place" where she fell, and that she was present when the photographs were taken. 12 In cross-examination the respondent agreed that she was intending to step into the gutter carefully; she confirmed it was a deep gutter; she said she was always careful in such situations because of her back; and that "carefully" meant she was going to be careful to make sure she was looking where she was putting her foot. She said:- "Q. Generally looking where you were walking as you go? A. Well I wasn't walking, I was standing there waiting to step down so I was looking down as to where I was going to place my foot. Q. Well you'd walked up to the edge of the gutter ... A. Yes. Yes. Q. What did you stop there for some period of time did you? A. I stopped certainly for a time yes. Q. Why? A. To look down at, to see where the best place is to place my foot". 13 This evidence makes it clear that having come to the kerb she was looking down into the gutter, because of its depth, to see where she would place her foot. 14 She confirmed in cross-examination, Black AB p 25, that she tripped at the point where the 22 millimetre lip was and that the height was "close to" "in old parlance, about an inch high". Her evidence continued:- "Q. When you were standing there about to step down in the gutter, when you looked down there was nothing stopping you seeing that was there? A. No. Q. Seeing that inch high? A. No. Q. But you didn't look at it? A. No I was looking into the gutter. Q. You were looking into the gutter? A. Yes. Q. I want to suggest to you madam that you weren't keeping a proper lookout where you were going as you took that step into the gutter. What do you say to that? A. I would say the depth of the gutter as well as the pavement and the way in which they were placed underneath I was being very careful in what I was doing". 15 At Black AB p 38, the respondent was further cross-examined:- "Q. You told us that you approached your car and then stopped is that right? A. I stopped to look down into the gutter yes. Q. How far were you from the edge of the gutter when you did that? A. I would have been very close to the edge of the gutter. Q. Sorry, a foot away or an inch away, or ... A. I can't, I can't remember but I was looking down so - into the gutter. Q. Do you remember what, which foot you stepped off with? A. Yes the right foot. Q. And which foot do you say caught on the lip? A. The right foot. Q. What happened, did you stumble forward? A. I, yes, I teetered on the top and then fell forward".

The photographs tend to corroborate that if the appellant was standing close to the kerb side and looking down into the gutter, she would not have seen the lip.

The Pleadings . 16 By her Ordinary Statement of Claim the respondent pleaded:- "1. At all material times, the First Defendant was a duly constituted Local Government authority and such had the ownership, occupation, care, control, supervision and management of Windsor Street, Richmond in the State of New South Wales. 2. At all material times, the Second Defendant was a company duly incorporated and liable to be sued by its corporate name and carried on the business of pavement constructions at various places including Windsor Street, Richmond in the said State. 3. By written contract made between the First and Second Defendants, the Second Defendant agreed for reward, to remove and/or repair the existing footpath in Windsor Street, Richmond and replace it with a proper and safe footpath for use by the public. PARTICULARS Contract No 8/90 4. It was an express and/or implied term in the said contract that the First Defendant would require and the Second Defendant would construct a safe and proper footpath in Windsor Street, Richmond in the said State for the public to use without exposure to a trippable point in the footpath. 5. Pursuant to the said contract, the First and/or Second Defendants designed the said footpath and/or constructed the footpath for use by members of the public including the Plaintiff in accordance with the said terms and conditions of the contract. The Plaintiff craves leave to refer to the terms and conditions of the contract when produced". 17 The pleading then asserted facts relating to the accident and her injuries. 18 By its Notice of Grounds of Defence, the appellant admitted par 1; did not plead to par 2; and did not admit pars 3, 4, 5 and 7. 19 The appellant denied the substantive allegations made in pars 6 and 8 to 13 and, in a separate paragraph, denied it was negligent "in the manner alleged or at all". It also pleaded contributory negligence alleging that the respondent had failed to keep a proper lookout; to take any or proper care for her own safety; to watch where she was placing her feet; and to take a course around the alleged defective footpath. 