Plaskitt v Pittwater Council [2012] NSWSC 1356 | Case summary

The Principles of Negligence 31The proceedings before the Court and the claim for damages are covered by the terms of the Civil Liability Act 2002 (hereinafter, "the Act"). Further, the provisions of s 3B of the Act do not exempt any part of the claims before the Court from the application of the Act. 32It is necessary to deal with some of the provisions that govern this claim for damages. Firstly, that which is claimed is harm within the meaning of that term given by s 5 of the Act, being personal injury and economic loss. The claim is for negligence being a failure to exercise reasonable care and skill. 33The plaintiff alleges liability on a number of bases. First, as previously indicated, the plaintiff alleges that either the first defendant or the second and third defendants together were the occupiers of the land upon which the incident occurred. As a consequence, whichever of the parties was the occupier owed a duty of care to the plaintiff. 34Further, the plaintiff alleges that the first defendant, the Council, repaired, or arranged for the repair of, the relevant part of the footpath and did so negligently thereby creating an unreasonable risk of injury. In undertaking the repair of the footpath, the Council owed a duty of care to persons within the class of the plaintiff who would thereafter use the footpath. 35There is little doubt that an occupier owes a duty of care to a person lawfully entering the land in question. I will deal later with the nature of the duty. 36The plaintiff alleges that the first defendant (and/or the second and third defendants) breached the duty of care owed by: (a)failing to ensure the footpath where the plaintiff fell was safe for persons such as the plaintiff walking on the said footpath; (b)failing to repair and maintain the footpath properly when it knew or ought to have known that the condition of the footpath was a trip hazard and dangerous; (c)causing and/or permitting the footpath to be constructed or repaired with a change of level which created an unreasonable risk of injury to pedestrians such as the plaintiff; (d)causing and/or permitting the footpath to be constructed or repaired in a manner that provided a pedestrian such as the plaintiff with a false sense of security that the footpath had been repaired to an even level; (e)causing and/or permitting the footpath to be and to remain uneven and a trap to pedestrian users of the footpath such as the plaintiff; (f)failing to provide any or any proper warning to the plaintiff of the risk of tripping and falling by reason of the uneven and dangerous surface of the footpath; and (g)failing to carry out remedial works to rectify the defect in the surface of the footpath prior to the plaintiff's fall. 37As can be seen from the foregoing, the alleged breach of duty of care falls into a number of categories. 38The Act deals with the standard of care and breach thereof, and matters consequential thereto. It does not (despite the headings) deal with the existence of a duty. Nevertheless, it is necessary to recite some of the provisions of the Act: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation'), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability'). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. ... 5F Meaning of 'obvious risk' (1) For the purposes of this Division, an 'obvious risk' to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person ('the defendant') does not owe a duty of care to another person ('the plaintiff') to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection. ... 42 Principles concerning resources, responsibilities etc of public or other authorities The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies: (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions, (b) the general allocation of those resources by the authority is not open to challenge, (c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), (d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate. ... 44 When public or other authority not liable for failure to exercise regulatory functions (1) A public or other authority is not liable in proceedings for civil liability to which this Part applies to the extent that the liability is based on the failure of the authority to exercise or to consider exercising any function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in proceedings instituted by the plaintiff. (2) Without limiting what constitutes a function to regulate an activity for the purposes of this section, a function to issue a licence, permit or other authority in respect of an activity, or to register or otherwise authorise a person in connection with an activity, constitutes a function to regulate the activity. ... 