Port Macquarie Hastings Council v Mooney

Judgment 1EMMETT JA: This appeal arises out of an injury suffered by the respondent, Mrs Sheila Mooney, when she was walking with her husband on a path adjacent to Major Innes Road within the area of the appellant, Port Macquarie Hastings Council (the Council). Mrs Mooney sued the Council in the District Court, alleging that her fall was caused by the Council's negligence. On 19 June 2013, for reasons given on 9 May 2013, a Judge of the District Court gave judgment for Mrs Mooney against the Council in the sum of $122,168.66. By Notice of Appeal filed on 8 August 2013, the Council appeals to this Court from that judgment. 2At the time of the accident, it was dark and there was no street lighting. The footpath crossed a gully or drain and there was a need for a sharp deviation for people walking along the footpath in order to cross the gully or drain. The trial judge said that the matter in question was whether the Council should have provided lighting, or barriers, or flashing lights on barriers to indicate that the path deviated from a straight line. His Honour found that, because of the darkness and the failure to put in barricades and warning lights, Mrs Mooney could not see the deviation in the footpath and, as a result, continued walking to a stage where she stepped and fell into the gully or drain. 3The trial judge found that, where the path veered to the left across the drain or gully, the Council should have placed the normal wooden barricades that one frequently sees and placed flashing lights upon it as often is the case where roadwork, footpath work and similar work have been carried out. That, his Honour said, would have clearly indicated the footpath's deviation to Mrs Mooney, would have reminded her as to where the gully or drain was and would have enabled her and her husband to turn left on the footpath, cross over the drain or gully and then head towards their home. 4The trial judge concluded that the risk of injury was foreseeable within the meaning of s 5B of the Civil Liability Act 2002 (NSW) (the Civil Liability Act), that the risk was not insignificant, and that, because of the minimal expense that would have been involved in the Council either providing its own barriers or hiring barriers, doing so was something to which the Council should have attended. By failing to do so, there was a real probability that harm would occur, with the harm having potentiality for seriousness. His Honour therefore concluded that the Council had breached its duty and that ss 5B and 5C of the Civil Liability Act were of no avail to the Council. His Honour was satisfied that the failure to put in barricades and flashing lights was unreasonable on the part of the Council. While his Honour accepted that it may not have been required of the Council to provide permanent lighting at that time because the path was only a temporary path, barricades with flashing lights should have been provided to indicate the potentiality of the danger. Accordingly, his Honour concluded that Mrs Mooney had established negligence on the part of the Council. 5I have had the advantage of reading in draft form the reasons of Sackville AJA. I agree with his Honour, for the reasons given by him, that the appeal should be allowed. I agree with the orders proposed by his Honour. 6SACKVILLE AJA: The respondent succeeded in a claim for damages against the appellant (the Council) for injuries she sustained in a fall which occurred on 22 November 2008: Mooney v Port Macquarie Hastings Council (District Court (NSW), McLoughlin DCJ, 9 May 2013, unrep). The primary Judge assessed damages at $122,168.66 and entered judgment for the respondent in that amount. 7The Council has appealed to this Court. The notice of appeal challenges the primary Judge's finding that the Council breached its duty of care to the respondent. The Council also challenges aspects of the damages award.

The Accident 8The respondent was 69 years of age when the accident occurred. She and her husband (Mr Mooney) moved to their residence in Port Macquarie in September 2007. In June 2008, in circumstances to be described, the Council constructed a temporary gravel footpath to enable pedestrians to walk along a continuous footpath from a roundabout close to the respondent's house to a supermarket. The footpath ran roughly parallel to Major Innes Road for a distance of approximately 1.2 kilometres. 9It is not clear whether the respondent had walked to the supermarket from her home before the temporary footpath was constructed. However, she had walked along the continuous gravel footpath during the day on about 12 occasions before the date of the accident. On these occasions she usually walked to her home from the supermarket (while Mr Mooney drove home with the shopping). 10On 22 November 2008, the respondent and Mr Mooney set off at about 7:00 pm to walk to the supermarket. This was the first time Mr Mooney had walked on the gravel footpath. When they left the house, the sun was shining. 11The respondent and Mr Mooney duly reached the supermarket and, after spending a short time there, began the return journey home along the footpath. When they left the supermarket, the sun had already set but, as the primary Judge found, it was still light. Sunset that day was at 7:31 pm. 12As the respondent and Mr Mooney retraced their steps, all light from the sun gradually disappeared and it became very dark. According to the evidence of Mr Mooney, who was regarded by the primary Judge as a truthful witness, there was a dense cloud cover and no moon was apparent. Even so, neither the respondent nor Mr Mooney appreciated when they left the supermarket that it would quickly become so dark that visibility would be severely restricted and would make the journey home more hazardous. By the time they realised how dark it had become, they were well on their way home and made the decision to journey on as best they could. 13The accident occurred at about 8:15 to 8:20 pm, at a point about nine-tenths of the distance along the footpath from the supermarket to the roundabout near their home. At that point, there was no artificial lighting either along the path or along Major Innes Road. According to the respondent, whose evidence was also accepted by the primary Judge, it was "pitch black" and she was "unable to see the footpath and could barely see a very short distance in front of [her]". 14The accident occurred when the respondent left the footpath on which she was walking at a point close to where the path deviated sharply to the left (in the direction she was travelling). The deviation enabled the path to cross over a stormwater drain that was located between Major Innes Road (on the right) and the neighbouring properties (on the left). Beyond the deviation (heading in the direction of the roundabout) the drain was between the gravel path and the road. Before the deviation (that is, closer to the supermarket) the drain was between the gravel path and the neighbouring properties. 15The primary Judge found that the respondent could not see the deviation in the footpath and as a result "continued to a stage where she stepped and fell into the gully or [drain]". His Honour later found that after the respondent had left the footpath (and presumably before her fall) she crossed a grassed area adjacent to the path. However, he also found that the respondent did not detect the change in the surface from the gravel footpath to grass because in the darkness she was concentrating on her own safety. 16In consequence of the accident, the respondent suffered a trimalleolar fracture of the right ankle which required surgery.

