Martin v Wagga Wagga City Council

LOWER COURT District Court JURISDICTION : LOWER COURT DC 8/02 FILE NUMBER(S) : LOWER COURT O'Reilly DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40899/03 DC 8/02

SHELLER JA SANTOW JA TOBIAS JA

25 AUGUST 2004 Suzanne Terrill MARTIN v WAGGA WAGGA CITY COUNCIL Judgment 1 SHELLER JA: I agree with Santow JA. 2 SANTOW JA: OVERVIEW The claimant Mrs Martin unsuccessfully sued Wagga Wagga City Council. She seeks leave to appeal and, if granted, that the appeal be heard concurrently. The claimant as plaintiff sought to recover for injuries she suffered when she fell at a ramp adjacent to a pedestrian crossing, when proceeding across the road with two young children in Wagga Wagga. 3 If leave to appeal were granted, the opponent's counsel contends that the decision of the trial judge O'Reilly DCJ should be affirmed on the following grounds: (a) there was insufficient evidence to be satisfied on the balance of probabilities that the defendant Council constructed the ramp; (b) there was no evidence of negligence on the part of the defendant, but (c) even if there were evidence of negligence on the part of the defendant, there was no evidence that negligence caused the claimant's accident. 4 Leave to appeal is required. The trial judge assessed general damages at $30,000. That with out-of-pocket expenses at only $46 and no other claim for economic loss or the like puts the amount at issue at well below the appeal threshold of $100,000. 5 Should leave be granted, the issues are principally these: (a) did the trial judge wrongly reject the claimant's case at trial on the basis that there had been no complaints about the concrete ramp to the council prior to her fall, or did the trial judge reject the claimant's case at trial by reason of negative answers to any or all of the questions below; (b) was the claimant entitled to a verdict on the basis that (i) she had proved that the Council had either designed or constructed the ramp in 1979, (ii) the ramp at the time of construction was far too steep based on then properly applicable standards, and (iii) her injuries were causally related to the steepness of the ramp? 6 The opponent Council relies on absence of complaint. It submits that the claimant failed to establish any of the matters in (b). The claimant's principal case was that the Council was responsible for construction of the concrete ramp and failed in the discharge of that responsibility because it was constructed too steep for proper safety. That was the case put when the trial commenced (T, 1.14-.18 and claimant's written submissions at 4). It was plain that the opponent understood the claimant's case was being conducted that way (T, 24.48, 58.25-.28). In the pleaded case however, under "Particulars of Negligence" the case is put more widely. It covers both "failure to design and/or construct and/or maintain a ramp … which was safe for pedestrian users". Moreover, it appears to encompass negligent failure to take adequate remedial action to eliminate the alleged danger or to warn of it. That presupposes that the Council either knew that the ramp was dangerous or should have taken reasonable steps to identify the danger and remove it. However, beyond the pleadings, no such case was actually pressed.

SALIENT FACTS 7 These are essentially uncontroversial. The claimant, Suzanne Terrill Martin ("Mrs Martin"), brought an action for damages in respect of injuries which she received in an accident which occurred on 24 September 2001. 8 On that date Mrs Martin had collected her niece and nephew from their school at Wagga Wagga. She was proceeding with her niece and nephew to cross a pedestrian crossing in Bourke Street, Tolland, near the intersection of Bourke Street and Fosbery Street. The pedestrian crossing consisted of a marked crossing which extended across a service road which ran parallel to Bourke Street. Thereafter there was a concrete ramp between the service road and Bourke Street. In turn there was then a marked pedestrian crossing going across Bourke Street. 9 The claimant had already safely walked across Bourke Street down the ramp at one end, and across the service road in order to go and collect her niece and nephew. 10 She was returning with her niece and nephew when the accident occurred. 11 The claimant's accident occurred as she was moving from the surface of the service road itself onto the concrete ramp. As she stepped onto the concrete ramp, with her left foot approximately half a metre onto the ramp itself, she described her left foot as slipping backwards and going from under her, resulting in her falling over and suffering a serious head and facial injury. The claimant lost consciousness after her head struck the concrete surface of the ramp. 12 The claimant sued Wagga Wagga City Council for negligence. The claimant's case as stated in the claimant's summary of argument "was that the Council had constructed the ramp negligently in the sense that the ramp as constructed was far too steep and accordingly dangerous for the pedestrians both ascending and descending the ramp." In the District Court, the opponent denied that it had been negligent and in any event alleged that the claimant herself had been guilty of contributory negligence in that she had failed to take appropriate precautions for her own safety. 13 Under "Disposition" below I elaborate on the evidence bearing upon the issues raised by this application for leave to appeal.

