LAKE MACQUARIE CITY COUNCIL v HOLT

LOWER COURT District Court JURISDICTION : LOWER COURT 154/02 FILE NUMBER(S) : LOWER COURT O'Connor DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41220/03 DC 154/02

SHELLER JA IPP JA TOBIAS JA

LAKE MACQUARIE CITY COUNCIL v HOLT At about 6pm on 18 September 2001, the respondent, after jogging on a cycleway from Speers Point in the west to Warners Bay, turned and began jogging back in a westerly direction towards Speers Point on the same cycleway. The path roughly followed the shoreline of Lake Macquarie and was not artificially lit. While running along a left hand bend the respondent "veered" to his left and placed his left foot on the edge of the pathway. He fell and sustained injury. At the point, where the respondent fell, the edge of the path was about three or four inches higher than the adjoining shoulder.

The respondent sued the appellant Council for damages for personal injuries sustained as a result of the accident, alleging that the accident was caused by negligence on the part of the Council. This negligence was particularised as including a failure to provide adequate lighting, to provide a flat surface, to ensure the level of the grass verge was the same as the footpath and to provide a warning sign.

Judge O'Connor QC found for the respondent and entered a verdict in the sum of $31,148.96. His Honour held that there was a foreseeable risk of injury occurring if a jogger was to inadvertently place their foot too close to the edge of the pathway and that the Council failed to implement such measures to obviate this risk. His Honour held that the principle enunciated in Ghantous v Hawesbury City Council (2002) 206 CLR 512 was distinguishable because the cycleway path in question was not like a suburban footpath.

On appeal to this Court, the appellant Council submitted that the trial Judge erred in holding that in the circumstances the Council owed a duty of care to the respondent and further that the Council breached this duty. In this regard, it was argued that the trial Judge failed to take into account the principles set out in Ghantous in determining the nature of the Council's duty of care. The Council also contended that his Honour erred in finding that any conduct of the Council in breach of its duty caused the respondent's accident.

Held: per Sheller JA, Ipp and Tobias JJA agreeing:

1. Although Ghantous was in some respects factually distinguishable from this case, the principle enunciated in Ghantous that pedestrians are required to take reasonable care for their own safety, still applied. The nature of the duty is no different because pedestrians choose to run or jog rather than walk. The trial Judge failed to address this issue of whether the respondent, at the time he fell, was exercising reasonable care for his own safety.
2. Reasonable care for his own safety required that the respondent not run in the lighting conditions he described so close to the edge of a path which was 2.5 meters high. The respondent could have jogged in safety away from the edge, while remaining on the left hand side of the cycleway.
3. It was not enough to impose a duty on the basis adopted by his Honour, namely, that an accident such as that which befell the respondent was foreseeable. The Council was entitled to expect that persons on the cycleway would ordinarily exercise sufficient care by looking where they were going and perceiving and avoiding obvious hazards such as an uneven surface at the edge of the cycleway. Accordingly, the Council was not in breach of its duty of care to the respondent as a user of the cycleway.

4. Expert evidence expressing opinions as to issues such as lighting, construction standards and insurance company recommendations easily diverts attention from the central issues in pedestrian accident cases on Council footpaths, namely the factual determination of what the pedestrian saw and did before the fall and the state of the footpath where the pedestrian fell.

5. While particular circumstances may make it appropriate for a council to agree or for a Court to impose as a condition on granting leave that the council pay the costs in any event, in a case, such as the present, where the decision involves a misunderstanding of the law by the trial Judge, the costs of the appeal should follow the event.

Burwood Council v Byrnes [2002] NSWCA 343 Georgopoulos v Telstra Corporation Limited [2004] NSWCA 266 Ghantous v Hawkesbury City Council (2002) 206 CLR 512 Hastings Council v Giese [2002] NSWCA 178 Richmond Valley Council v Standing [2002] NSWCA 359

ORDERS 1. Grant leave to appeal; 2. Order the claimant to file and serve within seven days a notice of appeal in the form of the draft notice of appeal; 3. Appeal upheld; 4. Set aside the verdict and judgment of Judge O'Connor QC of 18 December 2003; 5. In lieu thereof verdict and judgment for the defendant with costs; 6. The opponent to pay the claimant's costs of the application for leave to appeal and the appeal but to have a certificate under the Suitors' Fund Act 1951, if otherwise qualified. **********

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41220/03 DC 154/02

SHELLER JA IPP JA TOBIAS JA

Friday, 3 September 2004 LAKE MACQUARIE CITY COUNCIL v HOLT Judgment 1 SHELLER JA:

