Lombardi v. Holroyd City Council & Anor. [2002] NSWCA 252

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40961/01 DC 2404/99 DC 8833/00

HODGSON JA FOSTER AJA BROWNIE AJA

Thursday 1 August 2002 LOMBARDI V. HOLROYD CITY COUNCIL & ANOR. Judgment 1 HODGSON JA: On 6 November 2001, Patten DCJ gave his decision in proceedings in which the appellant Guiseppa Lombardi had sued the first respondent Holroyd City Council (the Council) and the second respondent Australian Gaslight Company (AGL) for negligence in connection with injuries she suffered when she fell on a footpath at Westmead. The primary judge's decision was that there be verdict and judgment for both respondents, and the primary judge ordered the appellant to pay the respondents' costs. The appellant appeals to this Court from that decision.

CIRCUMSTANCES 2 The appellant is a widow, and was born in Italy on 1 January 1931. 3 At about 5pm on 7 November 1997, she was walking towards her home at 1 Austral Avenue, Westmead, when she fell on the footpath outside 33A Austral Avenue, and thereby suffered injuries. It appears that her foot had caught a small step between two adjoining slabs of concrete, which ranged from about 25 millimetres in height at the northern edge of the footpath down to about zero at the southern edge, and which had resulted from subsidence affecting one of the slabs. 4 The slab affected by subsidence had been replaced after being removed in 1993 or 1994 by AGL in the course of renewing gas pipelines, by a process known as "Goldline" whereby new pipes were inserted inside the existing pipes. The gas pipe in Austral Avenue ran east-west under the footpath, probably under the northern half of the footpath, and probably at a depth of about 700 millimetres at this point. The process required digging of holes about 1.6 metres long at intervals along the footpath, with the footpath slabs at these points being removed. The protocol between the Council and AGL regulated the procedure for replacement: AGL was to backfill the hole, properly compact the filling, and temporarily seal the surface with asphalt; and then the Council would replace the asphalt with a new concrete slab. This procedure was followed, and the slab in question was laid by the Council in about March 1994. 5 The evidence also indicated that there was a large diameter stormwater pipe running north-south across the line of the footpath at about this point, at a depth greater than that of the gas pipeline. 6 At the trial, there was expert engineering evidence concerning the causation of the subsidence, in addition to a preliminary report provided by an engineer Mr. Burn which provided measurements on which other experts relied. 7 Firstly, there was a report by Mr. Turner of Golder Associates Pty. Limited, who had been engaged by Zaro Concrete, a previous defendant in the case, and tendered at the trial by the appellant. Mr. Turner did not give oral evidence. In his report, he said the following: The backfill surrounding the stormwater pipe may not have been adequately compacted when the pipe was installed. The settlement that has occurred could be subsidence of the pipe backfill at depth, rather than the higher level fill compacted by AGL. (However, if this were the case we would expect to see evidence of similar settlement at other locations along the stormwater pipe alignment). Alternatively the stormwater drain may be leaking locally beneath the footpath, causing the pipe backfill to saturate and settle.

We do not presently have sufficient information to assess the most likely cause of the settlement. The following section presents a scope of investigation to assist our further assessment. Whether this investigation is required may depend on the contract between Zaro Concrete and Holroyd Council. 8 Next, there was a report by Taylor Lauder Bersten Pty. Limited, also engaged by Zaro Concrete, which was tendered by the appellant. There was no oral evidence on the basis of this report. This report contained the following: 5.1 Our site inspection with Golder Associates on 9 May revealed: a) very soft, saturated ground (backfill) and service trenches beside this pavement segment, to a depth on the northern side of 2m. b) a 50mm high cavity beneath the segment extending over the area shown in Fig 2. c) settlement of the northern side of the segment as shown in Fig. 1, which indicates that the north western corner has settled a further 9mm to 34mm since it was measured as being 25mm in 1998 by Burn d) a rise in the level of the southern side of the segment as shown in Fig. 1.

5.2 All of the above factors indicate that the pavement segment has settled on the northern side after it was poured, and also before and after it was inspected by Burn.

