PARRAMATTA CITY COUNCIL V. WATKINS [2001] NSWCA 364

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40709/99 DC 16/98 POWELL JA HODGSON JA ROLFE AJA

Friday 12th October 2001 PARRAMATTA CITY COUNCIL V. WATKINS

Judgment 1 POWELL JA: I agree with the reasons of Hodgson JA as set out below. 2 HODGSON JA: On 10th September 1999, Robison DCJ gave judgment for Beverley Watkins against Parramatta City Council in the sum of $131,078.35, as damages for injuries suffered by Ms. Watkins when she fell in South Street, Granville on 29th March 1996. Parramatta City Council has appealed to this Court against the finding that it was liable for damages, but does not challenge the quantum of damages.

CIRCUMSTANCES 3 At about 12.00 noon on 29th March 1996 the respondent, who was then 55 years of age, drove her Ford Laser motor vehicle to South Street, Granville with her brother Brian Lawler as a passenger. She parked the vehicle in a designated parking area beside the kerb. She got out of the vehicle, and was walking around the front of it to get to the footpath, when she fell in the vicinity of a manhole cover which was partly protruding from under the vehicle, causing her the injuries in respect of which she claimed. 4 The evidence showed that this was a busy area of Granville, with shops in the vicinity. The road was sealed to the kerb with what appeared to be asphalt, there was then a concrete gutter and a sealed footpath. According to evidence accepted by the primary judge and not challenged on appeal: (1) The part of the manhole cover nearest the kerb was approximately flush with the road surface, while the part furthest from the kerb was about 50 millimetres below the road surface; and the road surface at the latter region fell steeply to the level of the manhole cover. (2) The road surface extended slightly onto the manhole cover in some areas. (3) The appellant Council had re-surfaced the road in the early 1990s. (4) There was another manhole cover about 40 metres from the one where the respondent fell in a similar position on the road; and although the camber and surfacing of the road was similar at the two places, the slope of the surface down to the manhole cover was much more gradual. 5 The primary judge noted that there was no evidence as to who installed or owned the manhole or manhole cover. He also noted evidence by the Lord Mayor of the appellant to the effect that, if there were a manhole above or below a road surface, the Council would ask the appropriate authority, be it gas, electricity or water, to remedy the difference by adjusting the manhole so that it became level with the road; and that today the Council carries out regular inspections to pick up deficiencies, but did so less in the early 1990s. 6 The primary judge held that the work done by the appellant in the early 1990s clearly created a danger, because the manhole became unsafe by reason of the repair work to the road. He considered that it was reasonably foreseeable that persons using the designated parking area would trip or fall into such a manhole; and that the appellant's failure to properly carry out the repair or construction of the road surface in the vicinity of the manhole constitute a clear hazard resulting in a foreseeable risk of injury to members of the public such as the respondent. The primary judge held to the effect that the respondent did not see the manhole before she fell, and that her fall was caused by its dangerous state. Accordingly, he held that the appellant's liability was established.

GROUNDS OF APPEAL 7 The Amended Notice of Appeal set out the following grounds: 1. The trial judge erred in finding that the Defendant was negligent.

2. The trial judge erred in finding that the Defendant had created a danger, or hazard, in the roadway by resurfacing working at or adjacent to a manhole cover.

3. The trial judge erred in holding that the Defendant owed to the Plaintiff a duty of care.

4. The trial judge erred in holding that the Defendant had breached any duty of care to the Plaintiff. 8 In the light of the High Court decision in Brodie v. Singleton Shire Council (2001) 75 ALJR 992, ground 3 was not pressed.

