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[2026] NSWCA 66
respondent. Leave to appeal and an extension of time were granted. The applicant was directed to file a notice of appeal within seven days in the form of the draft notice reproduced in the Court Book. The...
The Court of Appeal held that the Council's internal footpath policy did not automatically set the legal standard for reasonable care. Although the Council had previously identified the lip, the Court considered it a relatively minor, unobscured hazard of the kind pedestrians should expect on public footpaths, and found no breach in failing to repair it before Ms MacLean fell. The primary judge had erred to the extent that he treated Ms MacLean's lack of care as negating the Council's duty, but that error did not change the result because the no-breach finding stood. The Court also upheld the contributory negligence finding and found no substantive error in the contingent assessment of damages. Leave and an extension of time were granted, but the appeal was dismissed with costs.
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2,164 words · generated 08/10/2026
On 8 March 2023, Lisa Marie MacLean fell while returning from her regular early morning walk on a concrete footpath near her home in Casino, New South Wales. Her toe caught on a raised lip between sections of concrete. The height differential at the point of the trip was approximately 23 mm. The fall aggravated pre-existing, asymptomatic arthritis in both knees, and the evidence at trial was that she would require bilateral knee replacements: [1], [6], [16], [37].
The Council had documentation about the location well before the fall. A 2017 Footpath Trip Hazard Inspection Report recorded a hazard in the area, attributed it to movement, identified grinding as the required action, and assessed the trip size as at least 15 mm and less than 20 mm. It gave the hazard a “medium priority”: [8]. The Council's internal policy provided that medium-priority risks were to be programmed into maintenance work as resources permitted, but within three months: [9].
Ms MacLean sued the Council in the District Court. The primary judge dismissed the claim, concluding that the Council did not owe the duty of care alleged because she had failed to exercise reasonable care, and that, in any event, the Council had not breached its duty. The judge also made contingent findings, including 50% contributory negligence and an assessment of damages at $92,762 if liability had been established: [2]-[3].
Ms MacLean required leave to appeal because the contingent amount did not meet the statutory threshold in s 127(2) of the District Court Act 1973 (NSW), and she also required an extension of time: [4]. The Court of Appeal granted leave and extended time, but dismissed the appeal with costs: [43], [190]. The decision is therefore significant for its reasoning on public footpath hazards, internal maintenance policies, obvious risk and contributory negligence, even though Ms MacLean did not succeed on the appeal.
The central issue was not whether the lip could cause a trip. The Council accepted that it was a trip hazard. The dispute was whether reasonable care required the Council to take a precaution, particularly grinding down the lip before the fall: [51], [84]-[85].
The Court treated the policy and inspection report as relevant context, but not conclusive evidence of the common law standard of care. The policy's stated aims included reducing injury risks and the Council's exposure to claims. That suggested it had a prophylactic purpose and could set a response standard more protective than the minimum required by reasonable care: [99]-[101]. Ward P described it as a “self-imposed” guideline and rejected the argument that the Court could not assess reasonable care without effectively second-guessing the policy: [101].
The Court then assessed the hazard and the proposed precaution prospectively. The lip was relatively minor, was not created by the Council, and was not obscured from view. The Court considered that pedestrians should expect some unevenness on public footpaths and that the expectation they take care to look out for obvious hazards must inform whether the Council was required to repair this one: [104]-[105]. Although grinding could apparently be done without delay and without major expense, the practical availability of a precaution did not itself establish that reasonable care required it: [105]-[106].
The Court also considered the evidence about the likelihood of harm. The primary judge had found the risk of harm foreseeable and not insignificant, but the probability of harm was low, including because there had been no other complaints or incidents concerning the lip during the six-year period: [19], [28], [106]. On that combined assessment, Ward P was not persuaded the Council had failed to take reasonable care: [106].
There was an error in the primary judge's duty reasoning. Ward P accepted that the duty to take reasonable care against a foreseeable risk was not conditional on whether Ms MacLean was herself exercising reasonable care: [53]. But because the Court upheld the finding of no breach, the duty error did not alter the result: [54].
On contributory negligence, the Court focused on Ms MacLean's own account that she was looking straight ahead rather than at the ground. It held that this evidence supported the finding that she was not paying reasonable attention to the footpath: [112]-[115]. The Court did not read the primary judge as requiring her to know of this precise lip. A pedestrian's general awareness that footpath surfaces may be imperfect, combined with the low-light conditions, was relevant to the lookout required in her position: [135]-[137]. It held that the onus had not been reversed and that actual knowledge of the specific hazard was not necessary for contributory negligence: [137].
The judgment does not purport to change the general law of negligence for public footpaths. It applies the principles the Court understood to follow from the High Court's decision in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council. In this case, Ward P relied on the expectation that pedestrians take reasonable care and cannot expect perfectly even public footpath surfaces: [104]-[105]. The case-specific conclusion was that this 23 mm, unobscured lip did not require a precaution in the circumstances found: [105]-[106].
The judgment clarifies the role of a council's own maintenance policy in a negligence claim. A response timeframe in an internal policy does not, without more, establish the legal standard of reasonable care or prove breach. The policy may be evidence relevant to the context, but the court must still decide objectively what reasonable care required for the particular hazard: [101]-[103]. Ward P expressly accepted the possibility that the policy was aspirational rather than obligatory in the circumstances: [102].
The decision also separates duty from contributory negligence. A plaintiff's failure to take reasonable care does not, by itself, remove a defendant's duty of care. The Court identified that the primary judge had conflated the duty finding with Ms MacLean's conduct: [52]-[54]. That distinction did not assist the appeal because the no-breach conclusion remained intact.
For contributory negligence, the judgment confirms in its application that a plaintiff need not have actual knowledge of the particular hazard for inattentiveness to be relevant. The question was whether reasonable care in Ms MacLean's position called for a lookout for potential footpath hazards: [137]. The Court treated her evidence that she was looking ahead rather than at the path as sufficient to support the finding made on the evidence: [112], [137].
On damages, the judgment applied a cautious appellate approach to evaluative findings about future possibilities and vicissitudes. The Court stated that it did not need to resolve whether the standard of review had been affected by GLJ, because no error had been shown on the approach taken by the parties: [179]. The decision did not alter that standard; it applied the parties' accepted framework and found only a minor arithmetic error: [179], [185].
At [101], Ward P said the Council policy “does not determine what the legal standard of reasonable care is” for a particular trip hazard. In plain English, a council's own maintenance timetable is not automatically the legal test for negligence. A policy may be relevant, but it does not settle whether the Council acted reasonably under the circumstances.
At [103], the Court rejected the proposition that the Council's knowledge of the hazard, combined with the three-month policy timeframe, established breach by itself. The inspection report showed the Council knew of a hazard, but the policy's medium-priority classification did not determine what the law required: [103].
At [104], Ward P stated that the expectation pedestrians will look where they are going and avoid obvious hazards must inform the breach assessment. This does not mean that pedestrians always bear responsibility for footpath injuries. It means that pedestrian conduct and the nature and visibility of the defect form part of the assessment of what precautions reasonable care required.
At [106], the Court balanced the risk against the burden of taking precautions and assessed the issue prospectively, rather than with hindsight. It considered the hazard's visibility, its relatively minor height, the low probability of harm and the apparent practicality of grinding it down. The conclusion was that no failure to take reasonable care had been established.
At [137], Ward P explained that actual knowledge of the particular hazard was not required for contributory negligence, and that inattentiveness could suffice. In plain English, a court may consider whether a person was reasonably alert to potential hazards, even if the person did not know of the exact defect that caused the fall. The finding remains dependent on the evidence and the circumstances of the case.
At [149], the Court noted there was force in Ms MacLean's argument that the power to repair the footpath was not a “special statutory” power. But the Court did not decide the point because the s 43A issue did not determine the outcome. The operative no-breach finding had already been made: [149].
The reasoning is most directly relevant to claims involving a pedestrian fall on an ordinary public footpath imperfection where the defect is relatively minor and unobscured, and where the plaintiff relies on a council inspection record or internal maintenance policy. In this case, the prior report established the Council's knowledge, but did not make the policy timeframe the legal standard: [8]-[9], [101]-[103].
The visibility evidence matters. The Court relied on the finding that the lip was not obscured and was visible in the early morning conditions, noting that Ms MacLean could see ahead to the next intersection: [64], [105]. A different evidentiary record about darkness, obstruction, contrast, a trap-like feature, or the physical form of the defect could present a different question. This judgment did not determine how those different facts would affect breach.
The case also makes the plaintiff's evidence about lookout relevant. Ms MacLean said she was looking straight ahead and not at the ground. The Court considered that evidence material to contributory negligence: [112]-[114], [137]. Its reasoning should not be read as a general rule that every pedestrian who looks ahead is contributorily negligent. The decision concerned this evidence, this footpath, the visibility findings, and the primary judge's findings.
Finally, a council policy may be more significant in a case where evidence shows that the particular policy reflects the legal standard of care for the hazard, or where the hazard has characteristics beyond an ordinary visible height differential. This judgment does not say such evidence can never matter. It says that the policy in this case did not itself determine the legal standard: [99]-[103].
The judgment supplied here is dated 22 April 2026 and contains no information about how later courts treated MacLean v Richmond Valley Council. Post-decision treatment cannot be determined from this judgment alone.
The judgment does, however, explain how Ward P used earlier authorities. It applied Ghantous to the expectation that pedestrians take care around ordinary, visible footpath imperfections: [104]-[105]. It referred to Vairy v Wyong Shire Council for the proposition that the fact a precaution could be taken does not alone establish that it was necessary or reasonable: [105].
For damages review, the Court relied on House v The King and Top Hut Banoon Pastoral Co Pty Ltd v Walker in describing the caution appropriate to appellate review of evaluative decisions about vicissitudes: [179]. It considered GLJ v Trustees of Roman Catholic Church for Diocese of Lismore but expressly left open whether that decision affected the applicable review standard, because resolving the question was unnecessary: [179].
The judgment's own later-treatment position is therefore limited: it applies or discusses earlier authorities, but the text does not report subsequent judicial treatment of this decision.
The judgment does not decide how much weight an internal policy may carry where there is evidence that its response categories and timeframes were specifically designed to reflect the risks and precautions required by reasonable care. It holds only that this policy, with its prophylactic purpose and claim-minimisation objective, did not determine the legal standard: [99]-[103].
The Court also did not decide the s 43A issue. It noted the argument that repairing the footpath was not an exercise of a special statutory power, but found it unnecessary to resolve the question because the no-breach finding independently disposed of the claim: [149]. The judgment therefore should not be treated as resolving the scope of s 43A for other council maintenance decisions.
The effect of GLJ on the standard of appellate review for evaluative damages decisions also remained open. Ward P considered it unnecessary to decide the question in this appeal: [179]. Likewise, the Court identified a minor arithmetic error in the contingent future out-of-pocket calculation but had no need to substitute a damages award after dismissing the appeal: [185], [188].
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: MacLean v Richmond Valley Council [2026] NSWCA 66
Hearing dates: 17 December 2025
Date of orders: 22 April 2026
Decision date: 22 April 2026
Before: Ward P at [1]; McHugh JA at [191]; Free JA at [192]
Decision: 1. Grant leave to appeal and extend time for the appeal to the date of filing the summons for leave to appeal.
2. Direct that the applicant file within 7 days a notice of appeal in the form of the draft notice of appeal reproduced in the Court Book.