5.3 The two repair 'ramps' of cement mortar that were placed to alleviate the step towards the northern side could be assumed to have been finished level with the adjacent pavement segments. At the time of our inspection, they had settled 8mm and 10mm as shown in Fig. 1. This movement confirms that further settlement has occurred since the pavement was repaired.

6. Conclusion 6.1 The cause of the steps between this pavement segment and the adjacent pavements to the east and west is settlement and rotation of this segment.

6.2 The causes of settlement have been: a) inadequate compaction of the backfilling material in the service trenches immediately adjacent to and beneath this segment, and b) saturation of the backfilling by stormwater. 9 There was a report by Mr. Richmond of Sinclair Knight Merz Pty. Limited, engaged by the Council. This report was tendered by the Council, and there was no oral evidence by Mr. Richmond. This report expressed agreement with par.6.1 of the Taylor Lauder Bersten report, and expressed the following opinion: 5.1 The Cause I have seen no evidence relating to the original reason that required the replacement or repair of this slab. Golders (16 May 2000) reported that it was due to damage caused during installation of underground services at this point.

5.1.1 Sub-surface Conditions The investigations and site inspections undertaken have revealed that the soft sub-surface conditions, and the presence of sub-surface water exhibited at this location would allow a slab subsidence or rotation to occur. Whether the slab would rotate under its own weight or by imposition of loads in excess of those imposed by pedestrians has not been addressed.

5.1.2 Loading As advised in the Golders report, the slab was supported by 150mm of apparently compacted road base material. I would be surprised if road base was compacted sufficiently to support the slab over soft material such as described by Golder. This certainty would provide insufficient support even for vehicle loading.

Whether the slab should have been designed to support loadings in excess of pedestrian loadings at this location has not been explored. It is my opinion that the easement between Austral Avenue and Moree Avenue would clearly be expected to carry some heavy vehicles to allow maintenance of the power lines if for no other reason. It also appears that vehicles have traversed the kerb in front of the easement along Austral Avenue.

Additionally, there is potential for the mail deliveries by motorcycle to have imposed sufficient loading close to the northern edge to rotate the stab in very soft soil.

5.1.3 The Stormwater Pipe The weak sub-surface condition at the slab location is almost directly above the stormwater drainage pipe. I could find no evidence of subsidence above the pipe at other points along the pipe line. Backfilling to pipes such as this is normally undertaken in a uniform manner unless disturbance has resulted in introduction of different backfill materials or different standards of compaction.

5.1.4. The Utilities If the process of installation of underground gas mains AGL also disturbed the backfill to the stormwater pipe, and council was unaware of the nature of the disturbance, then appropriate action could not be taken.

Such a disturbance would relate to excavation and backfill to lesser standard of compaction, and provision of an additional water source (the new gas main) leading directly to the lesser compacted material directly beneath the new slab. My observations of the underground main at the intersection of the easement with Moree Avenue were that the water was flowing along the conduit and directly entering the utility pit. It is considered that this is also occurring along Austral Avenue.

The influence of these levels of sub-surface water in disturbed ground is to cause substantial weakening and loss of uniform support beneath the slab.

5.2 Comments on the Particulars of Negligence 5.2.1 Failing to exercise due and proper care. Council provided a formal repair to pathway damages introduced by others. I am satisfied that the new footpath slab was originally constructed in a workmanlike manner level with the adjoining slabs.

The provision of suitable foundation conditions to provide a durable pathway does not appear to have been provided even though it appears that a standard practice (provision of 150mm compacted base material) was adopted.

The extent of the repairs undertaken are not reported to have extended to reconstruction of disturbed materials around the underlying stormwater pipe, or to provision of sub-surface drainage required as a result of the work by AGL or others.

In this regard it is considered that the utilities installation created a water source that did not exist prior to their work, and that this was a factor in causing lower quality foundation for the slab. 10 Finally, there was a report by Mr. Kiernan, engaged by the appellant, and tendered by the appellant. Mr. Kiernan gave oral evidence at the hearing, and was cross-examined. His report contained the following passages: The backfill has subsided beneath the slab and this indicates the likelihood of inadequate compaction or loss of material resulting in the downward movement of the material below the concrete restoration.

The significant drop in level on one side, the northern side of the restored concrete footpath slab, indicates that the excavation beneath the footpath was confined to beneath the northern portion of the concrete footpath and the earth beneath the southern edge was probably not disturbed.