DISPOSITION 14 The claimant's case was that the ramp had been constructed by the opponent Council in 1979 and also had been designed by the opponent Council. It was the claimant's case that the ramp was far too steep, being far steeper than that dictated by prudent engineering practice and standards extant as at the date of construction in 1979. It was the claimant's case that the steepness of the ramp was such that it was dangerous for pedestrians ascending and descending the ramp and that persons other than the claimant had considerable difficulty in negotiating the ramp. 15 The claimant contended that the questions which the trial judge had to decide in reaching a judgment in the case, being the questions which the claimant contends are still in issue, are as follows: (a) Did the Council construct the ramp in 1979? (b) Was its design or construction in 1979 consistent with (then) sound engineering practice and (then) accepted norms and standards? and (c) Was the claimant's accident causally related to the steepness of the ramp? 16 There is a degree of elision between those questions as posed by the claimant, insofar as they deal with construction and design. It was never squarely posed by the claimant that the Council had any significant role in the design. That matter is put in issue by the Notice of Contention. 17 There is then a further question, was the claimant's accident causally related to the steepness of the ramp? It was contended by the claimant that the trial judge, instead of answering that question and the earlier one, had become "sidetracked" when (erroneously) concluding that, for the claimant to succeed, it was necessary to prove that the Council had received complaints about the ramp prior to the claimant's accident. The claimant also contends that there was sufficient evidence available to the trial judge to infer that there had been complaints about the state of the concrete ramp to the Council, prior to the claimant's accident. They were essentially complaints by Ms Bailey, the woman described as the "lollypop lady" who supervised the crossing by the children from the nearby school (from whence Mrs Martin's nephew and niece were picked up). 18 Even if the Council were responsible for constructing or designing the ramp so that, contrary to accepted standards in 1979 it was too steep to be safe, the claimant must also establish that the Council: (a) failed to take reasonable steps to minimise any danger or prevent it arising, (b) in circumstances where the Council was aware of the danger or should have been; Brodie and Anor v Singleton Shire Council (2001) 206 CLR 512 at 578-582 per Gaudron, McHugh and Gummow JJ. 19 It is thus submitted by the claimant that the questions that fall for consideration on the application for leave to appeal are: (1) Was the claimant's case at trial doomed if she was unable to prove that there had been complaints about the concrete ramp to the Council prior to her fall? and (2) If not, was the claimant entitled to a verdict on the basis that she had proved that the Council constructed the ramp in 1979, that the ramp at the time of the construction was far too steep, and that her injuries were causally related to the steepness of the ramp? 20 The most convenient starting point concerns whether it was established that the Council constructed the ramp or was responsible for its design, in 1979. The trial judge concluded that "the plaintiff claims that the pedestrian crossing was constructed by Council in 1979. The defendant puts that in issue, although it seems to me to be really established by what the defendant's expert, Mr Clark, says in his report. He made enquiry and his enquiries revealed that the Council constructed the pedestrian crossing in 1979." (Judgment at [2]) 21 The trial judge rejects the argument of the Council that "they may have constructed the pedestrian crossing but that does not necessarily mean they built the concrete ramp"