The Footpath 17There was a dispute in this Court as to whether the Council constructed the temporary gravel footpath in its entirety in June 2008, or whether the work only involved filling in gaps in a pre-existing pathway linking the area near the roundabout to the supermarket. The evidence on the point was limited and his Honour made no express finding as to the exact nature and extent of the work carried out by the Council. 18The origins of the construction of the temporary footpath in June 2008 appear from an internal email sent by the Council's construction engineer, Mr Jenkins, on 4 March 2008, as follows: "I've been receiving some pretty persistent requests for a footpath on Major Innes Drive linking the new roundabout at St Columba [sic] School to the Coles development on the Oxley Highway. Due to property acquisition issues and the forecast funding it looks like the upgrade of this section won't happen until at least 2009/10. I'm sure the people contacting me won't have the patience to wait that long for a footpath. I've had a good look at the section in question and, since the trees have been cleared there is ample room for pedestrians. The existing gravel sections are currently in good enough condition to provide all weather access to pedestrians. There are, however, a couple of sections where pedestrians have to cross shallow open drains and maybe another section where the vegetation might be forcing pedestrians onto the road. ... Can you consider spending a day out there with a backhoe to simply form a gravel path clear of the roadway to provide a continuous link? As [I] said the majority of this path is already there and with a minor amount of work I think we will please a number of the locals." (The primary Judge found that the email was sent on 4 March 2008, although the documentation suggests it was originally sent on 8 February 2008. Nothing turns on the precise date.) 19The Council subsequently engaged a contractor to construct the temporary gravel footpath. The invoice from the contractor was in evidence. It described the work as "CONSTRUCTION OF GRAVEL FOOTPATH AT MAJOR INNES DRIVE". The charge "AS PER OUR QUOTATION" was $15,057.90. The quotation was not in evidence and there was no more precise evidence as to the work actually carried out by the contractor. 20Following her accident, the respondent wrote to the Council on 15 December 2008. That letter was not in evidence, but the reply from the Council's Director of Infrastructure Services was. The reply was as follows: "I refer to your inquiry of 15 December 2008 requesting additional street lighting and handrails along the temporary footpath on Major Innes Road. I understand the distress this incident has caused you and thank you for bringing this to the council's attention. Council is currently preparing detailed design for the further upgrade of the section of Major Innes Drive. Construction of this widening work is largely dependent on the acquisition of property from an [adjoining] land owner. Negotiations with this owner are taking longer than anticipated and have subsequently [sic] delayed the start of the works. Council provided the current footpath as a temporary measure for the convenience of residents until the ultimate upgrade can be completed. The footpath will be removed as part of the upgrade and replaced with a combined footpath cycleway. Additional street lighting will also be provided as part of the upgrade works. Council are reluctant to undertake the further work on this temporary path as requested as it will be removed as part of the future work."