46 Exercise of function or decision to exercise does not create duty In proceedings to which this Part applies, the fact that a public or other authority exercises or decides to exercise a function does not of itself indicate that the authority is under a duty to exercise the function or that the function should be exercised in particular circumstances or in a particular way." 39In order to succeed, the plaintiff must establish that the defendant, against which it hopes to succeed, owes to the plaintiff a duty of care. Not all careless conduct that causes damage results in a cause of action in negligence. There must be a duty of care. 40In Modbury Triangle Shopping Centre v Anzil [2000] HCA 61; (2000) 205 CLR 254 at [13], Gleeson CJ said: "Most actions in tort which come before trial courts arise out of relationships in which the existence of a duty of care is well established, and the nature of the duty well understood. Cases arising out of the use of a motor vehicle, or involving employer and employee, or bailor and bailee, turn upon the application to the facts of well settled principles concerning legal responsibility. References to duty of care, breach of duty, and causation provide convenient sub-headings for a judgment, but in many cases the concepts require no further analysis. In other cases, of which the present is an example, there is a real issue as to the scope of legal responsibility. Such an issue cannot then be resolved by a detailed recitation of the facts, the repetition of the standard rubrics under which discussion of the tort of negligence is commonly organised, and an appeal to common sense." 41Further, at [105] in Modbury, Hayne J said: "In cases such as the present, where the extent of the relevant duty is not clear, it is useful to begin by considering the damage which the plaintiff suffered, and the particular want of care which is alleged against the defendant. Asking then whether that damage, caused by that want of care, resulted from the breach of a duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff's allegations of breach and damage must depend." 42The judgment in Modbury was considered by the High Court in Adeels Palace v Moubarak [2009] HCA 48; (2009) 239 CLR 420, where the Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ) said: "[23] Contrary to the submissions on behalf of Adeels Palace, this Court's decision in Modbury does not dictate the conclusion that Adeels Palace owed no relevant duty of care to the plaintiffs in the present cases. Like the claims now under consideration, the claim that was made in Modbury was for damages for personal injury suffered as a result of a criminal assault. The injured plaintiff in Modbury had been attacked in a shopping centre car park at night when the lights in the car park were off. He alleged that the shopping centre proprietor was negligent in not leaving the car park lights on. A majority of the Court held that the shopping centre did not owe the plaintiff a duty to take reasonable care to prevent injury to the plaintiff resulting from the criminal behaviour of third persons on the shopping centre's land. It is important to recognise, however, that the duty alleged in Modbury was said to be founded only on the defendant's position as occupier of the land controlling the physical state of the land (there the level of its illumination). What is said in Modbury must be understood as responding to those arguments. No complaint was made that the defendant should have controlled, but did not control, access by the assailants to the land it occupied. [24] It is, of course, important to recognise that the decision in Modbury forms part of a line of cases in which consideration has been given to whether and when one person owes another a duty to take reasonable care to control the conduct of a third person. And the fact that the conduct in question is criminal conduct is of great importance in deciding not only what, if any, duty is owed to prevent its commission, but also questions of breach and causation. [25] Several considerations set the present case apart from Modbury and point to the conclusion that Adeels Palace owed each plaintiff a relevant duty of care. First, the complaint that was made in these cases was that the occupier of premises failed to control access to, or continued presence on, its premises. Secondly, the premises concerned were licensed premises where liquor was sold. They were, therefore, premises where it is and was well recognised that care must be taken lest, through misuse and abuse of liquor, 'harm [arise] from violence and other anti-social behaviour'. And thirdly, the particular duty said to have rested on the occupier of the premises (who was the operator of the business that was conducted on the premises) is a duty to take reasonable care to prevent or hinder the occurrence of events which, under the Liquor Act, the licensee was bound to prevent occurring - violent, quarrelsome or disorderly conduct. (And although variously expressed in the legislation of other Australian jurisdictions, the evident scheme of all liquor licensing laws in Australia is to minimise anti-social conduct both on and off licensed premises associated with consumption of alcohol.)" 