on the basis that "when one looks at the photographs the whole pedestrian crossing project encompasses not only painting white lines on Bourke Street, but painting white lines on the two service roads and plainly the only way to accommodate the difference in level between the western service road which is quite a bit lower than Bourke Street and the eastern service road which is quite a bit higher was by the construction of ramps across the nature strips." 22 The opponent attacks that finding. Turning to the report of Mr Clark, who was the defendant's expert, the relevant passage is to be found at page 2 where Mr Clark says in his report of 29 January 2003: "I am advised that Bourke Street in its present form was constructed in about 1977 and the RTA (then the DMR) was involved in the design of the road and approved the construction and installation of the pedestrian crossing by Council in 1979 and provided funds for that work." 23 The matter arose at the trial in the following way. After the plaintiff's case had closed, the Council in response to a subpoena, produced documents to the Court on 11 September 2003. The subpoena required "production of correspondence, memoranda, notes and documents whatsoever relating to the construction of the said pedestrian crossing"; T, 5.35 of 11 September 2003). The trial judge inspected the documents having first given leave to the plaintiff to re-open her case. The trial judge after reading the documents noted that there was no "specific talk about any ramps and ramps don't seem to be indicated on any drawings …"; T, 8.2 of 11 September 2003. The plaintiff did not tender the documents having been given leave to re-open her case to do so if she so chose. 24 With those documents not tendered, the only evidence the claimant could rely on was the quoted passage from the Council's expert Mr Clark, to which I have earlier made reference. That statement is entirely silent as to whether the Council had any involvement in the design of the pedestrian crossing including the ramp. What the quoted statement does confirm was that there was "the construction and installation of the pedestrian crossing by Council in 1979". I would not however accept the proposition that this left unsubstantiated whether the Council in fact had been involved in the construction and installation of the ramp. I would infer that Council would have carried out the construction and installation of what was an integral part of the pedestrian crossing, namely the ramp. If Council wished to refute that it had constructed and installed the ramp, this would be a case where the facts were peculiarly within the knowledge of the defendant and it was difficult for the plaintiff to produce them. Therefore "very slight evidence pointing to [the] existence [of facts essential to the plaintiff's case] may be treated as sufficient to justify a jury in holding that they do exist"; De Gioia v Darling Island Stevedoring & Lighterage Co Limited (1941) 42 SR(NSW) 1 at 4 per Jordan CJ. 25 Here evidence is provided in terms of the photographs showing the integrated nature of the ramp with the crossing. They comfortably satisfy a requirement for the "very slight evidence pointing to [the] existence [or facts essential to the plaintiff's case]" such as "may be treated as sufficient to justify a jury in holding that they do exist". 26 Similarly Dixon CJ in Hampton Court Limited v Crooks (1957) 97 CLR 361 at 371 observed that "a plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it". 27 Accordingly, I would conclude that it was well open to the trial judge to infer that the ramp itself as well as the pedestrian crossing was constructed by the Council. However, in the absence of any evidence from the RTA as to its role in relation to the design of the pedestrian crossing, if any, as compared to the role of the Council in such design, I would not be prepared to conclude that any inference could properly be drawn that the Council was responsible for the design of the pedestrian crossing and in particular the ramp. To the extent that the claimant's case depends upon any allegation that Council designed the ramp, that contention could not be accepted.

Steepness of ramp 28 I turn now to the question of the steepness of the ramp and in particular as to whether its maximum gradient in 1979 of 1:8 was shown by the claimant to have materially contributed to the claimant's accident. 29 The starting point is the relevant standards applicable at the time (1979) when the pedestrian crossing was constructed, as they bore upon ramps serving the function of this ramp as part of a pedestrian crossing. The expert evidence of Mr Hespe for the claimant and Mr Clark for the opponent is directed to this question. 30 Mr Hespe in his report of 28 November 2001 has this to say about the ramp and its steepness: "The subject ramp is clearly far too steep. The Roads and Traffic Authority of New South Wales (and its predecessor the Department of Main roads) requires in its standard for kerb ramps, a maximum slope of 12.5% or 1 in 8. the Austroads - Guide to Traffic engineering Practice, Part 13 - Pedestrians, prescribes a maximum gradient of 1 in 10%. Australian Standard 1428.1 requires a ramp in excess of 1520 in length to have a gradient of no more than 1 in 14, and for kerb ramps a gradient no more than 1 in 8. That is say, all Authorities concur that kerb ramps should be n steeper than 1 in 8 (Austroads 1 in 10). Nevertheless, it could be argued that this ramp is more than a kerb ramp. If this is the case, AS 1428.1 is a better guide and 1 in 14 would appear to be the more appropriate gradient.