20 On the hearing counsel then appearing for the appellant sought and was granted leave to amend the Notice of Grounds of Defence to admit pars 3 and 4. 21 The respondent was the only witness called in her case. Mr Brown's report and those of various doctors were tendered, but none were required for cross-examination. The appellant's case consisted of the tender of one medical report and, at Black AB p 39, counsel then appearing for the appellant said:- "As your Honour heard earlier - well your Honour didn't hear this - but I had a witness I was proposing to call but Mr Kearney has conceded, ... (not transcribable) ... conceded that he's agreeing that - I can tell your Honour from the Bar table that the work was carried out by somebody engaged by the Council, by a company engaged by the Council and of course on the pleadings we concede (sic) the plaintiff pleads in pars 3 and 4. Other than that that's my case your Honour". 22 Thereafter certain agreements were reached as to damages, and then counsel for the appellant said:- "Your Honour before my friend proceeds can I arise, I've just been shown a document that I haven't seen before. I thought I had what was part of the contract, I think I now have what is the whole of the contract. I appreciate your Honour this is very late in the piece but I will seek to tender that document into evidence". 23 The reasonable inference is that this was the contract entered into between the appellant and the second defendant. 24 Mr Kearney objected to the tender, which was rejected. There is no appeal against this rejection. 25 During the hearing of the appeal, Mr King informed the Court with the consent of Mr Deakin, that:- 1. misfeasance and nonfeasance were argued before the trial Judge; and 2. it was argued by the appellant that if there was negligence or misfeasance it was not liable once it was established that it obtained the services of an independent contractor. This, no doubt, provoked the admission of pars 3 and 4. 26 It will be noted, in relation to this latter point, that it was not alleged in either of those paragraphs that the appellant reasonably held a belief that the second defendant was competent; nor was there any evidence as to how the second defendant was required to carry out the work other than by the provision of a proper and safe footpath without exposure to a trippable point in it. The appellant contented itself by submitting on the appeal that as it had employed an independent contractor, it was exculpated from any liability for misfeasance or negligence by that independent contractor, notwithstanding that it had not sought to prove that it had reason to believe that the second defendant was competent and did not give evidence of the instructions given to it. 27 In the result his Honour ordered a verdict and judgment for the respondent in the sum of $189,168 and that the appellant pay her costs. He dismissed the allegations of contributory negligence, against which ruling the appellant did not appeal. 28 His Honour awarded $65,000 for general damages and interest thereon; $8,176 for past economic loss; $60,000 as a cushion for future economic loss; $50,000 as a cushion for domestic assistance; and an agreed amount of $3,654 for out-of-pocket expenses. Each of these amounts save for past economic loss and out-of-pocket expenses was challenged on appeal.

The Notices of Appeal and Contention . 29 By its Notice of Appeal the appellant asserted that his Honour erred in failing to enter a verdict in its favour; in finding that it owed a duty of care to the respondent in the circumstances in respect of the allegations supporting her claim; in finding that it had breached its duty of care to her; in failing to find that it was not liable to her by reason of nonfeasance; and in awarding excessive damages. 30 By her amended Notice of Contention the respondent asserted that the decision below should be affirmed on the following grounds:- "1. That once it appeared that there had been negligence (misfeasance), the appellant was liable notwithstanding that an independent contractor to it may have been physically responsible for that negligence. 2. That the unchallenged expert opinion of Mr Brown in Exhibit "B" justified a finding in the Respondent's favour. 3. That the only apparent explanations for the condition of the footpath were the ones advanced by Mr Brown or alternatively that the pavers as originally laid were not level with the top of the kerb, and that the latter explanation, although much less likely, none-the-less involves an inference of negligence in the work of laying the pavers".

