Kogarah Council v Maas

LOWER COURT District Court JURISDICTION : LOWER COURT DC4225/01 FILE NUMBER(S) : LOWER COURT Gamble ADCJ JUDICIAL OFFICER :

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40409/03 DC 4225/01

MEAGHER JA GILES JA WOOD CJ at CL

Friday 5 December 2003 Kogarah Council v Coral Eugina Maas Judgment 1 MEAGHER JA: I agree with Wood CJ at CL. 2 GILES JA: I have had the advantage of reading the reasons of Wood CJ at CL in draft. Drawing upon his Honour's reasons, in the following paragraphs I explain why I would grant leave to appeal, allow the appeal and order that there be a verdict and judgment for the claimant. 3 As Wood CJ at CL shows, on the opponent's case the claimant's negligence lay in leaving the concrete slab footpath in a hazardous condition because the sticky, stoney, and uneven (including sunken) asphalt area presented a trip hazard. That the grass verge presented a concealed hazard because of the stones or tar beneath the grass was a fact then employed for causation: the negligence in leaving the concrete slab footpath in a hazardous condition caused the opponent to diverge onto the grass verge and to suffer injury when she encountered the concealed hazard. Negligence on the claimant's part in leaving the grass verge in a hazardous condition was not clearly pleaded, and from the opponent's submissions to the judge no case of negligence in that respect had been presented or was maintained. 4 The judge correctly recognised the opponent's case. She noted the submission of counsel for the opponent (p 6) - "The failure of Kogarah Council complained of is its failure to repair the apparently unauthorised work; it is not the failure to check the area under the grass . The Plaintiff was forced to take the action she did because the Council had not repaired the slab a long time before January 1999, when it had become aware of the hazard. Had the Council repaired the slab as it should have there would have been no need for Mrs Maas to go onto the grassed area." (emphasis added) 5 Her Honour later said (p 7) - "Mrs Maas' case is that Kogarah Council could not have been unaware of the hazard after Mrs Myer's inspection of the site in July 1998, yet it chose to leave the faulty tarred slab for six months, until she fell over it." (emphasis added) 6 In this last passage may be seen the beginnings of some confusion, because the opponent did not fall over the faulty tarred slab. There was more than confusion, however, when the judge found for the opponent on the basis of negligence in relation to the grass verge. She said (p 9) - "There is no evidence in this case of how the depression and roughness under the grass was caused, apart from the inferences that may be drawn from the permits given for road opening and restoration. The difference I see between the two cases is that on 9 July 1998 Mr Myer signed off on the restoration of the nature strip and apparently noted, or at least could not have failed to observe, the asphalt patch adjacent to the nature strip restoration, but he left the site without investigating whether it was safe to do so. … This is not a situation in which the variations in levels or surfaces were reasonable or observable to pedestrians. Mrs Maas' evidence is that she apprehended a danger or risk from the asphalt surface and stepped aside to avoid it. In doing so she stepped into an unstable area of grass which could not be seen without close inspection. That constitutes an unreasonable hazard; one that the Council, through its officers, should have been aware of . In departing from the area without examining and restoring the grass verge and asphalt patch on 9 July 1998 the Council was negligent." (emphasis added) 7 At a later point, when considering contributory negligence, her Honour said that the opponent exercised due care because (p 14) - "She made a calculated decision based on observation, and in avoiding what she apprehended to be a dangerous surface, stumbled into an uneven and concealed hazard of which the Council should have been aware ". (emphasis added) 8 The judge does seem to have held that the claimant was also negligent in relation to the concrete slab footpath. There was not an express finding that the concrete slab footpath presented a trip hazard, as distinct from appeared to the opponent to present a trip hazard, but I respectfully agree with Wood CJ at CL that there was an implicit finding to that effect. The judge's statement that in departing from the area "without examining and restoring the grass verge and asphalt patch on 9 July 1998 the claimant was negligent", see para 5 above, is a clear enough finding of negligence in that respect, although the earlier sentence in the same passage ending with "until it was safe to do so" is a little unclear. But the judge did not reason simply from negligence in that respect to injury caused to the opponent. Essential to her reasoning was negligence in relation to the grass verge. 9 The opponent did see the hazardous condition of the concrete slab footpath. The question was not that so often presented, whether an unseen discrepancy in the opponent's path was obvious enough to her if she used reasonable care for her own safety. 10 If the claimant had put a barricade at the asphalt area, forcing pedestrians to diverge in the manner the opponent diverged, it would have discharged the duty of care it owed to pedestrians, unless it was negligent in failing to take reasonable care that in directing pedestrians around the barricaded area it did not cause them to encounter conditions which presented a hazard of which the pedestrians, exercising reasonable care for their own safety, would not have been aware. 11 When the opponent perceived a hazardous condition in the concrete slab footpath, it was as if there had been a barricade. In the result, she was aware of the trip hazard, and there was no operative breach of the duty of care so far as the footpath constituted a trip hazard. It was necessary that wider negligence be shown, encompassing failure of the claimant to take reasonable care to see that the grass verge onto which pedestrians were likely to diverge if they perceived danger in the asphalt area was safe for their passage and did not present a concealed hazard. 12 Thus proof of negligence in relation to the grass verge was necessary. The opponent's case did not extend to proof of that negligence, although it was impermissibly found by the judge. On the case presented and maintained by the opponent, there should have been a verdict and judgment for the claimant. 13 Leave to appeal would rarely be refused when the decision against the claimant was on a basis other than that on which the case had been presented against it. Refusing leave to appeal in small appeals not involving any question of principle, and preserving the Court's resources for more weighty matters, is one thing. Refusing leave to appeal against a decision reached contrary to principles of procedural fairness is very different. Even if they may be left with an arguably incorrect result, litigants are entitled to have a decision within the bounds of the case as presented. 14 I do not think that the verdict and judgment for the opponent can properly be left to stand by the refusal of leave to appeal. The amount is not insignificant, although well below the threshold for an appeal as of right, but of more significance the decision was not within the bounds of the opponent's case as presented. Upon giving leave to appeal, the appeal must be upheld and, absent a case of negligence in relation to the grass verge, there must be a verdict and judgment for the claimant. 15 I agree with the orders proposed by Wood CJ at CL. 16 WOOD CJ at CL: The Kogarah Council seeks leave to appeal from the judgment of her Honour Acting Judge Gamble, which was delivered on 17 April 2003, and in which she found the Council liable for an injury sustained by the opponent, on 19 January 1999. The injury occurred at about 12:30 PM that day, when the opponent, who was aged 76 years, was walking along a concrete slab footpath, on the southern side of Chapel Street, after having visited her husband at the St George Hospital. 17 It was the opponent's case that she came upon a section of the concrete footpath, which had been dug up in the course of the installation of a pit and of some cabling, and then repaired with an asphalt mix between May and July 1998. She said that she had gained the impression, it being a hot day, that it was sticky with protruding pieces of blue metal. 18 In her evidence in chief, she also said that the path was "all uneven"; an answer upon which she expanded, to some extent, in the course of her cross-examination, when she added, "you'd be stepping down…That's an indentation in the footpath, it's not a flat surface." 19 Counsel for the complainant appears to have accepted that this was the case, since he later obtained the opponent's assent to a question which was put in the following terms: "When you approached you saw this patched section, that is the tar patch, it was depressed below the level of the concrete footpath, was it not?" 20 The fact of subsidence was also noted in a report from the Council's Engineering Manager of 16 April 1999, in which he had noted that the asphalt patch was about 2 metres square and was sunken by about 50 mm. Whether it had been flush with the adjoining concrete slab when laid and had sunk over the succeeding months, or whether there had always been this unevenness in level, was unexplored. 