e) failing to warn the plaintiff of the dangers of walking on the boardwalk.
6 The proceedings were heard by his Honour Judge Coolahan in the District Court at Newcastle who, on 14 February 2003, entered a verdict and judgment for the respondent in the sum of $161,084. It is against that judgment that the council appeals to this Court.
7 It is to be noted that this appeal has been heard without the benefit of submissions from the respondent.
8 There was no dispute that the council had the care, control and management of the boardwalk at all relevant times. According to the primary judge, the respondent's case was conducted upon the basis that the council's negligence fell into two broad categories, one being described by him as the "construction point" and the other as the "maintenance/warning point". At the hearing the respondent tendered a report of Mr Trevor Jones dated 4 February 2000 which, ultimately, his Honour rejected on the basis that it was inadmissible. As a consequence, the respondent specifically abandoned what his Honour referred to as the construction point. As he then noted, the issues between the parties were thus confined to the council's inspection and maintenance of the boardwalk and the nature of any warning that should have been given. Furthermore, as the primary judge specifically observed, "causation was also a very live issue".
9 The respondent's evidence was that she did not see what it was that caused her to fall before she fell although in her evidence-in-chief she said that she tripped on a nail. According to the primary judge's findings, the respondent said that after she fell she did not look around to see what had caused her to fall but his Honour accepted her evidence that she tripped because she felt as if she had stubbed her toe, that is, that she had caught it on something causing her to fall.
10 However, the respondent's husband gave evidence that he was lagging behind the respondent but was told that she had fallen and immediately observed that she was lying on the boardwalk. He said that when he arrived at the point on the boardwalk where the respondent had fallen he found a flat-headed nail protruding ½" above the level of the decking to the side of the boardwalk. The primary judge accepted the evidence of the husband and found that it was probable that the nail which he described was the one on which the respondent had tripped.
11 Mr Bruce Redman was called to give evidence for the respondent. At the material times he was Director of Operations and Technical Services of the council. He said that there would have been inspections of the boardwalk from time to time and that he was aware, prior to July 1998, that there were problems with the boardwalks, the main one being vandalism. However, he went on to say that:
"Certainly, there were times when there were nails"
12 He was asked what he meant by this and responded:
"There were nails lifted nearly almost the majority of the times on the outer edge".
13 A plan of the boardwalk was tendered and admitted which revealed that the decking slats overlapped to a small degree on each side of the handrail of the boardwalks and that the slats were nailed in four places across the width of the deck. Two of these were in the middle and one was at each end adjacent to the handrail. The crossbeams to which the slats were nailed were at 450mm intervals.
14 In light of this evidence the primary judge reached the following conclusion (Red 19G-N):
"The conclusion I have drawn, therefore, in relation to this evidence from Mr Redman is that prior to July 1998 the defendant was aware of problems which, from time to time, arose with boardwalks. These, in the main, related to vandalism. However, there were occasions when nails lifted. While accepting Mr Redman's evidence as I do that the majority of these occasions related to nails lifting on the very outer edges of the boardwalk adjacent to the rails, the inference from this evidence is that it was not on all occasions that nails lifted from the ends. The inference I draw is that, from time to time, nails also lifted from the position of the middle two joists."
15 Mr Redman also gave evidence, which the primary judge accepted, as to the nature of the undertakings and responsibilities of the council within the very limited resources allocated to the work of maintenance of structures such as the boardwalks. Suffice it to say that, in the light of Mr Redman's evidence, his Honour held that the respondent failed on what he had referred to as the maintenance and inspection point. It is unnecessary to consider this aspect further as the respondent has not, obviously, sought to contest this finding by way of notice of contention.
16 However, the primary judge found in favour of the respondent on what he referred to as the warning point. His reasons were as follows (Red 20V-21N):
"However, it seems to me that the issue of what warning, if any, the defendant should have given to the plaintiff is a different matter. Whilst there is no specific evidence of any lack of warning of the possibility of raised nails on the board walk, I think I am entitled to say that it is implicit from the way in which the case was conducted on behalf of the defendant that no such warning existed.
Whilst the issue of lack of warning was not argued, it seems to me that it is relevant and is an issue upon which the plaintiff is entitled to succeed. I think I can take judicial notice of the fact that a nail protruding half an inch or so above the level of a board walk is not something that would necessarily be discernible to someone walking along the board walk, even if they were keeping a proper lookout. I think I can also take judicial notice of the fact that the cost of appropriate signage warning of this possible danger would have been minimal and certainly within the defendant's budget. By it's failure to so warn the defendant was negligent and it follows that there will be a verdict for the plaintiff."
17 The council submitted that his Honour erred in making this finding for a number of reasons. In particular, and as the primary judge acknowledged, it was submitted that the warning point was not ventilated at the trial and evidence that warning signs would have been complied with was not before the primary judge. Thus, the respondent gave no evidence as to whether she would have read any warning sign or what her reaction would have been to one. Further, there was no evidence as to how such a sign warning of the possible danger of raised nails would have been presented: whether in words or with a diagram. There was no evidence to determine the number, location and content of signs that would be required to guard against the various risks associated with the use of the boardwalks to which Mr Redman referred in his evidence or whether such signs would have been practicable in all the circumstances. Again, given the meagre resources of the council, there was no evidence as to whether signs could have been afforded within the council's budgetary restraints. When Mr Redman was called in the respondent's case, the fact that he was not asked any questions relating to the warning issue reinforced for those conducting the case on behalf of the council that the "warning point", as it has been referred to, was not being pursued.
18 The primary judge noted that causation was a "very live issue" and yet it played no part in his reasoning. If it was otherwise appropriate for his Honour to have decided the case on the warning point, the onus lay upon the respondent to establish that her injuries would have been prevented had the council erected the sign to which his Honour referred. The question of causation was to be determined subjectively: Chappel v Hart (1998) 195 CLR 232 at [32]. Normally evidence is led from a plaintiff that he or she would have avoided the particular conduct that led to his or her injuries had he or she been warned of the risk in question. Thus, in Chappel, Guadron J at ([9]) said:
"Where there is a duty to inform it is, of course, necessary for a plaintiff to give evidence as to what would or would not have happened if the information in question had been provided."