Citation : RANKILOR -v- CITY OF SOUTH PERTH [No 2] [2014] WADC 125

Negligence - Personal injury - Appellant tripped on raised edge of paver in footpath and fell - Paver edge raised by tree roots - Footpath in shade - Whether respondent in breach of duty of care to take reasonable care to keep the path reasonably safe for ordinary use - Inspection of footpath for hazards 12 to 14 months previously

Civil Liability Act 2002 (WA), s 5B, s 5Z

Local Government Act 1995 (WA), s 9.56, s 9.57

Occupiers' Liability Act 1985 (WA), s 5(4)(a)

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420

Botany Bay City Council v Latham [2013] NSWCA 363

Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512

Burwood Council v Byrnes [2002] NSWCA 343

Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217

Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Leeder v The State of Western Australia [2008] WASCA 192

Littler v Liverpool Corporation [1968] 2 All ER 343

Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 223; (1992) 35 FCR 359

Richmond Valley Council v Standing [2002] NSWCA 359

Stephens (t/as CTS Plumbing) v Giovenco [2011] NSWCA 53

Sutherland Shire Council v Henshaw [2004] NSWCA 386

1 JUDGMENT OF THE COURT: This is an appeal from a decision of Bowden DCJ in the District Court who dismissed the appellant's claim for damages for personal injury. The appellant contends that the primary judge erred in dismissing her claim. At the trial, which proceeded on the issue of liability only, the appellant appeared in person, as she did on the appeal.

2 On 18 March 2012, at about 10.15 am, the appellant and a friend, Mr Cannon, were walking along the footpath adjacent to 1 Angelo Street in South Perth when the appellant tripped over a protruding paver and fell face down onto the pathway. The pathway was straight and free of obstructions. It was a sunny day with good visibility, although the appellant said that a large peppermint willow tree cast a shadow across the footpath at the time.

3 According to the appellant, at the time of the accident she was walking normally, by and large looking straight ahead but occasionally glancing down. She had not used the pathway previously.

4 Mr Cannon was about 1 1/2 m in front of the appellant when he heard a noise and immediately turned around. He saw the appellant lying on the footpath and went to her assistance. Mr Cannon did not see the appellant fall but he noticed that one of the paving slabs was raised about one inch above the adjoining slab.

5 Mr Cannon then went to his car and returned to collect the appellant. He took her to Royal Perth Hospital where she was discharged later that afternoon. The appellant alleges that as a result of the fall she suffered, among other things, 'multiple soft tissue trauma', regular headaches, ongoing pain in the neck, upper back and left shoulder, and emotional distress.

6 The appellant subsequently commenced proceedings against the respondent. The precise nature of the allegations of negligence are not easy to discern from the appellant's statement of claim but in essence the appellant alleged that the respondent failed to inspect and maintain the footpath to prevent tree roots from causing the paver to lift.

7 The respondent denied that it was negligent. It further pleaded that the protruding paver was an 'obvious risk' within the meaning of s 5F of the Civil Liability Act 2002 (WA) and, accordingly, pursuant to s 5O of the Act the respondent did not owe the appellant a duty of care to warn of the risk. It also pleaded that it was not liable by virtue of s 5Z of the Act.

8 The action was dismissed by the primary judge, who gave detailed and extensive reasons.

9 The primary judge said that, 'except as otherwise specifically stated', he found the appellant and Mr Cannon to be credible witnesses as to the circumstances of the accident [23]. His Honour made factual findings that (1) the appellant had tripped on a paver in the pathway that, as a result of pressure from an adjacent tree root pushing the paver upwards, was approximately 20 mm to 25 mm higher along the width of its leading edge than the adjoining paver; (2) the pathway was shaded by a nearby tree at the location of the accident; and (3) at the time of the accident, the weather was fine and dry with good visibility along the pathway [23].

10 His Honour found that the respondent was under a duty to take reasonable care to keep the path reasonably safe for ordinary use and therefore avoid foreseeable risk of injury to the appellant and other pedestrians, but was not under a duty to ensure the safety of users of the path in all circumstances or to maintain the pathway so that its surface was even [35] - [36].

11 On the question of breach, the primary judge turned to s 5B of the Civil Liability Act. He found it was foreseeable that a pathway in close proximity to tree roots may become uneven as a result of tree roots causing some pavers to protrude above the rest and that a person using the pathway may trip on such a paver and suffer harm: s 5B(1)(a). He also found that it was not an insignificant risk in that it was more than far-fetched or fanciful: s 5B(1)(b).

12 In considering whether a reasonable person would have taken precautions against a risk of harm for the purposes of s 5B(2), his Honour found that it was probable, although not 'highly probable', that harm would occur if care were not taken: s 5B(2)(a); and that if a person tripped they might suffer harm, but that the likely seriousness of the harm was minimal: s 5B(2)(b) [48].