3. Dismiss the appeal with costs.
Catchwords: APPEALS — Leave to appeal — appeal brought out of time — extension of time granted — application for leave to appeal from a decision that the Council did not owe and did not breach the duty of care alleged — issues of principle — leave to appeal granted
NEGLIGENCE — Personal injury — pedestrian tripped against a “raised lip” on concrete footpath in early morning light — internal Council policy for the assessment and maintenance of footpaths — whether Council owed a duty of care to respond to the 23mm height differential — whether the “raised lip” was an obvious risk — contributory negligence — onus of proof for contributory negligence and obviousness of risk
NEGLIGENCE — Damages — personal injury damages — alleged errors in assessment of quantum — discount for vicissitudes — no error shown in evaluation of respective heads of damage — minor arithmetical error
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D, 5F, 5G, 5H, 42, 43A, 45
District Court Act 1973 (NSW), s 127(2)
Cases Cited: Ainger v Coffs Harbour City Council [2005] NSWCA 424
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer (2018) 98 NSWLR 171; [2018] NSWCA 146
Bathurst City Council v Cheesman [2004] NSWCA 308
Bellingen Shire Council v Colavon Pty Limited (2012) 188 LGERA 169; [2012] NSWCA 34
Botany Bay City Council v Latham (2013) 197 LGERA 211; [2013] NSWCA 363
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29
Burwood Council v Byrnes [2002] NSWCA 343
Council of the City of Sydney v Bishop [2019] NSWCA 157
Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314
Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32
Francis v Lewis [2003] NSWCA 152
GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lake Macquarie City Council v Holt (2004) 136 LGERA 81; [2004] NSWCA 305
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35
Loulach Developments Pty Ltd v Road and Maritime Services [2019] NSWSC 438
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Manhattan Homes Pty Limited v Burnett [2024] NSWCA 219
Nightingale v Blacktown City Council (2015) 91 NSWLR 556; [2015] NSWCA 423
Phillis v Daly (1988) 15 NSWLR 65; [1989] Aust Torts Reports 80-234
Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34
Richmond Valley Council v Standing (2002) 127 LGERA 237; [2002] NSWCA 359
Roads and Traffic Authority of New South Wales v Chandler (2008) Aust Torts Reports 81-945; [2008] NSWCA 64
Roads and Traffic Authority of New South Wales v McGuiness (2003) Aust Torts Reports 81-688; [2002] NSWCA 210
Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263
Ryde City Council v Saleh (2004) 134 LGERA 188; [2004] NSWCA 219
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Smith v Alone [2016] NSWDC 265
Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62
Watts v Rake (1960) 108 CLR 158; [1960] HCA 58
White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Wollongong City Council v Williams [2021] NSWCA 140
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53
Category: Principal judgment
Parties: Lisa Marie MacLean (Applicant)
Richmond Valley Council (Respondent)
Representation: Counsel:
R S Sheldon SC with E P Anderson (Applicant)
J E Sexton SC with D P Kelly (Respondent)
Solicitors:
Gerard Malouf and Partners (Applicant)
Gillis Delaney Lawyers (Respondent)
File Number(s): 2025/00208187
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
On 8 March 2023, the applicant, Ms MacLean, tripped against a “raised lip” on a concrete footpath when returning from her regular early morning walk in Casino, New South Wales. Ms MacLean brought proceedings in the District Court against the respondent, Richmond Valley Council (the Council), alleging negligence on the part of the Council. Ms MacLean alleged that the Council failed to respond to the trip hazard (identified in the Council’s 2017 Footpath Trip Hazard Inspection Report) within the timeframe provided for by the Council’s internal policy document (Operational Policy for Inspection, Assessment and Maintenance of Footpaths and Cycleways).
Ms MacLean’s claim was dismissed with costs. The primary judge found that the Council did not owe “the duty of care alleged” because Ms MacLean “failed to exercise reasonable care in the form of caution towards the trip hazard of the height differential between the footpath concrete sections”. The primary judge found that if the Council did owe the duty of care alleged, it did not breach that duty. The primary judge made various contingent findings as to: contributory negligence (assessed at 50%); a defence raised by the Council under s 43A of the Civil Liability Act 2002 (NSW) and as to quantum.
Ms MacLean seeks leave to appeal that decision pursuant to s 127(2) of the District Court Act 1973 (NSW), as the amount in issue, having regard to his Honour’s contingent assessment of damages, does not exceed the monetary threshold. Ms MacLean required an extension of time for the filing of her appeal.
The Court (Ward P, with whom McHugh and Free JJA agreed) granting leave to appeal (and an extension of time for the filing of the appeal) but dismissing the appeal with costs:
(1) Leave to appeal and the extension of time for filing the appeal is granted because the amount of damages notionally awarded by the primary judge closely approaches the requisite monetary threshold and the proposed appeal raises issues of principle (per Ward P ([43]), McHugh JA ([191]) and Free JA ([192]) agreeing).
(2) The primary judge erred in conflating the finding on the duty of care alleged, which was expressed in terms of a duty to pedestrians exercising reasonable care for their own safety, with the finding on contributory negligence. However, nothing turns on this error, as the primary judge did not err in the findings on breach (per Ward P ([52]-[54]), McHugh JA ([191]) and Free JA ([192]) agreeing).
(3) As to the complaint that the Council did not meet the requirements of, or timeframe specified, in the internal Policy and inspection report, the Policy is a “self-imposed” guideline and does not determine the legal standard of reasonable care in relation to any trip hazard, it is aspirational not obligatory (per Ward P ([101]-[102]), McHugh JA ([191]) and Free JA ([192]) agreeing).
(4) The expectation that persons will exercise sufficient care to look where they are going and avoid obvious hazards must inform the assessment of whether there was any breach of a duty of care in not remedying the height differential prior to the fall (per Ward P ([104]), McHugh JA ([191]) and Free JA ([192]) agreeing).
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 applied.
(5) There was no failure to take reasonable care when balancing the risk of harm against the burden of taking precautions from the occurrence of the risk of harm. The relatively minor height differential was a hazard of the sort that pedestrians should expect when walking along public footpaths (per Ward P ([105]-[106]), McHugh JA ([191]) and Free JA ([192]) agreeing).
(6) As to the complaint that the primary judge erred in considering the operation of s 42 of the Civil Liability Act, nothing turns on this, as his Honour already found that there was no breach of the duty of care (per Ward P ([108]), McHugh JA ([191]) and Free JA ([192]) agreeing).
(7) The primary judge’s finding that the height differential was a risk hazard to be expected and an obvious risk did not bespeak error (per Ward P ([62]-[68]), McHugh JA ([191]) and Free JA ([192]) agreeing).
(8) As to the complaint that the primary judge impermissibly imposed a burden on the applicant to prove that the hazard was not easily discernible, the primary judge did not err in finding that a raised lip on a footpath is an everyday minor hazard that pedestrians are to expect (per Ward P ([65]-[68]), McHugh JA ([191]) and Free JA ([192]) agreeing).
(9) The primary judge did not err in considering Ms MacLean’s evidence that she was not paying attention to the surface of the footpath (per Ward P ([111]-[115]), McHugh JA ([191]) and Free JA ([192]) agreeing).
(10) There was no error in the finding of contributory negligence nor in the findings on which it was based (per Ward P ([134]), McHugh JA ([191]) and Free JA ([192]) agreeing).
(11) The primary judge did not reverse the onus of proof as to contributory negligence, rather, his Honour assessed the care required of a person in Ms MacLean’s position to keep a look out for potential hazards. Actual knowledge of the hazard is not required, inattentiveness may suffice for a finding of contributory negligence (per Ward P ([137]), McHugh JA ([191]) and Free JA ([192]) agreeing).
(12) There was no error established in the 50% discount notionally adopted by the primary judge for contributory negligence (per Ward P ([138]), McHugh JA ([191]) and Free JA ([192]) agreeing).
(13) Nothing turns on the complaint that s 43A of the Civil Liability Act is an inapplicable defence to Ms MacLean’s claim, since it was not determinative of the finding that there was no breach of the duty of care (per Ward P ([149]), McHugh JA ([191]) and Free JA ([192]) agreeing).
(14) No error has been shown in the allowance to be made by way of vicissitudes (per Ward P ([179], [183]), McHugh JA ([191]) and Free JA ([192]) agreeing).
(15) The calculation of damages for non-economic loss, future of out-of-pocket expenses, future domestic assistance and future economic loss does not bespeak error (per Ward P ([184]-[188]), McHugh JA ([191]) and Free JA ([192]) agreeing).
(16) The minor arithmetical error in the calculation of future out-of-pocket expenses would require correction were the substantive appeal to have succeeded and damages awarded (per Ward P ([185], [188]), McHugh JA ([191]) and Free JA ([192]) agreeing).
(17) As to the complaint made in various of the grounds as to the adequacy of reasons given by the primary judge for the conclusions reached, his Honour may be excused for not entering into a detailed exposition of his reasoning where this was a contingent assessment of damages (per Ward P ([189]), McHugh JA ([191]) and Free JA ([192]) agreeing).
WARD P: On 8 March 2023, the applicant, Ms MacLean, tripped on a paved concrete footpath not far from her home when returning from her regular early morning walk in Casino, New South Wales. The fall aggravated Ms MacLean’s pre-existing asymptomatic arthritic condition (bilateral Patello-Femoral Arthritis) which then became symptomatic. By the time of the hearing at first instance, the medical advice was that Ms MacLean would require double knee replacements.
Ms MacLean brought proceedings in the District Court against the respondent, Richmond Valley Council (the Council), alleging negligence on the part of the Council. Ms MacLean’s claim was dismissed with costs (MacLean v Richmond Valley Council [2025] NSWDC 189 at [3]). The primary judge found that the Council did not owe “the duty of care alleged” (see below) because Ms MacLean “failed to exercise reasonable care in the form of caution towards the trip hazard of the height differential between the footpath concrete sections” ([65]) but went on to find that, if the Council did owe the duty of care alleged, it did not breach that duty ([71]).
The primary judge made various contingent findings: as to contributory negligence (assessing it at 50%) ([76]); as to a defence raised by the Council by reference to s 43A of the Civil Liability Act 2002 (NSW) (Civil Liability Act) (namely, that it would prevent any liability arising in the circumstances) ([85]); and as to quantum (concluding that, had Ms MacLean been successful, damages should be awarded in the sum totalling $92,762) ([193]).
Ms MacLean seeks leave to appeal pursuant to s 127(2) of the District Court Act 1973 (NSW) (District Court Act), from the whole of the primary judge’s decision. Such leave is required as the amount in issue, having regard to his Honour’s contingent assessment of damages, does not exceed the $100,000 threshold required by s 127(2)(c)(i) of the District Court Act. Ms MacLean also requires an extension of time for the filing of her appeal. No issue was raised by the Council in oral submissions in opposition to a grant of leave (although in written submissions the Council submitted that this was not an appropriate case for leave as the determinative issue in the proposed appeal involved only the straightforward application of the principles authoritatively cited in Brodie v Singleton Shire Council*;* Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 (Ghantous)). The application for leave to appeal was heard concurrently with the appeal itself were leave to be granted.
For the reasons that follow, leave to appeal (and an extension of time for the filing of the appeal) should be granted but the appeal should be dismissed with costs.
The background can be briefly summarised. Ms MacLean tripped against a “raised lip” (measured at approximately 23mm) on a concrete footpath near her home when she was on her way back from her regular early morning walk. Photographs taken later that day (in broad daylight) of that section of the concrete footpath appear to indicate that the “raised lip” (at least in daylight) would have been more visible when walking in the direction that Ms MacLean was when she returned home that morning than had she been walking in the opposite direction.
Much emphasis was placed by Ms MacLean (both at first instance and on the appeal) on two documents.
First, a Council “Footpath Trip Hazard Inspection Report 2017” (Ex G), which recorded that there was an inspection of the area of the footpath where Ms MacLean fell on 21 March 2017 (some six years or so before her fall). The author of that report identified a trip hazard, attributing the hazard to movement and recording that the “Action required” was to “Grind” [i.e., to grind the “raised lip” of concrete to remove the height differential]. The trip size was recorded as being “>=15mm and < 20mm” and it was accorded a “medium priority” by the author of the report.
Second, an internal Council policy document, its Operational Policy for Council Inspection, Assessment and Maintenance of Footpaths and Cycleways (Ex E) (the Policy), which the primary judge noted (at [5]) provided guidelines aimed at reducing the risk of injury to the public and consequent exposure to the possibility of claims against the Council in respect of footpaths and cycleways it managed. The Policy provided for an evaluation of the hazard, intervention level, risk rating determination for risk action priority and control mechanism determination (see primary judgment at [21]). The Policy set out a number of potential responses to a risk (temporary barriers/barricades, temporary repairs and replacement) and included “Risk Action Response Times” determined “on the basis of priority and Council’s ability to respond”. The Policy included two tables dealing with response criteria and action response times, the second of which (Table 1 – Footpath Risk Action Response) providing that, for a “Medium” priority risk (as this hazard was assessed in the March 2017 inspection report), a response was to be programmed into maintenance works “[a]s resources permit but within 3 months”.
The primary judge found that Ms MacLean’s fall occurred at about 5:45am, making that finding by reference to Ms MacLean’s evidence as to the time she habitually departed from home for her morning walk and the timing of her 000 call (after her fall and after she had unsuccessfully tried to call her daughter and a friend) (see [3]). There is no issue as to that finding. As the primary judge noted, the timing of the fall was relevant to the quality of daylight providing visibility to the surface of the footpath.
The primary judge referred in various places of his reasons to Ms MacLean’s evidence as to the quality of light at the time of the fall. At [3], his Honour noted that Ms MacLean described it as being partial light. (His Honour there also noted that there was no evidence of other light sources, such as streetlights, and observed that evidence on the subject of visibility was sparse ([3]).) At [10], his Honour referred to Ms MacLean’s evidence in chief that it was “maybe dark turning light” when she was returning home (T 37.30) and that she could see up the street where the accident occurred to the next intersection as “light was coming up for the day” (T 38.45). At [17], his Honour described Ms MacLean’s evidence as being “not of mid-night darkness” but noted that Ms MacLean did say that, despite morning light coming, it was “dark”.
At [18], his Honour said that Ms MacLean’s evidence did not permit him to do more than reckon (as to the extent to which, if at all, it was difficult for a person taking reasonable care for his or her own safety to discern the height differential presented by the lip at the time of the fall) on the basis of the sparse evidence of light and visibility, and the objective evidence of the lip as inspected on 21 March 2017 (at the time of the report which was Ex G) and on 8 March 2023 (the day of the fall) and as detailed in a 9 March 2023 email report of the incident (Ex H). His Honour later again noted that there was no evidence of street lighting ([45]).