SUBMISSIONS 9 Mr. Garling SC for the appellant submitted that the primary judge was in error in two main respects: firstly, in that the evidence of the mechanism of the respondent's fall was too vague to enable the cause of it to be determined; and secondly, the evidence did not justify a finding that the appellant was guilty of negligence in relation to the condition of the road and manhole cover at the relevant region. 10 On the causation question, Mr. Garling submitted that the respondent's own evidence concerning the fall went no further than the following: I got out of the car and locked the door. I walked to the front of the car and I turned towards the footpath, I took one step and I fell into the - or I trod onto the side of the manhole and went into it, and then I went down on my knee. 11 Mr. Garling submitted that the respondent did not say why it was she fell. The account only established the approximate location of the fall, and did not even show that the side of the manhole where she trod was the side with the 50 millimetre deep edge or some other part of the side of the manhole. The fall could equally have been from some other feature of the region, or even an object such as a stone that happened to be in the area. Mr. Garling also pointed to what he claimed was the inconsistent allegation made in the Statement of Claim, namely that the respondent tripped. 12 Turning to the other main ground, Mr. Garling submitted that there was no evidence that the work done by the appellant in the early 1990s involved grading or excavation or changing the gradient of the road generally or specifically in the vicinity of the manhole; that there was no evidence as to the condition of the manhole area before the work, or even after the work prior to the time of the accident; that there was no evidence concerning road construction standards, or expert evidence in respect of the design and execution of the work; and there was no evidence whether the manhole cover was installed before or after the gradient of the road was determined, or whether the manhole had been constructed originally at its present level, or had subsided to that level. 13 In so far as the primary judge relied on the fact that another manhole cover 40 metres away was more nearly flush with the road, there was no evidence that the two manhole covers were seated at the same level as each other or that the sub-soil conditions at the two sites were the same, or that the two manholes were constructed by the same authority or at the same time. The proper inference, Mr. Garling submitted, was that the difference between the circumstances of the two manhole covers lay in the relative level of the manholes rather than the construction of the road. 14 Mr. Garling submitted that there was no evidence that the appellant could have made the manhole cover level with the road, or, if technically feasible, what works would have been required to achieve that result. There was no evidence, he submitted, that the appellant was empowered to interfere with the manhole and what may have lain beneath it in order to make the cover level with the road. 15 Mr. Garling referred to Brodie, and in particular the discussion in that case of the associated case of Ghantous, notably that of Gleeson CJ at par.6, and Callinan J at pars.340 and 355. He also referred to Maloney v. Commissioner for Railways (NSW) (1978) 52 ALJR 292. 16 Mr. Garling submitted that, even if, despite what was said in Ghantous, the Court considered that the condition of the road and the manhole was dangerous, it was not open to find that the appellant was negligent in not constructing the road differently, there being no evidence showing that it could reasonably have constructed the area differently. Even if it were considered that the appellant should have ascertained the authority responsible for the manhole and requested that authority to do something about it, the evidence did not justify a finding that taking that action would have avoided the accident. 17 Mr. Garling submitted that this was not a case where the evidentiary onus had shifted to the appellant: the evidence did not even get to the level of showing that a hazard had been created. 18 Mr. Bates for the respondent submitted that this case was different from the circumstances discussed in Ghantous, and referred to par.163 of that case in the judgment of Gaudron, McHugh and Gummow JJ. Mr. Bates also referred to Webb v. South Australia (1982) 56 ALJR 912, and David Jones v. Bates [2001] NSWCA 233.