If this is correct, the concrete slab subsidence is most likely differential settlement of the northern portion supported on backfill, and the southern portion on the undisturbed ground surface. The deeper the opening trench the more likely some settlement would occur to the backfill. This type of subsidence occurs when a short trench is excavated beside and/or just under the concrete footpath. Unless compaction is rigidly controlled, the footpath will tilt towards and/or subside on the trench opening side.

The geotechnical investigation recorded a cavity beneath the northern half of the footpath. Also that it was very soft backfill to a depth of 2 metres on the northern side. A depth of 2 metres seems unusual, unless the Goldline plant was laid under the stormwater pipeline that crosses Austral Avenue. But in any event, if the footpath opening extended part way across the concrete footpath alignment, compaction of the backfill would have been highly critical in providing a satisfactory surface for restoration of the concrete footpath. And if the trench or opening depth was 2 metres, it is highly likely that the concrete slab tilted as a result of differential movement between the compacted backfill and the ground surface beneath the southern side of the footpath.

The ground is said to have been saturated at the time of inspection. While the restored slab is at a sag point in Austral Avenue, the footpath has crossfalls to disperse stormwater runoff. Under normal circumstances water should not penetrate the subsurface at this point and this seems unusual. However, a localised depression has been formed as a result of the subsidence, and this may have saturated the backfill material over time. Any link between the saturated backfill and the major stormwater pipeline beneath the footpath seems unlikely. 11 During cross-examination, Mr. Kiernan gave the following evidence: Q. I see. What is the cause in your opinion of the saturation which was - saturation of the back-filling which was identified by some of the other experts? A. I really am uncertain about that, I can't really be sure. Had I been there investigating it I may have been a little bit more able to make a comment but I really can't comment on it.

Q. If there was an independent source of water whether by natural drainage or something else, would that have the potential to wash away back-fill, properly compacted back-fill? A. Only if there was some cavity in the trenching or the ground beneath.

Q. All right. Why do you express the scepticism, if I can use that word, about the trench being two metres deep and I will take an example of that - yes, on the top of page 10 you say depth of two metres seems unusual, do you see that? A. Yes.

Q. Why do you say that? A. Why do I say that?

Q. Yes? A. Well, most utility services aren't two metres down.

Q. And do you have - do you actually have any experience yourself as to how deep the gas pipes may have been in this particular area? A. Yes - oh, well, not in this particular area but as a general rule services are between one metre and, say, 600 to one metre below the footpath level.

Q. It wouldn't surprise you if the depth of the gas pipe in that area was point 7 of a metre, approximately? A. No, that would be reasonable.

Q. That's within your experience? A. Yes, that's correct.

Q. You would agree with me, wouldn't you, that, if gold lining involves putting a new pipe down the centre of an old pipe, there would be no need from an engineering perspective to dig a trench at all? A. No, that's right.

Q. And if there was no trench involved along the side of the footpath your thesis falls away, doesn't it, as to the reason that the footpath subsided? A. Well, I saw restoration orders between AGL and council and this area was one of those restoration orders, so there is a reasonable assumption that AGL, did something there.

Q. But those restoration orders that you saw didn't involve any trenching, did they? A. No, they only referred to concrete footpath restorations.

Q. So where did you get the - if I have understood your evidence correctly - the idea that there was some reference to trenching on this piece of paper or some other piece of paper? A. Well, I don't have any reference to trenching at all. It was an opening of the footpath and a series of openings in the footpath suggest that you opened the footpath or removed the concrete to get to the material underneath.

Q.. By a hole? A. Yes, could be a hole.

Q. And just staying with number 33A, you would accept, wouldn't you, that if there was a hole with dimensions 1.6 by point 7 metres, in its linear dimensions, that it would be most unlikely that such a hole would be two metres deep? A. Yes, that's correct.

Q. It wouldn't be workable, would it? A. No, that's right.

Q. And you would agree with me that an opening of about that size would be consistent with someone excavating down to about point 7 of a metre? A. Yes.

Q. Or thereabouts? A. That's correct.

Q. You, at page 10 of your report, you dismiss the stormwater pipe as being a source of the saturated back-fill, do you see that, about halfway down? A. Yes, that's right.

