Lockhart Shire Council v. King [2004] NSWCA 169

LOWER COURT District Court JURISDICTION : LOWER COURT DC289/01 FILE NUMBER(S) : LOWER COURT Sidis DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40630/03 DC 289/01

HANDLEY JA HODGSON JA McCLELLAN AJA

Thursday 27 May 2004 LOCKHART SHIRE COUNCIL V. KING Judgment

1 HODGSON JA: On 4 July 2003, Judge Sidis gave judgment in favour of the plaintiff, the opponent in this application, in proceedings brought by her against the claimant Cuncil for damages for personal injury, in a sum which we are told is in the order of $70,000. The Council seeks leave to appeal. The leave application has been argued on the basis that if leave is granted, the appeal will be decided without further argument. 2 The proceedings arise out of a fall which the plaintiff suffered on 5 August 1999 on a footpath in Green Street, Lockhart. 3 There was evidence from Mr Murphy, who at the relevant time was the manager of technical services for the Council, that as at April 1999 the footpath in Green Street, Lockhart, between the post office and the Council administrative offices, was in poor condition. At that time the surface was of chip seal but there were undulations, tree roots, cracks and repaired potholes. There had been complaints. As a result, in April 1999 this footpath was overlaid with asphalt. 4 The plaintiff's evidence was that she tripped on a lump on the footpath within this area, in the general vicinity of but not at the edge of a Telstra pit. This evidence was accepted by the primary judge, who also found that what the plaintiff tripped on was "an undulation of minimum depth fifteen millimetres and maximum of twenty millimetres in the footpath." 5 On 17 August 1999, that is twelve days after the accident, the plaintiff attended on Mr Murphy and showed Mr Murphy where she had fallen. As a result of this encounter, Mr Murphy became aware of a lip at the edge of the Telstra pit with a height differential of up to fifteen millimetres, and gave instructions to a Council employee to smooth this area by using an electric Kanga hammer. 6 Mr Murphy's evidence was that the asphalt on the footpath in the vicinity of this Telstra pit was "aesthetically displeasing" and unravelling, meaning that the aggregate was being released from the asphalt. Apart from the fifteen millimetre lip identified at the edge of the Telstra pit, Mr Murphy said there were undulations with a maximum height in the fifteen millimetre range and very minor trip points in the five millimetre range. 7 A footpath hazard report form was written up and dated 17 August, primarily by the Council's personnel officer, concerning this section of footpath between the post office and the Council administration building, noting among other things "size of trip hazard" as "ten to twenty millimetres (high)" and "uneven surface" as "uneven (medium)." 8 There were additional comments on this form as follows. Firstly, written by the Council personnel officer: Footpath lip surrounding grates owned by Telecom were uneven in places. A fifteen millimetre lip was identified as being a trip hazard and its associated risk was high. Immediate action is required by Council to ensure this does not cause further injury.

Then there is a further note made by Mr Murphy, "lip/trip hazard at edge of pit was removed by Council staff 2pm Tuesday 17 August 1999", and the document was signed by Mr Murphy. 9 The primary judge preferred the evidence of the plaintiff, that she had pointed out to Mr Murphy a location of her fall some distance away from the edge of the Telstra pit, to the evidence of Mr Murphy that she had indicated to him the edge of the Telstra pit. As mentioned, the primary judge found that what the plaintiff tripped on was an undulation between fifteen and twenty millimetres high. 10 The primary judge relied, inter alia, on evidence of the plaintiff to the effect that there was a lump twenty five millimetres high, of her daughter that there was a lump fifty millimetres high, and an estimate by an expert witness on the basis of photographs of undulations ten to fifteen millimetres high. The primary judge also relied on the footpath hazard report to which I have referred, which she said "stated that the footpath generally rather than that immediately adjacent to the Telstra pit had irregularities between ten and twenty millimetres." 11 The primary judge referred to a number of cases including Fairfield City Council v Petro [2003] NSWCA 150, and Brodie v Singleton Shire Council (2001) 206 CLR 512. She said it was clear that in the ordinary course, any irregularity between ten and twenty millimetres in a footpath would not impose a duty on a highway authority to take remedial action, where a pedestrian can be expected to act reasonably and the hazard which it represents is obvious. However, the primary judge went on to express the view that the irregularity in the current case fell into an exceptional situation for the following reasons. In the current case, as noted, the irregularity was modest. However, in my view, it falls into an exceptional situation for the following reasons. The appearance of the footpath was uniform; the total area of the footpath was covered in the same material so that irregularities in its surface are not as obvious as they might be in cracks in pavement or in irregularities between sections of paving.