21 The opponent said that, to avoid the hazard which the sticky and uneven area appeared to present, she stepped to her left, onto the grass verge. The grass, she said, felt "uneven and knobbly" and she lost her balance. In trying to save herself, she shifted her position to the right, and then fell to the ground. As a result of the fall, she suffered injuries to her right wrist and hand, and to her left ankle and hip, as well as some generalised bruising and shock. 22 She said that, after her fall, she noticed a separation or tear in the grass, and believed that the unevenness in the turf surface which had led to her fall was due to the presence of some "rubbly looking stony tarry stuff" beneath it. 23 This was not precisely the way in which her fall had been presented earlier in the proceedings, a letter of demand having been sent, histories having been taken, and particulars supplied, that variously attributed the fall to a trip "over a rough poorly patched section of the footpath…(which) was uneven"; or "over an irregularity in [the] footpath"; and/or to stepping onto bitumen "near the edge of the grass…which due to the heat of the day…seemed soft...", while avoiding a "poorly formed surface" in a section of the footpath. 24 There was evidence to show that the footpath, which was one that was likely to have regular foot traffic, since it was in the near vicinity of a public hospital, had been dug up and later repaired by C & G Technologies Pty Limited, or by its sub-contractor, although without having obtained any proper authority from the Council to do so. It also appears that, following the issue on 29 May 1998 of a road opening permit for "communications cabling", that had been sought by C & G Technologies, some 11 metres of the nature strip, adjacent to the patched section of footpath, were restored and then signed off by Wayne Meyer, of the Council, on 9 July 1998, that is, six months and nine days before the fall. While the precise date when the pit adjacent to the path, and the path itself, had been dug up and patched, was not disclosed upon the evidence, no permit for that work having been sought, it would appear likely that all of the work, including the turf restoration, was done at about the same time, that is, between 29 May and 9 July 1998. 25 There was also evidence that, following a complaint as to another fall which occurred in February 1999 in a different area of the footpath, the Council had repaired or replaced some 15 concrete slabs, including the missing one of which the opponent complained, it being its usual practice, where work of this kind is undertaken, to attend to any other slabs in the near vicinity that might require attention. The documentation for this work, described these slabs as "trip slabs". There was no evidence of any prior fall upon the repaired asphalt section. 26 It was the opponent's case at trial that, although the road opening permit which had been issued by the Council had been confined to the restoration of the nature strip, the Council employee who had signed off on that work, must have observed, and must have been aware of, the state of the footpath, and of the temporary repair to it. It was the failure to repair this slab, or to erect any barricades, at this time, to prevent pedestrians walking and tripping on the patched area, which was at the heart of the opponent's case. 27 In this regard, it is to be noted that the submissions of counsel for the opponent took issue with the way in which the defence had conducted its case, observing: "My friend in his submission says to your Honour that council cannot be responsible for a couple of stones under the grass that the plaintiff treads on . He rather, with great respect to him, misses the entire point of this case and that point is this. At midday or thereabouts on 18 January 1999 (sic) a 76 year old woman is walking down Chapel Street. There are a series of white concrete slabs. About two concrete slabs away from the tar patch she notices it. Your Honour has the photographs…and of course you will remember that council's own documents described a 50 ml (sic) drop and the plaintiff said that, then you will see in the photograph the disrupted concrete, the broken areas, the jagged area. It is midday sun and it seems to her it was sticky. All of this in circumstances where she notices it for the first time probably no more than a couple of paces away and this is what is going through her mind. She sees in my respectful submission what was a real danger to her, as a 76 year old pedestrian. There is no warning of it in the sense of signage, there is no barricade preventing a pedestrian going across it. She exercises extreme and sensible and responsible caution in seeking to avoid the obvious danger left by council. … Sure there may have been flat bits and there was grass growing about, but it was a hazard . She recognized it as sensibly she should have and that is where she met her fate because in the sensible recognition of the danger which was sheeted to her mind two concrete slabs away, she took what was that way, in my respectful submission, the only available opinion she had. That was to traverse that danger and how she did that was to put her left foot on to the grass. She looked at the grass, there was nothing apparent about the grass that suggested itself to her mind as being dangerous. … Your Honour will, in my respectful submission, take the view that in the circumstances of her being a lawful pedestrian on that part of the road, presented as she was with that hazard , in the few short seconds she had to do something about it, she took a step on the grass, and what did she come upon - blue metal stones and tar like material. She said, I think in cross-examination, that the material was like the patch. What she was not able to see was the danger which was truly in the nature of a concealed danger and a hidden trap which was in my respectful submission the detritus of the excavation work and the tarring work carried out and overgrown. … …Had council replaced that slab as they did later, in the way they did as it appears later, this woman would not have had to go on the grass. She would not have had to be exposed to the hidden danger, which was the rubble or refuse or whatever your Honour finds it was… she would not have to tread on it at all if they had done that as they reasonably should have. …you are able to find the real cause of this lady's fall was the fact that she had to take the action she did because the footpath was a hazard and it should not have presented itself as a hazard if council had been acting responsibly. … Now, my friend says you put your foot on a slab (sic) and the council cannot be responsible for little rocks under a slab (sic). That is where he misses the point. Where the council is responsible is not for failing to go through the grass with a fine tooth comb to find the detritus of this botched temporary job, it is in failing to restore the apparently unauthorized breakage of the footpath which they knew about. … …That is where they went wrong and this lady has met her fate not for a failure to go through a comb (sic, presumably of the grass) but for a failure to do what was entirely obvious, what should have been entirely obvious needed doing way back on 9 July 1998, and that was to replace the broken faulty slabs . That is where the council must be, in this case, found negligent..." (Emphasis added). 28 The way in which the case was argued by counsel for the opponent accorded with the way in which it had been pleaded and particularized, namely, upon the basis that the Council's negligence arose from its failure to repair the path in July 1998, and/or to erect a suitable barrier or warning. 29 At no stage had any case been pleaded or particularized that asserted negligence on the part of the Council in relation to the state of the grass, for example, by an allegation that the Council had been in breach of its duty of care by laying turf over stones or tar, or in failing to discover in July 1998, or subsequently, that the grass had been left in a condition where it was uneven or unstable or might potentially be so; or that with knowledge of its actual or potential instability, it had failed to address that situation. 30 Presented in this way, the case concerning the opponent's entitlement to damages depended upon a finding that the footpath constituted a hazard of the kind which the Council, acting reasonably in the discharge of the duty which it owed to pedestrians, ought to have addressed; and if so, upon a question as to whether there was a causal connection between the negligence of the Council, in leaving the hazard unrepaired, and the opponent's fall - a matter to be determined according to the common sense test examined in March v E & MH Stramare Pty Limited (1991) 171 CLR 506, Chappel v Hart (1998) 195 CLR 232 and Henville v Walker (2001) 206 CLR 259. 31 That the trial judge understood the opponent's case in this light, can be seen from the following passage in her judgment: "The failure of Kogarah Council complained of is its failure to repair the apparently unauthorized work; it is not the failure to check the area under the grass . The Plaintiff was forced to take the action she did because the Council had not repaired the slab a long time before January 1999, when it had become aware of the hazard. Had the Council repaired the slab as it should have there would have been no need for Mrs Maas to go onto the grassed area." (Emphasis added). 32 The case for the defence had, however, been argued, as appears from the closing addresses, upon the following bases:

(a) the cause of the accident was not established upon a balance of probabilities, having regard to the variance between the ways in which it had been particularized and in which it had been described by the opponent in her evidence; (b) the asphalt surface did not present a trip hazard, and there was no reason for the opponent to have diverged from it, at least without having first tested the surface to confirm that it was in fact sticky and likely to sink; (c) there was nothing untoward about the turfed area beside the footpath, grass surfaces being, in any event, less stable and having a less obvious base than a concrete or asphalt surface; (d) there was no reason why the Council should have attended the site, after 9 July 1998, to inspect the grassed area or to remove any stones or debris that might have given rise to a danger. 33 So far as the defence embraced propositions (c) and (d), it appears to have assumed that the opponent's case was being pursued upon a somewhat wider basis than that mentioned above, a circumstance which may go some of the way to explaining why it was decided adversely to the Council. 34 In the course of her judgment, the trial judge made appropriate reference to the principles governing the responsibility of authorities for the safety of pedestrians and others using footpaths and roadways, as established in Ghantous v Hawkesbury City Council (2001) 206 CLR 512, and in the other decisions which she cited, and in which it had been applied, or followed. 35 The decision in Lombardi v Holroyd City Council [2002] NSWCA 252 which involved a 25 mm step between two adjoining concrete slabs, and where it was held that the Council had not been negligent in leaving it unrepaired, was distinguished by her Honour upon the basis that, in the present case, the Council employee had signed off on the restoration of the nature strip at a time when he had "noted, or at least could not have failed to observe the asphalt strip adjacent to the nature strip…without investigating whether it was safe to do so". Clearly her Honour, in this passage, was focusing on the question whether the Council had been negligent in leaving the "asphalt strip" unrepaired. 36 It was at this point, however, that the focus seems to have changed, so as to include negligence in relation to the grass verge, as well as in relation to the "asphalt patch", in that her Honour continued: "This is not a situation in which the variations in levels or surfaces were reasonable or observable (sic, query 'reasonably observable') to pedestrians. Mrs Maas' evidence is that she apprehended a danger or risk from the asphalt surface and stepped aside to avoid it. In doing so she stepped into an unstable area of grass which could not be seen without close inspection. That constitutes an unreasonable hazard ; one that the Council, through its officers, should have been aware of. In departing from the area without examining and restoring the grass verge and asphalt patch on 9 July 1998 the Council was negligent." (Emphasis added).