Primary Judgment 21The primary Judge identified the "matter in question" as whether the Council should have provided any lighting, barriers or flashing lights near the site of the accident to indicate that the footpath deviated near the drain. His Honour quoted from the expert report of an engineer, Mr Fogg, tendered on behalf of the respondent. Mr Fogg, who was not cross-examined, expressed the following opinion: "There were reasonable preventative measures that could have been implemented by the [Council] which would not have involved excessive expense in either their development or implementation. Among these we would include: SHORT TERM 1. The installation of temporary barriers and reflective hazard striping on the barriers at the change of direction of the temporary footpath across the drain to enable pedestrians to discern the change of direction to prevent pedestrians from being exposed to misadventure, particularly at night. ... 2. The installation of temporary flashing lighting as typically used in roadworks around the hazard (change of direction of the temporary footpath across the drain) to enable pedestrians to discern the change of direction of the temporary footpath and the location of the drain to prevent pedestrians from being exposed to misadventure, particularly at night until such time as the footpath was replaced with a combined footpath/cycleway and permanent street lighting installed. 3. The development and use by the Council of a risk management approach to the management of the temporary footpaths using an integrated inspection process as is typically provided ... and as articulated within Australia/New Zealand Standards AS/NZS 4360 Risk Management and AS/NZS 4804 Occupational Health & Safety Management Systems. This is to provide the appropriate identification and analysis of the hazards in access paths (footpaths) and to assess the risk level of injury in order that all safety, health and environmental issues are able to be identified and addressed. I understand that the Council has its own procedure for footpath inspection maintenance, however in this instance it appears that it was not used at the time that the temporary footpath was put into service." (Emphasis in original.) (The above quotation is taken from Mr Fogg's report, as the extract in the primary judgment has a number of transcription errors.) 22The primary Judge recorded the expert's conclusion that three factors had contributed to the respondent's injury. These were the failure of the Council to: ● provide clear visible cues identifying the drain so as to alert walkers to the change in direction of the pathway; ● install temporary barriers or warning lights in the area; and ● to develop and implement an appropriate checklist to assist in the identification of hazards associated with the temporary footpath and to manage any identified hazard. 23His Honour found that the Council was aware that the footpath, when upgraded, even temporarily, would be used by residents of the housing area to walk to and from the supermarket, both during the day and at night. His Honour considered that it would have been clear to the Council that: "the area of gravel footpath, which was being constructed [had to] cross the gully or drain and that there was a need for there to be a sharp deviation for people walking along the footpath to cross that gully or drain, and it would also have been obvious that should they not have been able to see it, that they were at real risk of falling into the gully or drain, as happened on this occasion." 24The primary Judge accepted that the respondent was required to establish with a degree of precision not only the location, but the manner and cause of her fall. However, the respondent had satisfied this requirement since she had shown that, because of the darkness and the failure to install barricades and warning lights, she could not see the deviation in the footpath and as a result "continued [until] she stepped and fell into the gully" and injured herself. 25The primary Judge also accepted that the respondent was unaware that she was crossing a grassed area after she left the gravel path. While his Honour recognised that this appeared to be surprising, it reflected the fact that the respondent was concentrating on her own safety. 26The primary Judge noted that the Council conceded that it owed a duty to the respondent to take reasonable care to protect her, or a class of persons of which she was a member, from a not insignificant risk that could reasonably be foreseen and avoided, on the assumption that she was using reasonable care for her own safety. His Honour also accepted the Council's submission that the criteria set out in s 5B of the Civil Liability Act 2002 (NSW) (Civil Liability Act) had to be applied, not with the benefit of hindsight, but by considering the matter prospectively. Thus the Council could not be held to have breached its duty of care merely because there were steps that it could have taken to avert the risk that actually eventuated. The respondent had to show that it was reasonable for the Council to take preventative measures to guard against the relevant risk. 27The primary Judge found that from the time the Council's construction engineer inspected the footpath, the Council became aware that the footpath deviated and that it had the potential to be used day and night by local residents. It would have been clear that the footpath constructed in June 2008 presented "a real risk of somebody going into the drain because of its deviation if there was no warning given." All that was required of the Council was to install wooden barricades and flashing lights. These measures would have clearly indicated to the respondent the deviation of the footpath and would have reminded her where the gully was. She and her husband could then have turned left on the footpath, crossed the gully and headed towards their home. 28His Honour expressed his conclusions as to breach of duty as follows: "the risk of injury was foreseeable, as set out in s 5B of the Civil Liability Act, was not insignificant and because of the minimal expense which would be involved in either the council providing their own barriers or hiring them, such that it is a matter that the council should have attended to. For the council to have failed to have done that, there was a real probability that harm would occur with the harm having potentiality for seriousness. In my view, that would have avoided the risk of harm and I am therefore of the view that the [Council] has breached its duty, that s 5B and s 5C of the Civil Liability Act are of no avail to the [Council]... [T]he [respondent] has established that the failure to put in the barricades and flashing lights was unreasonable by the [Council]. It may not have been required of the [Council] at that time to provide permanent lighting because that which had occurred was only on a temporary basis, however what should have been provided were the barricades with flashing lights to indicate the potentiality of the danger." In these circumstances, the primary Judge found that the respondent had established negligence against the Council. 29His Honour rejected the Council's claim that the respondent had been contributorially negligent. The respondent was well on the way home when total darkness fell. It was not unreasonable for her to continue the journey. She was attempting to ensure that she acted safely. 30After considering the medical evidence, his Honour concluded that the respondent had suffered a significant injury which had a severe impact upon her ability to enjoy life. Taking into account the potentiality for arthritis in the future, he assessed her disabilities at 28 per cent of the most serious case. According to the relevant tables, this justified an award of $75,000.00 in damages. 31After allowing $27,168.66 for past and future out-of-pocket expenses and $20,000.00 for future domestic assistance, the total award of damages to the respondent was $122,168.66.

Council's Submissions 32The Council abandoned or did not press a number of the grounds in the notice of appeal. In particular, it did not challenge the finding that if the Council had breached its duty of care, the respondent had not been contributorily negligent. Nor did the Council challenge the findings of primary fact made by his Honour, although Mr Sexton SC, who appeared with Mr Polin for the Council, submitted that his Honour's conclusion that the Council had breached its duty of care had overlooked aspects of the evidence and that his Honour had not made findings on some relevant matters. 33Mr Sexton's oral submissions did not necessarily bear a close relationship to the Council's written submissions. He advanced two principal arguments. 34First, the primary Judge erred in finding that the risk of a pedestrian falling into the drain at night was foreseeable and not insignificant (Civil Liability Act, s 5B(1)(a),(b)). Mr Sexton submitted that there was no evidence as to how often nights were so "pitch black" that a pedestrian, exercising due care for his or her own safety, would be unable to follow the gravel footpath. In the absence of such evidence, his Honour could not have concluded that the Council should have known that there would be a risk of injury to pedestrians who, notwithstanding that it was "pitch black" would persist in shuffling along the path. Nor should his Honour have concluded that the risk of harm was not insignificant. 35Secondly, the primary Judge should not have found that a reasonable person in the Council's position would have taken precautions to guard against the risk of a pedestrian inadvertently leaving the footpath in response to requests from residents. The Council, as the correspondence showed, was concerned to remove the danger to residents created by the need to cross open drains in order to travel between the roundabout and the supermarket. In these circumstances, it could not reasonably have been expected to take further preventative measures, particularly as the gravel footpath was intended as a temporary measure pending construction of the permanent improvements, including lighting. 36Mr Sexton further submitted that the primary Judge incorrectly focussed on the specific measures required to prevent this particular accident. If the risk to be guarded against was that of a pedestrian being unable to keep on the footpath when it was completely dark, that danger was not limited to the point at which the footpath deviated as it crossed the drain. The risk existed for all sections of the footpath where there was no artificial lighting. Consequently, in order to take precautions against a pedestrian suffering harm because of his or her inability to keep to the footpath, it would have been necessary for the Council to place barriers or flashing lights along virtually the whole length of the footpath. 37In developing this argument, Mr Sexton submitted that the primary Judge had not identified the relevant risk correctly. His Honour said that the obvious risk was that "of falling into the gully or drain" by reason of the deviation in the footpath. But in fact the respondent had not fallen into the drain in the manner implied by his Honour's statement. The evidence indicated that she had left the footpath shortly before it deviated to the left, walked across grass and then, just before reaching the verge of Major Innes Road, slipped down the side of the drain. The relevant risk was that a pedestrian walking along the footpath on a very dark night would unwittingly leave the pathway and, in consequence, slip or fall and sustain injuries. The relevant risk was not limited to that of a pedestrian falling into the drain at the point where the path happened to deviate, and it followed that the relevant precaution would be to barricade the whole of the footpath.