The defendant, in its footpath hazard report, itself assessed the area in which the plaintiff fell as one carrying high pedestrian traffic volumes. The defendant was aware of the deficiencies in the surface of the footpath as early as April 1999 when the surface had been laid. Those irregularities were described by the defendant's witness as aesthetically displeasing. The defendant appeared not to have addressed the issue of whether they also presented potential hazards.

Whilst there was no history of prior accidents involving these irregularities, the surface of the footpath had been in place for a relatively short period and as stated by Tobias J in Petro at paragraph 32, "The absence of prior falls, though relevant, is not determinative". In making that statement he referred to decisions in Francis & Others v Lewis, [2003] NSWCA 152, 19 June 2003 and Campbelltown City Council v Frew, [2003] NSWCA 154, 19 June 2003.

The defendant had itself assessed an irregularity of fifteen millimetres at the Telstra pit to be one of high risk requiring immediate attention, which it supplied. I have already noted the inconsistency in the evidence of Mr Murphy concerning the need to address other irregularities of the same dimensions and the relative ease with which the identified hazard at the Telstra pit was removed compared to the difficulties which he said would be faced if he were to remove the irregularity upon which the plaintiff fell. For those reasons I do not accept that it would have been unduly difficult or expensive for this irregularity to have been removed.

I have reached the conclusion, therefore, that the compound result of these features is that there existed on the footpath of Green Street, Lockhart, where the plaintiff fell on 5 August 1999, an irregularity presenting a hazard which the defendant, acting reasonably, would have recognised as one requiring its attention. It had not been attended to prior to the plaintiff's accident. In my view, it was inappropriate, in the circumstances of a newly laid footpath surface which was known to contain irregularities and known to carry a high volume of pedestrian traffic, for the defendant to wait for a complaint of an accident before undertaking a hazard assessment and before taking action to rectify hazards identified.

