and, having reduced that sum by 20%, found a verdict for Ms. Harrison in the sum of $100,288.62 and directed the entry of judgment accordingly.
8 In its Notice of Appeal (RAB 89-92), the Council sought to have that verdict set aside and a verdict entered in its favour.
9 In her Notice of Cross-Appeal (RAB 95-96), Ms. Harrison asserted that his Honour erred in reducing her damages by 20% for contributory negligence, that his allowance for general damages was manifestly inadequate and that his allowance for future economic loss was manifestly inadequate.
10 I turn, then, to record the facts which gave rise to the proceedings at first instance.
11 Although, in its Defence, the Council put in issue the allegation in the Statement of Claim that at all material times it had the care, control and management of (inter alia) footpaths, flights of stairs and parks and gardens and associated works situated in Bennett Street, there does not appear to be any real dispute that, at the time of Ms. Harrison's accident, Bennett Street was located within the boundaries of the Municipality of North Sydney.
12 Bennett Street runs in a roughly West to East direction from its intersection with Wycombe Road, Neutral Bay on the West to its intersection with Murdoch Street and Bertha Road, Cremorne at its Eastern end - at that point Murdoch Street runs in a direction roughly South to North while Bertha Road at that point runs in a direction roughly from South-West to North-East.
13 Whatever may be the position further to the West in Bennett Street the land as one approaches the intersection of Bennett and Murdoch Streets and Bertha Road appears to fall from North to South and from West to East.
14 Because of the fall of the land in that area the Southern boundaries of the building allotments on the Northern side of Bennett Street appear to have erected on them what seem to be sandstone retaining walls - at some points as one approaches the intersection of Bennett Street and Murdoch Street the underlying bedrock is exposed.
15 Immediately adjoining those sandstone retaining walls is a cement footpath which appears to be of the usual width - about 1.2 metres or approximately 4 feet - of footpaths which one commonly finds in suburban residential areas. To the South of that footpath and apparently running for a distance of about 50 metres to the West from the intersection of Bennett Street with Murdoch Street (Black AB 200) is a garden which was said in some areas to be 4 or 5 metres (approximately 13 to 16 feet) wide (Black AB 200) - although it is not clear that this is so, some of the photographs which form part of the exhibits which were tendered at trial (see, for example, Exhibit C (Blue AB 42-70) suggest that that garden may be terraced to accommodate the slope from the North to the level of the carriageway of Bennett Street.
16 The footpath on the Northern side of Bennett Street to which I have earlier referred, connects with a footpath of similar dimensions on the Western side of Murdoch Street which footpath then runs in a Northerly direction. At a distance of about 30 metres to the West of the point where the two footpaths meet, one descends a set of 7 steps covering a vertical distance of about 1.2 metres (approximately 4 feet) to a lower level of the footpath. At a distance of approximately 12 metres further to the East one descends another 4 steps to cross a driveway from Bennett Street, which driveway is about 3 metres wide, then descends another 2 steps, and after a further distance of approximately 15 metres, a further 3 steps down to the footpath on the Western side of Murdoch Street. Whether or not this was also the case with the further steps to the East, it would seem that in December 1995, the leading edge of each of the 7 steps in the first set of steps had a white strip painted on it although the white paint had over time become worn.
17 The retaining walls to which I have earlier referred which were to the West of the first set of stairs were covered with a form of climbing fig which appears to have been clipped back. The walls adjacent to the stairs and the exposed bedrock beyond it to the East had patches of low growth, as for example Fishbone Fern, protruding from the crevices but not obscuring the steps.
18 Immediately to the South of the pathway and extending for a distance of about 20 metres to the West of the set of 7 steps is a post and rail fence through which some of the vegetation - which appears to include Fishbone Fern and other types of fern - protruded and along the rails of which there appear to have been vines such as Boston Ivy and Honeysuckle. That fence continued alongside the first set of steps. It is not possible to be sure of what adjoined the path beyond the first set of steps but it appears as if it may have been a low stone wall covered by the Boston Ivy. A little to the West of the top of the steps were what appear to have been 2 conifers. At the top of the steps was an electric light pole the light fitting attached to which faced, not the steps, but to the South. Adjacent to that pole was a laurustinus (viburnum tinus), a dense growing medium sized shrub, about 2 metres (approximately 7 feet) high.