43As Gleeson CJ noted, certain relationships have been established as relationships that give rise to a duty of care. 44Occupier's liability is one of the established categories in which the occupier owes a duty of care. If one or more of the defendants is the occupier of the land upon which the incident occurred, that defendant owes a duty of care to persons in the class of the plaintiff and, necessarily, to the plaintiff. The issue then becomes the nature of the duty. 45The plaintiff by particulars (c) and (d) seemed to be suggesting that a duty of care is owed by the Council, even if it were not the occupier, by reason of the repair by it, or on its behalf, of the footpath. For the remainder of these reasons, I will assume, without deciding, that the Council owed a duty of care once it undertook repair of land over which it had control or was to be used, knowingly, as a public thoroughfare (but see s 46 of the Act). 46As can be seen from the foregoing, once there is a duty of care, the provisions of s 5B of the Act govern findings of negligence and require that precautions against risk of harm (being, relevantly, personal injury) are not required to be taken, unless the risk was foreseeable and not insignificant. Further, the precautions must be taken only where a reasonable person in the defendant's position would have taken those precautions. 47No party has suggested, understandably, that the risk of personal injury arising from tripping on uneven concrete slabs in the footpath was not "foreseeable", being a risk known to the defendants and each of them or that ought to have been known to them. Further, it is not suggested that the risk of some harm is not insignificant. The fundamental issue in these proceedings is whether a reasonable person in the position of each of the defendants would have taken precautions necessary to ameliorate the risk of harm and, in that regard, must take account of the severity of injury that was foreseeable. The risk is required to be assessed prospectively and refers to "harm that might be suffered by anyone to whom the defendant owes a duty of care, as a consequence of the failure to take the precautions referred to in s 5B(1)": see Sibraa v Brown [2012] NSWCA 328 at [41], per Campbell JA, with whom Hoeben JA and Tobias AJA agreed. 48Much attention was given, during the course of the proceedings, to whether the risk arising from the difference in the levels of the concrete slabs was an obvious risk: s 5G of the Act. If it were obvious (as defined in s 5F), the plaintiff is presumed to be aware of it. However, such a presumption does not negate or overcome the duty of care or liability for acts of negligence, other than those acts arising from a failure to warn of risk (see s 5H of the Act): see Angel v Hawkesbury City Council [2008] NSWCA 130 at [24], per Beazley and Tobias JJA, with whom Spigelman CJ, Giles and Campbell JJA agreed. The plaintiff alleges negligence by a failure to warn: see particulars (d) and (f) above at [36]. 49It is necessary to deal with each of the particulars of negligence, as outlined in [36]. 50First the allegation in particular (a) that the defendants failed "to ensure the footpath ... was safe" needs to be examined in light of the standards of care required by the Act, and generally at common law. If the term "ensure" was intended to convey a guarantee of safety, there is no such duty under the Act or under the common law. No person is required, under the common law, to guarantee safety. (It is unnecessary to discuss, in the context of these circumstances, issues associated with the operation of the Occupational Health and Safety Act 2002.) 51On the other hand, if particular (a) is intended only to require precautions to be taken to obviate the risk of foreseeable injury, it adds little, if anything, to the other particulars of negligence. 52Secondly, it is necessary to deal with the allegation that negligence occurred in the repair and maintenance of the footpath: see (b) and (c) at [36]. The footpath, at the relevant area, was repaired. There is no evidence that when first constructed the footpath was such as to involve different levels or involve a risk of harm to a pedestrian walking along the footpath. 53Further, the overwhelming inference from the current state of the footpath, or its state at the time of the incident, is that the epoxy fillet was applied in a manner which feathered the gap from the southern concrete slab to its northern neighbour, in order, amongst other purposes, to allow wheeled vehicles to move from the road surface to foot path level and to lessen any risk of harm. The foregoing is the overwhelming inference, also drawn (or assumed) by one or more of the engineering experts. 54At the time of the application of the epoxy fillet, the highest level of the epoxy fillet would have aligned with the level of the southern concrete slab. The gap that existed at the time of the incident in the level of the southern slab to the top of the epoxy fillet was a gap that was caused subsequent to the repair by further subsidence of the northern concrete slab. Again, this is the view taken by the engineering experts. 