Respondent's Submissions 38Mr Morris SC, who appeared with Mr Harrington for the respondent, submitted that the primary Judge was justified in finding that the Council was or should have been aware that construction of the footpath created a risk of injuries to pedestrians in areas where there were shallow open drains. The email of 4 March 2008 from the Council's construction engineer showed that the Council intended, in effect, to construct a complete footpath from near the roundabout to the supermarket. By constructing a complete footpath the Council was actively encouraging residents to use the pathway. It must have known that the construction of the gravel footpath would make it more likely that residents would use that pathway to walk to and from the supermarket, both during the day and the night. 39The Council was aware of the existence of the stormwater drains and that they constituted a hazard. The Council was also aware of the absence of any artificial light in the area. It therefore should have been aware that there would be a risk of pedestrians leaving the footpath in darkness at a point near one of the drains. That inevitably would create a risk of injury by reason of the pedestrian falling or slipping into the drain. 40Mr Morris further submitted that Mr Fogg's uncontested evidence demonstrated that there were preventative measures that the Council could easily have taken to ensure that pedestrians traversing the footpath at night would not be exposed to the risk of injury by falling or slipping into the drains. The primary Judge had correctly identified the simple preventative measures that could have been employed, specifically the erection of temporary barricades or flashing lights to warn pedestrians of the potential danger. 41Mr Morris submitted that the risk of injury was clearly foreseeable and that a reasonable person in the position of the Council would have taken preventative measures. While it was true that the Council constructed the footpath in order to meet the wishes of residents, this did not alter the fact that the Council had created a new hazard of which it was or should have been aware. 42Mr Morris submitted that the award of damages was also justified. While the evidence concerning the respondent's need for paid services was brief, it was enough to justify the very modest award made by the primary Judge.

The Evidence 43The argument on the appeal had a rather different emphasis than the submissions made to the primary Judge. At the trial, much of the cross-examination of the respondent and Mr Mooney was directed to a challenge to their evidence that it was "pitch black" at the time of the accident and that because of the absence of light, they were unable to follow the footpath as it deviated to the left. With a minor qualification, the primary Judge accepted the evidence of the respondent and Mr Mooney as to the lighting conditions. There is now no challenge to the finding that it was indeed pitch black at the time the respondent was injured. 44Whether because of the concentration on the state of the light or for other reasons, there was a dearth of evidence on some matters that received attention on the appeal. The Council called no witnesses and the only significant documentary evidence it tendered was a record showing that the sun set at 7:31 pm on 22 November 2008. The only evidence of the condition of the pathway prior to the work carried out in June 2008 and of the extent of that work was the email from the Council's Construction Engineer of 4 March 2008 and the rather uninformative invoice from the contractor. This led to a dispute on the appeal as to whether the Council had constructed a completely new (albeit temporary) footpath in June 2008, or had merely filled in the gaps in a previously existing, but discontinuous, pathway. I refer to that dispute later ([69] - [70], below). 45An issue also arose on the appeal as to the point along the return journey from the supermarket at which artificial lighting disappeared and complete darkness descended. Both the respondent and Mr Mooney gave evidence as to where they were when it became pitch black. I also refer to this evidence later ([64] - [68], below). 46A good deal of the argument on the appeal concentrated on photographs taken of the temporary footpath after the accident, in particular photographs of the area at which the accident occurred. During the trial, both the respondent and Mr Mooney marked photographic exhibits to show the location of the accident and the direction in which the respondent walked or shuffled after she left the footpath until the point at which she slipped. 47It is necessary to bear in mind the warnings often given about the use of photographic evidence. As McColl JA observed in Tran v Nominal Defendant [2011] NSWCA 220; 58 MVR 462 at [172], the prevailing view appears to be that photographs cannot trump testimonial evidence, but rather can be used by the tribunal of fact to explicate the evidence or to determine which of the explanations given by witnesses appears to be most worthy of acceptance. See also Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85; 53 MVR 187 at [20]-[29] (Beazley JA), [179]-[180] (Giles JA, with whom Allsop P agreed). In this case, for example, it is not at all clear from the photographs how far the respondent travelled once she left the footpath until the point at which she slipped into the drain. Nor do the photographs give a clear idea of the depth of the drain at the point at which the respondent slipped. Thus care must be exercised in relying upon the photographs, although they are helpful in understanding the evidence given by the respondent and Mr Mooney.

