PARSONS v RANDWICK MUNICIPAL COUNCIL

LOWER COURT District Court JURISDICTION : LOWER COURT 869/01 FILE NUMBER(S) : LOWER COURT Sorby DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40702/02 DC 869/01

SHELLER JA BEAZLEY JA IPP JA

The appellant was returning home late at night from a social function where he had been drinking. He was being driven by another man, with a third man also in the vehicle. The third man left the car and walked off along the footpath. The appellant left the car and followed. The appellant fell from the footpath onto the kerb and hit the back of his head. At the point where the appellant fell, the footpath was broken in a U-shape and there was a grass verge that sloped up from the kerb to the footpath. At first instance the appellant claimed that the respondent, the Council, had been negligent in failing to maintain the section of footpath, which the appellant fell on, which was in the Council's care and control. The trial Judge held that the Council did owe the appellant a duty of care, however that duty did not extend as far as to cover a situation as depicted by the appellant, where his state of sobriety at the time of the fall would have been such that he was extremely impaired physically and mentally. Further, the trial Judge said that because of his self-induced alcoholic state, the appellant was not able to take reasonable care of himself by seeing the large, obvious subsidence at the edge of the footpath and avoiding it. The appellant appealed on a number of grounds. These included that the trial Judge erred as to the obviousness of the subsidence; failed to take into account the question of inadvertence or thoughtlessness of the appellant; his Honour erred in finding that the Council's duty of care did not extend to cover an intoxicated person; erred in finding that because of his self-induced alcoholic state the appellant was not able to take reasonable care of himself by seeing the large subsistence at the edge of the footpath and avoiding it; and his Honour erred in finding there was no negligence on the Council's part because the appellant did not exercise reasonable care. The respondent filed a notice of contention that the decision ought to be affirmed, on the grounds that the Council did not breach its duty of care, and that the damage was not caused in law or fact by the respondent.

The danger presented by the break in the footpath would have been visible to pedestrians walking along the footpath during daylight hours and keeping a lookout for where they were going. Such pedestrians could have avoided the area of damage. There was no evidence to support the trial Judge's conclusion that at 1 am in the morning the subsidence in the footpath was obvious and one which the appellant should have been aware "with the slightest observation". However, it is equally true that there was no evidence that the light from the lamps was inadequate in the sense that any witness expressed such an opinion.

The question of the adequacy or inadequacy of the lighting was only relevant to the question of whether the appellant, exercising reasonable care for his own safety ought to have seen and recognised the fault in the footpath in time sufficient to step around it or safely through it. What the appellant could see and do in reaction to what he saw was almost certainly affected by his intake of alcohol.

A person in the state of sobriety of the appellant is not one necessarily able to take reasonable care for his or her own safety when walking along a darkened footpath in the middle of the night. If it was open to find that the appellant, able to use such reasonable care for his own safety, would have fallen in the way he did because in the light provided he would not have seen the fault, then his state of sobriety would only have had consequences in looking at causation and the question of contribution. The onus was on the appellant to prove that such was the state of the lighting that he could not have seen and recognised the nature of the fault in the pavement, even if he had been sober and taking care for his own safety. That onus, the appellant failed to discharge.

Though the appellant pleaded a case that the footpath was not properly constructed, the trial Judge found this not to be part of the appellant's case. However, regardless of such a pleading, if on the night in question the fault in the footpath was visible to a user of the footpath taking due care, the Council was not in breach of the duty of care it owed to the appellant. The evidence did not indicate that the Council had failed in such a duty of care to the appellant.

As Sheller JA has pointed out, a significant issue in the case related to the state of the lighting. There is no doubt that the evidence about the lighting was scant. However, there was more evidence than referred to by his Honour. The evidence was that there were no streetlights directly at the spot of the accident. Further, the appellant's principal witness, whose evidence was unchallenged, was that the light was "reflected", and this witness, about whom it was never suggested was not taking reasonable care for himself, did not see the footpath was broken until after the appellant fell. Given the evidence from the appellant's witness and common experience, the broken footpath at night, even with street lighting of the type provided, presented a danger to persons who were taking care for their own safety. Accordingly, the trial Judge erred in his conclusion that the danger was obvious. 6. The unchallenged evidence was that the signs of failure of the footpath would have been evident for several months, with "severe" failure becoming increasingly apparent. Further, the Council had been in the area carrying out repairs shortly prior to the accident. Given the unsafe state of the footpath, and given that the respondent either was, or should have been aware of the danger it presented, the respondent was negligent in failing to repair the footpath and/or maintain it in proper condition.

7. The negligent construction of the footpath could have been a further basis, upon which his Honour could have held that the Council was negligent. However, given senior counsel for the appellant's disavowal of this basis, the matter falls to be determined on the first basis only. On that basis, the appeal would be allowed.
8. The Council pleaded contributory negligence. The evidence showed that the appellant was significantly intoxicated, that his motor co-ordination, gait and balance would have been seriously impaired as would his mental alertness. As such that appellant's own negligence was substantial and should be assessed at 50 per cent.

Borough of Bathurst v Macpherson (1879) 4 App Cas 256 Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Buckle v Bayswater Road Board (1936) 57 CLR 259 Francis & Ors v Lewis [2003] 152 Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357 March v Stramare Pty Limited (1991) 171 CLR 506 Reynolds v Katoomba RSL All Services Club Limited (2001) 53 NSWLR 43 Richmond Valley Council v Standing [2002] NSWCA 359 Tomlinson v Congleton Borough Council (2003) UKHL 47 Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Waverley Municipal Council v Swain (2003) Aust Torts Reports 81-694

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40702/02 DC 869/01

SHELLER JA BEAZLEY JA IPP JA Tuesday, 9 December 2003 PARSONS v RANDWICK MUNICIPAL COUNCIL Judgment 1 SHELLER JA:

The appellant and plaintiff in the District Court, Barry John Parsons, appeals from a decision of his Honour Judge Sorby given on 17 July 2002. His Honour had entered a verdict and judgment for the respondent and defendant, Randwick Municipal Council (the Council), in proceedings in which Mr Parsons claimed to recover damages from the Council for injuries he suffered as the result of the Council's alleged negligence in failing, inter alia, to maintain a section of footpath of which the Council had the care and control in Alison Road, Randwick. 2 According to the trial Judge's findings at about 1 am in the morning of 25 October 1999 Mr Parsons was on the footpath on the northern side of Alison Road adjacent to St Marks Road. He had left a vehicle driven by a Mr Pritchard to go after another passenger in the vehicle, Mr Mansfield, who had left the vehicle and, according to his Honour, had walked off along the footpath. Mr Pritchard had also left the vehicle. He was concerned for both Mr Parsons and Mr Mansfield because each had drunk a substantial amount of alcohol during the evening. All three had attended a social function at the Australian Golf Club at Kensington. Mr Parsons said he was a weekend drinker and on the night consumed wine and beer. He did not think it was as much as twelve schooners of beer. When it was suggested that he had had a lot to drink he said that he did not feel "that bad". 3 The parties agreed that Mr Pritchard would drive Mr Mansfield to his daughter's flat in Coogee and then take Mr Parsons to his home in Darling Point. Mr Pritchard observed Mr Parsons at the Club after Mr Pritchard had finished playing cards and on the 50 metre walk to the motor vehicle. He said that he noticed that Mr Parsons "had had a lot to drink". Mr Parsons described his state of sobriety as not drunk "according to my feelings". He was surprised to learn his blood alcohol reading at the hospital was .268. 4 Mr Parsons said that when Mr Pritchard's car stopped in Alison Road and Mr Mansfield had got out he had attempted to get Mr Mansfield back into the car as they had stopped in Randwick not Coogee. He could not precisely say where on the footpath he was when he spoke to Mr Mansfield. He was "about 2 metres from him". Mr Mansfield probably said "no" to his request to return to the car. Mr Parsons was "starting to go back to the car when he fell". He next remembered waking up in the Prince of Wales Hospital where he was diagnosed with severe traumatic brain injury. His blood alcohol level at the hospital was .268 or five times higher than the legal limit to drive a car. 5 The Council tendered a report from Dr Helen Dauncey, a consultant pharmacologist. Dr Dauncey assumed that blood plasma was used at the hospital. She made a "conversion allowance" to calculate Mr Parsons' blood alcohol at 1 am when the incident occurred. She concluded that his BAC at the time he fell "is most likely to have been about 0.259% with a 5% probability that it was as low as 0.232% or as high as 0.277%". From this she drew several conclusions. Dr Dauncey said that a BAC reading of .259% "would be expected to produce extreme intoxication in most people". She said that "although it is likely that Mr Parsons showed a tolerance to the onset of impaired balance, gait and motor coordination because of his heavy alcohol use, at such an extreme BAC serious impairments to these functions would have been present." In her opinion Mr Parsons' cognitive and physical skills were likely to have been extremely impaired by alcohol when the accident occurred. In her opinion at a BAC over 0.259% he would have been seriously impaired physically (impaired motor coordination, gait and balance) mentally (very groggy, diminished ability to judge distance and place, reduced capacity to assess potential for harm, distorted vision, slow perception/reaction time, narrowed focus of attention, inability to think clearly and plan ahead) and behaviourally (more likely to be impulsive). His impairment would have very significantly increased the chances of falling in any environment and decreased his ability to save himself when he did fall. 6 Mr Parsons said that he did not count how many drinks he had had that night. He had tried not to drink a lot because of the next day's golf game. He denied he had an alcohol problem and said he had only discussed drinking with his GP as far as his weight was concerned. Some months before his fall he had suffered from episodes of dizziness but the trial Judge accepted that by the day of the accident the vertigo had ceased. 7 Mr Parsons denied that he was staggering on the footpath before his fall or that he was unsteady on his feet. He could not remember the mechanics of the accident. He relied upon the evidence of his friend and the driver of the vehicle, Mr Pritchard. According to him Mr Mansfield did not get back into the car as he was asked and had walked off by the time Mr Parsons fell. Mr Mansfield was not called and the trial Judge accepted that he was absent from the scene at the time of Mr Parsons' fall "and would not have been able to give relevant evidence of the actual fall by" Mr Parsons. 8 Mr Pritchard had been at the Club for the social event. He had been playing cards for about two hours before he offered Mr Parsons a lift home. He left the Club with Mr Parsons and Mr Mansfield. He noticed that Mr Mansfield had had a lot to drink and Mr Parsons had had some as well. Mr Parsons was the rear passenger in the car. When they got to Alison Road, Randwick, Mr Mansfield said it was where his daughter lived even though he had previously that evening asked Mr Pritchard to take him to his daughter's house in Coogee. Mr Pritchard was concerned for Mr Mansfield's well-being because of his alcoholic state. Mr Mansfield got out of the car and walked to the footpath which was slightly uphill. He was walking in a westerly direction. Mr Parsons got out of the car to try and get Mr Mansfield back into it. Mr Pritchard also got out. Mr Pritchard said that Mr Parsons got "briskly" out of the car and went "smartly" after Mr Mansfield and was walking "quite well". Both Mr Parsons and Mr Mansfield had their back to him. He saw Mr Mansfield "make off" up the hill. The trial Judge said that this was "along the footpath". There was no evidence of this. One can, however, infer from the evidence that Mr Mansfield had proceeded along the footpath to a point beyond the place where Mr Parsons fell. Mr Parsons followed "lost his footing, spun round and pitched straight off the footpath onto his head". Mr Pritchard went straight to Mr Parsons who was bleeding from his head and was "out cold". 9 Mr Pritchard said he knew where Mr Parsons feet were before he fell. Mr Parsons was facing due west and had turned towards the south. He fell backwards onto the street. Mr Parsons had initially stepped off the footpath which had a raised edge. Mr Pritchard said that when Mr Parsons had the accident he had "looked almost immediately" and "identified" where he had fallen. This was five to six feet from the kerb. He could see the break in the pavement. He could see the detail of the crumbling cement. Mr Parsons had no recollection of what lights there were or of the state of the footpath. Mr Parsons was unconscious when the ambulance arrived at the scene and on his arrival at the hospital. 10 Judge Sorby found on the balance of probabilities that Mr Parsons fell from the footpath onto the kerb and hit the back of his head. Before he fell he was standing on the edge of the broken footpath. The Judge referred to one of the photographs, part of Exhibit A, to show the extent of the broken footpath which had, after the date of the accident, been repaired with new concrete. The photograph was taken before the repair work. Photographs in evidence showed that there were two light poles fairly close to the accident scene. Judge Sorby observed that there was no independent evidence about the adequacy of the lighting at 1 am on the night of the accident or otherwise. Mr Parsons' case proceeded on the basis of an allegation that the footpath was poorly maintained. An allegation that it was badly constructed, though pleaded, was not apparently pursued at the trial although not formally abandoned. 11 The trial Judge did not describe the state of the footpath beyond reference to the photographs in evidence. According to these photographs the footpath ran from east to west along the northern side of Alison Road. At the point where Mr Parsons fell there was a grass verge that sloped up from the kerb to the footpath. On the other side of the footpath there was a level grassed area. On the southern side of the footpath and nearer to the kerb was a stepped wall with the lowest step at the eastern end and two further higher steps both lower than the footpath up to a wall which appears to have been at about the level of the footpath to the north of which there appeared to be a covered drain in the area between the wall and the southern edge of the footpath. Except in the area of this drain between the wall and the footpath was a grassed area with a vertical fall at the edge of the footpath. 12 The break in the concrete where Mr Parsons fell was U-shaped running for at least a metre along the southern edge of the footpath, the top of the arch of the U-shape extending perhaps half a metre into the footpath. As shown in the photographs the broken concrete from the surface of the footpath was lying for the most part sloping from the point of the break down into the grassed verge area with one piece slightly further to the south lying on the verge but leaving a gap in the concrete verge at the point from which it had fallen. The danger presented by this break in the footpath to anybody stepping from the footpath into it is obvious and it is not surprising that Mr Parsons having done so fell across the verge which sloped to the road and hit his head in the road. His Honour found that the footpath was obviously unsafe at the point where Mr Parsons fell. The trial Judge said: "The plaintiff lost his footing on the collapsed part of the footpath, as I have found on the probabilities losing his balance and falling down the embankment hitting his head on the gutter or road. That the defendant did work of a maintenance kind on footpaths, including Alison Road is in evidence by tendered subpoenaed documents, although the work was not done to the pavements on the side of Alison Road where the plaintiff fell." 13 From looking at the photographs it can be said that the break and the nature of the break in the footpath would have been obvious to a person who could see and was keeping a lookout for where they were going while walking along the footpath in either direction during daylight hours.