DECISION 19 It is my opinion that the primary judge's finding that the respondent's fall was caused by the 50 millimetre drop from the road surface to the manhole cover was clearly open and cannot be upset on appeal. In my opinion, the respondent's description of the occurrence, coupled with her denial in cross-examination that she had "just stepped awkwardly", and coupled also with the physical state of the road as proved in evidence, amply supports a finding of fact that the respondent's fall was caused by the abrupt change in level. In the circumstances of this case, the respondent's evidence of falling after treading on the side of the manhole supports the inference that the respondent's foot was partially unsupported and to some extent gave way, causing the fall. The circumstance that the allegation in the Statement of Claim was of tripping does not in my opinion detract significantly from this inference, in the light of the primary judge's assessment of the plaintiff's credibility as a witness. 20 There is more substance in the other ground. 21 In my opinion, any liability in the appellant must depend upon what it did or failed to do at around the time of re-surfacing the road in the early 1990s. I do not think it can be suggested, having regard to the descriptions given of the manhole and the photographs, that there had been any subsidence since that work was done; and even if it were the case that the appellant should have had some inspection program, such a program could not have disclosed to the appellant any more than would have been apparent at the time of the works. 22 I accept the appellant's submission that there is no basis for any finding that the appellant should have substantially changed its design for the level and the gradient of the road to conform to another authority's manhole. I also accept that the evidence does not show that the re-surfacing work increased the danger of the transition from the road surface to the manhole cover. However, the appellant did the re-surfacing work, and left it in the condition described in evidence; and if it is the case that that condition constituted an unreasonable hazard, in respect of which the appellant could and should have taken some action, then the primary judge's finding can be upheld. 23 In my opinion, the evidence about the other manhole does give support to the respondent's contention that the appellant could have provided for a more gradual and therefore safer transition from the level of the road surface to that of the manhole. In my opinion, the inference is open from the evidence about similarity of the two manholes that they were installed by the same authority in approximately the same position on the road and at approximately the same level, and that the significant difference between them was that the transition from the level of the road surface to the level of the manhole was made much more gradual in the case of the other manhole. That is enough, in my opinion, to meet Mr. Garling's submission that it was not open to the primary judge to find that the appellant could have done it differently, in the absence of evidence as to what was possible and reasonable having regard to available methods of construction. 24 Furthermore, it would have been possible for the appellant to have requested the authority responsible for the manhole to re-locate its level so as to conform to the road surface, such request having some statutory authority under ss.98 and 99 of the Roads Act 1993 and the pre-cursors of those sections. In the absence of evidence from the appellant that it made such a request, it could be inferred that it did not do so. 25 The question then is, should the appellant, as a matter of the exercise of reasonable skill, care and use of resources to keep the risk of injury to the public to reasonable levels, have done one or other or both of these things? 26 The answer to that question depends partly on the degree of risk involved, and the nature of the measures required to alleviate it. In Ghantous, the High Court stressed that our environment cannot be risk-free, and that pedestrians cannot expect to have provided for them perfectly level and unblemished surfaces to walk on. It is a matter on which minds could reasonably differ whether the change in level in this case was or was not the kind of irregularity that pedestrians should expect and watch out for. 27 I am inclined to think that sudden variations in level of this magnitude may generally be expected at the edge of footpaths, at transitions between different paths or surfaces, and even between footpath slabs in the vicinity of trees; and also between paved and unpaved areas of road. However, the same may not be true within the paved surface of an apparently well-maintained road, particularly where the change of level is not obvious; and the circumstance that the change in level in this case was in a designated parking area, where it could be partially obscured by a parked car, would add to the risk. While the matter is not free from doubt, I am not satisfied that the primary judge was wrong to hold that the change in level was an unreasonable hazard in this case. 28 The next matter concerns what the appellant could, and perhaps should, have done about it. As mentioned earlier, in my opinion the evidence about the other manhole justifies a conclusion that the appellant could have made the change in level more gradual, so as to make the transition less hazardous. It could also have advised the authority responsible for the manhole; and although that would not necessarily have resulted in that authority giving the situation in this case priority, in my opinion it is reasonable to conclude that something would have been done during the three or more years between the re-surfacing work and the time of the accident. Neither of the measures to which I have referred would appear to be onerous, and the appellant chose to lead no evidence to suggest that they would be. 29 In my opinion, the respondent did lead enough evidence to cast an evidentiary onus on the appellant, if the appellant wished to say that the measures required to deal with this hazard were such that it was not a breach of its duty not to have taken such measures. 30 For these reasons, I am not satisfied that the primary judge was wrong in deciding that the appellant was negligent and liable for causing the respondent's injury. Accordingly, in my opinion, the appeal should be dismissed with costs. 31 ROLFE AJA: I agree with Hodgson JA.

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