At [61], his Honour referred to “the darkness or low light” (in the context of observing that Ms MacLean’s evidence was that she had not exercised increased vigilance due to the darkness or low light). At [64], his Honour referred to the “early morning partial-light” and again, at [75], referred to “the conditions of partial light”. I note here that in submissions on the appeal, Ms MacLean has referred a number of times to “darkness” and at least once to “virtual darkness”. That does not accord with her own evidence; nor with his Honour’s findings as to the quality of the light at the time of the fall (that it was early morning partial light and that vision conditions were low).
As to Ms MacLean’s awareness of the raised lip, his Honour (at [11]) found it difficult to accept Ms MacLean’s denial that she had ever previously seen the lip on which she tripped (at T 40.25-30; T 80.05), given her familiarity with that section of the footpath and that on her evidence she had traversed that section of the footpath thousands of times during daylight. Ms MacLean here emphasises that his Honour did not expressly reject her evidence that she had not previously seen the raised lip. (I return to this in due course.) Nevertheless, his Honour did conclude that Ms MacLean had not paid particular attention “to the visible lip formed by the height differential between the concrete foot path sections” ([12]).
I am mindful that, in the present case, it was to some degree dark when the Plaintiff fell. But, in my opinion, the trip hazard of 23mm, vision of which by a pedestrian taking reasonable care for their own safety was not impeded in any way, was simply a risk hazard to be expected, be it day or night. There was no evidence that the hazard represented some form of trap, or that it was not discernible, as, for instance, was the situation in Angel v Hawkesbury City Council [2008] NSWCA 130. The burden of proof rested on the Plaintiff to prove that the hazard was not easily discernible. In fact, courts have found that, when pedestrians walk when an area is not well lit, it can be expected that they will increase their vigilance so as to take reasonable care for their own safety: Council for the City of Sydney v Bishop [2019] NSWCA 157 per Basten JA (Macfarlan and Brereton JJA agreeing) at [24].
At [61], his Honour went on to note that there was no evidence adduced that showed that Ms MacLean “exercised increased vigilance due to the darkness or low light” and that her evidence was to the contrary. His Honour said that Ms MacLean was not looking at the path. His Honour said that “she was expected by the law to walk with reasonable caution because of the possibility of engaging potential footpath hazards such as the 23mm lip” and noted that Ms MacLean had accepted that “she was aware of the possibility of such a hazard”.
At [62], his Honour said that his findings of fact led to the conclusion that the raised lip had been present at the measure of approximately, and at least, 15 to 20mm for six years, during which time, at day and night, Ms MacLean had traversed it thousands of times (as he assumed had other footpath users). His Honour said that, photographed at 23mm in daylight just after her fall, it could not sensibly be argued that it was not obvious.
At [64], his Honour said that Ms MacLean “[w]hen walking in the low vision conditions of early morning light or darkness” had “failed to be mindful of the lip, of which she had enjoyed a great opportunity to be aware” and said that her evidence that she walked by just looking straight ahead and not at the ground strongly inferred that she walked without reasonable caution for the surface of the footpath when in the early morning partial light.
At [65], the primary judge concluded that the Council did not owe “the duty of care alleged” because Ms MacLean failed to exercise reasonable care for her own safety.
His Honour then went on to assess the question of breach lest he be wrong as to the duty of care. His Honour noted that he had already determined the risk of harm to be foreseeable and said that the risk was not insignificant but concluded that the probability of harm occurring was low (as there was no report of other incidents) ([66]). His Honour concluded, in circumstances of there being no preceding complaints, requests or incidents, that it was not unreasonable on a proactive test basis for the Council not to have taken prior to the incident the precautions identified by Ms MacLean ([69]).
His Honour (at [70]) considered that the claim of negligence proposed a scope of liability beyond that which was appropriate for the Council.
At [72], his Honour concluded that the height differential presented by the lip, which was unobscured from view, was an obvious risk because it was a matter of common knowledge of such a hazard when traversing a footpath. At [73], his Honour found that Ms MacLean was to be presumed to be aware of the risk as it was an obvious risk and there was no duty to warn her.
At [74], his Honour said that the Council’s reliance on its Policy including its response to Ms MacLean’s report of her incident after six years of no complaints, further persuaded him that it did not breach its duty of care, referring to s 42(d) of the (which provides that the authority may rely on evidence of its compliance with general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate).
These reasons have extensively examined what I have determined to be the Plaintiff’s lack of care in that she failed to pay adequate attention to the footpath surface on which she was walking when it was well known to her and obviously presented the lip on which she tripped. As already stated, I find it difficult to accept the Plaintiff’s evidence that she did not notice the height differential at the lip, which, for 6 years, had been, at most, about 3mm less than it was when she tripped on it. To take reasonable care for her own safety, in the conditions of partial light, and when she was aware at least of the possibility of obstructions on the path, including of the lip against which she tripped, she was required to exercise caution for unevenness when walking. The Plaintiff ought to have known, and indeed, even on her own evidence, expect, the possibility of the type of risk of harm presented by the height differential at the lip.
At [76] his Honour assessed (contingently) Ms MacLean’s contributory negligence “for failing to take reasonable care for her own safety by exercising the required attention to the footpath surface” at 50%.
His Honour then addressed the defence raised by the Council pursuant to s 43A of the Civil Liability Act (which excludes liability arising from the exercise of (or failure to exercise) a special statutory power, unless the exercise or failure was so unreasonable that no authority having the relevant special statutory power could properly have thought the exercise or lack thereof to be reasonable) at [77]-[84]. His Honour did not accept the submission by Ms MacLean that the Council failed to exercise its statutory power (by not erecting warning signs or repairing the hazard) in a manner that no sensible authority acting with the appreciation of its responsibilities could have, saying that the Council’s “conscientious” Policy did not raise or lower the bar of expected conduct ([82]). His Honour said that the cases concerning risks for pedestrians using footpaths had led him to conclude that a public authority (in the same circumstances as the present), could reasonably determine that it should not prioritise grinding the height differential prior to the report of the incident in question [82] and that the observations of Bathurst CJ in Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 (Curtis) at [6] (extracted by his Honour at [83]) had been helpful in making that determination.
His Honour thus concluded that the s 43A defence would have prevented liability arising for the Council in the circumstances ([85]).
His Honour summarised the medical and expert evidence from [90]. It is not necessary here to summarise that evidence. His Honour referred from [131] to [145] to Ms MacLean’s circumstances prior to and following her accident.
As to the question of damages, his Honour found that Ms MacLean’s evidence of right knee pain was credible and there was no medical history of significant knee symptoms preceding the accident ([146]) and accepted that she would undergo bilateral knee replacement surgery ([146]), which he noted was then expected would commence some time in the later part of 2025 ([147]). His Honour was satisfied that Ms MacLean suffered bilateral knee pain from the time of the fall and that the pain and disability in her knees was an ongoing consequence of the trauma to her knees suffered during the fall ([147]).
His Honour noted that the expert medical evidence did not assess the chance of progression of arthritis in Ms MacLean’s knees but for the fall and did not comment on whether, and if so when, Ms MacLean would have come to knee replacement or other surgical treatment modality but for the trauma to her knees in the fall ([148]) (see also [170]).
His Honour noted that the Council bore the onus of proving the future probable effects of Ms MacLean’s pre-existing arthritis as described in (1960) 108 CLR 158; [1960] HCA 58 (). His Honour said that the evidence merely showed that the pre-existing arthritic condition had a relationship with Ms MacLean’s present incapacity, namely that the fall aggravated her pre-existing condition ([171]).
- His Honour erred in finding the Appellant was not paying attention to the surface of the footpath.
- His Honour erred in finding the Appellant was not exercising reasonable care for her own safety.
- his Honour erred in finding the Respondent did not owe a duty of care.
- His Honour erred in finding the Respondent did not breach its duty of care owed to the plaintiff.
- His Honour erred in finding the height differential between the two concrete slabs on the footpath was an obvious risk further to the provisions of sections. 5F-G of the Civil Liability Act, 2002 (‘NSW’) (‘CLA’).
- His Honour erred in finding the Respondent had not breached its duty of care further to the provisions of section 42 (d) of the CLA.
- His Honour erred in finding the Appellant was contributorily negligent further to the provisions of sections 5S and 5R of the CLA.
- His Honour erred in his assessment of contributory negligence.
- His Honour erred in finding section 43A of the CLA was a defence to the Appellant’s claim.
- His Honour erred in relation to his approach to vicissitudes.
- His Honour erred in his assessment of non-economic loss.
- His Honour erred in his assessment of future out-of-pocket expenses.
- His Honour erred in his assessment of future domestic assistance.
- His Honour erred in his assessment of future economic loss.
Ground 3 asserts an error by the primary judge in finding that the Council did not owe Ms MacLean a duty of care.
At the outset, I note that his Honour’s finding at [65] was expressed by reference to the particular duty of care that was alleged in the pleading (i.e., it was a finding that the Council “did not owe the duty of care alleged”). The reason given for that finding indicates that his Honour was there referring to the manner in which the duty of care was formulated at [10] of the statement of claim, namely that the Council owed Ms MacLean “a duty to take reasonable care to avoid a foreseeable risk of injury to pedestrians exercising reasonable care for their own safety” (the pleading there referring to s 5B(1) of the Civil Liability Act, which does not include a qualification that the person to whom the duty is owed by exercising reasonable care for his or her own safety). The Council in its defence (at [8]) admitted that it owed Ms MacLean a duty to take reasonable care for her safety “if she was exercising reasonable care for her own safety” (thus predicating its admission of a duty of care on whether Ms MacLean was exercising reasonable care for her own safety).
At [11] of the statement of claim, it was further alleged that, in the circumstances, the Council owed a “duty to take reasonable care to avoid foreseeable risks of injury to pedestrians using the Road Reserve for usual or permissible purposes” (including risks of injury to pedestrians that may have arisen in the course of walking across the footpath and coming into contact with a raised section of it). That formulation of the alleged duty of care was not in terms tied to whether Ms MacLean was exercising reasonable care for her own safety. The Council did not deny this allegation; rather, in its defence, was a non-admission of the allegation (see [9] of the Council’s defence).
Ms MacLean, in her written submissions in this Court, submits that where there is a risk of harm to a person exercising reasonable care for his or her own safety then a duty of care will be owed whether or not the person is in fact exercising reasonable care for his or her own safety at the time of suffering harm (citing Wollongong City Council v Williams [2021] NSWCA 140 (Wollongong City Council v Williams) at [74]), arguing that, otherwise, there is no role for contributory negligence to play.
The Council does not accept that the primary judge erred in the finding at [65], noting that the scope and content of the duty of care are informed by reference to persons taking reasonable care for their own safety (referring to the observation of Basten JA in Roads and Traffic Authority of N**ew S**outh W**ales v Chandler (2008) Aust Torts Reports 81-945; [2008] NSWCA 64 at [29] as to the inevitability of “a fine line between a conclusion that a defendant owed a plaintiff no duty in particular circumstances and a conclusion that a duty was owed but was not breached because the defendant was not, in the circumstances, required in the exercise of reasonable care to take the steps for which the plaintiff contended”).
Ms MacLean submits that the test applied by his Honour involved reference to the height differential being conspicuous when assessed in daylight, noting that at [60] his Honour described the hazard as “a risk hazard to be expected, be it day or night”. Ms MacLean identifies the error in his Honour’s reasoning (which she describes as being that the inchoate risk that a footpath could have irregularities in it rendered the risk which caused her fall an obvious one to her) as the absence of an identification of the “circumstances” which defined her position for the purpose of s 5F(1) of the Civil Liability Act (the concept of an obvious risk being one that would have been obvious to a reasonable person in her position).
Ms MacLean notes that, at [62], his Honour referred to the obviousness of the raised lip in daylight, whereas the various descriptions of the level of light at the time of her fall are inconsistent with that circumstance (referring to [10]; [17]; [45]; [61]; [64] – see above at [11]-[13]).
Ms MacLean complains that his Honour imposed an onus on her to prove the hazard was “not easily discernible” (see at [60]) whereas the burden of proving an obvious risk (for the purposes of raising a defence that there was no duty to warn under s 5H of the Civil Liability Act) rested on the Council (referring to Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32 at [24]). Ms MacLean argues that his Honour used the finding of obviousness to dispose of the duty to warn ([73]) and should not have done so. Ms MacLean says that a warning would have been likely to come to her attention on one of her earlier trips past the location of her fall.
The Council points out that there is no challenge to the primary judge’s findings that: the view of the height differential was not blocked or obscured ([8]); nor impeded in any way ([60]); nor obstructed ([70]); and that it was unobscured from view ([72]).
The Council submits that the primary judge’s finding (at [62]) that, photographed at 23mm in daylight just after the fall, “it could not be sensibly argued that [the height differential] was not obvious” is demonstrably correct by reference to the photographs in evidence (Ex A, Ex B and Ex F). In reply submissions, Ms MacLean points out that the photographs were all taken in daylight.
As to the complaint that his Honour’s reasoning did not identify Ms MacLean’s circumstances (relevant to assessing whether the risk would be obvious to a reasonable person in her position), the Council says that, in a case involving a pedestrian tripping on a footpath, the words “a reasonable person in the position of” in s 5F of the Civil Liability Act, mean an adult pedestrian keeping an adequate lookout unless there is some evidence of sight impairment or cognitive disability; and that it was not necessary for this to be stated expressly in the reasons for judgment.