Reasons for judgment in the District Court 14 Judge Sorby referred to several authorities and to a report dated 9 May 2000 of Dr J R Cooke, whom Mr Parsons called as an expert. The Judge said that the subsidence in the footpath was considerable. Dr Cooke viewed the site on 24 March 2000 by which time the broken part of the footpath had been repaired. He had available to him the photographs which were part of the evidence and to which I have referred. He said: "2.4 In summary, it is apparent that the area on which the footpath is built has been subject to erosion caused by surface water run-off for many years. The path followed by the surface water can be seen in the area near the base of the steps up hill from the footpath in Photograph No 1 in Appendix A and Photographs Nos 7 & 12 in Appendix B and continuing down hill towards the roadway. It is also apparent that the footpath was built without reasonable precautions being taken to minimise the risk that the footpath would be undermined as the result of erosion. The footpath collapsed because of the erosion caused by surface water run-off through the soil and fill material beneath the concrete footpath. 2.5 When the plaintiff stumbled on the broken edge of the footpath he was in danger of falling down towards the roadway because of the relatively steep slope of the partly eroded embankment between the footpath and the kerb. The account of the accident given by the eyewitness is consistent with an accident caused by the claimant losing his footing on the collapsed part of the footpath, losing his balance and then falling backwards down the embankment. 2.6 The pattern of scouring by run-off is readily apparent and would have been readily apparent at the time when the footpath was originally built. Without incurring significant additional initial expense the Council could have installed a drainage channel to collect water up hill from the footpath, with one or more pipes laid through the fill material under the footpath to carry the water beneath the footpath to discharge through the kerb into the roadway gutter without eroding the fill under the footpath. The additional initial expense would have been saved in long term repair costs. 2.7 An alternative to the provision of drainage would have been for the Council to have constructed a reinforced footpath with edge beams to span across the area affected by erosion or supported the footpath on low masoning or concrete walls (similar to the wall in the embankment in the foreground of Photographs Nos 11 & 12), with weep holes in the walls to permit surface water to run through the walls in accordance with normal practice for retaining walls." 15 In a supplementary report of 30 April 2002 Dr Cooke said: "4 As discussed in paragraph 2.4 of my initial report, it is apparent that the area on which the footpath is built has been subject to erosion caused by surface water run-off for many years. As discussed in paragraph 2.3, the fill under the new section of footpath (replacing the collapsed section on which the plaintiff lost his footing) has already begun to wash away (or was inadequately prepared at the time of construction). In my view the fill has begun to wash away and will continue to wash away until the footpath loses support. Unless the new footpath has been designed (with reinforcements) to span across the area subject to erosion, the footpath will eventually subside and crack and further subside, creating a hazard to pedestrians. 5 From my inspection of the site and the photographs my opinion is that the erosion occurred over a considerable period of time. It would have taken many months or years before the concrete subsided and cracked as a result of the erosion and undermining of the fill material under the footpath by surface water. Unless concrete is reinforced, it is strong in compression but weak in tension (bending). The compressive strength depends upon the concrete bearing down on a reasonably intact fill material under the concrete. Once the concrete has cracked and lost its structural integrity it would have deteriorated further over a period of weeks or months as the concrete disintegrated through structural failure until the edge of the path fell away as shown in Photographs Nos 9-12 in Appendix B to my initial report. 6 The signs of failure (cracking, followed by subsidence) would have been apparent for several months. As the footpath deteriorated over a period of months the signs of severe failure would have become increasingly apparent, culminating in the collapse of the edge of the footpath." 16 The trial Judge said: "The subsistence [sic] in the footpath was not a slight imperfection in the footpath or unevenness of surface. Nor was it a 'hidden danger' or 'trap'. It was obvious and one of which the plaintiff should have been well aware with the slightest observation, even at 1 am in the morning there being no evidence that the light from the lights on the two light poles was inadequate. The defendant owed the plaintiff a duty of care and that duty extended in certain circumstances, to a situation where it was foreseeable that a person using the footpath might trip slip on the subsided footpath and suffer injury, that risk of injury being neither farfetched or fanciful. However in my view the duty does not extend as far as to cover a situation as depicted by the plaintiff where his state of sobriety was such that in the opinion of a pharmacologist the plaintiff would have been 'extremely impaired physically (impaired motor coordination, gait and balance) and mentally (diminished ability to assess potential for harm, distorted vision, slow perception/reaction time, poor judgment of place and distance narrowed focus of attention, inability to think clearly and plan)'. Because of his self induced alcoholic state the plaintiff was not able to take reasonable care of himself by seeing the large subsistence at the edge of the footpath and avoiding it. The plaintiff therefore fails."