The surface of the ramp is not slippery, firstly because of the very nature of the wood floated concrete surface, and secondly because of the tooled striations referred to above. The striations however are so deep, and their lips so protruding that in some respects they add to the risk.

It has been represented to me that the ramp is intended to be a wheelchair ramp as well as a pedestrian ramp. My only comment in this regard is that while I think the ramp is dangerous for pedestrians it would be suicidal for wheelchair users. That is to say, for wheelchair users going down the ramp; because I don't believe that a wheelchair user could propel his vehicle up the ramp.

There are number of features associated with this ramp which render it dangerous to pedestrians.

In the first place its extreme steepness is such that someone walking down the ramp could very well be propelled on to the carriageway of the service road much more quickly than they would otherwise have done. Given this, and notwithstanding that there is a pedestrian crossing at the foot of the ramp, the increase in risk of colliding with a vehicle (not necessarily being hit by a vehicle) is not inconsiderable. Of course the risk of falling down the ramp is also high.

As far as walking up the ramp is concerned, the way the striations have been tooled into the surface of the concrete gives rise to the possibility of someone actually tripping on the lip of the tooled groove. The presence of loose gravel, particularly of the size fund on the ramp, is also dangerous. Loose gravel on a steep slope can, and often does, cause pedestrians to slip. The mechanism for this is very simple, the sole of the shoe rolls on the gravel. The question of the coefficient of friction between the shoe and the ramp does not arise.

Returning again to the situation of someone walking up the ramp; and more particularly someone waiting at the foot of the ramp and then moving up the ramp on being signalled forward; as was the case with your client. In this situation, observing the steepness of the ramp and probably subconsciously feeling compelled not to delay, pedestrians would naturally tend to exert themselves more than if the ramp was at gradient prescribed by the relevant standards. This would tend to make them more vulnerable to any irregularity in or upon the surface of the ramp." 31 Before turning to the issue of steepness, I should briefly dispose of the issue of loose gravel and its so-called "ball-bearing" effect. 32 Mr Clark in his report of 29 January 2003 had this to say in rejecting the notion that the loose gravel would have had such an effect: "Hespe referred to some fine loose gravel being on the surface of the ramp at his inspection which he considered could have been dangerous due to the walking on ball bearings effect causing a person's foot to roll on the stones of the gravel. From Hespe's Report the Plaintiff did not appear to describe slipping or losing her footing because of such an effect.

At my inspection there was some loose gravel on the ramp but it was individual stones resting in the grooves as shown in Photograph No. 4. The gravel appeared to be loose aggregate thrown from the roadway seal and because of the slope of the ramp would naturally roll down it and become trapped in the grooves. When trapped in the grooves it would not provide the ball bearing effect described by Hespe." 33 Cross-examination of the plaintiff at trial negated any suggestion of her experiencing any slipping sensation or of any gravel underfoot (T, 14.17-.21). That explanation for the accident can therefore be dismissed. There is no suggestion that the trial judge was impressed by that possible explanation; Judgment at [10]. 34 Returning to the issue of steepness, Mr Clark's response to Mr Hespe's citing Ordinance 70, AS 1428.1 and the RTA Road Design Guide was as follows: "Hespe considered the ramp was excessively steep and referred to RTA standards for kerb ramps providing a maximum slope of 1 in 8, the Austroads publication Guide to Traffic Engineering Practice, Part 13 - Pedestrians providing a maximum slop of 1 in 10 and AS 1428.1 providing a ramp with a maximum length of 1520 mm and slope of 1 in 14.

As can be seen the requirements of those documents differ from one another and clearly they cannot all have any form of Regulatory application to this ramp. Hespe has chosen AS 1428.1 as being the better guide to this ramp.

AS 1428.1 is titled Design for Access and Mobility - Part 1 - General Requirements for Access - Buildings . Its Preface describes it as containing only items which are able to be regulated by the Building Code of Australia. I append relative extracts of AS 1428.1.

This ramp or footpath is on a public road and is not a building. I do not consider that AS 1428.1 has application to it.