I have noted above (at [11]-[13]) the various descriptions given by his Honour of the evidence as to the quality of light at the time of Ms MacLean’s fall. There can be no doubt that his Honour was aware that the fall did not occur in broad daylight – his Honour made a number of references to the light being “partial light” or “early morning light or darkness” and clearly accepted (at [64]) that Ms MacLean was walking in “low vision conditions” in the early morning.
His Honour’s observation at [62] that the raised lip was obvious when photographed in daylight was made in the context of an observation as to the raised lip having been present at a height differential of approximately and at least 15 to 20mm for six years (contrasting this with the photographs of a 23mm height differential) and saying that this would have been approximately as obvious. This observation was also made in the context of his Honour’s reference to the fact that Ms MacLean had traversed the footpath “thousands of times”, day and night, during that period (a circumstance that his Honour was seemingly relying on when saying at [64] that Ms MacLean had enjoyed great opportunity to be aware of the lip).
Thus, the finding that the raised lip of the concrete footpath (with a height differential of 23mm) was an obvious risk was not a finding dependent on the hypothetical reasonable person encountering this section of the footpath in daylight (as opposed to encountering it in the “low vision conditions” of the early morning “light or dark”). Whether his Honour was contemplating that “a reasonable person in the position of” Ms MacLean would be one who had traversed the footpath thousands of times over the six year period (as had Ms MacLean) during which the risk had been present and had been unobstructed from view is not clear from his Honour’s reasons. The Council’s submission as to the meaning of “reasonable person” in this context (see [61] above) does not go that far.
As to the complaint that the primary judge impermissibly imposed on Ms MacLean a burden to prove that the hazard was not easily discernible, the statement by his Honour at [18], was that it was Ms MacLean’s burden to prove the extent to which, if at all, it was difficult for a pedestrian taking reasonable care for his or her own safety to discern the height differential presented by the lip at the time of her fall; and, at [60], that the burden of proof rested on her to prove that the hazard was not reasonably discernible. As to the former, it seems to me that his Honour was there explaining that it was Ms MacLean’s onus to establish that there was a risk hazard in the sense of a risk of harm (a real and not fanciful or far-fetched risk of harm). As to the latter, it may well be that his Honour here had in mind s 5G of the Civil Liability Act (which presumes a plaintiff to have been aware of the risk of harm of an obvious risk unless the plaintiff proves on the balance of probabilities that he or she was not aware of the risk), although, as Ms MacLean points out, his Honour did not here refer to that provision.
As noted earlier, Ms MacLean places considerable emphasis on the Council’s knowledge of the particular risk (as established by the March 2017 inspection report) and the fact that it took no steps to remove or minimise the risk (by grinding down the height differential or otherwise) over the period of almost six years prior to the accident, despite the three month timeframe specified in its Policy for response to a medium priority trip hazard. Ms MacLean submits that Exs G and E established the presence of a risk of injury to pedestrians (that risk is not here disputed) and specified the appropriate response to it.
Ms MacLean submits that the (or one of the) “primarily significant” aspect(s) of the Policy (read with the inspection report) is that it identified prospectively what the Council considered would be a reasonable response to the trip hazard. Ms MacLean argues that the only inference from Exs G and E is that, having regard to both the extent of risk and the burden of responding to it, the Policy reflected a reasonable response to each category of risk. In that regard, Ms MacLean submits that the Council officer in assessing the risk hazard as medium, should be inferred to have done so with an awareness both of the consequences of such an assessment for allocation of Council resources and of the availability of those resources.
More than once, emphasis was placed on the fact that no evidence was called by the Council in relation to the meaning of the Policy or to suggest that the Council had been mistaken as to the resources available to it at any time; nor was there any evidence that the call on the Council’s resources was different from what had been anticipated when the Policy was formulated.
Thus, Ms MacLean argues that the Policy was evidence of what reasonable care required and attaches weight to the fact that there was no evidence to say that Council’s requirements had changed so as to render the Policy unreasonably demanding (nor to suggest that the Policy was merely aspirational).
Ms MacLean further submits that it is not for this Court to “second-guess” the reasonableness of Council’s assessment of the risk and policy for remediation of that risk (AT 5.20). Ms MacLean argues that the Policy is relied upon as relevant to the question of practicality; i.e., as to what should practically have been done by way of precaution against the risk (AT 2.31).
Ms MacLean also points to the fact that the height differential was ground down the day after the accident and says that there was no evidence to suggest the resources necessary to do so had been particularly difficult to find. Ms MacLean submits that this removes any room for doubt that there was a breach of the duty of care. (The Council here accepts that there is no suggestion that there was a resourcing issue in relation to the work but maintains that the fact that the repair work was done the day after the accident does not establish breach of a duty of care.)
90 I am fortified in drawing this inference by the fact that the respondent classified height differentials of 10 – 15 millimetres as mid-range trip hazards, and had a policy to repair them. It would confound commonsense to conclude that, notwithstanding the intended contractual outcome and that policy, it acted reasonably in leaving a mid-range trip hazard to await possible repair pursuant to that policy – especially one located in a busy part of the shopping area. The respondent’s system of classifying trip hazards (and common sense) demonstrated that the lip exposed pedestrians to a possible risk of injury which was not far-fetched or fanciful.
The Council places emphasis on the observations by the High Court in Ghantous at [6]-[8] (per Gleeson CJ), [163] (per Gaudron, McHugh and Gummow JJ), [247]-[248] (per Hayne J) and [355] (per Callinan J). The Council says that Ms MacLean tripped on something which was very easily observable, which pedestrians routinely encounter on public land and which had a very low probability of causing harm. The Council submits that the critical issue in the present case is whether it was obliged by the principles of negligence to do anything about the height differential (or, to put it another way, whether it breached a duty of care to Ms MacLean by not doing anything about the height differential). As adverted to above, the Council does not maintain that the raised lip was not a trip hazard; rather, its position is that the height differential was not a hazard which required any precaution pursuant to s 5B(1)(c) of the Civil Liability Act.
The Council (citing Ghantous) submits that a public authority is not liable for failing to rectify an observable difference in height between two sections of a concrete pathway unless there is some other factor relating to the hazard, apart from the height difference itself, which makes the failure to rectify a height differential a breach of duty. Emphasis is placed on the observations in Ghantous (including at [54]-[55] per Gaudron, McHugh and Gummow JJ and at [355] per Callinan J) to the effect that a pavement imperfection, such as a height difference that was readily apparent, does not require any precaution because pedestrians cannot reasonably expect perfect surfaces on public land and because pedestrians can reasonably be expected to become aware of height differences on public surfaces. In reply submissions, Ms MacLean points to the uncontroversial proposition, noted in the passage cited by Gaudron, McHugh and Gummow JJ at [163] in Ghantous, that each case will turn on its own facts; and emphasises that at [355] Callinan J was referring to a situation “in broad daylight” (unlike the present).
The Council emphasises that knowledge of a pavement surface imperfection is not sufficient of itself to establish breach (citing Roads and Traffic Authority of New South Wales v McGuiness (2003) Aust Torts Reports 81-688; [2002] NSWCA 210 at [38]; Botany Bay City Council v Latham (2013) 197 LGERA 211; [2013] NSWCA 363 at [39]-[43]; Nightingale at [45]). Further, the Council submits that it is not a question of how long a known imperfection in the surface has been present, arguing that, if an imperfection does not require a reasonable precaution to be taken when the public authority actually becomes aware of it, then effluxion of time does not make a precaution reasonably necessary.
The Council points to other cases in which has been followed, in which it says the only factor relevant to liability was a height differential of which a public authority was or ought to have been aware and there was no other factor justifying a finding of breach of duty (referring among others to [2002] NSWCA 343 () at [3]-[4], [25]-[39]; (2004) 134 LGERA 188; [2004] NSWCA 219 () at [3], [10], [20]; (2004) 136 LGERA 81; [2004] NSWCA 305 at [1]-[3], [13]-[17]).
The emphasis by Ms MacLean throughout her submissions on the existence of the inspection report (identifying the trip hazard and assigning it a medium priority) read with the Policy (which assigned a timeframe for response action to hazards based on the priority allocated to them) is really the nub of her complaint as to the finding by the primary judge that there was no breach by the Council of its duty of care.
However, in its terms, the Policy’s stated objective includes to minimise the risk of claims made against the Council:
The aim of these guidelines is to reduce the risk of injury to the public and reduce Council’s exposure to the possibility of a claim should an injury occur. This shall be achieved by maintaining a systematic approach to inspection, assessment, maintenance and repair of all footpaths and cycleways as identified in the Asset Register. [My emphasis.]
• In order to minimise the potential for ‘slip, trip and fall’ injuries to occur, Council has developed a risk management approach to Council’s footpath and cycleway networks.
• Council has recognised that ‘slips, trips and falls’ associated with footpath and cycleway networks form a significant percentage of public liability claims received by councils within NSW.
These references strongly suggest that the Policy has a prophylactic function: of minimising claims against the Council, in which case one might well anticipate that the Policy might go further than what was considered necessary to meet a duty of reasonable care. The Policy is in my opinion able to be accurately described as a “self-imposed” guideline. It does not determine what the legal standard of reasonable care is in relation to any particular trip hazard (whether or not one that is accorded a medium priority). The suggestion that the Court is somehow precluded from reaching a determination as to what the legal standard of reasonable care requires, because to do so would be to “second-guess” the Council’s Policy, cannot be accepted.
As to the oft repeated complaint by Ms MacLean that there was no evidence led by the Council to explain why the “requirements” of, or timeframe specified in, the Policy were not met, the Council made clear in its submissions that it does not raise any issue as to the cost or burden of taking the precaution in question (although it argues that the circumstance that there would be many imperfections in all sorts of public pedestrian surfaces informs determination of whether it was obliged to take any precaution in relation to this particular imperfection). Rather, the Council says that, in the present case, if it was reasonable to take no precaution (consistently with the reasoning in Ghantous), then the Policy can properly be characterised as aspirational, not obligatory. I agree.
Ms MacLean’s contention appears to be that knowledge (gained via the inspection report) by the Council of the trip hazard, coupled with the Policy that specified a three month timeframe for responsive action in relation to medium priority trip hazards, of itself establishes breach of the Council’s duty of care (and that it was for the Council to explain why it was unreasonable to expect that timeframe to be met – see, for example, the argument at AT 5.35). I disagree. The inspection report certainly identified the trip hazard (giving rise to the risk of harm), as the Council here accepts. However, the fact that a Council officer assigned this a “medium priority” at the time, in respect of which the Policy specified a three month response period, does not determine what is required of the Council in order to comply with the legal standard of reasonable care in the present case.
In that regard, what was said in Ghantous as to the expectation that persons will exercise sufficient care to look where they are going and avoid obvious hazards (such as, there, an unobstructed height differential) is instructive (see the paragraph references above). That expectation must inform the assessment of whether there was any breach of duty of care in not remedying the height differential prior to Ms MacLean’s fall.
Here, the relatively minor (23mm) height differential in the footpath was not created by the Council nor was it obscured from view. It was obvious in daylight and also during the low vision conditions of early morning partial light (since, on her own evidence Ms MacLean was able to see ahead to the next intersection). It was a hazard of the sort that pedestrians should expect when walking along public footpaths (and was a hazard of the kind that Ms MacLean herself seems to have accepted might possibly be encountered when walking along public footpaths). The fact that the footpath could be ground down without delay says nothing about whether this was a necessary or reasonable precaution (see (2005) 223 CLR 422; [2005] HCA 62).
I deal with these grounds together as there is some overlap between the grounds.
Ground 1 challenges the finding that Ms MacLean was not paying attention to the surface of the footpath.
In my opinion, Ms MacLean’s evidence (in chief, that, just before she lost her footing, she was looking in front of her – T 40.20; that she was looking not down the pathway but “[s]traight ahead, I was looking straight ahead” – T 40.23; and in cross-examination, that, when asked whether she agreed that, when going for the walk, whether in the middle of the day on a bright sunny day or in the middle of the night on a dark night where she could not see much, it was a matter for her to make sure she could see where she was putting her feet for her own safety), “[n]o, cause if I’m looking straight ahead, I’m not looking at the ground” – T 77.42, properly understood, supports the conclusion that, if Ms MacLean (as she said she was) was looking straight ahead in front of her just before the fall, then she was not looking at the ground. (Ms MacLean’s evidence, it will be recalled, was that she was able to see to the end of the street.) Therefore, a conclusion that she was not paying attention to the surface of the footpath is difficult to challenge.
Moreover, such a conclusion seems logically to follow from Ms MacLean’s evidence contrasting her behaviour before and after her accident, namely that “[s]o prior to my accident, I was probably more easy-going and walking. Now since the accident, I look at everything, I’d take every step that I take, I watch where I put my feet” (T 78.22).