Grounds of appeal 17 Without objection and by leave of the Court Mr Parsons filed an amended notice of appeal. The grounds of appeal were: "1. His Honour erred in finding that the subsidence in the footpath was so obvious that the plaintiff should have been well aware of it with the slightest observation, even at 1.00 in the morning. 2. His Honour failed to take into account the question of inadvertence or thoughtlessness on the part of the plaintiff in the circumstances of the plaintiff's presence on the footpath. 3. His Honour erred in finding that the defendant's duty of care did not extend to cover an intoxicated plaintiff. 4. His Honour erred in finding that because of his self-induced alcoholic state the plaintiff was not able to take reasonable care of himself by seeing the large subsistence [sic] at the edge of the footpath and avoiding it. 5. His Honour erred in finding that because the plaintiff did not exercise reasonable care, there was no negligence on the part of the defendant. 6. His Honour erred in failing to direct himself as to whether the subsidence in the footpath comprised a circumstance of the kind calling for some protection or warning, which was not present. 7. Having found the witness Mr Pritchard was a witness of truth his Honour erred in failing to find that the effect of the plaintiff's alcohol intake was as described by Mr Pritchard at Black AB 45 I-J, Black AB 45 K-L and Black AB 46 D-F (see paragraph 19 of the Appellant's Reply) and his Honour erred in finding that the effect of the plaintiff's alcohol intake was as set out at Red AB 22 P-V." 18 Also by leave and without objection the Council filed a notice of contention that the decision ought to be affirmed on the further and alternative grounds: "1. The Respondent did not breach its duty of care. 2. The damage was not caused in law or fact by the Respondent." 19 Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512 were applications for special leave to appeal from decisions of this Court. The applications for special leave were referred to the Full High Court and heard together. In each case the defendant was a local council. In Brodie, the driver and owner of a truck sued the council within whose municipal area a wooden bridge was located which partially collapsed as the truck crossed it causing injury to the driver and damage to the truck. In Ghantous, a pedestrian who tripped and fell when walking along a concrete footpath sued the council within whose municipal area the footpath was located. In their joint judgment Gaudron, McHugh and Gummow JJ said at 577: "150 The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the [Local Government Act 1919 (NSW)] upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist. 151 The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case. 152 In dealing with particular cases and in determining factual issues respecting breach of duty, it may be convenient to differentiate between the design and construction of a roadway, between subsequent works done on it and between courses of inspection to ascertain its soundness. These matters are not mutually exclusive and sometimes may overlap." 20 Under the heading "Repair, maintenance and works" the joint judgment continued at 579: "158 A rejection of the 'immunity' for 'highway authorities' and the recognition of a duty of care in terms expressed above with reference to Wyong Shire Council v Shirt does not necessarily involve the imposition of an obligation in all cases to exercise powers to repair roads or to ensure they are kept in repair. An authority may have various statutory powers invested in it and would be under a duty not to use, misuse or fail to use those powers to create a situation of danger which creates a reasonably foreseeable risk of injury to a user of the road. 159 The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works, from a failure to remove unsafe items in or near a road, or from the placing of items upon a road which create a danger, or the removal of items which protect against danger. 160 In dealing with questions of breach of duty, whilst there is to be taken into account as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness', a proper starting point may be the proposition that the persons using the road will themselves take ordinary care. 161 Not all failures to repair will create risks to the users of a road, or at least not risks which would, as a matter of the reasonably foreseeable, pose a risk of injury. Although it has been said many times that the digging of a hole in a roadway constitutes an actionable misfeasance, the size and location of such a hole may vary and must be considered when determining, on the facts of the particular case, whether it will reasonably foreseeably lead to injury or harm to a user of the road. Depending on the conditions of the road, a 'hole' caused by removal of a portion of the road surface may not pose any foreseeable risk to cars; signs may provide adequate warning against whatever risks it poses to motor-cyclists or cyclists. On the other hand, a trench in the roadway, whether arising from active digging or decay of the road or structures within it, will more readily give rise to a foreseeable risk of injury, particularly where it cannot easily be seen or avoided by a road user. The nature of the defect, and not the question of whether it arose by action or 'non-feasance', should be significant. The court record and the report of Gorringe do not disclose sufficient material to enable it now to be said that under this dispensation the plaintiff in Gorringe would have recovered in respect of the injury sustained upon the collapse of the 'appreciable depression' in the road surface. 162 The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authority. In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations. The resources available to a road authority, including the availability of material and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made. It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are first addressed. Even so, it may well be reasonable for the authority to exercise other powers including for example, by erecting warning signs, by restricting road usage or, in extreme cases, by closing the road in question." 21 Thus in the present case the size, nature and location of the fault in the footpath must be considered when determining whether the fault will reasonably foreseeably lead to injury or harm to users of the footpath, and account must be taken of whether it could easily be seen or avoided by users, who are exercising reasonable care for their own safety. Much depends upon the nature of the defect. 22 In the joint judgment Gaudron, McHugh and Gummow JJ said, under the heading "Pedestrians": "163 The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous , the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous , persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia (1982) 56 ALJR 912; 43 ALR 465), or by surrounding area (as in Buckle , where the hole was concealed by grass (1936) 57 CLR 259 at 266). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a 'trap' or, as Jordan CJ put it, 'of a kind calling for some protection or warning' ( Searle v Metropolitan Water, Sewerage and Drainage Board (1936) 13 LGR 115 at 117). In Romeo , Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger ( Romeo (1998) 192 CLR 431 at 455 [52]). Kirby J pointed out in the same case that even an occupier of premises 'is generally entitled to assume that most entrants will take reasonable care for their own safety'. Each case will, of course, turn on its own facts ( Perre v Apand Pty Ltd (1999) 198 CLR 180 at 253 [198]; Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 at 8; ; Stapelton, 'Duty of Care Factors: a Selection from the Judicial Menus', in Cane and Stapelton (eds), The Law of Obligations (1998) 59, at pp 60-63."

As Heydon JA pointed out by reference to this paragraph in a passage to which I shall return in Richmond Valley Council v Standing [2002] NSWCA 359 (unreported) "the existence of a duty must be assessed in part by reference not to any requirement that the footpath 'be safe … in all circumstances', but by reference to the position of 'users exercising reasonable care for their own safety'."

23 Under the head "Inspections" the joint judgment continued: "164 Cases respecting inspections for dangerous conditions have been determined by the dichotomy between misfeasance and non-feasance. A 'highway authority' was not liable if it failed to conduct inspections but, seemingly, was liable if it began remedial work in response to the discovery by inspection of defects or, possibly, even once it discovered the existence of those defects. These cases usually involved 'non-feasance', as an inspection typically discloses a situation which is unsafe and needs repair. Allied to them are cases in which a danger first manifests itself when the road surface, or a structure, collapses or gives way either under the plaintiff or shortly before it is crossed. 165 Where the danger could not reasonably be suspected to exist, or could not be found except by taking unreasonable measures, generally there will be no breach of duty by the authority. On the other hand, there will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, or of which the authority has been informed or made aware, and, if they are found, fails to take reasonable steps to correct them. In the cases, the danger usually manifests itself in decayed beams or supports of bridges, or drains or culverts, or other structures supporting a road or its surface. The reports of Macpherson ( Borough of Bathurst v Macpherson (1879) 4 App Cas 256), Buckle and Gorringe all disclose insufficient facts to determine the reasonableness of the inspections which did take place or of the failure to inspect and ascertain the existence of the danger which caused the injury to the plaintiffs in those cases." 24 The three cases cited illustrate the uncertain development and limited application of nonfeasance immunity. The decision of the High Court has made these decisions of no more than historic interest. 25 In Richmond Valley Council v Standing the plaintiff was injured when she tripped and fell on an irregular paved concrete surface in the vicinity of a school which she had just visited. In a judgment with which the other members of the Court (Handley and Sheller JJA) agreed, Heydon JA quoted and summarised the law as stated in Brodie. In particular his Honour observed that although Gleeson CJ and Callinan J disagreed with the decision of Gaudron, McHugh, Gummow and Kirby JJ that the non-feasance immunity existing at common law should be abolished, their Honours said important things about when pedestrians might recover in relation to the condition of footpaths. Particularly Callinan J at 355 emphasised that in Ghantous where the plaintiff tripped because of the unevenness in height between two sections of the pavement that the difference in height was plain to be seen. "It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along." Gleeson CJ, after noting that the non-feasance immunity had been abolished in England by statute in 1961, said: "… when general principles of negligence, unqualified by any rule of immunity, were applied, the courts insisted that an injured plaintiff had to show that the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land." 26 The first question, as posed by Heydon JA, was whether the defendant owed a duty of care to the plaintiff. His Honour said: "That turns on whether the failure of the defendant to repair the footpath created a 'foreseeable risk of harm' to pedestrians. That expression appears to be a reference to a reasonably foreseeable risk, since at 161 in Brodie , Gaudron, McHugh and Gummow JJ said: 'Not all failures to repair will create risks to the users of a road, or at least not risks which would, as a matter of the reasonably foreseeable, pose a risk of injury.' The existence of a duty must be assessed in part by reference not to any requirement that the footpath 'be safe ... in all circumstances', but by reference to the position of 'users exercising reasonable care for their own safety' (at 163). This was said to be particularly important in relation to pedestrians. The question is whether there was a reasonably foreseeable risk of harm to a pedestrian exercising reasonable care for her own safety, bearing in mind the particular advantages of pedestrians. The issue of the capacity of the defendant to deal with particular risks and the competition between claims on scarce resources is not specifically relevant to the question of the scope of duty, but to the question of its breach." 27 Heydon JA concluded in that case that a pedestrian exercising reasonable care for his or her own safety ought to have seen the hole in question and if the hole had been seen a pedestrian of that kind would not have placed his or her foot in it (para 53). His Honour observed that there was no concealment of any of the features of the site and 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."