The Austroads document was first published in 1995 as shown in the appended extracts from it. That was after this pedestrian crossing was installed. The document is a guide and has no Regulatory force. I do not consider it applies to this ramp." 35 The trial judge recited the conflicting evidence and at 20 concluded that counsel for the plaintiff had not made out his case. Earlier, at 18, the trial judge cited the plaintiff's counsel's argument "that a steep slope more than double the 1 in 8 grade recommended having been demonstrated it would be reasonable to conclude that that was a materially contributing factor". But then he concluded at [20] in the following terms: "But it seems to me that as I have found the facts there was no complaint which was sheeted home to the council and there has been only the one complaint in twenty-four years and that is this accident. And that is what Mr Black has done and he has done it very skilfully in my view and very ably is to bypass the question of lack of evidence and invite me to be robust. Well, I have endeavoured to be as robust as I can but I am afraid I just cannot get him there. In these circumstances there will be a judgment for the defendant." 36 The claimant and opponent took opposing views as to whether this amounted to a determination based solely on lack of complaint in rejecting the plaintiff's claim; or whether it was based partly in reliance on lack of complaint but also upon the trial judge not being convinced by the attempt to attribute the injuries to the steepness of the ramp. The claimant pressed that the effect of Mr Clark's evidence was not to refute that the ramp was too steep. Rather he was carefully restricting his response to a contention that the RTA standard for kerb ramps and AS 1428.1 were neither of them capable of demonstrating that the ramp was too steep. 37 In these circumstances it is necessary to look more closely at the basis for contending that the ramp was too steep and, connected with that question, whether its alleged steepness was in any event responsible for the plaintiff's accident in such circumstances as to render the Council liable in negligence. 38 It is clear that Ordinance 70 under the Local Government Act in its form in 1979 of itself related only to buildings and in particular exits to and from buildings. Thus clause 24.3: "the exits and paths of travel to exits in a building shall comply with the provisions of this Part" and clause 24.26(2): "the slope of a ramp serving as a required exit shall have a grade of not more than 1 in 8 in any part". 39 However, the document of principal relevance is that referred to as "the RTA Road Design Guide". A copy is to be found in the White Book at tab 12, bearing the date August 1991. That RTA Road Design Guide does refer to Ordinance 70, utilising it as a criterion for ramps. It also utilises an Australian Standard AS 1428.1 as at 1988. But it does so making clear that its objective is to assist pedestrians "who experience mobility limitations"; that is to say, not just able-bodied pedestrians such as the claimant. 40 I should deal first with the date of the relevant Australian Standard and of the RTA Road Design Guide. Prima facie these both appear to relate to a much later time, namely 1988 and 1991 respectively. However, the relevant Australian Standard refers on its face page to an earlier version of it as having been "revised and re-designated AS 1428" in 1977, and then as having been again revised and re-designated in part as AS 1428.1 in 1988 with what is described as a "second edition" in 1993. 41 As to the date of the RTA Road Design Guide, Mr Hespe in examination in chief gave as his opinion that there was a predecessor to that document published by the DMR in 1979, at a time when he was aware that Ordinance 70 was in force; see T, 24.55-25.10, 10 September 2003. 42 He also confirmed that there were in 1979 forms of both the Australian Standard 1428 and Ordinance 70; T, 25.24-.55. 43 Mr Hespe (T, 25.54) compared the maximum gradient as there laid down, namely 1:8, to the actual gradient of the ramp which was, according to his measurements, 1:3.64. 44 He then stated that this meant that the actual gradient of the ramp was more than twice as steep as the maximum gradient recommended at that time. Then at T, 26 he gives the following evidence: "Q. At that time was the absolute maximum gradient one which was included in Ordinance 70? A. Yes.

Q. In your experience was Ordinance 70 in that respect adhered to in relation to ramp construction with which you were associated? A. Yes, definitely.

Q. If in 1979 you had been involved in the construction of this particular ramp would you have recommended its construction at the gradient that it is constructed at? A. No, certainly not.