The Legislation 48Sections 5B and 5C of the Civil Liability Act provide as follows: "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." 49In Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360, Campbell JA (with whom McColl JA and I agreed) said (at [173]): "Section 5B is not a self-contained statement of the circumstances in which a liability for negligence will arise. Rather, subsection (1) sets out three preconditions that must co-exist before a liability in negligence arises, when the type of negligence alleged is failure to take precautions against a risk of harm arising. ... Subsection (2) provides a non-exhaustive list of factors the court is required to take into account in deciding whether the third of those preconditions exists. Section 5B presupposes the existence of the law of negligence, and operates against its background." 50In determining whether a reasonable person would have taken precautions against a risk of harm, the Court must take into account the matters identified in s 5B(2) of the Civil Liability Act and must apply the principles stated in s 5C. The question is to be addressed and answered prospectively, not with the wisdom of hindsight: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [31] (per curiam). Moreover, the Court must not focus exclusively on the way in which the accident came about; the causes of the accident that has happened cannot be equated with the inquiry mandated by s 5B of the Civil Liability Act: State of New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [58] (Gummow and Hayne JJ, citing Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [124] (Hayne J)). 51Of the principles stated in s 5C of the Civil Liability Act, s 5C(a) is perhaps most important to the present case. Section 5C(a) requires a court, in applying s 5B(2)(c), to take account not only of the burden of taking precautions to avoid a particular risk, but the burden of taking precautions to avoid similar risks of harm for which the person is responsible. An example is a case where a plaintiff claims that a local authority should have erected a sign warning against the dangers of diving into the sea from a particular rock. In determining whether the local authority, acting reasonably, should have erected a warning sign, it is necessary to take into account that the authority might have to erect many other signs to warn against similar dangers: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [7] (Gleeson CJ and Kirby J) (a case under the general law); Dominic Villa, Annotated Civil Liability Act 2002 (NSW), (2nd ed 2013, Lawbook Co.) at [1A.5C.010].