Conclusion 28 In the present case the photographs suggest, as the trial Judge found, that the fault in the pavement would have been visible to a pedestrian walking along the pavement during daylight hours and looking ahead to where he or she was going. Moreover such a pedestrian could have avoided the area of damage by walking along the north side of the pavement where there was plenty of room on an undamaged surface. 29 The problem in the present case was that Mr Parsons fell on the pavement at 1 am. Judge Sorby said that the subsidence in the footpath was not a hidden danger or trap. "It was obvious and one of which the plaintiff should have been well aware with the slightest observation, even at 1 am in the morning there being no evidence that the light from the lights on the two light posts was inadequate." 30 If the lighting in the area of the fault in the pavement was inadequate in the sense that a person using the footpath and exercising due care could not have seen the fault and recognised its nature the fault became a concealed trap for such a person walking along the pavement and expecting to proceed along what appeared to be a defined concrete pavement available to be used by pedestrians during the night. However, the evidence does not enable this conclusion to be reached any more than it supports what the trial Judge said about it. One has only such inferences as can be drawn from the fact that Mr Parsons apparently while turning around on the pavement walked into the fault and Mr Pritchard who was close behind him did not immediately see the fault.

31 The trial Judge seemed to accept that Mr Pritchard was out of the car and not far from Mr Parsons when Mr Parsons fell. Mr Pritchard's evidence was that he was a couple of metres behind Mr Parsons when he fell. He said that there were two light poles "with the arm out that puts light on to the street itself" and there was some reflected light on the area, "but that was sort of east of where Barry fell, so I imagine heading west as he was and he was on the southern side of the footpath where the pavement was missing, he probably wouldn't have seen it in any case." Mr Pritchard was asked "Where [sic - were] there any shadows being cast on the …" to which he answered "Yes I'd say there was". At this point the trial Judge said that there was nothing from the plaintiff about the lighting. The plaintiff was recalled immediately and said he did not have any recollection of what the lighting conditions were in the area where he was standing before he fell nor did he have any recollection of seeing the state of the footpath before he fell.

32 Mr Pritchard was asked when it first became apparent to him that the footpath was in the condition he eventually saw. He said: "Well in the first instance I thought that Barry had stepped off the edge of the footpath and lost his balance bearing in mind that the footpath at that point was about 600 [sic] above the kerb and my main concern then was just the events that occurred after that when he fell and hit his head. I then looked around to see what was happening and I could see that the footpath - the pavement was missing." 33 The trial Judge asked a question: "Just so I'm clear on that. Earlier evidence suggests that you came back - or later on, did you say, as I understand your evidence, that at the time he fell you thought he'd fallen off the edge of the footpath then after he fell you had a look and that's when you saw the missing bit?"

Mr Pritchard answered: "That's when I saw the missing bit." 34 There is no evidence to support the trial Judge's conclusion that at 1 am in the morning the subsidence in the footpath was obvious and one of which Mr Parsons should have been well aware "with the slightest observation". Equally it is true that there was no evidence that the light from the lamps on the two poles was inadequate in the sense that any witness expressed such an opinion. 35 In evidence there were photographs of the road showing the poles and the arms with lamps directed down on the road. Doing the best I can from looking at those photographs, I would not have thought that the light thrown on that part of the pavement where the fault was and which was approximately half way between the two poles, which could have been as much as 50 metres apart, would have been particularly good. However, surprisingly, no evidence was called beyond what Mr Pritchard said about the lighting.

36 The adequacy or inadequacy of the lighting was only relevant to the question of whether Mr Parsons exercising reasonable care for his own safety ought to have seen and recognised the fault in the footpath for what it was in time sufficient to step around it or safely through it. What Mr Parsons himself could see and what he could do in reaction to what he saw was almost certainly affected by his intake of alcohol if, as Dr Dauncey said, that would have reduced his capacity to assess potential for harm and distorted his vision.

37 Mr Pritchard was behind Mr Parsons, whom he could obviously see, and Mr Mansfield. When recalled Mr Pritchard was asked about the lighting condition and said "I think there would be shadows … there was [sic] shadows on the footpath" but later added that it would fair to say he did not recall seeing any shadows. He thought Mr Parsons had stepped off the edge of the footpath and lost his balance. His main concern was that Mr Parsons had fallen and hit his head. Mr Pritchard then looked around and could see the footpath and that the pavement was missing. That was when he saw the missing bit. That missing bit was visible to him, presumably standing, on or near the footpath.

38 I find it hard to accept that such evidence supports a finding that the lighting was inadequate or more importantly that the fault in the footpath would not have been visible to Mr Parsons as he approached it if he had been sober and exercising due care for his own safety.

39 The situation was that Mr Parsons had no recollection. Mr Pritchard's evidence was that he saw the fault in the pavement. I agree with the trial Judge that Mr Pritchard's evidence of what Mr Parsons probably would not have seen, even if admissible, was of no weight, particularly having in mind his state of sobriety.

40 There was no evidence from Mr Mansfield. His evidence was likely to have been the most important evidence of all about visibility of the fault in the pavement. Apparently he was the first out of the car and on to the footpath. He must have walked past or through the fault in the footpath. He may have seen it and walked around it or safely through it. He may not have seen it. The inference is that consciously or unconsciously he avoided it.

41 The onus was on Mr Parsons to prove that such was the state of the lighting that he could not have seen and recognised the nature of the fault in the pavement even if he had been sober and taking care for his own safety as he walked along the footpath. That onus, in my opinion, he failed to discharge.