Q. What's - what causes you to reach that conclusion? A. Well, I don't - I didn't have any evidence of it. I don't see that it was any different to any low point in any street anywhere and I didn't see why - that this should be a particular problem at this point.

Q. I see. And just assuming again for the moment that what we are talking about here is not a trench but a series of holes, does that change the opinion that you express on the bottom of page 10 where you say, "Assuming the opening was up to two metres deep along the one side of the footpath, special attention to back-filling and restoration was required at this location" and you are talking about a trench there? A. Well, I see what you mean. The word "special" of course referred to the depth.

Q. That's right? A. And I must say that the word "trench" I am using in the loose context, in other words if you are excavating a hole that is say one metre long, it tends to be a trench.

Q. I see. You are not suggesting there was a continuous trench along the northern side of the footpath? A. No - well, no, not necessarily. 12 He gave the following evidence in re-examination: Q. From an engineering point of view, Mr Kiernan, there would be no need to talk about replacing a footpath restoration due to poor back-filling procedures unless the hole that was being dug was of a size that required significant compacting. MINEHAN: I raise the same objection, your Honour. He is asking the witness to interpret the letter, your Honour.

HIS HONOUR: No, I will allow the question. WITNESS: Yes, I think even at point 7 and we don't know the extent of the hole, I don't know whether there is any evidence to talk about how - or the dimensions of the hole - if you have a problem with the area you might extend the hole, it could extend out. So it's a worthy - a statement worthy of being made, indicates that correct procedures have to be done even for 700 millimetres.

Q. So that if the - there had been adequate compacting of this particular slab, then it should not have reacted any differently from the adjoining slabs? A. That's correct.

Q. If we're talking about a hole, whatever its dimensions, then sub-soil water, unlike, say, a trench with water can run along a trench, sub-soil water is unlikely to be any more of a problem at a particular point than at any other point, that is --

A. Entry of sub-soil water is not known at this point. As a general rule I think the answer is, no, there is no difference.

Q. Again adequate compacting is likely to deal with that? A. Yes, that's correct.

Q. If we are talking of something of the order of three and a half years between when this slab is laid and when this accident occurs, of that order, perhaps a little bit less, we are talking about a subsidence of a fraction over 7 millimetres a year? A. Yes.

Q. In terms of compacting, does that indicate a significant failure of compacting? A. Yes 13 The primary judge reached the following conclusion concerning the appellant's claim against AGL: The expert opinions were, in so far as they suggest responsibility on the part of AGL, I think, undermined by references to a 2m deep trench on the northern side of the pavement. There is no evidence that AGL, was involved with such a trench. Moreover, there was no evidence that either Defendant was involved with the stormwater pipe line referred to. That being so and, in light of the passage of about three and a half years between the restoration of the pavement by the Council and the accident which befell the Plaintiff, I am not persuaded, on the probabilities, that it was established that the restoration of the footpath was negligently carried out. It seems to me equally probable that between the restoration and the Plaintiffs fall, some other cause, such as water penetration or the digging of a 2m deep trench on the northern side of the pavement, caused subsidence. As a consequence of this finding, the Plaintiff s action against AGL must necessarily fail. 14 As regards the appellant's case against the Council, the primary judge referred to Ghantous v. Hawkesbury City Council (2001) 75 ALJR 992, and concluded: In this case, according to the evidence, at its greatest point, (the northern extremity) the difference in height between the two adjoining sections of the footpath was of the order of 25mm or about one inch. It was plainly visible, as appears in the photographs tendered in evidence, and could not, in any way, be categorised as a concealed hazard. In my opinion, the fact that the Council permitted the height differential to continue without repair until after the Plaintiffs accident (when it was patched) did not constitute negligence on its part.

GROUNDS OF APPEAL 15 The appellant relied on the following grounds of appeal: 1. That His Honour erred in failing to find that temporary restorative work undertaken by the Second Respondent including compacting underneath the footpath in question was negligently carried out thereby causing subsidence.

2. That His Honour erred in failing to find that the First Respondent owed the applicant a non-delegated duty of care in respect of work done to the footpath by its agent Zaro Concrete Pty Limited (the Second Defendant below) and that such work was negligently carried out.