The Risk of Harm 52In order to apply both ss 5B and 5C of the Civil Liability Act it is necessary, just as it was under the pre-existing general law, to identify the relevant "risk of harm": Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34; 188 LGERA 169 at [56] (Beazley JA, with whom Whealy JA and I agreed). As Gummow J (with whom Heydon J agreed) pointed out in Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 at [59], it is only through the correct identification of the risk of injury that a court can assess what a reasonable response to the risk might be. 53It is not necessarily easy to identify the nature of the risk of harm in a particular case. The relevant risk of harm for the purposes of s 5B is the risk which materialised when the plaintiff was injured: Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151 at [7] (Basten JA). (Meagher JA and Tobias AJA took a different view on a timing issue but they cast no doubt on this proposition). In the present case, therefore, the risk of harm was that which materialised when the respondent slipped down the drain and was injured. But it is still necessary to identify what that risk was. 54The foreseeable risk identified by the primary Judge, against which the Council should have taken precautions, was that a pedestrian, particularly at night, would fall into the stormwater drain into which the respondent slipped. In my opinion, this description of the risk of harm is not a complete or accurate reflection of the circumstances of the respondent's injury or the risk of harm that materialised. 55The respondent gave evidence that as she approached the deviation in the footpath she thought she was continuing to follow the pathway, and did not realise that she was veering off it. She marked on a photograph (Exhibit D) the direction she walked or shuffled after leaving the footpath. Her marking showed that she did not fall into the drain immediately after leaving the footpath, but proceeded slowly along a grassed or dirt area between the drain and Major Innes Road. At about the time she reached the shoulder of the roadway she encountered the slope leading into the drain and slipped down the slope. She thought that her ankle was broken when she hit "that concrete thing" (presumably the culvert). The respondent estimated that the depth of the drain was about a metre at its lowest point. She also said that it was so dark that she did not see a white post or barrier located on the shoulder of Major Innes Road, even though she came within a metre of the post. 56The markings placed by the respondent on Exhibit D indicate that she travelled some distance over the grassed or dirt area before she slipped into the drain. In her examination in chief, she appeared to accept that she shuffled some ten or fifteen metres from the footpath before she slipped. In cross-examination she accepted the suggestion that when she slipped she was about five metres away from the point at which the footpath deviated to the left. While her evidence was somewhat imprecise, it is clear that the respondent proceeded some metres away from the footpath before slipping into the drain and sustaining her injuries. 57In determining the risk of harm that materialised when the respondent sustained injury, the nature of her case is of some importance. The respondent contended that the risk of harm was created by the Council's actions in constructing the footpath or in completing the previously discontinuous footpath. These actions were said to have encouraged people, local residents in particular, to use the footpath as a means of walking between the roundabout near the respondent's home and the supermarket, both during the day and at night. 58The characterisation of the risk of harm for the purposes of s 5B of the Civil Liability Act is assisted by the reasoning in Mr Fogg's report. (Although the primary Judge quoted Mr Fogg's conclusions, he did not refer to the reasoning). Mr Fogg said that in order to analyse the respondent's accident, it was important to have a clear understanding of the mechanism of injury. He classified falls as either "elevated falls" or "same level falls". However, he classified this accident as: "a step and fall where the step and fall is a mis-step when the walker encounters an unexpected change in level of the walking surface which results in a loss of balance and a fall." 59According to Mr Fogg, a step and fall usually occurs when the pedestrian's front foot encounters a surface lower than expected, such as stepping off an unseen or camouflaged height differential on a walking path. The change in height does not need to be abrupt and a small deviation in a walking surface, such as one half inch (12 mm) depression can cause a sudden, unexpected loss of balance and a fall. In order to avoid overstepping or mis-stepping the walker must properly perceive the location of the height differential or change in the walking path. Mr Fogg also said that in order to see a hazard on the walking path, it is necessary to detect the edge of the hazard that separates "the current walking level and the change in height." 60Mr Fogg identified "[t]ypical management methods used to mitigate the possibility of injuries due to obstacles, obstructions, height differentials and potholes in the walking path". These included the "installation of demarcation lines or lighting to identify walking areas, particularly at height differentials or changes in direction" and "[p]rovision of barricading around identified hazards." 61Mr Fogg opined that the use of a typical inspection guideline would have made it apparent that there was no hazard delineation on either side of the stormwater drain at the point where the temporary footpath crossed the drain and that there was no street lighting present. He concluded that a reasonable person "with the most basic of safety systems understanding" would have ensured that the necessary hazard control measures, in the form of barriers on either side of the footpath, were installed to warn pedestrians of a change of conditions as they approach the drain crossover. 62Mr Fogg's own analysis, however, shows that it was not just a matter of the Council identifying the particular risk created by the deviation in the path and the construction of a crossover in the area where the respondent left the footpath and then slipped. He said that "Councils generally use a Risk Management approach to pedestrian safety" incorporating a "typical inspection guideline as provided in Figure 6". This approach is designed: "to provide the appropriate identification and analysis of the hazards in access paths (footpaths, nature strips) and to assess the injurious potential (risk level of injury) to which those using the footpath/nature strip may be subject to, in order that all safety, health and environmental issues are able to be identified and addressed." (Emphasis added.) Figure 6 in Mr Fogg's report identified a range of hazards that can lead to a slip, trip and fall accident. The hazards include: ● trip: where the pathway is raised more than 20 mm; ● slip: where the surface of the pathway is unsafe or damaged; ● drop: where the surrounding ground level drops more than 60 mm; and ● build up: where grass, sand or debris covers forty per cent of the pathway or more. 63Mr Fogg did not consider how many hazards of the kind he identified in his report would have been detected had the Council conducted a risk management assessment of the entire length of the temporary footpath, although he indicated that if such an assessment been conducted, "it should have become apparent that there was no hazard delineation on either side of the drain... as well as very limited or no street lighting present". Nor did he consider what hazards would have been detected if the Council had made an assessment of that portion of the footpath which might be in complete darkness if meteorological conditions were such as to eliminate any source of natural illumination. Had these assessments been carried out, it may well be that on Mr Fogg's approach, the Council would have been required to remove or ameliorate a significant number of hazards. 64This point can be illustrated by the evidence given by the respondent and Mr Mooney as to when it became completely dark in their return journey. Their evidence diverged slightly on this question. The respondent's evidence was not entirely internally consistent, but in cross-examination she said that it had become completely dark by the time she and Mr Mooney reached an access road for buses, which connected with Major Innes Road across the footpath. She was not asked to estimate the distance between the access road and the site of her accident, but the aerial photographic evidence suggests that it was a significant proportion of the total length of the footpath. 65Mr Mooney's evidence was that it had become completely dark some distance before he and the respondent reached the access road. He agreed with the cross-examiner that they shuffled along the footpath in complete darkness for some hundreds of metres before reaching the point at which the respondent inadvertently left the path and then slipped into the drain. During this time, Mr Mooney could see nothing in front of him other than his wife and could see nothing at all of the path or of the ground on either side of the path. 66A risk assessment of the temporary footpath, in its condition after the construction work in June 2008, would have had to consider the risk of harm posed to pedestrians for its entire length of more than a kilometre. If the risk assessment focussed only on that portion of the footpath which was liable to be affected by "pitch blackness" (because of the absence of ambient light), it would have had to consider the risk of harm to pedestrians who attempted to negotiate the path in complete darkness over a distance of at least several hundred metres. A risk assessment, for the reasons given in Mr Fogg's report, could hardly have been confined to the area near where the respondent left the footpath and slipped into the drain. 67The risk of harm that materialised in this case was not, as the primary Judge's formulation perhaps implies, that a pedestrian might become disoriented in complete darkness and fall directly from the edge of the footpath into the stormwater drain. Nor was the risk of harm simply that a pedestrian unable to follow the path would inadvertently leave the footpath as it deviated sharply near the particular crossover traversing the stormwater drain and suffer injury as a consequence. The relevant risk of harm created by the construction or completion of the footpath was that in complete darkness a pedestrian might fall and sustain injury by reason of an unexpected hazard on the path itself (such as an unsafe surface or variation in height) or by unwittingly deviating from the path and encountering an unseen hazard (such as loose gravel, a sloping surface or a sudden drop in ground level). The risk of harm created by the construction of the footpath no doubt included the risk that a pedestrian would deviate from the footpath near the crossover and slip on loose gravel on the edge of the stormwater drain. But the risk of harm created by the construction of the footpath was not confined to the particular hazard that caused the respondent to suffer an injury. 68The respondent's argument seemed to assume that the risk of a pedestrian inadvertently leaving the footpath in complete darkness arose only in the area where the path deviated to the left to traverse the stormwater drain. Quite apart from the other risks to a pedestrian proceeding along an unlit and unmarked path in complete darkness, as identified by Mr Fogg, there was a risk that a pedestrian might inadvertently leave the footpath otherwise than at that point. For example, Mr Mooney accepted that one of the photographs (Photograph 18, Blue 313) correctly depicted a bend in the footpath a little beyond the point they had reached when complete darkness fell. If there was a risk of harm by reason of the deviation in the footpath near the crossover, there was a risk of harm to a pedestrian who used the footpath in complete darkness and was therefore unable to see that it curved as it followed the line of Major Innes Road. In any event, even if the footpath was completely straight for its entire length (which it was not), in conditions of complete darkness there must have been a risk that a pedestrian would be unable to discern the pathway and would wander off the graded surface. Such a person, on Mr Fogg's analysis, would be at risk of injury from encountering uneven ground or an unexpected obstacle away from the footpath. 69I have referred to the dispute between the parties as to whether the Council in June 2008 constructed a completely new footpath between the roundabout and the supermarket or whether it merely filled in gaps in the existing pathway. The inference to be drawn from the construction engineer's email of 4 March 2008 is that the Council did not construct an entirely new footpath, but created new sections of gravel pathway to complete the pre-existing, but discontinuous, path. It did so in response to requests from residents for a continuous footpath between the roundabout and the supermarket pending completion of the more substantial permanent works along the same route. The Council had in mind that it was important to eliminate the need for pedestrians using the pathway to walk into and out of the one metre deep stormwater drain at more than one location. The evidence is unclear as to whether the work in June 2008 included any improvements to the pre-existing sections of the footpath. 70In my view, however, the factual dispute is of little moment. It is immaterial to the identification of the risk of harm for the purposes of s 5B of the Civil Liability Act whether the Council constructed an entirely new path or merely completed the pre-existing path. In either case, the risk was that pedestrians would use the footpath to walk between the roundabout and the supermarket and, in doing so at night, might encounter an unseen hazard, whether on the path or nearby, and suffer injury as a consequence.