42 An important matter was the state of Mr Parsons' sobriety when he fell. The trial Judge was satisfied, based on Dr Dauncey's opinion, that Mr Parsons would have been "extremely impaired physically (impaired motor coordination, gait and balance) and mentally (diminished ability to assess potential for harm, distorted vision, slow perception/reaction time, poor judgment of place and distant, narrowed focus of attention, inability to think clearly and plan)." The Judge said that because of his self-induced alcoholic state Mr Parsons was not able to take reasonable care of himself by seeing the large subsidence at the edge of the footpath and avoiding it. 43 If it be accepted that the fault in the pavement was visible at 1 am in the morning, in the light conditions prevailing, by a pedestrian proceeding along the footpath and exercising due care, the question was, as Mr Toomey QC urged on behalf of the plaintiff/appellant, whether the Council's duty was enlarged to require it to protect persons in the state of sobriety of Mr Parsons while using the footpath at that time. The basis for this submission was that the Council should expect people in Mr Parsons' state of sobriety to be using the footpath in the middle of the night. 44 A person in the state of sobriety of Mr Parsons is not one necessarily able to take reasonable care for his own safety when walking along a darkened footpath in the middle of the night. If it was open to find that Mr Parsons, able to use such reasonable care for his own safety, would have fallen in the way he did because in the light provided he would not have seen the fault, then his state of sobriety would only have had consequences in looking at causation and the question of contribution. To make the point more precisely if there had been across the pavement an unguarded trench not visible at night and Mr Parsons had walked into it and injured himself, it would not matter, so far as the question of the Council's breach of its duty of care was concerned, that Mr Parsons happened to be drunk. The Council's duty, such as it was, was owed to him as a pedestrian on a footpath for which the Council had the care and responsibility. 45 In his two reports, which I have quoted, Dr Cooke said, in summary, that the area on which the footpath was built had been subject to erosion caused by surface runoff for many years. The footpath had been built without reasonable precautions being taken to minimise the risk that it would be undermined as the result of erosion. The footpath collapsed because of the erosion caused by surface water runoff through the soil and film material between the concrete footpath. In his opinion the erosion occurred over a considerable time. It would have taken many months or years before the concrete subsided and cracked as a result of the erosion and undermining of the fill material. The signs of failure (cracking followed by subsidence) would have been apparent for several months. "As the footpath deteriorated over a period of months the signs of severe failure would have become increasingly apparent, culminating in the collapse of the edge of the footpath." The photographs suggest that the collapse of the pavement was not recent. There was no evidence that it had been reported to Council. Nor was there evidence about Council's practice in inspecting and, if necessary, repairing footpaths in its control and care. 46 Although Mr Parsons pleaded a case that the footpath was not properly constructed (see para 7.3 and 7.4 of the statement of claim) the trial Judge said: "The plaintiff has not brought his case alleging the footpath was badly constructed but only poorly maintained." This may have been a misunderstanding in light of the two reports by Dr Cooke which Mr Parsons tendered. 47 However this may be if on the night in question the fault in the footpath and its nature was visible to a user of the footpath taking due care the Council was not in breach of the duty of care it owed to Mr Parsons. In my opinion, the evidence did not allow the Court to conclude that the Council had failed in its duty of care to Mr Parsons. I have referred to the absence of any satisfactory evidence about the state of lighting on the night in question. Dr Cooke was of opinion that the signs of failure would have been apparent for several months. It is not possible to say for how long the footpath was in the state it appeared to be at the time Mr Parsons fell. On the evidence it is not possible to say whether the Council had failed to take reasonable steps to repair the footpath. In my opinion, Mr Parsons failed to make good his claim and the appeal must be dismissed. Order 48 The appeal should be dismissed with costs.

Appeal book index 49 When the hearing of the appeal began, I drew to the attention of Mr Toomey to the inadequacy of the index to the blue appeal books. Exhibit C was described as no more than a bundle of hospital notes and reports from two hospitals which apparently extended from page 25 to page 156 without any indication whatever of where within all those pages any particular document in the bundle was to be found. The index was useless for any member of the Court who wanted to find without searching through the pages referred to the page at which a particular document was to be found. That to this extent the index was useless should have been apparent to the person that prepared it. I raised the question whether the solicitor responsible for the preparation of the appeal books should have the costs of preparing the blue appeal books. I note that, unfortunately, Part 51 r35 (1)(a)(ii) does not expressly require that the index set out the page reference of each document in an exhibit which contains many documents in a bundle. This should be obvious but is not required, at the present time, by the rules and, in my view, the rules should be amended accordingly. In light of the term of the rule I say no more about the costs of preparing the blue appeal books. 50 BEAZLEY JA: I have had the advantage of reading the draft Judgment of Sheller JA. Because of his Honour's detailed consideration of the judgment the subject of this appeal, I am able to express my reasons and point of disagreement with his Honour shortly. 51 The trial judge, relevantly, made the following findings: there was no independent evidence about the adequacy of the lights; the footpath was obviously unsafe where the appellant fell; the respondent did maintenance work on footpaths under its management and control including on Alison Road, although the work was not done to the pavement on the side of Alison Road where the plaintiff fell; the subsidence in the footpath was considerable. The trail judge then quoted from para. 5 in Dr Cooke's report, which is set out in para 15 of Sheller JA's reasons. It appears therefore that his Honour accepted that the concrete path, once having cracked and having lost its structural integrity, would have deteriorated over a relatively lengthy period of time - weeks or months. The loss of structural integrity to which Dr Cooke referred was the gradual removal of the fill underneath the concrete over "many months or years". Given the structure of the footpath, clearly apparent from the photographic evidence in the case, this gradual erosion even prior to the cracking would have been obvious. 52 His Honour then found that this "considerable" subsidence was not hidden. It was obvious. Presumably because it was "considerable", the [appellant] "should have been well aware with the slightest observation [of the subsidence], even at 1.00 am in the morning there being no evidence that the light from the lights on the two poles was inadequate". His Honour held therefore that the respondent owed no duty of care to the appellant because he was not able to take reasonable care of himself "because of his self induced alcoholic state". 53 As Sheller JA has pointed out, a significant issue in the case related to the state of the lighting. This is obvious from the passage just quoted. His Honour's approach to this issue was to note that "there was no independent evidence about the adequacy of the lighting at 1.00 am". If by "independent evidence" his Honour meant expert evidence, then it was correct to say that there was no such evidence. However, whilst expert evidence may have been of assistance its absence ought not to have been determinative. In my opinion, the state and effect of lighting is a matter of ordinary observation. If his Honour intended with the above statement, to refer to any evidence as to the lighting, I consider him to be in error. There is no doubt that the evidence about the lighting was scant, but there was more evidence than that referred to by his Honour. 54 His Honour's reference to the evidence was: "There were two light poles fairly close to the accident scene as revealed in the photos. The plaintiff has no recollection of the lighting. Mr Pritchard identifies the light pole". 55 However, Mr Pritchard's evidence went further than that: "Q. What was the condition of the lighting in the street at that time? A. Well there was a light pole just in front of the car. It's one of those light poles with the arm out that puts light onto the street itself. There was some reflected light on the area, but that was sort of east of where Barry fell, so I imagine heading west as he was and he was on the southern side of the footpath where the pavement was missing, he probably wouldn't have seen it in any case.