The Reasons of the Trial Judge . 31 I shall deal first with his Honour's findings on liability. He found, RAB p 15, that Mr Brown's report suggested that an acceptable abrupt change in height for an area constructed for pedestrian use is six millimetres, and that the abrupt change in height of up to twenty-two millimetres was considered to be a trip hazard, and that Mr Brown had concluded that on the basis that the paving blocks were originally constructed to the level of asphalt overlaying the kerb, the difference in level was due to localised settlement of them. He noted Mr Brown's opinion that this could have been avoided by proper preparation, construction, levelling and compaction of the supporting base. He continued:- "From this I understand him to mean that on the premise that he refers to in his report, the problem was a construction problem. His conclusion was that a trip hazard existed at the accident location, although it really did not need an expert to say this and that that would not have existed if proper preparation and construction of the supporting base was undertaken when the paving blocks were installed". 32 The "premise" to which his Honour was referring at this portion of his judgment must have been that the paving blocks were originally constructed to the level of asphalt overlaying the kerb, so that the difference in level was due to localised settlement. 33 Whilst it may not have required an expert to say that a trip hazard existed at the accident location once one looked at the position, an expert view was required as to what would have caused the discrepancy in the levels if the work had been carried out originally in a manner which did not create a trippable situation. 34 His Honour then considered the evidence of the plaintiff and, as I understand it, found at RAB p 16, that the respondent caught her right foot on the lip and thus suffered her accident. 35 He then went on to consider the appellant's submission that there should be a verdict in its favour on the basis that whilst it had a duty of care towards the respondent, that was a delegable duty on the basis of the decision of the High Court of Australia in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313. 36 He said:- "It was also suggested that I should take judicial notice that a council, when engaging in a tender procedure for the construction of works that it is going to let out, would have engaged a reputable company to carry out the work. It was argued that the Council, although a public authority and not a private landlord, should not be treated differently in law having regard again to the decision in Northern Sandblasting v Harris . It was submitted that in light of the fact that the expert's report suggests that there is a problem in construction, that is a problem that lies at the feet of the Second Defendant, not the first defendant, and there should therefore be a verdict for the first defendant. It was also argued that if the plaintiff wished to continue its (sic) claim against the first defendant on the basis of a failure to maintain the area, that was not an area of concern for the Council as the Council is not liable to the plaintiff for non-feasance. Therefore any duty to inspect, clean, warn, guard etc is one that is not a liability of the Council and the plaintiff could not succeed in those areas. The Council also argued that they were not experts in the construction of footpaths and they therefore relied on the expert knowledge of someone else and that is why they obtained the services of the second defendant". 37 It is, if I may say so, obvious from this passage that at least two submissions were made to his Honour by the appellant. First, that the admitted duty of care to the respondent was capable of being delegated. However, counsel then appearing for the appellant, no doubt appreciating the need to establish that if the work was delegated it was delegated to a person the appellant had reasonable grounds to consider was competent, as to which there was no evidence, asked his Honour to take judicial notice of the fact that the appellant would have engaged "a reputable company". Secondly, that any defect was as a consequence of nonfeasance rather than misfeasance and, as the law then stood, the appellant was not liable. 38 His Honour referred to the respondent's submission that he should not accept the appellant's submission that it engaged a proper builder "particularly as the Council produced no evidence one way or the other on the matter of liability". He referred to the submissions that there were no details of the specifications for the footpath; nor evidence as to whether the builder engaged was reliable and the footpath was built to the specifications and, if it had been, whether the danger would still have existed. 39 His Honour referred to submissions made by the respondent in relation to Northern Sandblasting and, RAB p 17, said:- "It was also argued that the Council has had and has a continuing control of the premises in question ever since they were constructed which by agreement seems to have been some four to five years before this accident occurred". 40 There was no challenge on the appeal to his Honour's statement of an agreement in the terms to which he referred. Although, as I have noted, counsel for the appellant sought to tender the contract, the tender was rejected and in the course of the tender's being made there was no identification of the contract. However, in the particulars for par 4 of the Ordinary Statement of Claim the contract was identified as No 8/90, from which it may be possible to draw the inference, or at least some support, for the view that the contract was made in 1990. This would offer some support for the agreement as to the approximate time the work was done. However, the unchallenged agreement is not dependent on any such support. 41 His Honour then said:- "The expert's report Exhibit B is based on a premise that the paving blocks were supposed to have constructed (sic) to the level of the asphalt overlaying the kerb. However, there is actually no evidence that that was the specification to which the footpath was supposed to be constructed. On that basis there is no evidence one way or the other before me that the trip hazard only existed because the footpath was not constructed properly and in accordance with specifications". 42 It seems to me that his Honour was not saying, as was submitted by the appellant, that he did not accept Mr Brown's report, but rather that in the absence of evidence of the specification it could not be said that the paving blocks were supposed to have been constructed to the level of the asphalt, so that it may well have been that the second defendant constructed the footpath in accordance with the specifications, which led to the lip being in position in any event, i.e. the second defendant may well have constructed the footpath conformably with the specifications with the consequence that the trip hazard was created at that time. 43 His Honour nextly referred to the appellant's failure to provide any evidence on the issue of liability, and said that as a matter of law he was not prepared to take judicial notice that in each case a council, when letting such construction work, "has in fact engaged a proper and competent person to carry out the work". The appellant did not challenge his Honour's so concluding. 