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.