Mr Pritchard did not notice that the footpath was broken until he looked afterwards to see what had caused the appellant to fall. 56 Not only was there evidence about the lighting, lighting is a matter of common experience. It is a matter of common experience that street lighting does not replicate daylight. If it did, there would be no necessity for car headlights. The evidence here was that there were no street lights directly at the spot where the accident occurred, rather the accident spot was midway between two lights. The light fittings overhung the street. The only light on the footpath, on the unchallenged evidence of Mr Pritchard, was "reflected light". There is to be added to that the fact that Mr Pritchard, about whom it was never suggested was not taking reasonable care for himself, did not see that the footpath was broken until after the appellant fell. At that time Mr Pritchard was approximately 1½ to 2 metres "at the outside" away from the plaintiff and his attention was only drawn to the state of the footpath because of the appellant's fall. When he was challenged in cross-examination that he could see at that distance "the detail of the crumbling cement", Mr Pritchard said "Yes. I moved closer to check it out as well". 57 In my opinion, given Mr Pritchard's evidence and common experience, the broken footpath at night, even with street lighting of the type I have described, presented a danger to persons who were taking care for their own safety. Accordingly, I consider the trial judge erred in his conclusion that the danger was obvious. 58 That of course is not the end of the matter. Sheller JA has given consideration to the state of law as discussed by and established in the recent decisions of Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512. It will not be necessary, therefore, for me to discuss those authorities at great length. However, it is important to recognise, that they do not stand for the proposition that because a danger is obvious, there is no negligence. It might be surprising that such a simplistic statement is even made. However, there appears to be a trend in the cases that reflect that simplistic proposition. 59 In Brodie their Honours' in the joint judgment said: "Not all failures to repair will create risks to the users of a road, or at least not risks which would, as a matter of the reasonably foreseeable, pose a risk of injury. Although it has been said many times that the digging of a hole in a roadway constitutes an actionable misfeasance, the size and location of such a hole may vary and must be considered when determining, on the facts of the particular case, whether it will reasonably foreseeably lead to injury or harm to the user of the road. Depending on the conditions of the road, a 'hole' caused by removal of a portion of the road surface may not pose any foreseeable risk to cars; signs may provide adequate warning against whatever risks it poses to motor-cyclists or cyclists. On the other hand, a trench in the roadway, whether arising from active digging or decay of the road or structures within it, will more readily give rise to a foreseeable risk of injury, particularly where it cannot easily be seen or avoided by a road user . … The formation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where … the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. … persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting … there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers … of a kind calling for some protection or warning … the care to be expected of members of the public is related to obviousness of the danger. … Where the danger could not reasonably be suspected to exist, or could not be found except by taking unreasonable measures, generally there will be no breach of duty by the authority. On the other hand, there will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, … and, if they are found, fails to take reasonable steps to correct them. 60 In my opinion this is not a case where the danger could not reasonably be suspected to exist, or which could not be found except by taking unreasonable measures. The unchallenged evidence was that the signs of failure of the footpath would have been evident for several months, with the signs of "severe" failure becoming increasingly apparent. Alison Road is one of the main thoroughfares through Randwick. It is heavily trafficked, both by vehicles and pedestrians. Although the place where the accident occurred is not in the shopping section area, it is clearly built up and well used. Given the obviously hazardous state of the footpath, a state that it had been in for a considerable period of time, the Council must, in my opinion, have been negligent in its system of inspection, maintenance and repair. But in any event, the Council had been in the area carrying out repairs shortly prior to the accident. The respondent's Work Orders revealed that in the 3 month period immediately prior to the accident, the pathway outside No. 245 Alison Road was "sunken"; that there was a "bad dip/hole in Alison Road down from St Marks Street"; that there were "rutted concrete areas in Alison Road opposite the gully" and the Council had inspected these areas and either done work or commissioned work to be done. Although on the opposite side of he road, this work was in the same vicinity as the accident i.e. along the same stretch of roadway. One thing which is apparent from the evidence, including the photographic evidence, is that, in the daytime, the collapse of the footpath where the appellant fell was obvious. 61 Given the unsafe state of the footpath, and given that I consider that the respondent either was, or should have been aware of the danger it presented, I am of the opinion that the respondent was negligent in failing to repair the footpath and/or maintain it in proper condition. 62 There is a further basis, upon which his Honour could have held that the Council was negligent, namely, the negligent construction of the footpath in the first place. There was unchallenged evidence on this: "In summary, it is apparent that the area on which the footpath is built has been subject to erosion caused by surface water run-off for many years. The path followed by the surface water can be seen in the area near the base of the steps up hill from the footpath in Photograph No. 1 in Appendix A and Photographs Nos. 7 & 12 in Appendix B and continuing down hill towards the roadway. It is also apparent that the footpath was built without reasonable precautions being taken to minimise the risk that the footpath would be undermined as the result of erosion. The footpath collapsed because of the erosion caused by surface water run-off through the soil and fill material beneath the concrete footpath. … The pattern of scouring by run-off is readily apparent and would have been readily apparent at the time when the footpath was originally built. Without incurring significant additional initial expense the Council could have installed a drainage channel to collect water up hill from the footpath, with one or more pipes laid through the fill material under the footpath to carry the water beneath the footpath to discharge through the kerb into the roadway gutter without eroding the fill under the footpath. The additional initial expense would have been saved in long term repair costs." 63 His Honour did not refer to this evidence in his judgment although he quoted lengthy portions of Dr Cooke's report. Indeed, his Honour considered that the plaintiff had not brought such a case. There is an issue as to whether that was so, as that case was both pleaded and evidence advanced in support of it. In the appellant's Written Submissions in Reply, the issue was directly raised and relied upon although senior counsel for the appellant appeared to disavow that case in his oral submissions. 64 If it were not for that disavowal, I would have thought that the case against the Council on that ground had been made out and was unanswered. However, given senior counsel's disavowal of that case, the matter falls to be determined on the first basis only. On that basis, I would allow the appeal. 65 The Council pleaded contributory negligence. The appellant argued that the footpath was so hazardous that there could be no question of contributory negligence. I do not agree. The appellant was significantly intoxicated having a blood alcohol reading of .268 and there was evidence that his motor co-ordination, gait and balance would have been seriously impaired as would his mental alertness. In my opinion, the appellant's own negligence was substantial and should be assessed at 50%. 66 There are a number of other issues in the case which require mention. First, the respondent filed a Notice of Contention contending that his Honour should not have admitted Dr. Cooke's report or, alternatively, should have given it no weight. No submissions were advanced either in writing or orally in support of the Notice of Contention and accordingly, there is no need to consider it further. 67 There was also some argument as to whether his Honour failed to award interest on the Griffith v Kerkemeyer amount and wrongly applied a vicissitudes discount to the award for future out of pocket expenses. There was also an alleged error in respect of interest on past economic loss. Except for interest on the Griffith v Kerkemeyer amount, the Council does not dispute that these errors were made. It is appropriate they be corrected. As to the award of interest for the Griffith v Kerkemeyer figure, it was submitted that the amount claimed did not reflect the historical cost but was averaged out over the period so that interest was not payable. That is not obvious from his Honour's judgment, nor perhaps likely, given that the claim was for a year. Accordingly the appellant's claim on this point should also be allowed. 68 IPP JA: I agree with Sheller JA. 69 At about 1.00 am on 25 October 1999 Mr Parsons, while intoxicated, fell while walking on the footpath in Alison Road, Randwick. The Randwick Municipal Council was responsible for the care and control of the footpath. 70 Mr Parsons' fall was at least partly caused by a large hole in the footpath into which Mr Parsons stepped. 71 In daylight, the hole would have been obvious to any reasonable user of the footpath. 72 Whether the hole would have been equally obvious in the hours of darkness depended upon the state of the lighting in the vicinity of the hole. 73 The state of the lighting was crucial to the success or otherwise of Mr Parsons. The reason for this appears from the following remarks of Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 at 581: "The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous , persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting … in such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety". 74 These remarks distinguish between "inadvertence" on the one hand and "taking reasonable care" on the other. On this authority, "highway authorities" owe no duty of care to persons who do not exercise reasonable care for their own safety, although they do owe reasonable care to those who may merely be inadvertent. 75 Callinan J (to whose reasons Gaudron, McHugh and Gummow JJ referred at 581) said at 639: "The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this". 76 How this approach sits with cases such as March v Stramare Pty Limited (1991) 171 CLR 506, is not clear. 77 In March v Stramare Pty Limited Deane J (with whom Gaudron J agreed) said (at 520) that the duty of care of road users was: "not confined to persons who were careful and sober but extended to all foreseeable users of the road, including bad and inattentive drivers and those whose faculties were impaired either naturally or by reason of the effect of alcohol".