At about 6pm on 18 September 2001 the plaintiff, Jason Mark Holt, after jogging on a cycleway, from Speers Point in the west to Warners Bay, turned and began jogging back in a westerly direction towards Speers Point on the same cycleway. The path roughly followed the shoreline of Lake Macquarie. It was not artificially lit. At a time described as twilight or dusk, while running along a left hand bend the plaintiff "veered" to his left and placed his left foot on the edge of the pathway. He fell and sustained injury. 2 At the point where the plaintiff fell, the edge of the path was about three or four inches higher than the adjoining shoulder and this height difference continued for about four to five metres. 3 The plaintiff said that the lighting was such as to make it difficult to tell the difference between the edge of the path and the adjoining ground. He did not realise he had put his foot on the edge. He blamed the light conditions and said "it was "hard to see". In daylight, while running the first leg towards Warners Bay, he did not have this difficulty. This was the first occasion that the plaintiff had used the path. 4 The defendant, Lake Macquarie City Council, was the authority vested with the power and responsibility to maintain and control use of the path. 5 By an amended ordinary statement of claim, the plaintiff sued the defendant Council for damages for personal injuries sustained as the result of the accident, alleging that the accident was caused by the negligence of the Council. This negligence was particularised as: (a) Failure to provide any or any adequate lighting along the footpath; (b) Failure to provide a flat pedestrian service [scil surface]; (c) Failure to ensure that the level of the grass verge was the same as the footpath; (d) Failure to provide a warning sign advising of the presence of the hazard; (e) Failure to take any or any adequate steps to fill the hole; (f) Failure to provide each [scil edge] marking on the cycleway; (g) Failure to cut and maintain the vegetation on the side of the cycleway. 6 The plaintiff claimed that as a result of this negligence he suffered loss and damage.

The trial 7 Judge O'Connor QC heard the proceedings and delivered a reserved judgment on 18 December 2003. His Honour found for the plaintiff and entered a verdict in the sum of $31,148.96. 8 In the course of his reasons the trial Judge referred to three expert reports, two relied upon by the plaintiff and one by the defendant Council. He also referred to documents produced by the Council illustrating, as his Honour said, that the defendant Council had grappled with various issues concerning signage, lighting and marking while the cycleway was being constructed and during its use. 9 The trial Judge found that the plaintiff fell as a result of placing his foot on the edge of the pathway where there was a height differential of three to four inches and that the lighting conditions were such that it was difficult to identify the edge of the path. He also found that the lighting was such that the plaintiff failed to realise that he was putting his foot on the edge of the pathway. "His problem was also exacerbated by the vegetation that was overgrown near the edge as he approached the point where he fell." His Honour referred to the High Court's decision in Ghantous v Hawkesbury City Council (2002) 206 CLR 512 and the decision of this Court in Richmond Valley Council v Standing [2002] NSWCA 359 in which Heydon JA (as his Honour then was) said that in cases such as the present the reasonable foreseeability to be ascribed to the Council is reasonable foreseeability of risk of injury to pedestrians using reasonable care for their own safety. After referring to two cases in this Court, Judge O'Connor said: "36 In my view the cases of Ghantous and Standing can be distinguished from the facts of the case under consideration. There is no doubt in this case that an accident such as befell the Plaintiff was foreseeable. A number of the issues were clearly addressed by the Council, such as lighting, edge lining, warning signs in respect of use after daylight hours and preferred options in relation to delineating the edge from the verge. 37 Even in the absence of such deliberations, in a general sense, it can be seen that such an accident would be foreseeable. The question then is posed as to what a reasonable Council should have done in response to the foreseeable risk of injury. In determining what is reasonable one must bear in mind the way in which this structure was used and intended to be used. It was a shared path where the users, perhaps unlike an ordinary suburban footpath, had to be alert as to bicycle riders, roller-bladers, skateboarders, joggers and those merely out for a stroll. The path was also as indicated, built along the scenic foreshores of Lake Macquarie where, no doubt, it could be expected the users attention may be drawn to this attraction rather than observing with any degree of precision exactly where they place their feet. Unlike a suburban footpath, a good number of the users of the subject pathway would be travelling at speed, such as joggers or runners, together with skateboarders, roller-bladers and cyclists. In this sense it is very different to an ordinary footpath as the opportunity for a runner or jogger to observe the surface is reduced compared to someone out for an afternoon stroll. 38 There is no doubt in my view that there was a foreseeable risk of serious injury occurring if a jogger was to inadvertently place their foot too close to the edge of the pathway. There were obvious ways in which to obviate or reduce the risk of such injury occurring such as delineating the edge by a painted line or artificially light the area if it was to be open to the public after dark. These alternatives were contemplated by the Council but nothing was done. No evidence was called to suggest such alternatives were impractical. 39 Mr Cummings submitted that it was commonsense that footpaths must have an edge and it would be too onerous to place on Council a burden of ensuring a smooth and level surface beyond the edge of the concrete pathway. 40 In circumstances, however, where the Council knows or ought to know of the height differentials between the concrete paths and the verge and are aware that the pathway will be used after daylight hours, it seems to me not too onerous to require the Council either to warn users of such hazards or to implement the suggested methods of obviating the risk such as lighting or a white line which would aid in the differentiation between the edge of the path and the verge. 41 In my view, the failure to implement such measures amounts to a breach of its duty of care and accordingly there will be a verdict for the Plaintiff." 10 The trial Judge then went on to assess damages.