Was the Risk of Harm Foreseeable and Not Insignificant? 71The requirement that a risk of harm be foreseeable is generally regarded as undemanding: see Koehler v Cerebos (Australia) Limited [2005] HCA 15; 222 CLR 44 at [33] (McHugh, Gummow, Hayne and Heydon JJ), [54] (Callinan J). Even so, I do not think it necessarily clear that the Council should have foreseen that a pedestrian, exercising reasonable care for his or her own safety, would attempt to traverse a footpath in complete darkness for a distance of at least several hundred metres without the aid of artificial light, such as a torch or even a mobile telephone. A pedestrian using the footpath would have to be aware of the absence of lighting along much of the route and of the dangers of walking in complete darkness even on a graded surface. The risk of harm would only arise if someone knowingly commenced walking in complete darkness or found himself or herself unexpectedly stranded on the path without any source of artificial light. 72There was no evidence as to the frequency with which "pitch black" conditions such as those encountered by the respondent would be experienced by someone using the path. Was this something that occurred regularly (for example, on moonless nights) or was it a rare phenomenon? What should the Council have known about this phenomenon? Similarly, there was no evidence as to whether the completion of the footpath in response to requests from residents encouraged them to use the footpath at night. Did they do so to a greater extent than when the path was in its pre-existing, discontinuous state? There was no evidence that anyone had complained prior to the respondent being injured about the absence of lighting along the pathway or that the footpath was hazardous to negotiate at night, although the provision of additional street lighting was part of the planned upgrade to Major Innes Road. 73I also have some doubt as to whether the risk of harm to a pedestrian was "not insignificant". Mr Morris correctly pointed out that the completion of the footpath was intended to encourage pedestrians to use the pathway, in the sense that the Council was responding to residents' demand for a complete pathway between the roundabout and the shopping centre pending completion of the planned permanent footpath. But encouragement to use the pathway during the day is one thing; encouragement to use it in conditions of complete darkness is another. The respondent did not dispute that the significance of a risk has to be assessed by reference to the conduct of someone taking reasonable care for his or her own safety. 74With some hesitation I have concluded that the risk of harm was foreseeable and not insignificant. Plainly the Council was aware of the route the footpath took and that there was no street lighting or other sources of artificial illumination along much of its length. While the Council was not shown to know that people used the path at night, pedestrians were not warned against doing so. Mr Fogg's evidence suggests that information was available to the Council identifying the risk that pedestrians might fall and injure themselves if confronted with hazards or obstacles that they could not see. With any fall there is a risk of injury and a proportion of falls can result in quite serious injuries. In this sense, the risk of harm was not insignificant.