37 In coming to this conclusion, the trial judge found, in the opponent's favour, notwithstanding the photographs of the path which had been taken two days after the fall, on a similarly hot day and which appear to depict a somewhat weathered and firm surface, that she had "believed the asphalt presented a hazard to her because it was sticky and had pieces of blue metal in it". There was no express finding that the patch did possess these features or that it was a hazard in fact, as distinct from the opponent's belief that it had presented such an appearance. 38 It is clear that, notwithstanding the variance between the particulars which had been supplied pre-trial, and the opponent's evidence at the trial, her version of the circumstances of the fall, including her observation as to the state of the footpath, and her decision to step onto the grass in order to avoid an apprehended danger, was accepted. 39 Additionally, there were express findings that the Council had been aware of, or ought to have been aware of, the patched area, when its officer, Weyne Meyer, inspected the restored turf, on 9 July 1998; and that it ought then to have repaired that patch. 40 That there was, in my view, at least an implicit finding that the path was in a condition that caused it to be a potential hazard for pedestrians, arises from the finding last mentioned, and from the general acceptance of the opponent as a witness of the truth, notwithstanding an extensive cross-examination which challenged the accuracy of her observations, particularly by reference to the photographs of the scene. 41 That there were some deficiencies in the path at the time of the fall appear from: (a) the photographs that do show some degree of unevenness, and some broken sections;