Insofar as Ms MacLean submits that, as a matter of human experience, peripheral vision when “looking straight ahead” would inform a pedestrian as to the condition of the surface on which the person is walking (referring to Wollongong City Council v Williams at [17]), and argues that (even if it is assumed that she was looking at the horizon or at a point between the horizon and her feet), it does not follow that she would not have had the surface of the footpath in front of her in reasonable view or that in proceeding in this way she was exercising other than reasonable care (here referring to Ainger at [102]), that does not adequately take into account Ms MacLean’s own evidence (namely, that she was looking straight ahead in front of her and that, when so doing, she was not looking at the ground).
To the extent that Ground 1 relates to the above evidence, there is no error. To the extent that it raises a complaint that Ms MacLean was not “mindful” of the raised lip, I consider that in the context of Ground 2 below.
Ground 2, as framed, challenges the finding that Ms MacLean was not exercising reasonable care for her own safety. I consider this ground together with Ground 7, which is the finding of contributory negligence.
In relation to this ground, Ms MacLean complains that his Honour found that she had not been “mindful” of the lip ([64]) despite not making a finding that she knew of its existence before her fall. In that regard, Ms MacLean emphasises that she gave evidence that she had not on any prior occasion “seen the height differential” on which she tripped and Ms MacLean says that in cross-examination this evidence was not suggested to be incorrect.
Ms MacLean argues that it is consistent with his Honour not having rejected her evidence of ignorance of the existence of the lip, that he described her knowledge at [75] as being that “she was aware at least of the possibility of obstructions”. Ms MacLean submits that if his Honour had intended to make, and had made, a finding that she knew of the lip, it would be unnatural to refer to general knowledge about potential irregularity in pedestrian surfaces in assessing contributory negligence. Ms MacLean submits that the reference by his Honour to what she ought to have known or expected (at [75]) reinforces this, as does the absence of a suggestion that her conduct was to be assessed on the basis that she knew of the existence of the lip.
I have noted already that his Honour observed that he had difficulty accepting that evidence, an observation that would dispel any suggestion that his Honour had accepted that Ms MacLean had not previously seen the height differential. Nevertheless, Ms MacLean says that, even if his Honour is to be understood as having rejected her evidence of unawareness of the lip, her failure to see and avoid it on the day of her fall is not the result of contributory negligence. Ms MacLean says that a pedestrian could “not be expected to recall each and every particular potential imperfection in a footpath” no matter how many times the pedestrian had walked it (AT 16.11). (Indeed, Ms MacLean argues, referring to Ainger at [90], that the fact that people could not be expected to recall a defect, no doubt informed the decision to repair the footpath. This, to my mind, does not logically follow. A more logical explanation for the immediate repair was the fact of the incident itself, which triggered the reactive response.)
Ms MacLean accepts that a particularly poor footpath would no doubt become notorious in the mind of a regular user, and that it could demand additional vigilance, but says that the vice in the present case is that there is no evidence of widespread discontinuity in the footpaths on which she walked each day and that the absence of such conditions could give the appearance of safety (referring to Ainger at [98]). (By the same token, there appears to be no evidence as to the footpath elsewhere being in generally good condition, as Ms MacLean asserts.)
Ms MacLean also says that the finding of an absence of “mindfulness” relates to prior occasions, noting that the primary judge refers to her having enjoyed a great opportunity to observe it; and that what she might have seen on previous occasions, absent wanton disregard, is not likely to inform the reasonableness of her behaviour on the day of the accident. Further, Ms MacLean says that it was not found, nor was it contended, that the conditions likely to be encountered walking in low light were sufficiently treacherous as to make that a risky pursuit which of itself demanded special vigilance.
The Council argues that failure to keep an adequate lookout for hazards is contributory negligence and says that inattentiveness (whether temporarily or for long periods) may itself be contributory negligence (referring to Manhattan Homes Pty Limited v Burnett [2024] NSWCA 219 at [2]-[6]). To the extent that Ainger suggests otherwise, the Council submits that this is inconsistent with Ghantous.
The Council argues that the observation by his Honour as to the absence of evidence from Ms MacLean that she was exercising increased vigilance because of the lack of light did not place any onus on her to disprove contributory negligence but was simply the recording of a factual circumstance relevant to contributory negligence. Further, the Council says that it did not require Ms MacLean to exercise greater than reasonable care; rather, that in certain circumstances, such as poor light, reasonableness requires increased vigilance.
The Council submits that there is no error in a finding that a person who does not know if there is any height differential on a pathway should exercise increased vigilance in poor light. The Council emphasises that pedestrians are not entitled to expect a smooth surface and says that therefore the vigilance required is that of a person who does not know if there is a height differential. Thus, the Council submits that the primary judge did not wrongly equate non-specific awareness of the possible unevenness of pedestrian surfaces with knowledge of a specific trip hazard.
The Council submits that there was an evidentiary onus on Ms MacLean to show that something that appeared readily observable was not obvious for some reason and that this is what his Honour was referring to at [61]. The Council argues that, in the absence of any persuasive evidence that the height differential could not be seen by a pedestrian keeping a reasonable lookout, the submissions by Ms MacLean concerning the meaning of “looking straight ahead” lead nowhere; and the Council further submits that, notwithstanding that Ms MacLean said she did not see the lip, there is no error in a finding that a person in her position, taking reasonable care for her own safety, would have seen it.
In response to Ms MacLean’s submissions that a pedestrian could not be expected to recall each and every particular potential imperfection in a footpath, the Council says the issue here is whether a pedestrian could be expected to see this particular imperfection (which was not in any way hidden or obscured) if the pedestrian was keeping an adequate lookout. The Council contends that, in the absence of any evidence adduced by Ms MacLean that there was any impediment to her seeing the height differential, there is a strong inference of the causal connection between her not looking at the ground and her fall.
As to Ground 8, the Council contends that there is no error. Again, there were no submissions expressly addressed to this ground.
In my opinion, there was no error in the finding of contributory negligence nor in the findings on which it was based.
I have already dealt with Ground 1 in this regard. As to Ground 2, I read his Honour’s conclusion that Ms MacLean was not “mindful” of the lip as being a finding that she did not take particular care, when walking home that morning, to keep a look-out for potential imperfections in the footpath; not as a finding that she had seen the raised lip in the past and should have approached that section of the footpath mindful (or aware) that there was a height differential there.
As to the complaint that his Honour was critical of the lack of “increased vigilance” at the time of the fall due to the light, this is where the tension inherent in the submissions made for Ms MacLean becomes apparent. If the light was so poor as to amount to “virtual darkness”, then commonsense would surely require a person exercising reasonable care for his or her own safety to exercise increased vigilance, knowing of the possibility of imperfections in a footpath surface. If, however, the light conditions were not such as to amount to “virtual darkness”, then while it may well be that “increased” vigilance beyond the normal was not required, then the visibility of the unobstructed height differential strongly suggests a failure to keep a proper lookout for potential hazards.
I do not read his Honour’s observations as reversing the onus of proof as to contributory negligence. Rather, in assessing the care exercised by Ms MacLean for her own safety, his Honour was considering the care required of a person in her position (aware that there might possibly be an imperfection in the footpath and walking in the low vision conditions of morning light) to keep a lookout for potential hazards. Actual knowledge of the hazard is not required for this purpose; inattentiveness may suffice for a finding of contributory negligence. Ms MacLean’s evidence that she was looking ahead, not at the pathway, is sufficient to give rise to the inference that she was not paying reasonable attention to her surroundings at that time; and hence there was a causal connection between lack of attention or care and her accident.
Grounds 2 and 7 are not made good. As to the 50% discount notionally adopted for contributory negligence (Ground 8), no error has been established. Ground 8 is not made good.
Ground 9 challenges the finding that s 43A of the Civil Liability Act was a defence to Ms MacLean’s claim ([85]).
Ms MacLean notes that the Council admitted that it was responsible for the care, control and management of the place where she fell (see statement of claim at [1](d); defence at [1]). Ms MacLean submits that the basis for the existence of a duty of care, where care, control and management are admitted, is the ability, by reason of those characteristics, to control the condition of the land. Ms MacLean submits that the facts of the present case did not permit the application of s 43A of the Civil Liability Act to defeat her claim.
Reference is made to Roads And Traffic Authority Of New South Wales v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263 (Refrigerated Roadways) where Campbell JA (with whom McColl JA and Sackville AJA (generally) agreed) held that liability based on the failure to erect screens on a bridge over an expressway was not a liability based on the failure to exercise a special statutory power (see from [371]) on the basis that “ownership of the bridge is quite sufficient to empower the RTA to erect screens on it” ([368]). It is noted that this statement was endorsed by Basten JA in Curtis at [241]. Similarly, reference is made to the observation of Beazley JA, as Her Excellency then was, Whealy JA and Sackville AJA agreeing, in Bellingen Shire Council v Colavon Pty Limited (2012) 188 LGERA 169; [2012] NSWCA 34, citing Refrigerated Roadways, that it was difficult to see why, given the council in that case was the owner of the road, an ability to erect guideposts invoked a “special statutory power”.
Ms MacLean says that the primary response the Council should have made to the risk of harm was to ameliorate the differential in height between the adjoining slabs where she had tripped by marking it or grinding it, and that the right to do that did not involve the exercise of a special statutory power; rather, it was an ordinary incident of the property right possessed by the Council (citing Refrigerated Roadways at [368] and Leeming JA in Loulach Developments Pty Ltd v R**oad and M**aritime S**ervices [2019] NSWSC 438).
Further, Ms MacLean submits that if the power to allocate a risk priority in accordance with the Policy was a “special statutory power” within the meaning of s 43A of the Civil Liability Act, then the default lay in the implementation of a decision, already taken (under the Policy), to exercise the power. Ms MacLean refers in this regard to the articulation by Campbell JA of the applicable principle in Refrigerated Roadways at [372], and submits that, here, the Council negligently failed to carry out the decision (by its failure to respond to a medium priority trip hazard within three months).
The Council points out that Ms MacLean did not contend before the primary judge that s 43A of the Civil Liability Act did not apply for the reasons now raised (in her submissions in this Court (at [50]-[53])) – a criticism that Ms MacLean appears to accept (explaining in reply submissions that the lack of submissions on s 43A at first instance was by reference to the fact that the Council’s submissions at first instance (at 11/02/25; T 26.24-31, 13/02/25; T 161.48-50, T 162.13, 40, 45) did not address what was said to be the “special statutory power” necessary to permit the Council to take alleviating action).
The Council further says that Ms MacLean’s submissions as to s 43A of the Civil Liability Act suffer from the difficulty that non-compliance with the Policy (which it describes as aspirational and self-imposed) is said to be necessarily irrational for that reason alone. The Council submits that, in the context of the authoritative statements of principle by the High Court and this Court concerning legal obligations to pedestrians (referred to by his Honour), it is not irrational not to follow such a policy. (In reply submissions, Ms MacLean again emphasises that there was no explanation by Council as to why it was that there was not compliance with the Policy.)
As to the discount for vicissitudes (Ground 10), Ms MacLean submits that, his Honour having accepted that the joint medical opinion (Ex K) established an actual relationship of aggravation caused by the trauma of the fall, and that the pain and disability consequences of the aggravation persisted and would continue until she underwent bilateral total knee replacement surgery ([177]), his Honour then wrongly proceeded on the basis that there should be a consideration of the progression of the arthritis and life’s vicissitudes, despite there being no evidence that the condition would have progressed so as to absorb, overtake or supplant the aggravation his Honour had found (referring to [180]).
Ms MacLean submits that the problems with this approach are: first, that if it relates to the past, then the fact of it is to be proven on the balance of probabilities; second, that if it relates to future possibilities, then it lacks an evidentiary foundation; and, third, that the identified potential adverse events are the ordinary uncertainties with which the traditional deduction for vicissitudes is concerned. Ms MacLean submits that there is no evidence, nor a finding, that she faced “above average vicissitudes”, as discussed in Smith v Alone [2016] NSWDC 265 (Smith) at [196]-[200] and [207]. Ms MacLean submits that there was no basis for thinking that the elements of everyday life would ever have become too much for her, had the accident not occurred, or that any of them would have aggravated her arthritis, let alone to the same degree, or even that the pre-existing condition of her knees prior to the accident increased the risk of these things happening to her beyond the extent of the risk in the general community.
Ms MacLean’s complaint is that his Honour then discounted the future economic loss damages at the higher rate of 30%, rather than the “usual” 15% (referring to Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 497-498; [1995] HCA 53 as to the usual rate of 15% deduction) (Ground 14).
As to the claim for non-economic loss (Ground 11), Ms MacLean complains that his Honour did not identify the factors he regarded as relevant to the award of non-economic loss damages and says that his Honour did not acknowledge that she faced two separate and significant surgeries (being a total knee replacement in each knee). It is submitted that the assessment of 24% of a most extreme case is a “wholly erroneous” estimate of Ms MacLean’s damage and is “inordinately low and manifestly deficient”. Ms MacLean says that the appropriate range was 35% to 40% of a most extreme case.