Q. As at 1979 were there alternatives available to you as a designer and consulting engineer to traverse the difference in height between Bourke Street and the service road? A. Yes. Firstly, if it was suitable, steps could have been provided, but if a ramp was required, it would have been a very simple matter to construct the ramp parallel to the roadways with a landing at the top and the bottom to keep that to any gradient that you wanted, but certainly no more than 1:8.

Q. The gradient would simply be accommodated by lengthening or shortening of the ramp? A. Yes. In general terms you try to aim at 1:14 actually." 45 Then at T, 27.30-28.10 he gives the following evidence: "Q. Can you tell us in what sense your opinion is directed to persons going up the ramp? A. Well a number of reasons, but I could say for a start that it's recognised that there is a wide range of ability of people in dealing with ramps or any other feature of the roadways and some people have greater difficulty than others, and the general requirement in the design of these things is to take that into account and that's covered in the various documents. But as far as going up the ramp is concerned, there are two factors - two basic factors. One is that as you're walking up the ramp your foot will strike the ramp earlier if it's steep than if it was flat.

HIS HONOUR: Q. So the foot strikes earlier. What's the problem with that? A. Well your Honour, as is common knowledge, but it is also basic to the promulgation of the relevant codes for steps and for ramps that if, for example - and I can explain it this way. If you're walking and you're expecting a step and it's not there, that can lead and does lead to often very serious accidents and vice versa. If you're not expecting a step and there is a step, the same things applies. So that principle applies to ramps because if you're walking and expecting a certain slope - a flatter slope, and you strike a steeper slope, it has in effect a very similar effect to striking a step that you weren't expecting, so that's the first thing. The second thing is that if your foot doesn't get sufficient traction for whatever reason, it will slip more readily down a steeper slope than a flatter slope. So those are the two basic reasons for the up-going.