44 He continued:- "Further, there is no evidence before me as to what the specifications were for the construction of this footpath, whether or not the builder achieved those specifications, whether or not if built to specifications the danger would not have occurred, and whether or not in fact the construction of the footpath complied with the specifications the Council had prepared". 45 Put shortly, it seems to me that his Honour was simply saying that he was not entitled to speculate that if this footpath had been constructed conformably with the specifications the pavers would have been level with the asphalt on the kerb, such that the danger created by the lip would not have existed. 46 His Honour turned to a submission by Mr Kearney in relation to Northern Sandblasting. He adverted to the difficulty in establishing the ratio in that case, but concluded that as the factual situation was quite different it was unnecessary for him to seek to resolve the difficulties. 47 He concluded his consideration of liability, RAB pp 17-18, thus:- "Any person, lay or qualified, can see that a difference in height in a footpath is likely to cause someone to trip and fall. There is no dispute that the Council had at all material times control of the area where the plaintiff tripped and fell. Whilst the expert report suggests that the builder may have been at fault in not preparing a proper base for the paving blocks, the premise upon which the expert report is based has not been shown to be in fact the case and for all the Court knows the pavers may well have been laid in accordance with Council specifications. The first defendant had responsibility for an area where there existed a fault that was obvious on reasonable inspection. In those circumstances, absent any evidence inculpating any other party, the Council must be held liable for the hazard created". 48 There was some debate on the hearing as to "the premise" to which his Honour was referring. In my opinion, when one reads the whole of his reasons on liability, it is clear that he was referring to Mr Brown's assumption that the paving blocks were constructed originally flush with the top of the gutter, so that there was no trippable area. It also seems to me that his Honour accepted that that may have been the position, but from the whole of his reasons, it also seems that his words "for all the Court knows the pavers may well have been laid in accordance with Council specifications" mean, which specifications were such that the pavers were not flush with the top of the kerb. That conclusion would be consistent with his statement, RAB p 17, about the absence of evidence of the terms of the specifications, whether the builder achieved them, whether if there had been compliance with them the danger would not have occurred, and whether or not the construction complied with them. 49 It seems to me, therefore, that on a fair reading of his Honour's reasons in relation to liability that he was finding that there was no evidence that the trippable area had not been in existence since the work was carried out for some four to five years prior to the accident. 50 He concluded:- "The first defendant had responsibility for an area where there existed a fault that was obvious on reasonable inspection. In those circumstances, absent any evidence inculpating any other party, the Council must be held liable for the hazard created". 51 Whilst I agree that the last two sentences, read on their own, do not provide a ground for finding the appellant liable, I do not consider that it is reasonable to read those two sentences on their own. In my opinion, the proper approach to his Honour's reasons is that the parties agreed that the work seemed to have been carried out some four to five years before the accident. The thrust of the appellant's submissions was that it had delegated the duty to perform the work, which it was entitled to do. Further, his Honour was asked to take judicial notice, which, in my opinion, he rightly refused to do and as to which, in any event, there is no appeal, that the independent contractor would have been "reputable ... to carry out the work". Therefore, in the absence of any evidence as to what the independent contractor was required to do, what it did and whether it had any expertise in carrying out the work, his Honour was not prepared to assume that had the pavers been laid originally in accordance with the specifications the trippable area would not have been created from the beginning. That would have been, in my opinion, a clear case of misfeasance. 52 However, it seems to me, that there were strong reasons for his Honour to find that the original construction had been as Mr Brown opined and that the trippable area had been created by subsidence in the ensuing period.

The Report of Mr Brown . 53 It is, in my opinion, critical to note the following matters in relation to Mr Brown's report. First, it was admitted without objection. There was no submission that Mr Brown was not qualified to give the report and express the opinions contained therein, nor was there any submission that any part of the report should not be admitted. Thus, in effect in chief, there was no challenge to Mr Brown's evidence. Secondly, Mr Brown was not required for cross-examination. It was never suggested to him, therefore, that the assumption or premise on which he had proceeded, namely that the paving blocks were originally constructed to the level of the asphalt overlaying the kerb was incorrect. One can well understand the absence of any such cross-examination. As a matter of common sense, the placement of the pavers should have been at the same height as the asphalt at the top of the kerb, so that a lip on which people could trip was not created. The same common sense would dictate that the pavers should not be higher than the top of the kerb, because this would create a trippable area for people stepping on to the kerb and then moving on to the footpath. The appellant would hardly have wished to have put a proposition to Mr Brown that the pavers, as originally placed, created a hazard. 54 The next question, which arose, was that if the pavers were placed flush with the top of the kerb originally what caused them to sink? Mr Brown expressed the view which, contrary to Mr Deakin's submission, I do not consider the trial judge rejected, that the cause was localised settlement, which could have been avoided by the proper preparation and construction of the supporting base including proper levelling and compaction. His final opinion was that the trip hazard:- "... would not have existed if proper preparation and construction of the supporting base was undertaken when the paving blocks were installed". 55 There was absolutely no reason for his Honour to reject this evidence if he had been satisfied of the assumption Mr Brown made.