As to future out-of-pocket expenses (Ground 12), complaint is made that his Honour, having held that Ms MacLean was entitled to a buffer of $56,348, reduced it by 30% on account of the possibility that she would have come to bilateral knee replacement surgery but for the injury ([186]). Ms MacLean says that his Honour did so while expressly identifying that there was no evidence to support that proposition (i.e., of knee replacement surgery occurring in any event) ([170]).
As to Ground 10, the Council submits that his Honour applied the correct principles in determining that a deduction of 30% for vicissitudes was appropriate given the evidence and his findings as to Ms MacLean’s pre-existing arthritis.
It is noted that the primary judge set out relevant aspects of the medical evidence (see [101]-[102]; [109]; [113]; [118]) including the conclave report of the qualified orthopaedic surgeons, Drs Doig and Robinson ([120]) and considered the relevant authorities (at [164]-[180]). The Council notes that Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 ([176]) (in which this Court considered the interaction and application of Watts and Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34 on the one hand and Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 on the other) confirmed that a court assessing damages is required to evaluate and take into account the “possibilities” of future events occurring, such as “the future effects of physical injury or degeneration”, which are “to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities” (referring to Ipp JA at [93]-[123]; [103]-[105], Mason P agreeing at [1]-[3], Basten JA agreeing on this issue at [215] but dissenting for other reasons).
The Council says that the primary judge applied those principles in making his factual findings which were available on the evidence and submits that nothing said in Smith (in which the Court allowed a 25% discount), identifies appellable error in the primary judge’s reasoning.
The Council emphasises that this was the type of trauma which could affect someone with a pre-existing arthritic condition – and says that the medicolegal evidence implicitly accepted that this was exactly the sort of thing that one would expect if someone falls on a hard surface. The Council says that therefore, his Honour was assessing additional risks and the normal discount of 15% of vicissitudes to take into account the possibility that Ms MacLean would have aggravated her arthritic condition to make it symptomatic even had the accident not occurred. It is submitted that a 30% discount was not demonstrably or manifestly out of range.
As to Ground 11, the Council notes that, when assessing non-economic loss, and all heads of damage, the primary judge set out and had regard to Ms MacLean’s personal background and circumstances ([131]-[145]), as well as the medical evidence ([90]-[125]) and lay evidence ([126]-[129]), as to the past and likely future impact of Ms MacLean’s injury, including that she would require separate knee replacements ([148], [149]). The Council submits that there is nothing to suggest that, in assessing non-economic loss at 24% ([181]-[183]), his Honour mistook the facts or the legal principles to be applied; nor is there anything otherwise to demonstrate error, which may be discernible only on the basis that the result is outside a reasonable range, so as to justify appellate intervention (citing (2019) 99 NSWLR 605; [2019] NSWCA 152).
It was accepted by the parties (see the Council’s oral submissions at AT 27 from which there was no demur by Ms MacLean) that an evaluative decision as to matters such as the allowance to be made by way of vicissitudes against the possibility that other events will intervene is subject to appellate review applying the House v The King (1936) 55 CLR 499; [1936] HCA 40 principles, as made clear by Gleeson JA (with whom Preston CJ of LEC and Stevenson J agreed) in Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296 at [56]-[57]. As Gleeson JA there noted, an appellate court must exercise considerable caution in such matters and will not interfere with such a decision in the absence of an error of fact or law or manifest unreasonableness or injustice (see the authorities there cited). Whether this remains the correct standard for appellate review following GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 is unnecessary to consider given the approach taken by the parties and the view I have reached that no error has been shown in the evaluation of the respective heads of damage other than a minor arithmetical error.
As the Council emphasises, his Honour’s assessment of damages assumed that there was a closed period after surgery (which affected both the award for future economic loss and future domestic assistance) ([155]).
His Honour correctly recognised the need to deal with the degree of probability of future knee pain and to take into account the progression of arthritis and life vicissitudes. The finding of an increased discount for vicissitudes is because of circumstances that a common occurrence caused Ms MacLean to become symptomatic and chances of that happening (had the accident not occurred) were more than merely speculative. The Council points out that Ms MacLean had submitted that there should be a buffer of $100,000 (essentially two years future economic loss as a buffer) whereas there was no evidence that after knee surgery there would be any incapacity and no evidence as to how long the period of recuperation from the surgery would be. It is noted that his Honour calculated future economic loss by reference to actual earnings, for two reconstructions for two weeks and then discounted for vicissitudes. The Council submits that the very significant increase here claimed for future economic loss does not withstand any close analysis of the calculation of the buffer.
Turning to the various heads of damage in respect of which Ms MacLean submits that the primary judge erred in his contingent assessment of damages, I am of the following view.
As to vicissitudes, no error has been shown. In circumstances where there was a pre-existing asymptomatic condition, there was no error in considering the possibility that this condition would have become symptomatic even had the accident not occurred (by reference to an ordinary everyday occurrence of the kind to which his Honour referred). Ms MacLean placed weight on human experience in the context of her submissions as to liability. Equally, human experience informed his Honour’s assessment of the possibility that Ms MacLean’s arthritis would have progressed, and become symptomatic, by activities such as playing with her grandchildren even had the accident not occurred. The fact that there was no evidence from a medical perspective as to whether Ms MacLean’s pre-existing asymptomatic condition (which his Honour noted was diagnosed as advanced by Dr Matthews) increased the risk of knee replacements in the future beyond that faced by the general community, did not remove the need for the primary judge to consider the possibility of future events occurring that might lead to that outcome. I do not consider that the increased amount applied by way of a discount for vicissitudes is demonstrably or so manifestly “out of the range” so as to warrant appellate intervention.
For the above reasons, I propose the following orders:
Grant leave to appeal and extend time for the appeal to the date of filing the summons for leave to appeal.
Direct that the applicant file within 7 days a notice of appeal in the form of the draft notice of appeal reproduced in the Court Book.
Dismiss the appeal with costs.
McHUGH JA: I agree with the President.
FREE JA: I agree with Ward P.
**********
MacLean
Richmond Valley Council
[1936] HCA 40
(2018) 98 NSWLR 171
(2012) 188 LGERA 169
(2013) 197 LGERA 211
(2001) 206 CLR 512
(2014) 88 NSWLR 10
(2006) 65 NSWLR 418
(2023) 280 CLR 442
(1936) 55 CLR 499
(2004) 136 LGERA 81
(2009) 240 CLR 1
(1990) 169 CLR 638
(2015) 91 NSWLR 556
(1988) 15 NSWLR 65
(1965) 114 CLR 164
(2002) 127 LGERA 237
(2009) 77 NSWLR 360
(2004) 134 LGERA 188
(2005) 223 CLR 422
(1960) 108 CLR 158
(2019) 99 NSWLR 605
(1995) 184 CLR 485
Leave to appeal and an extension of time were granted. The applicant was directed to file a notice of appeal within seven days in the form of the draft notice reproduced in the Court Book. The appeal was dismissed with costs: [190].
His Honour referred to some of Ms MacLean’s evidence of previous occasions when she had walked along the footpath (at [13]); and extracted (at [15]) answers given by Ms MacLean in cross-examination as to her awareness of the possibility of hazards she might encounter when walking on a public footpath. Relevantly, in light of a complaint initially made in this Court but not ultimately pressed as to his Honour’s reference at [64] to Ms MacLean’s evidence as being that prior to her fall she walked “just by looking straight ahead at the ground”, the extract from her cross-examination at [15] included Ms MacLean’s explanation for why she was not looking down at the pathway that “… if I’m looking straight ahead, I’m not looking at the ground” (T 77.41).
As to the Council’s knowledge of the risk, the primary judge found, by reference to the two documents referred to at [8] and [9] above (Ex G and Ex E), that the Council was on notice, and had actual knowledge, of the hazard presented by the 15 to 20mm “leading-edge lip” of the relevant section of concrete where Ms MacLean tripped six years prior to the fall ([34]). Noting that there was no contest that, at the point where Ms MacLean’s toe caught the lip, the height differential was 23mm, his Honour concluded on the balance of probabilities that, over the passage of six years or at some unidentified date or dates within that period, the height differential at the point of the trip had increased by a few millimetres ([34]).
From [36], his Honour addressed the question as to whether the Council was negligent.
At [36], his Honour noted that the Council admitted that it owed Ms MacLean a duty of care if she was exercising reasonable care for her own safety “but not otherwise”. I consider the relevant portions of the parties’ pleadings in due course.
The primary judge considered that the risk of injury was properly characterised as the risk of a pedestrian tripping on the raised lip of the concrete section and falling onto the concrete footpath (see at [38]). His Honour considered that the risk of harm occurring was not far-fetched or fanciful; it was foreseeable ([39]). There is no dispute as to those findings.
His Honour noted the Council’s position that, if the finding of notice/knowledge on its part of the risk were made (as it was at [34]), the Council relinquished reliance on s 45 of the Civil Liability Act, saying that the concession was properly made (see at [41]). However, his Honour went on to say that the Council’s actual knowledge of the particular risk did not of itself give rise to liability (citing Nightingale v Blacktown City Council (2015) 91 NSWLR 556; [2015] NSWCA 423 (Nightingale)). Pausing here, Ms MacLean argues that the relevance of the Policy is not limited to removal of reliance on s 45 of the Civil Liability Act. As adverted to above, much weight is placed by Ms MacLean on the Policy (as I explain in due course).
From [46]-[50], his Honour addressed (and rejected) a submission by Ms MacLean that the Council had not monitored the footpath for further deterioration after the trip hazard was identified in 2017. His Honour then turned to consider the Council’s argument that it did not owe Ms MacLean the duty of care alleged because she was not exercising reasonable care for her own safety and said, in that context, that he also considered the Council’s denial of liability on the basis that this was an obvious risk within the meaning of s 5F of the Civil Liability Act and therefore it had no duty to warn Ms MacLean of the risk (see s 5H of the Civil Liability Act).
At [56], having considered the observations in Ghantous referred to in his reasons at [53]-[55], his Honour noted that pedestrians negotiating public footpaths are expected to take reasonable care for their own safety and are not entitled to expect that the surface will be smooth (see also the observations to that effect set out at [56]-[58]).
At [60], his Honour said:
The primary judge then turned to the question of contributory negligence from [75] saying there that:
His Honour said that the Council had failed to prove that Ms MacLean would have reached the stage of disability that she presently suffered (or even a stage of disability interfering with her amenity of life to a degree) at an earlier time than for other persons ([171]); and had failed to establish with some reasonable measure of precision the future natural course of her arthritis and future disabling effects or if and when it would reach the point of causing her present state of disability ([171]; and see also [177]). However, his Honour pointed out that this did not entitle Ms MacLean to an award of damages as if her pre-existing arthritis did not exist ([172]), saying that worldly experience and common sense recognised it to be a naturally progressing medical condition likely to produce gradually increasing interference with her lifestyle as it progressed and as she aged. This is what led his Honour to refer to the need for a proportionate award to take into consideration the progression of arthritis and life’s vicissitudes.
At [178], his Honour concluded, by reference to common sense, that there was a possibility (not being merely a speculative prospect) that, at her age and with her active lifestyle, Ms MacLean would have come to her present state of disability and to future bilateral knee replacements (i.e., even had the fall not occurred) and said that this chance must be considered when assessing damages. His Honour said that consideration of the vicissitudes of Ms MacLean’s active life but for the fall must contemplate the chance of trauma to her knees (which his Honour noted might occur, for instance, from a fall from a ladder or playing with a grandchild). His Honour assessed that possibility as warranting a discount of damages otherwise to be awarded for future economic loss at 30% ([180]). His Honour considered that damages for non-economic loss should be assessed (contingently) at 24% of a most extreme case ([183]), stating that “[r]elative to an uninjured person of her age and lifestyle as an active mid-50’s ‘fun’ grandmother”, her bilateral knee pain and disability and consequent effect on her amenity of life will not be significant following her recuperation from “surgery”.
As to the particular heads of damages claimed by Ms MacLean, his Honour made contingent findings as to past and future out-of-pocket expenses and future economic loss (allowing a buffer sum for the latter, discounted by 30% on account of vicissitudes). I consider those, where relevant, in due course.
That said, the Council made clear in both its written and oral submissions in this Court, that it does not contend that an occupier does not generally owe any duty to a person who fails to exercise reasonable care in the form of caution towards a trip hazard. Rather, the Council contends that there was no breach by it of any duty of care owed by it because the trip hazard did not require any reasonable precaution to be taken to avoid the risk of harm (as I explain in due course). The Council does not here dispute that the raised lip on the concrete footpath posed a trip hazard (see AT 22).
As indicated above, I read [65] as addressing the duty of care alleged at [10] of the pleading, which was expressed in terms of a duty to pedestrians exercising reasonable care for their own safety. What his Honour appears not to have separately addressed was the allegation in [11] (see above), which was not in terms so confined.
To the extent that his Honour’s finding at [65] in effect conflated the finding on duty of care with the finding on contributory negligence (as Ms MacLean contends) and amounted to a finding that there was no duty of care simply because Ms MacLean was not exercising reasonable care for her own safety, I would accept that this was in error. The relevant duty was to take reasonable care against a foreseeable risk of harm without that duty being conditioned on whether the person in question was exercising reasonable care for his or her own safety. The Council here appears to accept as much. To the extent that his Honour at [65] was simply addressing whether the duty of care “as alleged” (at [10]) was established, there was an error in omitting to deal with the seemingly separate allegation at [11] of the pleading.
