Was her Honour correct in holding the appellant liable in negligence?
39 It was common ground, and the primary judge so found, that the defect in the pavement slab was obvious. On the issue of contributory negligence, her Honour had therefore found that had the respondent "been looking ahead, this incident may well not have occurred".
40 The respondent seeks to support the primary judge's decision in her favour on two grounds. The first was that the appellant had created a dangerous situation by depositing in the garden bed the barriers that they had brought from the works depot for the purpose of blocking off pedestrian access to the section of pavement they intended to repair. It was submitted that the appellant made the situation worse by placing the barriers in a position where they might distract members of the public walking along the pavement from observing the defective slab which, the argument assumes, would have been obvious to them had they not been so distracted. This argument was also advanced before the primary judge (although in my opinion, neither pleaded nor particularised) but there is nothing in her Honour's judgment to indicate that she made any findings with respect to it. Nevertheless, the argument was repeated before this Court upon the basis that the conduct of the appellant in placing the barriers in the garden bed created or increased the risk presented by the raised slab by manufacturing a distraction for pedestrians approaching its location to the point that the appellant had, in effect, created a trap.
41 Any person walking along a footpath will, in the ordinary course, experience many potentially distracting events or circumstances that could result in a trip or a fall on an uneven section of pavement. I accept that the presence of the barriers in the garden bed in the present case could have been a distraction to a person such as the respondent. However the duty that is owed by a public authority is to a person exercising reasonable care for his or her own safety. Such a person is required to remain observant for any defects in the pavement even if there are distractions such as unusual objects in a garden.
42 In Ghantous Gaudron, McHugh and Gummow JJ (at 581 [163]) observed that some allowance must be made for inadvertence but that inadvertence is only relevant if otherwise the pedestrian is exercising
"sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes."
43 In the present case, albeit whilst dealing with the issue of contributory negligence, the primary judge found that the respondent was not taking reasonable care for her own safety, for had she been looking where she was going the incident may well not have occurred. In fact, as I have already observed, the respondent herself said in evidence that she was not looking at the ground as she was walking and that had she had seen the pavement slab she would not have fallen. In these circumstances, to suggest that the appellant, by depositing the barriers in the garden bed, breached its duty of care to the respondent is untenable.
44 The respondent then sought to support the finding of the primary judge that there was a want of reasonable care on the part of the appellant where she said that
"…having been informed of the defect, having taken action to effect immediate repairs, [the appellant] left the hazard unmarked and unprotected and the question then is whether, in so doing, the defendant's conduct showed a lack of reasonable care for the plaintiff. In my view it did."
45 The problem with this finding is that it is apparent that the omission relied upon by her Honour to found liability on the part of the appellant did not increase the risk of the respondent tripping over what was accepted as an obvious danger. It was conceded by the respondent that had the appellant been unaware of the defect, then the decision of the High Court in Ghantous and in the cases in this Court that have followed and applied it would have properly resulted in a verdict for the appellant. The distinguishing factor of the present case, so it was said, was that the appellant became aware of the defect, regarded it as sufficiently hazardous to require prompt repair and commenced preliminary work with respect to those repairs but failed, before completing the repairs, to provide a barrier around the defective slab to prevent pedestrians from tripping over the obvious hazard which it presented.
46 In Byrnes, Handley JA contrasted the position of pedestrians to other road users in the following terms (at [28]):
"Pedestrians on the other hand are in a position of relative advantage because they can generally protect themselves from uneven surfaces on footpaths and other public areas by keeping a lookout and taking care for their own safety. The position will be otherwise if the surface contains something unusual or unexpected which creates a real danger for ordinary pedestrians."
47 After citing passages from [6], [163] and [355] of Ghantous, Handley JA continued (at [33]):
"A council's duty to pedestrians is therefore to take reasonable care to prevent or eliminate the existence of dangers in the road or footpath. The duty is not to prevent or eliminate 'obvious hazards' which could possibly be an occasion of harm …The standard of care is that which is reasonably required to protect pedestrians who are taking reasonable care for their own safety. The care which pedestrians must themselves take enters into the definition of the duty and is not relevant only to contributory negligence."