The Position Thus Far . 56 The situation before his Honour was that:- (a) by agreement the pavers had been laid some four to five years before the accident. The appellant did not seek to challenge that such an agreement had been reached; (b) the work had been carried out pursuant to a written contract between the appellant and the second defendant, although there was no evidence that the appellant had reason to believe that the second defendant was competent to carry out such work; (c) when the work was carried out one of two things happened. Either, if the assumption of Mr Brown had been accepted, the paving blocks were constructed to the level of the asphalt overlaying the kerb; or they were constructed to a lower level thus creating from the outset a trippable area; (d) if the assumption of Mr Brown was correct the unchallenged evidence was that the trippable area was caused because of localised settlement. 57 In either case there was misfeasance. Mr Deakin made a submission that the problem may have been caused by nonfeasance. However, I am satisfied, and I consider his Honour was satisfied, that nonfeasance had no part to play in the situation which arose. Either the pavers were laid flush with the kerb, but on an inadequate base which allowed them to subside, or they were not laid flush with the kerb, such as to create from the outset a trippable area. 58 It may have been possible to mount an argument on nonfeasance were it not for the facts that the pavers had only been laid for some four to five years and the absence of any evidence from the appellant to establish that the inferences of misfeasance, which were clearly open, should not be accepted. In saying this, I am not suggesting that the ultimate onus of proof was not on the respondent. It was. However, at the end of her case I consider that she had established, on the balance of probabilities, that the appellant was negligent in one or other of the ways to which I have referred. At that point the evidentiary onus moved to the appellant to rebut the case thus established by the respondent. It made no attempt to do so or, insofar as the attempt to tender the contract was one, his Honour's refusal to admit it was not the subject of appeal. 59 In all these circumstances it seems to me that the case was clearly one of misfeasance or negligence and that his Honour was correct in finding that the appellant was liable.

The Submissions of the Appellant . 60 In his written submissions, Mr Deakin referred to the various passages concerning Mr Brown's report and the premise on which it proceeded, which I have quoted. He submitted that the essence of his Honour's finding, which he embraced, was that he could not rely on Mr Brown's report and find that the base for the paving blocks had been improperly prepared, and that in rejecting that conclusion he left open the possibility that the base and the pavers were all properly prepared and built. 61 In my opinion, that is not a proper analysis of what his Honour had found. Either Mr Brown's common sense approach that the pavers had been laid flush with the top of the kerb was correct, which then called into question the adequacy of the preparation and compaction of the sand on which they lay, or the pavers were originally laid below the level of the top of the kerb. The premise or assumption, which his Honour found had not been proved, was that the pavers were laid flush with the top of the kerb. However, as I have pointed out, Mr Brown's opinion was that if this had happened the reason for the lowering of their level was by virtue of subsidence caused by the carrying out of improper preparation work. 62 Mr Deakin's submission that an alternative conclusion was that the difference in height "may have been caused by normal settling of a footpath that would expect to occur over time" cannot be accepted in the light of Mr Brown's unchallenged evidence. Nor, in my opinion, can his submission that the respondent failed to prove the actual cause of the difference in height. In my opinion there was evidence that established that it was either by virtue of subsidence through improper and incomplete preparation and compaction or because there was originally the difference in height. No other alternatives were put forward. 63 Mr Deakin submitted that the last two sentences of his Honour's reasons on liability appeared to rely upon there being no evidence of wrongdoing by any other party, such that the appellant was liable. In my opinion, a fair reading of the whole of his Honour's reasons on liability does not lead to this conclusion. 64 The written submission continued that:- "Having rejected the expert evidence, there was no evidence available to his Honour to make any finding of misfeasance against the Council. As the Council is a road authority in the circumstances and the footpath forms part of the road, relevantly for present purposes the Council is entitled to the benefit of the defence of nonfeasance". 65 I do not accept that his Honour rejected Mr Brown's evidence. He was not satisfied that the assumption Mr Brown made had been established, but he certainly did not reject, and in my opinion on the evidence and in the way in which the case was conducted, he could not have rejected his evidence as to the cause of subsidence. As I have said, perhaps on too many occasions, even if his Honour did reject all that evidence, that only means that the construction left a trippable area from the beginning. 