3. That His Honour erred in finding the First Respondents failure to carry out repairs until after the subject accident did not constitute negligence on its part.

4. That His Honour erred in failing to distinguish the decision of Ghantous v Hawkesbury City Council (2001) 75 ALJR 992 from the facts in the instant case.

SUBMISSIONS 16 Dr. Morrison SC for the appellant submitted that the state of the pavement at the time of the accident, with a step of about 25 millimetres, was an unacceptable tripping hazard. He referred to a concession to that effect by Mr. Franca, maintenance engineer for the Council. He referred to an opinion to similar effect by a consulting engineer Mr. Burn, and also to a document purporting to be a guideline on risk management prepared by "Statewide", a group managed by Jardine Matheson. 17 Dr. Morrison submitted that the evidence established that this was caused by inadequate compacting by AGL. He submitted that the primary judge's reliance on a two metre deep trench was misconceived: the debate at the trial was not whether someone else had dug a two metre deep trench, but rather whether the AGL trench or pit was about 700 centimetres or about two metres deep. There was no evidence that anyone else had dug any pit or trench in the area. The expert evidence was that subsidence was due to inadequate compacting and ingress of water, itself due to inadequate compacting: there was no evidence that anyone other than AGL was involved in any relevant excavation, or that some other excavation or problem could have caused the subsidence. 18 Dr. Morrison submitted that it had not been put to Mr. Kiernan that, even with adequate compacting by AGL, subsidence could have happened because of a two metre pit or trench dug by someone else. This was glaringly improbable in any event: any deeper pit or trench would probably have been dug twenty years ago when the stormwater drain was installed, yet no problem occurred until the AGL work was done about three years before the accident. Mr. Kiernan's evidence was that, even if the AGL trench only went down to about 700 centimetres, that did not alter his conclusion that subsidence was due to inadequate compaction by AGL. 19 As against the Council, Dr. Morrison submitted that the Council was liable for AGL's negligence, because it permitted AGL to do work on the footpath: RTA v. Scroop (1998) 28 MVR 233 at 238. In any event, the Council itself installed the new pavement, and thereby undertook the responsibility of ensuring the foundation had been properly laid. This was therefore a case of misfeasance, and Ghantous was distinguishable. Dr. Morrison submitted that, because the Council installed this slab, it should have checked subsequently as to subsidence; but in any event, the risk which arose was such that it should have been detected and rectified. The change in level was not beside the path or due to natural causes, as in Ghantous. Dr. Morrison referred to Hawkesbury City Council v. Ryan [2001] NSWCA 212 and Parramatta City Council v. Watkins [2001] NSWCA 364. 20 Mr. Garling SC for the Council submitted that Scroop was distinguishable. The Council did not "permit" AGL to work on the footpath: AGL was entitled to do so without the Council's permission (Gas Supply Act 1996 ss.47, 48). In any event, there was no non-delegable duty: see Ghantous at [6]-[7], [150]. Accordingly, even if AGL had been negligent, the Council was not liable for that negligence. 21 Mr. Garling then submitted that the risk was not such as to make it negligent for the Council not to have detected and rectified the problem. 22 Mr. Minehan for AGL submitted that there was clear evidence of a two metre pit or trench immediately to the north of the slab, dug by someone else, and that problems from that trench caused or contributed to the subsidence. Mr. Minehan submitted that neither the appellant nor the experts made out a case that, even if AGL was not responsible for the two metre pit or trench to the north of the footpath, subsidence was caused by AGL's inadequate backfilling of its 700 millimetre pit or trench underneath the footpath.