However, nothing turns on this if, as I have concluded, there is no error in the primary judge’s findings on breach (see below). Therefore, Ground 3, to the extent that it is made good, leads nowhere.
What his Honour was saying at [60] (having earlier referred to authorities explaining that a raised lip on a footpath is an everyday minor hazard that pedestrians are to expect), was that a risk hazard arising by reason of a raised lip of 23mm, vision of which was not impeded, was simply a risk hazard to be expected. Although his Honour added the words “be it day or night”, which might be more problematic in the sense that in darkness such a risk hazard would presumably not be easily visible, here the low vision conditions or partial light were not found by his Honour to have had such an effect.
Insofar as Ms MacLean complains that, at [17], the primary judge said that Ms MacLean did not say that the raised lip was not discernible, whereas she did give evidence that she had not seen the height differential, his Honour expressly found that evidence difficult to accept and the Council points out that there was no other evidence, lay or expert, to the contrary of the finding by the primary judge that the height differential was readily visible to any pedestrian. Insofar as Ms MacLean, in her reply submissions, says that the darkness was more than sufficient to explain why she did not see the trip hazard, I note again that the primary judge’s findings as to the quality of the light at the time of the fall, were not that it occurred in darkness (or “virtual darkness”) but, rather, in low vision conditions or early morning partial light. (I also note that there is an obvious tension between a submission that the trip occurred in darkness or “virtual darkness” and the evidence of Ms MacLean that she did not exercise increased vigilance or care when she was walking in those conditions.)
Thus, Ground 5 is not made good.
Complaint is also made by Ms MacLean as to the primary judge’s discussion of the inference, if any, to be drawn from the lack of evidence by the Council of monitoring of the trip hazard in the period from the inspection report to the time of the incident. At [46], his Honour noted that Ms MacLean had argued that an inference arose, from the lack of such evidence, that there was no monitoring for further deterioration of the footpath. Ms MacLean submits that the finding by his Honour (at [49]) that there was no basis to infer a failure by the Council to comply with the Policy is wrong, emphasising that the hazard was evaluated as being of “medium” risk and that it was not remediated within three months.
Complaint is further made that his Honour held that the Council monitored the site (referring to what was said at [50]), Ms MacLean submitting that there was no evidence to support this finding. Pausing here, I do not read [50] as a finding by his Honour that the Council had in fact physically monitored the site over the six year period in question. Rather, his Honour said at [49], that the Council did monitor the risk “to the extent that it operated the Customer Request Maintenance System through which any complaint, request or report of incident would have triggered the Reactive Approach”. His Honour considered that the fact that there were no complaints or reported events of injury concerning the lip while the Council “monitored” these things (i.e., through operation of the Customer Request Maintenance System) was evidence opposing the inference for which Ms MacLean had contended (i.e., that the Council simply ignored the Policy and did not in fact monitor the site for further deterioration), which he rejected. Thus, his Honour did not in terms draw an inference or make a finding that the site was physically monitored for further deterioration (as opposed to a finding that the Council monitored the risk to the extent that it had in place a system through which a reactive approach would be triggered if complaint or request was made).
Insofar as his Honour (at [69]) concluded that, in the circumstances of there being no preceding complaints, requests or incidents, it was not unreasonable for the Council “on a proactive test basis” not to have taken, prior to the incident, the precautions identified by Ms MacLean, Ms MacLean argues that this ignores the “requirements” of the Policy. Ms MacLean again emphasising the six year delay without response to the trip hazard identified in the inspection report.
Ms MacLean also takes issue with his Honour’s conclusion (at [70]), following reference to s 5D of the Civil Liability Act, that her claim proposed a scope of liability beyond that which is appropriate for the Council. Ms MacLean points out that s 5D is concerned with causation (and is directed to the quality of connection between the negligence and the harm), rather than scope of the duty. Ms MacLean points out that it was not suggested that, if the Council was negligent, it should not be held liable in damages for the harm caused; and she argues that there is nothing that would raise a question as to the appropriateness of payment by a tortfeasor of damages where injury is suffered in a fall as a result of a trip hazard.
Insofar as his Honour said that the Council’s “reliance on its Policy of Inspection and Reaction approaches”, including its responses to Ms MacLean’s report of her incident after six years of no complaints, further persuaded him that the Council did not breach its duty of care ([74]), referring to s 42(d) of the Civil Liability Act, Ms MacLean complains that the Council did not make submissions at first instance as to the operation of s 42 (referring to 13/02/2025; T 161-164). Pausing here, the only reference in the Council’s opening submissions at first instance to s 42 was that the section recognises that councils have to allocate limited funds and resources (see 11/02/25; T 19.39).
Ms MacLean says that there was no basis on which to claim that the issue of resources was relevant to the failure to repair the defect and she complains that his Honour did not explain how he came to the conclusion as to there being no breach by reference to s 42. Ms MacLean submits that his Honour should not have entered upon consideration of the operation of s 42 of the Civil Liability Act given the absence of evidence of a resources issue and the lack of submissions but says that, in any event, the Council breached its Policy as opposed to relying on it (cf [74]), here no doubt again referring to the fact that the height differential in the footpath was not remedied within three months of the defect being identified.
In oral submissions, Ms MacLean emphasised what was said by McColl JA in Ainger v Coffs Harbour City Council [2005] NSWCA 424 (Ainger) at [90]:
Of those cases, Ms MacLean in reply submissions points out that: Byrnes involved an accident occurring at 11.00am ([14]) when the weather was fine; and Saleh involved an accident occurring at 5.30pm and at [20], Sheller JA held that the plaintiff in that case *“*must have seen the hazard”. Ms MacLean submits that in the present case, the “darkness” caused the problem and, necessarily, darkness was foreseeable. (I have already referred to Ms MacLean’s elision in her submissions between partial light and darkness.)
The Council says that the principles stated in Ghantous also apply to other risks presented to pedestrians such as: the curb between a road and a footpath (Council of the City of Sydney v Bishop [2019] NSWCA 157 at [10], [13], [21], [25], [28], [29]); public steps (Wilkinson v Law Courts Limited [2001] NSWCA 196 at [21]-[22]); as well as other obvious everyday risks such as those presented by furniture (Phillis v Daly (1988) 15 NSWLR 65 at 74; [1989] Aust Torts Reports 80-234).
As to Ainger, the Council says that the plaintiff there succeeded because the defendant council had created the hazard. The Council says that Ainger is not authority for the proposition that knowledge of a trip hazard is sufficient to impose an obligation to rectify, noting that it was not a case in which the pavement deteriorated over time; rather, it was constructed with the defect. The Council points out that there is no evidence in the present case that the footpath was constructed with a height differential. The Council submits that Ghantous cannot be read as suggesting that public authorities who construct the surfaces of public areas become liable for that reason if some imperfection develops over time.
In reply submissions, Ms MacLean clarifies that Ainger is relied upon by her for what it says about a pedestrian’s obligation for her own safety, where reasonable care on the part of a pedestrian requires the pedestrian to be looking; and Ms MacLean refers to the “generally reasonable” condition of the footpath in the present case (about which we were taken to no evidence) other than at the particular point at which she tripped.
As to Wollongong City Council v Williams, the Council says that the plaintiff succeeded there because the steps constructed from bricks made the height difference difficult to see and the steps were shaded by trees (see [48]-[49], [65], [67]). The Council points out that in the present case, there was no evidence that there was anything preventing or hindering a pedestrian seeing the height difference. The Council submits that the onus was on Ms MacLean to prove that there was some factor which hid or obscured a potential hazard. (As I read this last submission, the Council is here drawing upon Ghantous and arguing that there were no factors at the time of the incident, apart from the height differential (and Ms MacLean’s inattentiveness), which resulted in her fall.)
In reply submissions, Ms MacLean identifies the other relevant factor in the present case as being that the accident occurred in “virtual darkness” (again I point out that this does not accord with his Honour’s finding as to the quality of the light conditions that morning; nor does it accord with Ms MacLean’s evidence that she could see to the end of the street). Ms MacLean nevertheless argues that if this was considered a trip hazard when the footpath was inspected in 2017 (presumably in daylight), there is no doubt that it would have been a greater hazard in darkness or “relative darkness”.
Insofar as Ms MacLean relies on the alleged failure by the Council to comply with the guidelines in its Policy, the Council says that this assumes that a “self-imposed guideline” adopted by a defendant is the equivalent of the scope and content of the tort duty of care imposed by common law principles of duty and breach. The Council refers in this context to cases which have considered that industry standards are not determinative of the standard of care required (Francis v Lewis [2003] NSWCA 152 at [42]-[43]; Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 at [49]). The Council says that, otherwise, any occupier could adopt a self-imposed standard which is not reasonable and avoids liability for which a more fastidious occupier would be accountable. Further by way of illustration, the Council argues that, in the present case, if there was a hazard which (applying the principles of negligence) required that a precaution be taken in less than three months, it would be no answer to point to the Policy and say that the Policy only required a precaution to be taken within three months.
Thus, the Council submits that the Policy is not evidence of what reasonable care required. The Council says that the issue is not whether the Policy was unreasonably demanding operationally or “merely aspirational” but whether the principles of negligence obliged it to take any precaution in relation to this particular height differential. The Council argues that, applying the principles stated in Ghantous, it was not negligent for it not to take a precaution in relation to the trip hazard. The Council submits that there is no reason why a public authority should be subjected to a more onerous standard in this regard than any other person owing a duty of care as an occupier.
In any event, the Council says that, for the reasons stated by the primary judge at [27]-[31] (those paragraphs concluding with his Honour’s reference to the concession by Ms MacLean that there is no evidence as to what the intervention threshold is for the Council to determine to remedy the defect), the guidelines were not breached. The Council submits that the fact that a section of pavement was ground down the next day establishes nothing more than that it could be done.
In reply submissions, Ms MacLean reiterates her submissions as to what inferences should be drawn from the inspection report and Policy (see above) and the lack of evidence from the Council in this regard. Ms MacLean further complains that there was no evidence to support his Honour’s reference (at [27]) to a possibility that correction of the height differential could have been “further and generally subject to Council’s triage of responses to hazards” and (at [29]) to the Policy referring to responses being subject to budgetary constraints. Ms MacLean seems in her reply submissions to accept that the Policy and the inspection report did not “prescribe” any timeline for remediation and that these documents were not determinative or prescriptive (though referring in her submissions to the Policy “requirements”).
Balancing the risk of harm (here not insignificant but also with a low probability of harm occurring, based on the lack of other complaints or incidents over the six year period) against the burden of taking precautions from the occurrence of the risk of harm (by grinding down the height differential, which was able to be carried out with little delay and at seemingly no huge expense), and assessing this prospectively not retrospectively, I am not persuaded that there was a failure to take reasonable care in the present case.
Nothing turns on the complaint by Ms MacLean as to his Honour’s conclusion at [70] (made by reference to the appropriate scope of liability), including that s 5D of the Civil Liability Act goes to causation not to the scope of duty, since that conclusion was not determinative. His Honour had already found at [65] that there was no breach of the duty of care. His Honour’s statement at [70] might best be understood as reflecting the submission that the Council here puts to the effect that determination of whether any of the pleaded precautions was required depends on an objective analysis of whether this height differential fell within the type of uneven surface referred to in Ghantous, which pedestrians can be expected to perceive and avoid without any precaution required by a public authority. His Honour evidently considered the answer to such a question to be yes. I see no error in such a conclusion.
Finally, as to the complaint by Ms MacLean in respect of his Honour’s consideration of the operation of s 42 of the Civil Liability Act, again nothing turns on his Honour’s conclusion that there was no breach of the duty of care by reference to s 42 because this was simply reinforcing the finding of lack of breach that had already been made. The complaint as to the lack of reasons for that conclusion takes matters no further. What his Honour appears at [74] to have been relying on was the fact that the Council had put in place a complaints mechanism or system by which any incident or request reported to it in relation to a hazard would trigger a “reactive response”. His Honour evidently considered that this amounted to compliance with the Policy. In any event, as I have said, nothing turns on this finding in view of the earlier finding at [65], so that even if Ground 6 were made good nothing turns on it.
Grounds 4 and 6 are not made good.
Ms MacLean complains that his Honour’s approach (referring to [61]) wrongly equated non-specific awareness of the possible unevenness of pedestrian surfaces in general (his Honour having cited Richmond Valley Council v Standing (2002) 127 LGERA 237; [2002] NSWCA 359 at [54] per Heydon JA as his Honour then was and Bathurst City Council v Cheesman [2004] NSWCA 308 per Ipp JA at [7]), with knowledge of a specific trip hazard. Ms MacLean points out that the primary judge’s finding that she “had not paid particular attention to the visible lip” ([12]) is a finding about her behaviour over some 13 years (referring to [13]) and/or the “thousands of times” she had crossed the point where she fell ([11], [13]); and says that this is not a finding that she failed to pay reasonable attention to her surroundings on the day of her fall. It is noted that the circumstance which led to a reduction by his Honour on account of contributory negligence was “aware(ness) at least of the possibility of obstructions on the path” ([75]) of which possibility she “ought to have known” or should have expected ([75]).