66 I think it also necessary to note that in his oral submissions Mr Deakin made much of the fact that one was not aware as to how long this footpath had been laid. This submission, in my view, overlooked the agreement of counsel that it had been laid some four to five years prior to the accident. Accordingly, it was not a footpath which, on the agreement of the parties, had been laid for a lengthy period. I should note that the agreement in the passage of his Honour's reasons to which I have referred appears to have stemmed from what his Honour said in the first paragraph of his judgment under the heading "Facts", RAB p 14:- "Whilst there is no evidence as such before me in regard to the relationship between the first defendant and the second defendant, it would appear from submissions made by Council that the second defendant was the firm responsible for constructing a footpath where the plaintiff tripped and fell under tender from the Council. It also appears that this construction work took place in approximately 1991". 67 Whilst, at first blush, it appeared that these sentences stemmed from submissions and not evidence or agreement, it is clear, at least as to when the work was done, that there was an agreement reached by counsel and advised to his Honour as to when the work was done. 68 In his written submissions, Mr Deakin made substantial reference to the decision of this Court in Lake Macquarie City Council v Bottomley (CA 40098/98 - 3 March 1999 - unreported). 69 The first passage upon which he relied appears in par 37 of the judgment of Powell JA, with whom Handley JA agreed without further comment and Giles JA agreed, although his Honour delivered a short judgment. The passage followed an extensive reference to the judgment of Dixon J in Buckle v Bayswater Road Board (1936) 57 CLR 259. That decision, as indeed all other decisions to which the Court referred, proceeded on the basis that there was a difference between misfeasance and nonfeasance. However, as Powell JA pointed out, his statement was qualified by the requirement that the work done should not "attract liability unless it has in fact increased the risk of accidents". 70 Powell JA continued by referring to the decision of Latham CJ in Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357 at pp 363-4 and, in par 38, Powell JA continued:- "If, in order that it might be charged with misfeasance, a road authority must be shown to have been an active agent in negligently creating, or adding to, an unnecessary danger in the highway - including within the term 'highway' not merely the carriageway but also the other areas - such as the grass verge in the present case - within what might be called the 'road reserve' - then, as it seems to me, as a matter of logic, three consequences flow, they being: 1. if the evidence which is tendered to a Court does not disclose when, or by whom, or by which, the relevant works were carried out, the plaintiff's claim must, without more, fail for want of proof; 2. if it appears from the evidence tendered to the Court that the works in question were carried out prior to the road becoming vested in the road authority then, in the absence of express words in the Act pursuant to which the road became vested in the road authority, the road authority is not to be held liable for its predecessors' misfeasance ... ; 3. even if the evidence tendered to the Court establishes that the relevant works were carried out by the road authority, the road authority is not to be held liable unless it carried out the works without due care and skill for the safety of those who might come to use the road, it following that, if the works were carried out in accordance with the standards of the time and the circumstances then prevailing, the road authority is not to be held liable, either, by reason of the carrying out of the works or, by reason of the fact that, as the result of the deterioration of the works and the road authority's failure to maintain or repair them, the works have become unsafe (see, for example, Buckle v Bayswater Road Board; Hill v Commissioner of Main Roads )". 71 Mr Deakin relied, in his written submissions, upon the words appearing in par 38(1). They have no application to the present case because it was established that the work was carried out some four to five years prior to the accident by the second defendant. 72 Mr Deakin nextly relied on sub-par 3. In my respectful opinion this passage merely draws the distinction between misfeasance and nonfeasance. However, it also calls for evidence that the works were carried out in accordance with the standards of the time and the circumstances then prevailing. It is, in the present case, at this point that, in my opinion, the appellant's case fails. There was no evidence to support a finding that the work was carried out in those ways and, as I have said, the evidence was to the contrary. 73 Mr Deakin nextly submitted that his Honour accepted that the appellant did not carry out the work and noted his Honour's rejection of the submission that "absent any evidence to the contrary his Honour ought to find that the Council had engaged competent persons to carry out the work". He referred to the submission that the Council had delegated the work to the second defendant, and to his Honour's apparent refusal to accept that the second defendant was competent. The issue is not whether, as Mr Deakin's written submissions seem to imply, the duty was delegable, but whether it was delegated to a competent person. That was not established and, therefore, assuming that the work was delegable the appellant did not prove that it reasonably believed that the second defendant was competent to perform it. 74 In his oral submissions Mr Deakin relied heavily upon the decision of the High Court in Ghantous v Hawkesbury City Council [2001] HCA 29. In that case, of course, judgment was given at the same time in Brodie v Singleton Shire Council, which removed the immunity for nonfeasance. 