48 Again, in Standing, Heydon JA with whom Handley and Sheller JA agreed, observed (at 255 [54]):
"Almost any injury that happens is an injury in respect of which there can be said to have been a foreseeable risk. In that sense, there was a foreseeable risk of injury here. But it was not a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety. The plaintiff, like pedestrians generally, was in an excellent position to see and avoid imperfections in the surface. There could have been no expectation on her part that the surface would be smooth. The unevenness in the paving slabs, the cracks and the holes at the place where the plaintiff was moving were as obvious as similar features all over the country, and as obvious as other common features like raised tree roots and manhole covers. There was no concealment of any of the features of the site which the trial judge criticised. There was no inadequacy in the lighting, or obscuring of the hazard by grass or otherwise. It was reasonable to expect the plaintiff to have seen what lay ahead of her as she walked along in broad daylight: what was there was obvious and called for no special vigilance."
49 It is clear from the authorities referred to that any duty to take reasonable care for the safety of pedestrians by warning them of, or protecting them from, a defect in a footpath only arises if the defect is not obvious. The defective pavement slab in question was not in shadow or otherwise obscured or concealed. It was not in a location where it would not be looked for or expected but was in full view of any pedestrian keeping a reasonable lookout as they went about their business. In these circumstances, the respondent did not demonstrate that the relevant part of footpath was dangerous so as to require, by way of reasonable response thereto, the placing of barriers by the appellant around it. This was so notwithstanding that the appellant was aware of the defect and considered it sufficiently hazardous as to justify its prompt repair.
50 The respondent also relied upon the reference in the manual to the first of what was there referred to as the three basic control measures generally implemented by councils, namely, to make the area safe by the erection of temporary barriers or barricades. As I have already noted, the appellant had not adopted these guidelines at the time of the accident. In my opinion, notwithstanding that the relevant council officers were aware of this document, its existence did not of itself require the appellant to comply with the relevant guideline if the law did not otherwise require it to do so.
51 Reliance was also placed upon the primary judge's finding that Mr Johnston had agreed that part of the footpath could have been blocked off leaving an area where pedestrians could have walked around the hazard in question. Although there does not appear to be a great deal of evidence on the subject, Mr O'Rourke's assessment in his report of 24 May 1999, that the pedestrian hazard extended over approximately 15m2, was not in contest. It is clear from the photographs of the work completed on 27 May 1999 that it extended across the full width of the footpath and was not confined to the replacement of the defective slab on which the respondent tripped. In these circumstances, as Mr Johnston indicated in his evidence, it would have been necessary to block off the whole width of the footpath thereby requiring pedestrians to step out onto the roadway in order to pass, thus creating its own dangers.
52 Mr Johnston did accept that the barriers could have been used to block off the pavement, but he did not consider the hazard severe enough to warrant that action although he conceded that the hazard was high enough to require prompt repair. He was asked in re-examination to assume that the differences in height in the concrete sections of the pavement covered an area of approximately 15m2 and extended over the full width of the pavement from the kerb to the garden bed. The following exchange then took place:
"Q. What could be done with two water-filled barrier boards, if anything, to prevent persons walking through that area?
A. You could block off part of the walkway but that's all."
53 The context in which that answer was given and upon which her Honour relied (see [17] above), was one where Mr Johnston was asked to assume that the differences in height of the slabs extended across the full width of the pavement. He was then asked what could be done with the barriers to prevent persons walking through the defective area. In a sense, the answer is not responsive to the question which was directed to what could be done with the barriers to prevent persons walking through the assumed defective area which, in turn, was assumed to extend across the full width of the pavement. However, even if it be the case that in one form or another a barrier could have been erected on two sides of the defective slab, for the reasons I have given, the appellant's duty to take reasonable care did not require that response to the foreseeable risk of pedestrians tripping over what was a patently obvious hazard.
54 Accordingly, in my opinion the primary judge erred in finding that the appellant had breached its duty of care to the respondent. In these circumstances, it is unnecessary for me to deal with the submissions of the appellant challenging her Honour's assessment of a 15% reduction in the respondent's damages due to her contributory negligence or its challenge to her assessment of those damages.