Ms MacLean also complains that his Honour (at [60]) wrongly cast the burden of proof on her to prove that the hazard was not easily discernible. Ms MacLean emphasises that the Council bore the onus of proof on contributory negligence (citing Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer (2018) 98 NSWLR 171; [2018] NSWCA 146 at [41] per Payne JA (McColl and White JJA agreeing)). Ms MacLean says that his Honour was, at least, implicitly critical of the absence of evidence of her exercising increased vigilance because of the lack of light at the time of her fall (referring to [61]). Ms MacLean submits that requiring her to establish the exercise of “increased vigilance” ([61]) placed the onus on her to disprove contributory negligence and also required of her that she exercise greater than reasonable care; whereas the proper question was whether, in the circumstances, she was exercising reasonable care for her own safety.
Insofar as his Honour considered that she was not exercising reasonable care because she was not exercising “increased vigilance”, Ms MacLean says that the vigilance required was only that which was reasonable for a person who did not know of the existence of the height differential and who had no reason to suspect that there was a height differential, adding that a further consideration is the general condition of the footpath (Ms MacLean here referring to Ainger). In that regard, I note that Ms MacLean accepted that she knew there was a possibility of irregularities in the surface of a pedestrian footway surface – see 12/02/25; T 79.10-22.
Ms MacLean argues that his Honour’s finding at [12], that she had not paid particular attention to the visible lip, proceeds on the basis of an obligation on a pedestrian to “(pay) particular attention to the visible lip” and says that, in terms of assessing the need to do so, the approach is circular. Ms MacLean appears to accept that the exercise of reasonable care by a pedestrian requires that the pedestrian conduct himself or herself with due allowance for the possibility of a surface being imperfect but says that it does not require the pedestrian to assume that there will be a 23 mm trip hazard at every, or even any, particular step. It is submitted that, if this were the test, no person who fell on a footpath could have a remedy in damages for negligence.
Ms MacLean asserts that she was not doing anything to the contrary of the requirement that she take reasonable care for her own safety and says that, given her familiarity with the area and (though this is problematic given his Honour’s stated difficulty in accepting her evidence to this effect) her ignorance of the existence of the hazard which caused her fall, there was no reason for her to be additionally or especially wary of this location. As adverted to earlier, Ms MacLean submits that looking straight ahead would have provided (peripheral) vision of the footpath and she submits that, in the absence of a finding that she knew about the presence of the lip, the exercise of reasonable care for her own safety did not require her to look directly at the ground (citing Ainger at [102]).
Ground 8 challenges the (contingent) assessment of contributory negligence (at 50%). No submissions are directed expressly to this ground, the oral submissions focusing on the proposition that acceptance of the possibility of irregularities in the footpath does not connote some failure on Ms MacLean’s part which contributed to the occurrence of the accident (see AT 16.42).
Ms MacLean thus argues that, if failure to implement a decision to exercise the power is a failure which is capable of falling within s 43A of the Civil Liability Act, then, by virtue of the evidence of the decision having been made to exercise the power (a reference to the Policy response time), there was an onus on the Council to show that, despite that decision, a reasonable council (adopting the Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 test of unreasonableness) in its position would have omitted to implement it.
Ms MacLean argues that the evidence before the Court was that the Council had made a rational decision to do something (via the Policy) without there being evidence either of it changing its mind or to show that an authority with the same power would have done nothing having decided to exercise the power in the circumstances. Ms MacLean submits that the conclusion to be drawn from this is that there was no rational explanation for not doing the work, even if that work involved the exercise of a special statutory power.
It is submitted that the absence of evidence supports the conclusion that no reasonable authority having the special statutory power would consider not rectifying the defect to be a reasonable exercise, or failure to exercise, the power.
Ms MacLean submits that the usual deduction of 15% is one that balances the uncertainties in the future; and she argues that, to justify an increase in this case, there needed to be evidence that there was a greater than average likelihood in her case that she would have come to bilateral total knee replacement in any event.
Further, Ms MacLean says that applying a 30% reduction to the $56,348 figure should have equated to a figure of $39,443.60 and not $32,000 as stated at [186]. (The Council concedes this arithmetical error at [51] of its written submissions).
It is noted that his Honour accepted that Ms MacLean suffered bilateral knee pain from the time of the fall, with the pain and disability in her knees being an ongoing consequence of the trauma (to her knees) suffered in that fall ([147]) and held that Ms MacLean would undergo bilateral knee replacement surgery ([146]). Ms MacLean says that, in those circumstances, a buffer was not the measure of the damage. Ms MacLean notes that the parties in closing submissions agreed the cost of each knee replacement surgery at $24,174. (As I note below, his Honour accepted that figure.)
Ms MacLean notes that his Honour allowed, by way of a buffer, the sum of $4,000 for each procedure on account of contingencies and medications during post-operative recuperation. Ms MacLean says that, assuming a less than an ideal outcome from each knee replacement surgery, a further lump sum allowance for additional contingencies and medications following the post-operative recuperation period was justified.
Ms MacLean has calculated a further allowance for future contingencies at $4,225, assuming a loss of $5 per week for the balance of her life expectancy. In those circumstances, Ms MacLean submits that future out-of-pocket expenses should be allowed as follows: 2 x knee replacement surgery at a cost of $48,348 ($24,174 each surgery); 2 x contingencies and medications following each surgery at a cost of $8,000 ($4,000 each period); and, assuming a less than ideal outcome from either knee replacement surgery, a further allowance in the sum of $4,225 on account of further contingencies and medications for the balance of her life expectancy. It is thus submitted that his Honour should have found future out-of-pocket expenses in the sum of $60,573.
As to future domestic assistance (Ground 13), Ms MacLean notes that the joint orthopaedic report established a need for cleaning and gardening assistance for a “few” hours per week. Ms MacLean complains that, despite this “expert” evidence, his Honour held that two hours per week of commercial assistance for one year would be sufficient, less 30% for vicissitudes. Ms MacLean’s primary submission is that his Honour departed from the joint evidence as to the extent of the need for assistance. In any event, even if his Honour’s finding were correct as to the need for such services, Ms MacLean submits that the correct figure would be $5,599 and not $4,500 as set out at [188].
It is noted that the primary judge’s approach did not allow for any assistance after 12 months. Ms MacLean says that this must have proceeded on the basis that she would make a complete recovery from bilateral total knee replacement surgery at the age of 58 years.
Complaint is also made that there was no explanation as to how his Honour dealt with the evidence of Ms MacLean’s daughter, who was not required for cross-examination. Pausing here, I note that his Honour referred to the statement by Ms MacLean’s daughter (Ex C) at [126], noting that she described her mother’s domestic needs as a consequence of the injury and, at [128], that she had provided household assistance of 14 hours per week after the injury which had reduced to approximately four hours per week from six weeks after the injury when her mother’s need for assistance reduced. His Honour recorded a concession that the time spent by the family providing gratuitous care included personal time and that commercial assistance would likely satisfy Ms MacLean’s needs more efficiently. It is not clear how it is suggested that his Honour erred in considering that evidence.
Ms MacLean submits that there was an evidentiary basis to award continuing commercial assistance. Ms MacLean says that, consistent with the joint evidence of Drs Doig and Robertson (that “[s]he will need care once a week for a few hours with cleaning and gardening and also gratuitous care from her family”) (to which I note his Honour referred at [124]), an ongoing allowance should have been made.
On the basis that the agreed rate for commercial assistance was $55 per hour and Ms MacLean’s life expectancy at the date of the trial was 32 years (845 x 5%), Ms MacLean submits that a need of no less than two hours per week of commercial assistance ($110 per week) equates to $92,950.
As to future economic loss (Ground 14), his Honour held that two periods of future loss of four to six weeks each in duration would be sufficient. Ms MacLean says that this is reflective of her requiring time off work following each total knee replacement being performed. Complaint is made that no allowance was made following the completion of the second of the two knee surgeries, save as to a short period of four to six weeks, for post-surgical recuperation.
Ms MacLean says that his Honour’s approach proceeds on the basis that she would have an “unblemished” earning capacity post-surgery. Complaint is made that there was no consideration or reasoned explanation as to how he came to such a conclusion, especially given Ms MacLean’s age. Ms MacLean says that she would inevitably suffer some diminution in capacity by reference to increasing incapacity as she approached the imminent need for the replacement surgery and that the presence of prostheses in both knees would restrict her. Again, it is said that there might be a less than perfect result from one or other (and possibly even both) replacements. In those circumstances, Ms MacLean submits that a buffer or cushion for future economic loss was required.
In summary, Ms MacLean’s contention is that the award that his Honour should have come to, based on the evidence adduced at trial, was in the range of $506,023 to $542,523. The relevant components that Ms MacLean submits should be increased are for: non-economic loss (which she submits should be 35-40% of the most extreme case rather than 24%), quantified at $252,500-$289,000; future out-of-pocket expenses, quantified at $60,573; future economic loss, quantified at $100,000 and future domestic assistance, quantified at $92,950.
As to Ground 12, relating to future out-of-pocket expenses, the Council notes that the primary judge was aware that the parties had agreed that the cost of future surgery and that the allowance of a “buffer” of $4,000 was limited to contingencies for each surgery ([185]). The Council says that the reference to “buffer” in [186] appears to be an error. The Council says that there was no evidence and there is no basis for the additional provision of $4,225 proposed by Ms MacLean (see [162] above).
The Council concedes the minor mathematical error referred to in Ms MacLean’s submissions (see above at [159]) (submissions at [81]), though notes that the primary judge did propose applying an additional discount for future out-of-pocket expenses ([186]).
With respect to future domestic assistance (Ground 13), the Council points to his Honour’s observation that there was no evidence going to whether Ms MacLean would have any need for that additional assistance after she underwent bilateral knee joint replacements ([124]-[125]; [158]-[162]; [188]). The Council submits that the critical findings were at [14] that she would undergo bilateral knee replacement and that Ms MacLean was credible in her evidence.
It is noted that the primary judge’s calculation of future paid care was two hours x $55/hr x 50.9 (one year on 5% tables) = $5,599, less 30% = $3,919; and that the primary judge allowed $4,500.
With respect to future economic loss (Ground 14), the Council says that the primary judge made an assessment based on the evidence that was available and in the absence of evidence to the contrary ([153]-[157]; [161]-[163]; [190]-[192]); and submits that there is no error in the primary judge’s reasoning. The Council says, as to the claim for a shortened working life, that while his Honour did not accept that bilateral knee surgery would remove the disability, his Honour recorded the principle that the Council was not liable for consequences of the natural progression of her pre-existing medical condition had it not been aggravated.
As to the claim for non-economic loss, again no error has been shown. His Honour was clearly aware that Ms MacLean was facing two separate surgical operations, one for each knee replacement. His Honour’s assessment (of 24% of a most extreme case) has not been shown to be manifestly deficient.
As to future out-of-pocket expenses, in essence, the complaint is that his Honour applied a 30% discount to the buffer that was allowed. For the reason above, no error has been shown in the discount that was here applied. The amount to be awarded (prior to the discount for vicissitudes) was the agreed sum in respect of the cost of each knee replacement surgery, together with a buffer of $4,000 for each procedure. There is a minor arithmetical error in the calculation (conceded by the Council at [51] of its written submissions) which would require correction were the substantive appeal to have succeeded and damages awarded. I accept that, as the Council contends, the reference to the total amount to be awarded as a “buffer” appears erroneous but nothing turns on this. As to the complaint that his Honour should have awarded (above the $4,000 buffer for each of the procedures) a further allowance of $4,225 on account of further contingencies and medications for the balance of Ms MacLean’s life expectancy, this seems to be predicated on the possibility of a “less than ideal outcome” from either knee replacement surgery. However, no basis for the quantification of that sum is evident from the submissions. I am not persuaded that there was any error in not including that additional amount in the contingent award for future out-of-pocket expenses.
As to the claim for future domestic assistance, the nub of the complaint by Ms MacLean seems to be that the amount that the primary judge would have allowed would not equate to commercial assistance for the balance of her life expectancy (as opposed to a calculation based on that continuing care for one year). The difficulty for Ms MacLean in this regard (similar to the issue as to the claim for future economic loss which I consider below) is, as the primary judge pointed out, the lack of evidence as to whether Ms MacLean would require that additional assistance after the bilateral knee replacements. No error has here been shown.
Finally, as to the claim for future economic loss, in the absence of evidence to suggest that Ms MacLean would be unable to return to work or would have a shortened working life after her two knee replacement surgeries, there was no error in his Honour assessing future economic loss by reference to a closed period (as his Honour appears to have done).
Accordingly, other than to correct the arithmetical error referred to above, no error has been shown in the calculation of damages and Grounds 10-14 are not made good.
I should add that, insofar as complaint is made in various of these grounds as to the adequacy of reasons for the conclusions there stated, his Honour can be excused for not entering into a detailed exposition of the reasoning process in circumstances where this was a contingent assessment of damages (liability not having been found to have been established).