13 His Honour observed that the ordinary use of a pathway involves its use by pedestrians who know that the path surface may be uneven. It was also a common everyday occurrence that a path may be partly or fully covered by shade and it would have been obvious to anyone walking on the pathway that it was partly covered by shade. His Honour expressly rejected the evidence of the appellant and Mr Cannon that the protruding paver was not clearly visible because of the shade cast by the adjacent tree [51]. It is evident that on this topic he did not find them credible witnesses.

14 The primary judge observed that a reasonable defendant is entitled to expect that pedestrians will use reasonable care by looking where they are walking and observe unevenness in a pathway [52], and found that the protrusion of the paver was visible to any person navigating the pathway with reasonable care [51]. The primary judge also noted that whilst the appellant had submitted that she had not expected the protruding paver and had expected a smooth pathway, she had given no evidence of her expectations or awareness [55]. There was no evidence to rebut the presumption in s 5N of the Act that a person who suffers injury is presumed to be aware of a risk of injury if it was an obvious risk [56]. His Honour found it was obvious to the appellant that there was a risk the surface of the pathway may be uneven, as a result of tree roots or other imperfections, and that that could cause her to fall and be injured [57].

15 His Honour found there was no evidence of an available system of inspection of pathways or maintenance of tree roots, in addition to the systems the respondent used, which would have reduced the risk [68]. The appellant's contention that the respondent had failed to follow its own procedures for the maintenance of trees and footpaths was rejected. The primary judge found there was no evidence that those maintenance procedures had not been complied with or that they were inadequate [62] - [63].

16 The primary judge concluded that the pathway was reasonably safe for ordinary use and that the appellant had failed to establish that the respondent had breached its duty of care. He did so having regard to a combination of factors which, he said, included: (1) a pedestrian using the pathway would know that the surface may be uneven; (2) the respondent was entitled to take into account that the appellant was aware of that risk and aware of the need to use reasonable care in using the pathway; (3) there was a low probability of a person falling on an uneven surface of the pathway; (4) the likelihood of serious harm occurring as the result of a fall was minimal; (5) the burden on the respondent of examining and maintaining 230 km to 240 km of pathways and tree roots in the vicinity of those pathways; (6) the high social utility of footpaths; and (7) the lack of evidence of another available system for inspecting and maintaining footpaths and tree roots that would reduce the risk [71].

17 His Honour found that the respondent was not required to do anything in circumstances where it had no notice of a particular paver protruding from the pathway [72].

18 Whilst the appellant had not pleaded a claim based on the Occupiers' Liability Act 1985 (WA), his Honour went on to consider such a claim and concluded that, if that Act applied, there had been no breach of duty [77].

19 The primary judge found that, in any event, the respondent had a complete defence to the claim pursuant to s 5Z of the Civil Liability Act. Section 5Z provides, in effect, that a road authority is not liable in proceedings for harm arising from the failure of the authority to (relevantly) maintain or inspect any road or to consider the maintenance or inspection of any road, unless at the time of the failure the authority had actual knowledge of the particular risk that caused the harm.

20 The primary judge held that the pathway was a 'road' for the purposes of s 5Z as it was a 'thoroughfare ... that the public is entitled to use' within the meaning of the applicable definition of 'road' [88]. His Honour found that the respondent had no actual knowledge of the protruding paver which caused the appellant's injury [95]. He concluded that, accordingly, even if the respondent was in breach of its duty of care, s 5Z provided it with a complete defence [96].

21 In the event that he was wrong on the question of liability, the primary judge made a provisional finding of 50% contributory negligence by the appellant [111].

22 There are 26 grounds of appeal. No point would be served by setting them out. They are not in conventional form and a number of them concern matters that are not material to the primary judge's decision. As we understood the appellant's written and oral submissions, however, her essential contentions were that the primary judge erred in:

(1) finding that the paver protruded approximately 20 mm to 25 mm above the adjacent paver;

(2) finding that it would have been obvious to the appellant that the pathway may not be smooth;

(3) finding that the protrusion would have been clearly visible to a person navigating the pathway with reasonable care and rejecting the evidence of the appellant and Mr Cannon that it was not clearly visible because it was in the shade of a tree;

(4) accepting the evidence of witnesses for the respondent as to the respondent's footpath inspections in the absence of documentary evidence as to the inspections;

(5) failing to allow the appellant to lead evidence as to her injuries;

(6) refusing to admit into evidence a tree manager database document sought to be tendered by the appellant;

(7) finding that the respondent did not have a duty of care to the appellant under the Local Government Act 1995 (WA);

(8) finding that the respondent did not have 'actual knowledge' of the protruding paver for the purposes of s 5Z of the Civil Liability Act;

(9) failing to take into account the respondent's failure to provide proper discovery of documents;

(10) finding that there was 50% contributory negligence on the appellant's part.