(b) the engineers' report, which recorded that it had sunk by about 50 mm; and (c) the action report of 26 February 1999, which included it in the list of "trip slabs" marked for repair. 42 However, as the authorities in relation to footpaths show, the existence of deficiencies and irregularities which are of this kind, and which are readily observable, does not necessarily give rise to liability on the part of Councils or of similar authorities. In that regard it is also not irrelevant that there was no evidence of any other fall having occurred on this section of the footpath. 43 There was an express finding, in the passage mentioned in para 36 above that the grass verge, onto which the opponent stepped, had been unstable, that such fact could not have been seen without close inspection, and that the Council should have been aware of its state. 44 It may also be noted that the trial judge, when dismissing a defence of contributory negligence, found that the opponent had been "as careful as she was required to be in the circumstances in which she found herself", in making a "calculated decision based on observation and, in avoiding what she apprehended to be a dangerous surface, stepped into an uneven and concealed hazard of which the Council should have been aware" (emphasis added). 45 The state of the Council's knowledge in relation to the grass, and any deficiency in it, in July 1998, or at the time of the fall, is much less clear, and could only have rested upon inference drawn from the acceptance of the opponent's evidence that, having lifted the section on which she lost her balance, she saw stones, tar and rubble underneath. There was, however, no evidence as to when and how any such stones or tar or rubble found their way into this area of grass, or as to what might have been the state of the grass verge in July 1998. 46 The Council did not call Mr Meyer as a witness in the case to rebut any suggestion concerning the manner in which the turf had been restored, or concerning its state, at the time of inspection. It did however challenge, through cross-examination, so much of the opponent's evidence as alleged that there had been stones, tar and rubble under the grass. While his absence, if unexplained, may have given rise to a Jones v Dunkel inference, namely that he would not have assisted the defence case, that did depend upon the way in which the opponent's case had been opened and conducted. 47 That the duty owed by public authorities in relation to roads and footpaths, is confined to one requiring that they be safe "for users exercising reasonable care for their own safety", and does not extend to ensuring that they are safe in all circumstances, is now well established, and has been consistently applied in this Court: see the authorities reviewed by Tobias JA, (with whom Handley and Sheller JJA agreed) in Hastings Council v Giese [2003] NSWCA 178. 48 In Burwood Council v Byrnes [2002] NSWCA 343, Handley JA contrasted the position of pedestrians with that of other road users, as follows: "[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… [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." (Emphasis added).

49 In Richmond Valley Council v Standing [2002] NSWCA 359, Heydon JA (as he then was), (with whom Handley and Sheller JJA agreed), observed: "[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 avoid, in view of the fact that surfaces which pedestrians use may be uneven, not flat and not smooth."