Did the Council Fail to Take Reasonable Precautions? 75The primary Judge accepted Mr Fogg's opinion that the Council could have taken measures that would have prevented pedestrians unwittingly leaving the footpath at or near the point where it deviated and falling into the drain. The critical issue, however, is whether a reasonable person in the position of the Council would have taken precautions against the relevant risk of harm. As I have noted, that question must be answered prospectively and without the wisdom of hindsight. 76It is no doubt correct that the Council would have avoided this particular accident by erecting barriers or installing flashing lights at or near the deviation in the path. But the failure to do so does not establish that the Council, acting reasonably, should have taken precautions against the relevant risk of harm. As I have indicated, the risk was that a pedestrian, in complete darkness, might fall and sustain injury by reason of a hazard on the pathway itself or by reason of deviating unwittingly from the pathway and coming to grief on a hazard nearby. To guard against that risk of harm, the Council would not merely have had to install barriers or flashing lights at the point where the path deviated sharply. It would have had to take measures to guard against any hazard, of the kind identified by Mr Fogg, that would confront a pedestrian attempting to traverse the path in complete darkness. Since the evidence shows that the footpath could be enveloped in complete darkness for a distance of at least several hundred metres, the risk was not confined to the area at which the footpath deviated sharply. As Mr Fogg's report demonstrates, ameliorating the risk of harm created by completion of the footpath would have required account to be taken of potential hazards other than that associated with the sharp deviation near the stormwater drain. 77The major difficulty confronting the respondent is that the evidence does not address the precautionary measures that would be required to avoid the risk of harm, in the sense I have identified, created by the completion of the footpath. There is no evidence as to the nature of the measures that would be required or of their cost, both in financial and environmental terms. Nor is there evidence as to whether the precautions required to ameliorate hazards associated with use of the footpath at night would have ramifications for other pathways for which the Council was responsible (s 5C(a)). It is true that the Council elected to adduce no evidence on this point, but there is no obvious reason why Mr Fogg's report could not have considered the broader consequences for the Council. 78The evidence is silent on other matters relevant to the question of whether the Council should have taken precautions to guard against the risk of harm. The Council completed the path in response to requests from residents and with a view to eliminating some hazards associated with use of the pre-existing discontinuous pathway. Its actions plainly had some social utility that should be taken into account in determining the precautions, if any, that should have been taken (s 5B(2)(d)). There was no evidence as to whether the completed path was more or less dangerous than the discontinuous path, taking into account the extent of use both during the day and at night. Despite Mr Morris' insistence that the Council's actions encouraged residents to use the pathway, there was no evidence as to whether they (or others) were induced to use the pathway more often at night, when there was a greater risk of pedestrians slipping and falling. The evidence therefore said very little about the probability that harm would occur if precautions were not taken (s 5B(2)(a)). 79A further factor that must be taken into account in this case is the temporary nature of the footpath. The Council made the point in its letter to the respondent of 28 January 2009 that it was reluctant to undertake further work on the temporary path because of the imminent upgrade that was to (and did) involve the removal and replacement of the entire footpath. An assessment of whether a reasonable Council would have taken precautions against the risk of harm has to take into account that the completion of the footpath was a temporary measure undertaken for the convenience of residents and that any further expenditure or commitment of resources would have no lasting benefit. Mr Fogg's report does not deal with this issue, although he was aware that the footpath was a temporary measure until the ultimate upgrade was completed. 80The assessment also has to take into account that the temporary footpath was intended to eliminate or ameliorate risks associated with use of the pre-existing incomplete footpath and apparently did so. In the absence of evidence that more people were in fact encouraged to use the footpath at night, it is not apparent that the Council's actions increased the risk of harm to users of the footpath. This of course is not decisive as to the precautions that a Council, acting reasonably, should have taken against the risk of harm, but it suggests that the Council's unwillingness to devote further resources to the temporary footpath, in the circumstances then prevailing, was not unreasonable. 81In my view, the primary Judge's finding that the Council breached its duty of care was based on an incorrect identification of the "risk of harm" and, despite the primary Judge correctly stating the legal principles, also focussed unduly on the steps that could have been taken by the Council to avoid this particular accident. When the nature of the risk of harm is appreciated, the evidence is insufficient to support a finding that a reasonable person in the position of the Council would have taken precautions against that risk. It follows that the primary Judge erred in finding that the Council breached its duty of care to the respondent.

Other Issues 82In view of this conclusion, it is not necessary to address other issues that arose in the course of argument. However, for the sake of completeness, two such issues should be mentioned.

The Council's Reliance on s 43A of the Civil Liability Act 83Mr Sexton acknowledged that the Council had made no detailed submissions to the primary Judge concerning s 43A of the Civil Liability Act (which deals with proceedings against a public authority based on the exercise or failure to exercise a "special statutory power"). Although Mr Sexton did not concede that the Council had not properly pleaded a defence based on s 43A, such a defence was not adequately pleaded. Moreover, the somewhat lengthy argument that Mr Sexton sought to advance in his oral submissions was not addressed or foreshadowed in the Council's written submissions filed in connection with the appeal. The respondent objected to the Council using these arguments for the first time in oral argument. 84In these circumstances, the Court indicated to Mr Sexton that it considered that the Council should not be permitted to rely on s 43A.

Paid Care Services 85The primary Judge awarded the respondent a modest sum of $20,000.00 as damages in respect of her need for paid care services. This was about one-third of the amount sought by the respondent, which was based on a need for paid services of about four hours per week. If it were necessary to resolve this issue, I would conclude that the medical evidence, particularly that of Dr Bodel, and the respondent's own evidence were sufficient to support the award made by the primary Judge.

Conclusion 86For the reasons I have given, the appeal must be allowed. I propose the following orders:

1. Appeal allowed.
2. Set aside the orders made by the primary Judge on 19 June 2013.
3. In lieu thereof make the following orders: 1 Judgment for the defendant (Council). 2 The plaintiff pay the Council's costs of the proceedings.
4. The respondent pay the Council's costs of the appeal.
5. The respondent, if otherwise qualified, to have a certificate under the Suitors' Fund Act 1951 (NSW). 87SIMPSON J: I agree with Sackville AJA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 May 2014