Leave to appeal 11 The Council seeks leave to appeal from this decision. The grounds in the draft notice of appeal were: "1. The trial judge erred in holding that in the circumstances the claimant owed a duty of care to the respondent. 2. The trial judge erred in holding that in the circumstances the Claimant breached its duty of care to the Respondent. 3. The trial judge erred in holding that any conduct of the Claimant in breach of its duty of care caused … the Respondent's accident." 12 The matter proceeded as a concurrent hearing so that the appeal would be heard at the same time leave was granted.

Discussion 13 Put bluntly, the defendant's principal argument was that the trial Judge had failed to take into account, in determining the nature of the defendant Council's duty of care to the plaintiff and whether there had been any breach of that duty, what Gaudron, McHugh and Gummow JJ said in Ghantous at 581 under the heading "Pedestrians". "The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous , the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous , persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger … or the surrounding area (as in Buckle v Bayswater Road Board (1936) 57 CLR 259 at 266, where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a 'trap' or, as Jordan CJ put it, 'of a kind calling for some protection or warning' ( Searle v Metropolitan, Water, Sewerage & Drainage Board (1936) 13 LGR 115 at 117.) In Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 455 [52], Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises 'is generally entitled to assume that most entrants will take reasonable care for their own safety' ( Romeo at 478 [123]). Each case will, of course, turn on its own facts."