55Thus far reference has been made to a 25mm differential in height. That measurement is taken from the extrapolation of the slope of the southern concrete slab to a point beyond the epoxy fillet. It also takes account of the differing slope of each of the concrete slabs. The best estimate of the height differential between the highest point of the epoxy fillet and the southern concrete slab to which it abuts is 10mm and the depth at the point of abutment (i.e. the thickest point) of the epoxy is approximately (but slightly less than) 15mm (Transcript, at 295). 56As the evidence of the experts established, the application of the epoxy to the northern concrete slab ameliorated the risk of harm. Each of the engineering experts (Colin Wingrove and Jackson Clark) testified that the epoxy applied to the northern concrete slab reduced the risk of harm caused by the uncorrected gap between the two concrete slabs (Transcript, at 304.34 - 307.13). Further, Mr Wingrove testified that the risk of harm was much worse without the epoxy resin. 57The other aspect of this evidence that is noteworthy is that the application of the epoxy to the northern slab neither created a new risk nor worsened the risk that was already there. It reduced or ameliorated the existing risk. 58No part of the plaintiff's case alleges that the footpath, when originally constructed, was constructed negligently or gave rise to a risk of harm. Further, no part of the plaintiff's case suggested that the subsidence was caused by any conduct of any one of the defendants (negligent or otherwise). 59As a consequence of the foregoing, it cannot be said that the repair to the footpath created a risk or had any effect other than reducing the risk that already existed, and these particulars of negligence must fail. 60The particulars of negligence with which the Court is still required to deal are those that allege a failure to warn; causing or permitting the footpath to remain uneven or in a manner which provided "a false sense of security"; and the failure to carry out further remedial works to rectify the uneven surface. They relate to nonfeasance, rather than misfeasance. 61As to the failure to warn, the provisions of ss 5G and 5H of the Act must be considered. In so doing the definition of "obvious risk" in s 5F of the Act is relevant. 62Mr Colin Wingrove was qualified as an expert, being a Consultant Transport Engineer with degrees in science and engineering science, by the plaintiff. Mr Jackson Clark was qualified by the second and third defendants. Each prepared a report and was thereafter asked to confer with the other and answer further questions. They gave evidence in conclave. The reports, questions and answers are contained in Exhibit F. 63In the course of oral evidence, Mr Wingrove expressed the opinion that the repair work "effectively disguised from a visual point of view the difference in the height between the adjacent slabs" (Transcript, at 282). In my view, this is testimony that is outside the expertise of the witness and involves a conclusion as to the perception of pedestrians. 64The concrete slabs, in their original condition, were an extremely similar colour, although the northern triangular shaped slab is a little darker in colour than the slab adjacent to it to the south. Each is a mid-grey in colour. The epoxy is a taupe or dark fawn colour. As a consequence of the different colouring, the fact that there has been different material applied to the site is more obvious than would be the situation if no repairs were undertaken. 65I do not accept that the application of the epoxy made the difference in height less obvious or less noticeable to a reasonable person in the position of the plaintiff. In my view, taken both from the evidence and the view conducted during the course of the proceedings, the application of the epoxy made the difference in the material, the difference in height and the fact of a repair more obvious than would otherwise have been the case. A reasonable person in the position of the plaintiff, being a person taking reasonable precautions in walking along the footpath, would have known that there was a risk that the concrete slabs were at a different level. Such a risk, including the risk of harm arising therefrom, would have been obvious to a reasonable person in the position of the plaintiff. 66As a consequence, and by operation of s 5H of the Act, none of the defendants owed a duty of care to the plaintiff to warn her of the risk associated with the different levels between the concrete slabs. 67I am comforted in the foregoing approach by the comments of Gleeson CJ in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512: "[6] In England, the common law rule which the applicants in both matters seek to challenge was abolished by statute in 1961. It then became easier for a pedestrian who was injured by falling on a road or footpath to succeed in an action for damages resulting from failure on the part of the responsible authorities to maintain and repair the road or footpath. Even so, 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: Meggs v Liverpool Corporation [1968] 1 WLR 689; [1968] 1 All ER 1137. 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. [7] In Littler v Liverpool Corporation [1968] 2 All ER 343 at 345, Cumming-Bruce J said: 'Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green.'"