19 Although it would appear that, at the time of Ms. Harrison's accident, the laurustinus may have been clipped back to about the level of the post and rail fence, it would appear that the creepers and, in particular, the Boston Ivy had grown through the post and rail fence as it descended alongside the first set of steps and tended to obscure that part of the path and the steps immediately adjacent to the lower rail of the fence.
20 Situated at a distance of about 25-30 metres in a roughly South-Easterly direction from the electric light pole adjoining the first set of steps was a further electric light pole located on the Southern side of Bennett Street at its intersection with Bertha Road. The light on that light pole is directed to the North, that is, towards the carriageway of Bennett Street. Situated at a distance of about 55 metres to the East from the electric light pole adjoining the first set of steps is an electric light pole located on the Eastern side of Murdoch Street - the light on that light pole faces West, that is, over the carriageway of Murdoch Street.
21 The materials which are before the Court do not disclose when it was that any of Bennett Street, the footpath, the steps, the post and rail fence or the garden were constructed or installed, or whether, at the time of their construction or installation, Bennett Street and the surrounding area was located within the Municipality of North Sydney; or by whom, or by what - a developer or the relevant local government authority or some other body - Bennett Street, the footpath, the steps, the fence or the garden were or was constructed or installed. The absence of such materials, despite the terms of paragraph 6 of the Defence which had been filed on behalf of the Council - all of which matters would have borne on the question whether or not the Council ought to have been held liable to Ms. Harrison in respect of the injuries which she sustained (see, for example, Lake Macquarie City Council v. Bottomley [1999] NSWCA 28 - road constructed by a developer; Gosford City Council v. Timbs [2000] NSWCA 31 - driveway constructed for owners of residence under construction; Sisson v. North Sydney Municipal Council [1966] 1 NSWR 80; Yass Shire Council v. Burnett [1999] NSWCA 35; The Council of the City of Wagga Wagga v. Fuller [1999] NSWCA 440 - pipe installed for drainage of stormwater from an adjoining property prior to construction of footpath; Florence v. Marrickville Municipal Council [1960] SR 562 - Council of a united area not liable for an injury incurred after the union but caused by the negligent act of the council of any constituent area before the union) - provides further support for the statement made by Kuner A-DCJ in his Judgment (see para. 4 (above)) as to the basis upon which the hearing before him proceeded.
22 Whatever may have been the position as to the time at which Bennett Street, the footpath, the steps, the fence and the gardens were built or installed, or the person or body by whom or by which they were built or installed, it seems clear enough that, at least of more recent times, the Council assumed a degree of responsibility for the highlighting of some at least of the many thousands of steps in the public footpaths in and around the Municipality of North Sydney and, as well, for the maintenance of the various public gardens situated within the Municipality.
23 Such evidence as there was as to the painting of steps in the Municipality was given by Mr. Harrison, a painter and signwriter employed by the Council for a little more than 10 years at the date of trial (Black AB 169-182) and a leading hand painter and signwriter for 10 years. In his capacity as leading hand painter and signwriter, Mr. Harrison's duties included the supervising and managing of his staff - which in 1995 amounted to 4 painters - carrying out inspections of, and organising the general maintenance of, Council buildings and properties, as well as the painting of signs and, where necessary, the highlighting of steps.
24 As best as one can judge it (Black AB 170-171), there was no regular system of inspection of steps with a view to determining whether or not they needed repainting, and repainting was done only when a complaint was received from a member of the public, or a report was made by a member of the Council's staff, or when, in the course of other maintenance being carried out in the area, the need for repainting was observed. The paint which was used by the Council's painters was an acrylic water based low sheen white paint, a quick drying paint, two coats normally being applied. The Council did not use "illuminated paint" because, so Mr. Harrison said (Black AB 172) it was not practicable as it needed to be sprayed, required too much equipment, was too labour intensive and too costly. Nor, so far as Mr. Harrison was aware, did the Council use built in anti-slip strips which, in his experience, were not suitable for exterior use and, so far as Mr. Harrison was aware, there were no warning signs erected in relation to any of the sets of steps in the Municipality (Black AB 173).