75 In Ghantous, Mrs Ghantous tripped and fell while walking along a concrete footpath. Since its original construction, which was not shown to have been negligent in any respect, erosion had resulted in the earth beside the footpath in some places, so that the verge was about 50 mm below the concrete. When Mrs Ghantous stepped aside to allow other pedestrians to pass, she placed her foot so that it was partly on the concrete and partly on the lower verge. This resulted in her fall. 76 In this case the High Court agreed that there was no negligence and with the reasoning to that conclusion to which Callinan J came in par 355:- "In my opinion the application should fail at the outset. The respondent has not abandoned its contention that it was not negligent, whether as a highway authority or otherwise. 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 part of the footpath and the earthen part of it created a dangerous situation. A court is not obliged to accept an expert, especially when his or her evidence is evidence purportedly resolving and concluding an issue of the kind which arose here. A court is not bound to accept that a matter of ordinary observation such as the readily apparent state of the footpath is a matter calling for expert opinion. But in any event the expert's opinion (uncontradicted as it was) did not go so far as to say that the 'poor maintenance' which caused the 'hazard' actually caused one of such a nature that to leave it unrectified was negligent. 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. The applicant herself admitted in cross-examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the eastern verges. There was no negligence on the part of the respondent either in the construction of the footpath or in not keeping the concrete strip and verges level". 77 Mr Deakin relied heavily upon this passage and, in effect, submitted that there was no distinction between Ghantous and the present case. In my opinion, that submission must, on the facts of the present case, be rejected. First, there was no evidence that the actual concrete footpath was not constructed properly. Secondly, there was no concealment of the difference in height between the concrete and the earth. The difference between that case and the present, so far as the height differential, was extreme. Thirdly, the respondent in the present case was confronted with another difficulty. She had to step down from the footpath into a deep gutter. Part of her duty was to keep a proper lookout as to where she was stepping. This she was doing. His Honour's finding that she was not guilty of contributory negligence negates, in my opinion, the suggestion that she was not keeping a proper lookout and, it is significant, that there was no appeal against that decision. 78 In each case it must be a question of fact as to whether, in all the circumstances, a Council has been negligent. Mr King submitted that the decision in Ghantous could not have been intended by the High Court as providing a licence for such authorities to be negligent. Ghantous merely stands as authority for the proposition that on the facts of that case there was no negligence. 79 A great deal of time was spent in submissions about the effect of the decisions in Brodie and Ghantous, which were given after the decision here under appeal. I do not find it necessary to encumber these already lengthy reasons with a consideration of that point. The simple facts of this case established that the appellant was guilty of negligence or misfeasance. This was not a case, in my opinion, of nonfeasance. In those circumstances I consider that I am doing nothing more than applying the law as it existed prior to the recent decisions of the High Court and which is unaffected by them relevantly for present purposes.

Independent Contractor . 80 Mr Deakin submitted that the employment of an independent contractor, without more, was sufficient, in the circumstances of the present case, to exculpate the appellant from liability. There is, in my opinion, one substantial answer to that submission and, perhaps, a further answer. The basic answer is that there is no evidence that the appellant believed on reasonable grounds that the second defendant was competent to carry out the work. The admission of the matters pleaded in pars 3 and 4 does not establish that and the appellant called no evidence as to its belief concerning its knowledge of the competence of the second defendant. Rather, counsel at the trial sought to overcome the absence of this evidence by asking the Court to take judicial notice of a relevant fact. 81 It is, in my opinion, important to note that the relevant fact is that the person employing the independent contractor has reasonable grounds for believing that the independent contractor is competent. In those circumstances, the evidence is peculiarly within the knowledge of the principal, i.e. the appellant. The failure by the appellant to call any evidence of its belief means not only that there is an absence of such evidence, but may also give rise, if this be necessary to a Jones v Dunkel submission. 82 That, in my opinion, is sufficient to dispose of the appellant's argument on this point, but I should note, lest this matter goes further, that Mr King submitted that the appellant had a non delegable duty in respect of the construction of the footpath, which Mr Deakin contested.