BLACK: Are the two connected, that is, is there a relationship between your foot striking the surface earlier than expected and the likelihood of losing your footing thereafter? A. Yes." [emphasis added] 46 There are several difficulties with this evidence. First is that the relevant RTA Road Design Guide, consistent with the emphasised part of Mr Hespe's evidence, makes it very clear that the Design Guide is directed to accommodate the needs of pedestrians "who experience mobility limitations" and who "may require a wheelchair, or other form of mechanised transport for mobility, or walk with the use of external walking aids …., so that "the road designer should consider all of these pedestrian hindrances when designing the roadway and its associated pedestrian elements". Earlier, in the introduction, the following appears under the hearing, "People Characteristics" and the sub-heading "General": "People characteristics associated with road design are generally those which provide for the safe and efficient circulation of pedestrians. The term 'pedestrian' however is a misnomer as it suggests that generally, all people are capable of walking and doing so without assistance". 47 This plaintiff was clearly a person with no apparent disability who was perfectly capable of walking and doing so without assistance. Thus to the extent that the relevant RTA Road Design Guide, assuming that it was similar in 1979 to that cited in August 1991, was proposing gradients for ramps which accommodated pedestrians with mobility limitations and not simply pedestrians like the plaintiff who were able-bodied. While it is clear from a reading of 1.11.3 under the heading "Ramps" that the absolute maximum is stated at 1:8 with a desirable maximum of 1:14, I do not understand the 1:8 was that which would apply to able-bodied persons as compared to the 1:14 for those with mobility limitations. Rather 1:8 was to accommodate those with mobility limitations as an absolute maximum. 48 The point becomes even clearer when it is appreciated that earlier under the heading "Footpaths" the same footpath gradients appear. It must be a matter of notorious fact, of which this Court can take notice, that footpaths in practice are by no means restricted to a gradient of 1:8 or indeed 1:14. 49 The point is further emphasised when reference is made to the requirement that ramps "shall be provided with a continuous kerb and handrail on both sides". One can readily envisage this being necessary for pedestrians with mobility limitations particularly those in a wheelchair. But these additional safeguards are hardly applicable to pedestrians of normal mobility. 50 The second point concerns Mr Hespe's evidence as to what he perceives to be the danger of a gradient less than 1:8. It appears to come down to this: (a) when one expects a flatter slope and strikes a steeper slope it is like encountering a step unexpectedly, thus giving rise to " often very serious accidents ", and (b) if one's foot does not get sufficient traction in those circumstances, it will slip more readily down a steeper slope than a flatter slope, giving rise to a connection between the two, namely (c) if one's foot strikes the surface earlier than expected, there is "a relationship between your foot striking the surface earlier than expected and the likelihood of losing your footing thereafter"; T, 28.6 10 September 2003. 51 In cross-examination of Mr Hespe, he importantly recognised that the greater difficulty entailed by a steep gradient of recovering from a slip or a trip only applies "where the person had stumbled forward and tried to recover"; see T, 37.20-.30. That was not the case here, as was acknowledged by Mr Hespe. 52 Thus at T, 37.54-38.47 Mr Hespe acknowledged that the steepness of the ramp would have no impact if someone's foot had simply "gone out from under them" so that they fall forward making no attempt to recover. Moreover, Mr Hespe conceded that the contribution to the danger of a steep slope from lack of awareness did not arise if the pedestrian was aware of the steepness, as from an earlier crossing, as here. He agreed that "perceptions vary, but if someone knew specifically it was an exceptionally steep slope and were concentrating on that fact, obviously they'd be able to negotiate it better than if it came on as a surprise"; T, 38.45-.48. 53 That evidence can be related to the frank answers given by the plaintiff, in her examination in chief at T, 4.54. She had earlier gone down the relevant ramp on her first crossing, so she was aware of its steepness. On re-crossing she said, "my foot slipped out from underneath me as I stood onto the crossing" being "the left foot". Importantly she went on to say (T, 5.4) "well my foot - left foot slipped backwards and after that I don't remember anything". 54 In cross-examination, she agreed that she had told Mr Hespe that she had "either slipped or tripped, that [she] didn't know which"; T, 13.54. 55 She readily acknowledged that she didn't know what it was that caused her to slip or trip; T, 14.4. 56 Significantly, she stated that she "didn't experience any slipping sensation"; T, 14.17. Moreover, she didn't experience "that the ramp was so steep as to make [her] feel unbalanced"; T, 14.24. 57 Nor did she experience any unevenness in the surface of the ramp as would cause her to catch her sandals; T, 14.27-.34. 58 Later she stated "I don't believe I stumbled. Like I said, my left foot went out from underneath me" and "went backwards"; T, 15.9-.12. 59 I have referred earlier to the emphasis placed by the trial judge on absence of complaint. The trial judge found that while Mrs Bailey, the lollypop lady, had complained prior to the accident about the ramp to her supervisor at the RTA, that complaint was not to the Council. There was no evidence that the RTA had passed any complaint onto the Council. In the absence of any evidence on that issue, the trial judge declined to infer that it had been passed on to the Council; Judgment at 14. 60 The trial judge found that Ms Bailey had herself slipped on the ramp but that in the seven months prior to the claimant's accident when Mrs Bailey had been manning the crossing, apart from her own experience, she had not seen anyone else have a mishap on the ramp (Judgment at 13-14). He concluded "I think the problem for the plaintiff with Ms Bailey's evidence is that she was there for seven months, two hours per day observing heavy pedestrian traffic both by children and adults and she did not observe one mishap. It seems to me to be a difficulty." 61 As the trial judge found the facts, there was no complaint to the Council about the ramp prior to the accident in twenty-four years notwithstanding the high volume of traffic using the ramp. In those circumstances, absence of complaint is cogent support, if not sufficient in itself, for a conclusion that the steepness of the ramp did not materially contribute to the accident suffered by the claimant. In particular, the claimant's frank account of the circumstance of the accident, coupled with the concessions properly made by Mr Hespe in cross-examination, when viewed against the perspective of the RTA Road Design Guide being directed at pedestrians with mobility limitations, result in the trial judge's conclusion rejecting the plaintiff's case as inevitable.

OVERALL CONCLUSION 62 I would in the circumstances refuse leave to appeal, on the basis that it offers no prospect of success. 63 I would therefore order as follows: (1) Leave to appeal refused. (2) Claimant to pay opponent's costs. 64 TOBIAS JA: I agree with Santow JA. *********

Last Modified: 08/27/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.