50 In Hastings Council v Giese, Tobias JA observed, after citing these decisions: "[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..." (Emphasis added). 51 Finally it may be noted that in Rallis v Pang [2003] NSWCCA 202, Tobias JA observed in relation to a path that was "rough and uneven and could possibly be an occasion of harm", but whose state had been observed by a plaintiff, "neither of those factors of themselves bespoke either negligence or breach of a relevant duty of care". 52 Had the opponent's fall occurred on the path itself, and had the case been confined to its condition, then an application of these principles would, in my view, have led to a verdict for the defendant Council. The imperfections were not only observable but they were observed, and I would not regard them as constituting a trap in the sense referred to by Tobias JA in Giese. 53 Admittedly the present case does have a twist, which was not present in the authorities which I have mentioned. This was not a case where the opponent was found to have tripped or slipped on a section of pavement that had been in an unobserved although defective state. Rather, it was a case of a pedestrian who saw what she believed to have been a potentially dangerous section of pathway, involving a temporary and unauthorised repair, which had been patched, which was uneven and sticky, and which had sunk by about 50 mm and, who, exercising the care for her own safety, which, the authorities say was expected of her, stepped onto an adjoining grass verge that was itself found to be an unseen hazard, in order to avoid the perceived danger. 54 It was in the opponent's response to the observed "hazard" that she came to grief, losing her balance when stepping onto a quite separate unseen hazard, but which was not something in respect of whose presence negligence had been directly alleged. 55 As I understand her Honour's judgment, the case became one that did not turn solely upon the state of the footpath. Rather, it was decided upon the basis that the Council had been negligent, at the time of the completion of the turf restoration and inspection, in failing to assess whether, in combination, the pavement patch, and the immediately adjacent turf presented a hazard, which, acting reasonably, it should have addressed. That appears from the manner in which the finding of negligence was expressed, namely: "In departing from the area without examining and restoring the grass verge and asphalt patch on 9 July 1998 the Council was negligent."

56 In dealing with the case in this way, confusion appears to have arisen. What essentially had been a question of causation, potentially involving issues of novus actus interveniens and a consideration of the Chapel v Hart test, seems to have changed into one that involved a wider breach of duty, extending to the state of the grass verge. 57 While I am of the view, for the reasons previously expressed, that error occurred in so far as the Council was found to have been negligent in relation to the state of the footpath, it appears to me that her Honour fell into further error in determining the case adversely to it upon this expanded basis. 58 What is of concern, in this respect, is that the decision simply did not reflect the way in which the opponent's case had been particularised or conducted on her behalf. The aspect which became critical for the decision, that is, breach of duty in relation to the grass verge, had in fact been expressly disclaimed by counsel for the opponent, although it was, at least, to some extent, ventilated by the Council in its cross examination of the opponent, and in its submissions. 59 The question which now arises is whether, in those circumstances:

(a) leave to appeal should be refused upon the basis that the verdict can be supported in the light of the facts found, or by reference to the considerations which apply to small appeals, or (b) leave to appeal should be granted, the appeal allowed and judgment entered for the defendant, upon the basis that, having presented a case confined to a breach of duty concerning the path, the opponent should not have the benefit of any findings in relation to a breach extending to the grass verge, or (c) leave to appeal should be granted and a new trial ordered, having regard to the confusion which appears to have affected the trial, and the manner in which it was decided. 60 The opponent submitted that leave to appeal should be refused, for the reasons variously noted by Rolfe AJA, with whom Powell JA and Ipp AJA (as he then was) agreed, in Kassem v Colonial Mutual General Insurance Company Limited [2001] NSWCA 38, and also noted in Carolan v AMF Bowling Pty Limited, NSWCA 16 November 1995, namely that:

(a) the case involved a somewhat unique factual situation which does not involve any question of gravity or any unsettled area of principle;

(b) the verdict was in an amount of $69,818.45, and as such falls within the category of cases where leave may properly be refused, consistently with the legislative policy of discouraging small appeals, in order to promote the efficiency of the Court's appeal procedures, and their availability for appropriate matters; and that

(c) it is not shown that by reference to the factual findings which were made, the result was arguably wrong. 61 While the third of the options mentioned has some superficial attraction, it does seem to me that the claimant was entitled to have the case decided by reference to the way in which it was particularised, pleaded and conducted on behalf of the opponent. To direct a new trial now would permit the opponent to expand its case, in a way that had always been open to her, but which had been expressively disclaimed. That would, in my view, be contrary to the principles of procedural fairness. 62 I accordingly propose the following orders:

1. Grant leave to appeal; 2. Verdict and judgment for the plaintiff set aside and a verdict and judgment for the defendant substituted; 3. The opponent/respondent to pay the claimant's/appellant's costs ; 4. The opponent to have a certificate under the Suitors Fund Act. **********

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