DECISION 23 In my opinion, there was an inference open that AGL had dug a pit under the slab to a depth of around 700 millimetres, and certainly no greater than about 850 millimetres; and that there was another pit or trench to a depth of two metres immediately to the north of the slab. The primary judge drew that inference, and in my opinion made no error in doing so. 24 The expert opinions supported the view that it was deficiency in backfilling and ingress of water that caused the subsidence. However, the opinions did not differentiate between deficiencies associated with an AGL pit of around 700 millimetres and the two metre pit or trench; and did not identify the source of the water. On that basis, in my opinion it was open to the primary judge not to be satisfied that the problem was due to AGL's inadequate backfilling and compacting. 25 It is true that the primary judge might have inferred that the two metre pit or trench was dug about twenty years ago, when the stormwater pipe was installed; that there was no indication of subsidence problems until the AGL work was done; and that accordingly, AGL caused the subsidence by its own inadequate backfilling and compaction, or by introducing a source of water to the two metre pit, or both. It does seem clear that water could have been introduced to the area by opening up the old gas pipes and inserting the smaller new gas pipes inside them, leaving a space along which water could run. However, this basis of liability in AGL was not specifically addressed or supported by any of the experts, so in my opinion one cannot find appealable error of the primary judge in not reasoning along those lines. 26 The problem for the appellant of evidence of a two metre deep pit or trench was raised in cross-examination, and there is no evidence that it was not raised in submissions; so in my opinion there is no substance in any suggestion that the primary judge decided the case on a basis that was not fairly before him. 27 For all these reasons, in my opinion there is no appealable error in the primary judge reaching the conclusion that there was deficiency in proof by the appellant as to whether the subsidence was the fault of AGL or was due to other causes associated with the two metre pit or trench for which AGL had no responsibility. 28 As regards the Council, in my opinion the finding in relation to AGL is fatal to any liability of the Council based on the backfilling by AGL and the installation of the pavement by the Council. No basis was suggested on which the Council could be held liable for problems associated with the two metre deep pit or trench. 29 As regards liability in the Council for failure to detect and rectify the problem, it is my opinion that the evidence does not suggest that the problem was of such a magnitude or persisted for such a time as to justify a finding of negligence in the Council for failure to detect and rectify it. The primary judge's conclusion to this effect was justified by Ghantous pars.[5]-[7], [163]-[168], [245]-[248], and [355]. 30 Dr. Morrison relied on my judgment in Watkins. That case concerned a sharp 50 millimetre change of level from the surface of a road to a manhole cover, where the Council had re-surfaced the road and achieved a gradual transition for one such cover but not for this one; and where this manhole cover was in a position where it could be partially obscured by parked vehicles. In those circumstances, I was not satisfied that the District Court judge who found negligence in the Council was wrong. I made the following comments at par.[27]: [27] I am inclined to think that sudden variations in level of this magnitude may generally be expected at the edge of footpaths, at transitions between different paths or surfaces, and even between footpath slabs in the vicinity of trees; and also between paved and unpaved areas of road. However, the same may not be true within the paved surface of an apparently well-maintained road, particularly where the change of level is not obvious; and the circumstance that the change in level in this case was in a designated parking area, where it could be partially obscured by a parked car, would add to the risk. While the matter is not free from doubt, I am not satisfied that the primary judge was wrong to hold that the change in level was an unreasonable hazard in this case. 31 In the present case, there was evidence from the engineer Mr. Burn that "under normal circumstances the average pedestrian raises their foot approximately ten millimetres when walking", there was the risk management document classifying a footpath "trip size" of 20-30 millimetres as high risk, even in good lighting; and there was the concession by Mr. Franca from the Council that the 25 millimetre step in this case was an unacceptable tripping risk. 32 However, I do not entirely accept Mr. Burn's evidence as to the extent to which an average pedestrian raises his or her foot; and even if one accepts that the lowest part of the foot is often only about ten millimetres above the ground as it passes the other foot, the front of the foot is higher at this point, and the foot rises further as it moves forward. I do not accept that a plainly visible step of 25 millimetres in a footpath is correctly regarded as high risk or unacceptable risk. It is desirable that even obvious steps of 25 millimetres in footpaths be avoided and eliminated if possible; but that is not to say that the failure of a Council to detect and eliminate all such risk is negligent. As a general rule, in my opinion it is not.

CONCLUSION 33 For those reasons, in my opinion the following order should be made: appeal dismissed with costs. 34 FOSTER AJA: I agree with Hodgson JA. 35 BROWNIE AJA: I agree with Hodgson JA. 36 Even if one accepted the evidence of Mr. Burn, that pedestrians ordinarily raise their feet about ten millimetres when walking, I do not think that, without more, a height differential of 25 millimetres between two footpath slabs means that an inference should be drawn that the Council was negligent in failing to rectify that situation. **********

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