The nature of the duty so described is no different because pedestrians choose to run or jog rather than walk. 14 In the sense predicated by this last sentence quoted, Ghantous was in some respects factually distinguishable. In particular, nothing turned upon lighting and the plaintiff fell when she stepped from a concrete footpath on to an earthen verge to allow two other women walking towards her to pass. However the principle stated in the passage I have quoted still applies. Judge O'Connor did not address the question of whether the plaintiff at the time he fell was exercising reasonable care for his own safety. The plaintiff's evidence, to which the trial Judge made no reference, was that the edge of the path where he fell was not directly concealed by grass. This was apparent from the photograph on which the plaintiff identified and marked with a cross where his foot went over the edge (exhibit C). On the first leg when jogging towards Warners Bay the plaintiff was aware that there was an edge to the path which he could see. He wanted and intended to stay on the flat level surface of the cycleway because it was a flat surface and he wanted to keep away from uneven surfaces. In approaching the point where he fell on the return leg he said he was mindful to keep to the left "but I must have veered too far to the left and my foot's hit the end of the concrete and its rolled off the edge of the concrete." Why he veered was left unexplained. He agreed there was no other person or traffic on the path nearby. He said it was difficult to see the edge because it was becoming dark. 15 In the recent decision of this Court in Georgopoulos v Telstra Corporation Limited [2004] NSWCA 266, a case in which a plaintiff, while jogging along a footpath, fell on a damaged and uneven corner of a concrete cover over a Telstra installation in the footpath, Mason P, with whose judgment Beazley JA and I agreed, said at para 7: "There is a light pole whose base was about two metres from where the claimant fell. The light that it supported was over the street and not the footpath, but it provided some illumination of the footpath. The claimant described visibility as 'poor', a proposition effectively embraced by the opponent. The opponent points out (correctly) that the obviously limited visibility was relevant to the care that persons such as the claimant would be expected to have exercised for their own safety, which in turn is relevant to the reasonableness of the opponent's response to the risk that the damaged installation presented to night-time joggers." 16 It is hard to see how the plaintiff's position was any different from that of a jogger on a suburban footpath who chose to jog close to the edge between the footpath and the gutter, when it was difficult to see the edge, and went too close to the edge so that his foot turned over. Reasonable care for his own safety required that the plaintiff not run in the lighting conditions he described so close to the edge of a path which we were told was 2.5 metres wide. He could have jogged in safety away from the edge, while remaining on the left hand side of the cycleway, thereby avoiding anybody coming on a bicycle, roller blades or a skateboard in the opposite direction or from behind him. 17 With due respect, his Honour misunderstood the nature of the defendant Council's duty. The Council was entitled to expect that persons on the cycleway would ordinarily exercise sufficient care by looking where they were going and perceiving and avoiding obvious hazards such as an uneven surface at the edge of the cycleway. It was not enough to impose a duty on the basis adopted by his Honour, namely, that an accident such as that which befell the plaintiff was foreseeable. The trial Judge's misunderstanding of what had been said in the critical passage in Ghantous, which his Honour regarded as being distinguishable because the cycleway path was not like a suburban footpath, led his Honour into error. The Council was entitled to expect that the plaintiff would, in the way I have described, take reasonable care for his own safety. Had he done so he would not have fallen on the edge of the cycleway. Accordingly, the defendant Council was not in breach of its duty of care to the plaintiff as a user of the cycleway. 18 Although it is not directly relevant to the decision, I make this observation about the expert evidence placed before the Court. Evidence by people, with various qualifications, accepted, as in this case, as experts, who have measured the lighting scientifically and expressed opinions about construction standards and insurance company recommendations of ways to reduce potential claims, easily divert attention from the central issues in pedestrian accident cases on Council footpaths, namely, the factual determination of what on the occasion the pedestrian perceived and did before the fall and the state of the footpath where the pedestrian fell. The question in such cases, as in this case, is whether the pedestrian took reasonable care for his or her own safety. Again in this case, it was only of peripheral relevance to consider, as the trial Judge did, various decisions and reports received by Council at the time the path was constructed and during the time it was used. Of course, in a particular case, it may be relevant if other pedestrians have previously complained to the Council of falling over the very same feature of the footpath on which the plaintiff fell or of seeing other pedestrians stumble or fall at that place. Orders 19 The opponent submitted that if the Court granted leave to appeal it should be on terms that the Council pay the opponent's costs of the appeal in any event. The opponent relied upon what was said in this Court in Hastings Council v Giese [2003] NSWCA 178 para 33. There Tobias JA observed that when the Court granted leave to appeal it did so conditional upon the appellant paying the respondent's costs of the appeal in any event. In Burwood Council v Byrnes [2002] NSWCA 343 at para 40 this appears: "Mr Joseph SC informed the Court that the Council would, as a condition of obtaining leave to appeal, submit to an order that it pay the respondent's costs in any event." 20 In the present case, an important reason for granting leave to appeal is that the appellant is a public authority faced with a verdict of over $30,000 in a class of case which in recent years has become very common. It was argued that the appeal has features notably different from other footpath cases which the Court has decided. But as would appear from what I have said, the decision in this case was based on a misunderstanding of the principles stated by the High Court in Ghantous. Such a decision cannot be allowed to stand for a proposition that, in some way unexplained, the provision by a council of public cycleways used for other purposes, such as jogging, calls for the application of a standard of care by the council different from those applicable in other cases where pedestrians have fallen and injured themselves on council footpaths. It is that error and that consequence that leads me to the conclusion that leave must be granted in this case and that the appeal should be upheld. While, as in the other cases to which reference has been made, particular circumstances may make it appropriate for a council to agree or for the Court to impose as a condition on granting leave that the council pay the costs in any event, I am not persuaded that in a case where the decision involves a misunderstanding of the law by the trial Judge, the costs of the appeal should not follow the event. 21 In my opinion, the following orders should be made: 1. Grant leave to appeal; 2. Order the claimant to file and serve within seven days a notice of appeal in the form of the draft notice of appeal; 3. Appeal upheld; 4. Set aside the verdict and judgment of Judge O'Connor QC of 18 December 2003; 5. In lieu thereof verdict and judgment for the defendant with costs; 6. The opponent to pay the claimant's costs of the application for leave to appeal and the appeal but to have a certificate under the Suitors' Fund Act 1951, if otherwise qualified. 22 IPP JA: I agree with Sheller JA. 23 TOBIAS JA: I agree with Sheller JA. **********

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