Damages 77The medical evidence before the Court is that there is no continuing physiological reason for the alleged continuing disability suffered by the plaintiff. The evidence of the experts qualified by both the plaintiff and the defendants was that the plaintiff sustained a frank injury to her arm, treated appropriately at the time, for which surgery was conducted. 78Her treating surgeon, Dr Hughes, provides no basis for her continuing complaints. Both neurosurgeons, Dr Grant and Dr Blum, in their joint statement at Tab 26 of Exhibit J, make clear that the sensory loss, of which the plaintiff complains, to the whole of her left upper extremity extending to the whole of the left side of the face and chest, is not medically consistent with any injuries suffered by her as a result of the incident. 79Further the joint report makes clear that the pain, of which the plaintiff complains, in both legs, and weakness or giving way of the legs, is inconsistent with the fall or injuries arising from the fall. 80Each of the neurosurgeons expressed the opinion that the physiological effects of the fall would now be concluded and, even if they were not, would not restrict her capacity to carry out her activities in accountancy. They further express the opinion that there is no evidence of any neurological basis to any impairment that would restrict recreational activities or limit the carrying out of domestic duties, including the caring for her children. 81The headaches of which the plaintiff complains are also not consistent with any injuries suffered by her, again, from a neurological perspective. Perhaps their approach is best described by the agreed position which was: "This person ... suffered no injuries other than that to her elbow. The presenting clinical picture is not in any way ... influenced by injuries that she has had earlier in her life." 82Each of the doctors found no objective signs on clinical presentation. To the extent that the applicant is genuinely suffering pain, it is psychosocial or psychological, not clinical. 83I have viewed the recorded activities of the plaintiff and have seen the plaintiff in the witness box and in Court during the course of the proceedings. All injuries will differ in effect and will vary in intensity, from time-to-time. Nevertheless the demeanour of the witness, both in the precincts of the courtroom and in the witness box, confirms the impression one gains from a viewing of the recording of her activities in the course of the investigation for the purpose of these proceedings, which impression is inconsistent with her testimony as to her continuing disabilities. 84In my view the complaints by the plaintiff of continuing disability and pain are disingenuous and/or mendacious. If the plaintiff does have continuing pain, it is in no way as severe as sought to be portrayed in the witness box or as described in her evidence. 85Further, I do not accept the loss of earnings as portrayed, not only because the injuries do not interfere with the income earning capacity of the plaintiff, but also because the potential income that the plaintiff could earn, if she were working full time, is grossly overstated (and therefore does not satisfy the provisions of s 13(1) of the Act). 86The plaintiff suffered an injury. It was treated. There is no independent evidence from which I would conclude, contrary to my impression from her demeanour and the evidence recorded of her activities, that the plaintiff is not capable of performing a full range of activities that she would otherwise be able to perform were it not for the incident and the injury arising therefrom. 87Notwithstanding the foregoing, if it be necessary to proceed further, I do not assess damage, other than by buffer, because there is insufficient evidence before the Court, which I accept, from which I could assess economic loss or non-economic loss. Further, there is probably insufficient evidence from which I could assess a buffer to compensate for any such injury, if there were negligence and if damages were to arise. If I were to assess damage (notwithstanding the lack of accepted evidence), I would assess non-economic loss of $40,000 and economic loss, as a buffer, of $60,000. Expenses have been agreed. Those figures, if an award were to issue, would be reduced by 75%. None of the thresholds in s 13, s 15(2) and s 16(1) of the Act have been satisfied. 88As a consequence of the conclusions as to the liability in negligence and damage, each of the cross-claims (seeking proportional liability and/or indemnity between the defendants) should be dismissed. 89For the foregoing reasons, the Court makes the following orders: (1)Judgment for the defendants on the statement of claim; (2)Cross-claims dismissed; (3)The plaintiff shall pay the defendants' costs of and incidental to the proceedings on a party-party basis; (4)The parties have liberty, within 28 days of these reasons for judgment, to seek different orders as to the payment of costs or orders in relation to any other matter not otherwise dealt with in these orders; (5)Proceedings are otherwise dismissed.

Plaskitt v Pittwater Council

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Before

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Judgment (8 paragraphs)

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Cases Cited (11)