Deane J went on to say (also at 520): "[A]s was pointed out in Bus v Sydney County Council (1989) 167 CLR 78 at 90, 'the law has progressed' in recent years 'by placing an increased emphasis upon the relevance of the possibility of negligence or inadvertence on the part of the person to whom a duty of care is owed' … Thus, for example, an inattentive driver of a slowly travelling car has been held to be liable in damages, under apportionment legislation, for breach of a duty of care owed to a person who, dressed in a dark overcoat on a rainy night, sought to cross the road at a 'high unlikely' spot without any real lookout for oncoming traffic".

Deane J accepted (at 521) that: "[T]he relevant duty of care in the present case was to all users of the road, including the inattentive and those whose faculties were impaired by alcohol". 78 McHugh J (at 536 to 537) also accepted that a duty of care was owed by a road user to careless and drunken drivers as well as careful drivers. 79 It may be that the remarks of Gaudron, McHugh and Gummow JJ in Brodie and Ghantous (at 581) are a manifestation of the trend described as follows (at 48) by Spigelman CJ in Reynolds v Katoomba RSL All Services Club Limited (2001) 53 NSWLR 43: "There have been changes over recent decades in the expectations within Australian society about persons accepting responsibility for their own actions. Such changes in social attitudes must be reflected in the identification of duty of care for purposes of the law of negligence. The recent authoritative statements in Perre v Apand Pty Limited (1999) 198 CLR 180 and Agar v Hyde (2000) 201 CLR 552 give greater emphasis, in the development of the law of negligence, to the acceptance by individuals of a personal responsibility for their own conduct, than they have been given in the past".

See also Waverley Municipal Council v Swain (2003) Aust Torts Reports 81-694 where Spigelman CJ said at 63,778: " Bus v Sydney Council Council (1989) 167 CLR 78 identified a change in the law, between Sydney County Council v Dell'Oro (1974) 132 CLR 97 and 1986, to the effect that the law has 'progressed' by giving greater weight to the possibility of inappropriate conduct on the part of others. It now appears possible to identify a change in the law in the other direction, ie greater weight is being given to the proposition that people will take reasonable care for their own safety".

See also Tomlinson v Congleton Borough Council (2003) UKHL 47, Van de Sluice v Display Craft Pty Ltd [2002] NSWCA 204 and Francis & Ors v Lewis [2003] NSWCA 152 at [40]. 80 Whatever the position may be in this respect, Brodie and Ghantous binds this Court to hold that the existence of a duty of care on the part of a highway authority such as the Council in this case must be assessed by reference to the position of users exercising reasonable care for their own safety. See Richmond Valley Council v Standing [2002] NSWCA 359 where Heydon JA (with whom Handley and Sheller JJA agreed) said that in the light of the observations of Gaudron, McHugh and Gummow JJ in Brodie and Ghantous (at 581): "The existence of a duty must be assessed in part by reference not to any requirement that the footpath 'be safe … in all circumstances', but by reference to the position of 'users exercising reasonable care for their own safety'".

81 Attributing liability on the grounds of negligence for Mr Parsons' damages is a serious matter. It was for Mr Parsons to prove his case in accordance with the standards the law requires. The crucial piece of evidence is that of Mr Pritchard in the following exchange: "Q. What was the condition of the lighting in the street at that time? A. Well, there was a light pole just in front of the car. It's one of those light poles with the arm out that puts light onto the street itself. There were some reflected light on the area, but that was sort of east where Barry fell, so I imagine heading west as he was and he was on the southern side of the footpath where the pavement was missing, he probably wouldn't have seen it in any case". 82 The following comments can be made about this evidence:

(a) The fact that the light was "reflected" says nothing about the quality and extent of the illumination it cast.

(b) The reference to the reflected light being "sort of east" from where Mr Parsons fell, is extremely vague.

(c) From this evidence it is not possible to infer how far the light was from where Mr Parsons fell (if the light indeed did not fall directly on the specific accident area - which is by no means clear).

(d) It is also not possible to infer the extent, if any, to which the light illuminated the general accident area.

(e) Whether Mr Pritchard believed that Mr Parsons did not see the hole because of the lighting or because of some other reason is not clear.

(f) The statement by Mr Pritchard that "I imagine" that "in any case", Mr Parsons "probably" would not have seen the hole, lacks the clarity, cogency and probative force required to discharge the onus of proof on Mr Parsons. 83 I disagree, with respect, with the observation of Beazley JA that "lighting is a matter of common experience". It is true that the accident occurred midway between two streetlights. That fact, however, in my view, says nothing about the quality of the lighting at the accident point. That depended on the light cast by the streetlights in question. In my view no judicial notice can be taken of the quality of that lighting. 84 The strong impression gained from a reading of the transcript of the evidence led at the trial is that there was little appreciation of the need to prove the state of the lighting at the relevant time. The case does not appear to have been conducted, at least consciously, on the basis that the state of the lighting contributed to Mr Parsons' inability to see the hole. Crucially, as Sheller JA observes, Mr Parsons did not call Mr Mansfield, who was able to avoid the hole immediately before Mr Parsons fell. Mr Mansfield must have been able to give evidence about the state of the lighting, yet the Court did not hear from him. 85 The evidence called on Mr Parsons' behalf in connection with the lighting was skimpy indeed. It was also vague and ambiguous. Applying the ordinary rules as to onus of proof, the evidence led does not establish that the lighting at the place where Mr Pritchard fell was such that, exercising reasonable care for his own safety, he would not have seen the hole and taken steps to avoid it. 86 Accordingly, as I have said, I agree with the reasons and conclusions expressed by Sheller JA.

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