Damages . 83 The first item of damages challenged was the award of $65,000 for general damages. The position in relation to the respondent's medical history both before and after the accident is set forth in detail in his Honour's reasons and was not the subject of any particular attack. I therefore do not propose to repeat it. Allowing for all the difficulties the respondent has encountered and will continue to encounter, I consider that the appellant's submission that the award of general damages is too high is correct. The appellant submitted that the appropriate range for this component was $30,000 to $45,000. Mr King, quite frankly, conceded that the award of general damages was "at the very top". This Court was invited, if it came to that view, to substitute a figure of its own. The Court must, of course, find that an award of damages is so far beyond the proper exercise of judicial discretion as to warrant its intervention on appeal. In my opinion, this award was. I consider that the appropriate figure is $45,000 and that, in lieu of the award of $65,000 there should be an award of $45,000 on which interest will have to be calculated. There was no suggestion that his Honour's method of calculation of interest was inappropriate. 84 The award of the cushion of $60,000 for loss of earning capacity was nextly attacked. The respondent was aged fifty-two years at the date of the trial and anticipated that she would continue to work until she was sixty years of age or thereabouts. She was, on the evidence, a dedicated worker and had recently obtained a further degree to assist in her nursing career. Mr Deakin pointed to the fact that she had suffered no loss of earnings, which he sought to demonstrate by reference to the fact that only a cushion was allowed and, perhaps more significantly, that a schedule in relation to her earnings showed an increase. He also pointed to the fact that she had lost little time as a consequence of this injury. 85 The trial judge approached this question thus:- "Given that leaving work is unlikely in the near future any cushion payment will have to take into account the vicissitudes of life at the rate of 15%, the fact that the plaintiff will receive now damages she would not be entitled to for some time and as well, the fact that some of the plaintiff's back complaints relate to her pre-existing condition. Dr Burgess thought that this condition accounted for 50% of her back problems. Allowing a deferral of loss of about five years and having regard to the plaintiff's net salary and the other factors I have referred to and bearing in mind the diminution is unlikely to be sudden or complete until much later in life, in my view an appropriate cushion payment is $60,000". 86 The net earnings to which his Honour was referring were $584 per week. 87 It was agreed by the parties that in seeking to work out a figure for the future the 3% multiplier was the appropriate percentage figure. That would provide a figure for eight years of $371.80. The factor to produce $60,000, after allowing for a 15% decrease to accommodate the vicissitudes, is $189.86 per week. Thus his Honour has allowed, in round terms, $190 per week as a cushion, although when one deducts the 15% it becomes approximately $162 per week. 88 It seems to me that having regard to the respondent's work history and obvious desire to continue working notwithstanding her difficulties and in circumstances where her employer is making no allowance for them, the period of eight years is not one with which this Court should interfere. Nor am I satisfied, having regard to her proven earning capacity thus far, that the allowance against the contingency that she will not be able to work to some extent in the future at which his Honour arrived was unreasonable. Accordingly I do not consider that the appellant has demonstrated that there has been any failure by his Honour to exercise his discretion properly in relation to this figure, or, more accurately, that his discretion has been shown to have miscarried to the extent justifying this Court's interference. 89 The third figure, which was challenged, was the sum of $50,000 for domestic help. Prima facie, this seemed a high figure. However, it was carefully analysed by Mr King, once again using the 3% tables but having regard to the respondent's life expectancy of thirty-one years, as showing that his Honour had only allowed $47.20 per week. It was agreed that the cost of domestic help is $16 per hour. If one takes, as the parties agreed, the 3% tables for thirty-one years and allows $48 per week, the base figure is $50,841.60. If one then allows for the vicissitudes by deducting 15% the amount is reduced to approximately $43,200. This, however, does not allow for more substantial periods at the commencement. I, therefore, am not satisfied that this sum is sufficiently beyond his Honour's discretionary range and, in my opinion, this part of the verdict should not be disturbed.

Costs . 90 The respondent has been essentially successful on all matters, save for the award of general damages. Argument in respect of that matter took little time, save for a submission made by Mr Deakin that comparable verdicts could be taken into account, which submission was subsequently withdrawn. In all the circumstances whilst the appellant has enjoyed a modicum of success, I am of the opinion that the proper exercise of discretion in relation to costs demands that the appellant pay the respondent's costs of the trial and of the appeal.

Orders proposed. 91 I propose that the appeal be allowed in part and that in lieu of the verdict for the respondent in the sum of $189,168, there be a verdict in her favour for $169,168 to which interest on the reduced figure of $45,000 will have to be added. The appellant should pay the respondent's costs of the trial and of the appeal. The parties should bring in Short Minutes of Order within seven days giving effect to these reasons and, in particular, calculating the interest on the amended figure for general damages. **********

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