Thus I find there was a duty of care on the plaintiff and a breach of that duty by the defendant for which it is liable to the plaintiff. 12 The appeal is sought to be brought essentially on the ground of error in the primary judge's finding of a breach of duty of care. 13 Mr King SC for the Council submitted that the defect in the footpath identified by the primary judge was not a significant defect such as would require remedial action. It was not, as the primary judge suggested, difficult to see; and Mr King referred to evidence from the plaintiff that on 17 August when she spoke to Mr Murphy, she had seen it from five to six metres away. 14 Mr King pointed out there was no finding of any negligence concerning the work done in April, and there was no consideration by the primary judge on whether or why the Council should have become aware of any defect and acted so as to rectify it prior to 5 August. He also pointed to the primary judge's finding of inconsistency in the evidence of Mr Murphy as to the need to attend to the fifteen millimetre lip at the Telstra pit, but no need to attend to other irregularities in the area of similar dimensions; and inconsistency between his evidence as to difficulties of dealing with these other irregularities, when the lip at the Telstra pit had been so easily dealt with. Mr King submitted that, as stated by the primary judge herself, these possible inconsistencies had not been raised with Mr Murphy; and so they should not have been dealt with as being inconsistencies in his evidence and the basis of adverse findings against the Council. 15 Mr Cranitch SC for the plaintiff submitted that, this being a case where leave was required, this Court should be particularly cautious in intervening. He submitted that the primary judge was in a far better position to assess the nature and extent of the hazard than this Court, and that the photographs that were before this Court were not a reliable basis to intervene in the decision of the primary judge. He submitted that, consistently with the Council's action in relation to the lip at the Telstra pit, the Council should have recognised and dealt with defects of similar dimensions in the vicinity. 16 He submitted that it was open to the primary judge to find that the defect was one which was difficult to see. He submitted that this Court would not intervene in relation to the primary judge's assessment of Mr Murphy's evidence, and he pointed to his evidence concerning the problems with the footpath and the problems with dealing with defects, which Mr Cranitch submitted was evasive. He pointed particularly to an acceptance of a proposition that the unravelling of the bitumen constituted a hazard, which was inconsistent with later assertions that the footpath surface did not constitute a danger or a high risk. 17 On the question of knowledge of the Council, Mr Cranitch submitted that this footpath was near the Council chambers, and that Mr Murphy agreed that the condition as it existed in August would have been in existence for some time; and he submitted that there was ample material for the primary judge to find that it was a hazard that should have been dealt with. 18 In my opinion, there are errors in the judgment of the primary judge that do justify intervention by this Court. 19 I accept Mr King's submission that the primary judge did not address the question of whether the Council should have become aware of a defect in the footpath after the remedial work was done in April and before the accident in August, such as to require that this defect be the subject of remedial action taken before early August. That was, in my opinion, a question that required consideration and was not given it. 20 In my opinion, another error by the primary judge which to some extent affected her decision was a misinterpretation of the hazard form completed on 17 August. In my opinion, plainly, when read as a whole, the reference to a high hazard referred only to the lip beside the Telstra pit. 21 In my opinion also, the judge should not have made a finding of inconsistency in the two respects identified in Mr Murphy's evidence. where there were commonsense bases for differentiating the situation in each case, and the matter was not put to him in cross-examination. The commonsense matters that I refer to are the difference between a vertical lip of fifteen millimetres and undulations of up to fifteen millimetres, and vertical edges of around five millimetres as described by Mr Murphy on one matter, and the difference between smoothing out a particular lip and dealing with undulations existing over a larger area in relation to the other matter. 22 In my opinion also, the primary judge was in error in her assessment of the severity of the defect, although I accept Mr Cranitch's submission to the extent that, if that were the only error in the judgment, this Court would be hesitant in intervening. 23 In my opinion, the defects disclosed on the evidence and accepted by the primary judge were not such that, even if the Council had become aware of them, there was a breach of duty in not remedying them outside any ordinary programme of footpath maintenance that the Council might have. The defect was minor and, on the evidence of the photographs, was reasonably visible. There is also the circumstance that it was seen by the plaintiff from five metres away on another occasion, although there is some force in the submission that there is a difference between seeing a defect when one is already aware of it and looking for it, from the situation when one is encountering it for the first time. 24 In my opinion also, even if the defect in the footpath was such that it should in some way have been given priority over the general Council programme for dealing with footpaths, the evidence did not justify a finding that the Council should have become aware of defects for a sufficient time before 5 August 1999 so that it would have been given priority and been rectified prior to that date. 25 For those reasons, in my opinion leave to appeal should be granted. The appeal should be allowed, the verdict and judgment for the plaintiff should be set aside, and there should be a verdict and judgment for the Council. The plaintiff should be ordered to pay the Council's costs of the proceedings and of the application for leave and of the appeal, and should have a Suitors Fund certificate if otherwise entitled. I would direct also that a Notice of Appeal be filed within fourteen days. 26 HANDLEY JA: I agree. I will only add some brief remarks of my own. The judge found that the undulation which brought the plaintiff to grief had a variation of between fifteen and twenty millimetres in its depth compared with the surrounding surface of the pavement. She correctly categorised the irregularity as modest. However, she then found that the present case fell into an exceptional category and that this modest irregularity was a hazard which called for remedial action from the Council. 27 The accident occurred about 11.30am on an August day in good weather. The undulation was located in a generally flat area in the footpath. It was no in deep shadow or otherwise obscured or concealed. Unlike other cases where the hazard appeared in a place where it would not be looked for or expected, it was in full view of any pedestrian keeping a reasonable lookout as he or she went about their business. 28 The judge, in my respectful view, failed to pay proper attention to the principles stated by Chief Justice Gleeson in Ghantous v Hawkesbury City Council [2001] 206 CLR 512 at 525-526, where his Honour said that an injured plaintiff has to show that a footpath is dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land.

Then he quoted with approval a statement in an English case that "a highway is not to be criticised by the standards of a bowling green." 29 Proper attention to those principles, in my judgment, would have required her Honour to enter judgment for the defendant in this case. I agree with the orders proposed by Justice Hodgson. 30 McCLELLAN AJA: I agree with Justice Hodgson and I also agree with the additional remarks of Justice Handley.

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