25 The system which the Council had for the maintenance of the public gardens within the Municipality was more extensive and, as far as one can judge it, far better organised than was the system described by Mr. Harrison for the highlighting of steps and the like. The evidence as to that system was given by Mr. Takans, the Supervisor of Garden Maintenance, and by Mr. Wickham, a team leader in the Garden Maintenance Section of the Council. Mr. Takans held a horticultural certificate - which required a course of study of some 3 years - and an Associate Diploma in Horticulture, which required a course of study of a further 2 years - his particular course of study for his Diploma being in the parks management area. Although he may not have any formal qualifications as a horticulturalist, Mr. Wickham appears to have had extensive experience in the field - he had worked as a groundsman at the Pine Trees Lodge on Lord Howe Island for about 3½ years, had been employed in the Garden Maintenance Section of Newcastle Council for about 6 years, had been employed by the Forestry Commission at Muswellbrook for 6 years prior to being employed by the Council and at the time of trial, had been employed by the Council as a team leader for approximately 6 years.
26 Mr. Takans' evidence (Black AB 182-194) was that he had been the Council's supervisor of garden maintenance for a period of 12 years, in which capacity he supervised the various maintenance teams employed by the Council - the duties of those maintenance teams were to maintain the horticultural aspects of public areas, gardens and parks. In 1995 there were four such maintenance teams, each comprising three people, a team leader and two others, and each assigned a particular area of responsibility. In 1995 the team responsible for garden maintenance of the Bennett Street area was Garden Plot Maintenance 4 ("GPM 4") of which Mr. Wickham was the team leader. Although, at an earlier stage, each team would work through the gardens in its area over a 12 week cycle, by no later than October 1995 the cycles had been reduced to 10 week cycles. The garden maintenance schedules for GPM 4 (Exhibit 4 - Blue AB 244-248) and the extracts from Mr. Wickham's diaries (Exhibit 5 - Blue AB 250-294) recorded that, on 12 October 1995, GPM 4 had carried out general maintenance in the garden in Bennett Street and had carried out some spraying in the gardens in Bertha Road and Murdoch Street (Blue AB 253) and that the maintenance in the Bennett Street gardens had been completed by 31 October 1995 (Blue AB 244).
27 Mr. Wickham's evidence (Black AB 194-219) was that within the area for which GPM 4 was responsible, there were approximately 65 garden areas (Black AB 195), the approximate total area of which was 32,000 square metres (Black AB 195). GPM 4 was responsible for the maintenance of those gardens, maintenance being described by him (Black AB 195) as "weeding, pruning, picking up litter, planting when need be, landscaping". Although, when he commenced his employment with the Council, the 12 week cycle to which Mr. Takans referred was in existence, within the period of about 2 years prior to the hearing, so it would seem, the system had been changed as the following passage in Mr. Wickham's evidence (Black AB 195) would indicate:
"Q. Is there a system in place as to when the team, if I can call them that, will go out and conduct maintenance work? A. Yes, we have a cycle that garden (sic), it depends of what's that word, some gardens have a higher priority than others. That may be on a one week cycle, a two week cycle, a ten week cycle or a twenty week cycle.
Q. And what determines in what category a particular garden plot falls? A. There is a system of, we give each garden a set of points depending on whether its close to public transport or close to a highway or close to sporting grounds, to how many people walk past. Some areas are out of the way and around the corner, they get on a twenty week cycle. Some areas for instance around the Civic Centre are on a one week cycle.
Q. And the categorisation of gardens in particular cycles, how long has that system been in place? A. Well, that current system with the 1, 2, 10 and 20 about two years. Prior to that all gardens were on a twelve week cycle.
Q. And had that twelve week cycle been in existence for some period of time? A. For as long as I've worked there yes."