23 We will treat those as the grounds of appeal for the purposes of the disposition of the appeal.

24 In the circumstances, it is appropriate to note at the outset that this appeal is by way of a rehearing solely on the evidence before the trial court. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125 - 126, Gleeson CJ, Gummow and Kirby JJ pointed out that that shapes the requirements and limitations of an appeal. They went on to say:

On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. (footnotes omitted)

25 It is also important to note that the onus on an appellant who appeals against findings of fact goes beyond merely showing that an alternative finding was available on the facts. The appellant must show that a factual error was made by the primary judge: Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 223; (1992) 35 FCR 359, 369; Leeder v The State of Western Australia [2008] WASCA 192 [84]. In addition, as Brennan, Gaudron and McHugh JJ pointed out in Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. Their Honours went on to say:

If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' (479). (footnotes omitted)

26 Against that background, we turn to the specific issues which arise on the appeal. It is appropriate to deal with grounds 1, 4, 5, 6, 7 and 9 before turning to grounds 2 and 3, where the real heart of the appeal lies.

27 The appellant submitted that the primary judge erred in finding that the paver protruded approximately 20 mm to 25 mm above the adjacent paver. There is no substance in that submission. In her statement of claim, the appellant pleaded that the paver 'was raised about an inch across width of expansion joint [sic]'. In cross-examination, she said it was 'at least 20 mm and I would say higher than that' (ts 333).

28 In his evidence in chief, Mr Cannon said that he looked at the paver immediately after the accident and estimated it was 'an inch [25 mm] or so' higher than the adjoining paver (ts 357). In cross-examination, he accepted that it could have been protruding by 20 mm (ts 371). In his evidence, Mr Dalton, the respondent's works and services coordinator, estimated that it was higher than the adjoining paver by about 20 mm 'if that' (ts 401).

29 The primary judge's finding that the paver protruded by approximately 20 mm to 25 mm was consistent with the evidence and with the appellant's pleaded case. It was unnecessary for his Honour to attempt to make a more precise finding than that.

Ground 4 - the evidence as to the footpath inspections

30 Mr Dalton gave evidence, which the primary judge accepted, that about 12 to 14 months before the accident the footpath in the area where the appellant fell had been inspected by a contractor employed by the respondent and that nothing was noted by the contractor as requiring attention [18] (ts 405, 411). The appellant submitted that his Honour had erred in accepting Mr Dalton's oral evidence in the absence of supporting documentary evidence. The appellant further submitted that in the absence of documentary evidence of such an inspection, the primary judge should have inferred that no inspection had been carried out.

31 There is nothing in either submission. The primary judge was entitled to accept Mr Dalton's evidence. The weight he gave to it was a matter for his Honour. The fact that he declined to draw the inference sought by the appellant does not demonstrate error.

Ground 5 - evidence of the appellant's injuries

32 The appellant argued that the primary judge erred in failing to allow her to adduce medical evidence of the physical injuries and psychological harm she allegedly suffered as a result of the accident. The appellant contended that his Honour should have 'overridden' the pre-trial order of the registrar that the trial be on liability only. The appellant submitted that in the absence of the medical evidence the primary judge could not take into consideration, among other things, the 'likely seriousness of the harm' for the purpose of s 5B(2)(b) of the Act or 'the gravity ... of the probable injury' under s 5(4)(a) of the Occupiers' Liability Act.

33 This contention is misconceived. The appellant did not attempt to lead medical evidence at trial and no application to allow medical evidence to be led was made. In any event, medical evidence as to the extent of the appellant's injuries was not material to the issue of liability that the primary judge had to decide. The questions under s 5B(2)(b) of the Civil Liability Act and s 5(4)(a) of the Occupiers' Liability Act were not to be determined by the actual injuries suffered by the appellant but by the objective criteria specified in each of those provisions.

34 The appellant also contended that the primary judge erred in finding for the purposes of s 5B(2)(b) of the Civil Liability Act that the likely seriousness of the harm as a result of a fall was 'minimal'. That finding was clearly open to his Honour. And contrary to what we understood to be the appellant's submission, it was not a matter on which medical evidence of the actual injuries suffered by the appellant would be of material assistance.

Ground 6 - the admission into evidence of a tree manager database document

35 It is not entirely clear to what this ground relates. The appellant tendered a 2006 tree management plan of the respondent which went into evidence, over the respondent's objection, as exhibit 11. It seems from the appellant's written submissions that the document the appellant complains the primary judge wrongly refused to admit into evidence was a document headed 'Tree manager, details form', which the appellant understood to indicate that staff of the respondent had attended the site of the incident in February 2012 to prune the adjacent tree. The appellant sought to tender it on that basis. The primary judge declined to accept it as it made no reference to the site and on its face was not evidence of an attendance at the site. His Honour told the appellant she could cross-examine the respondent's witnesses about it and the appellant did not press the tender (ts 320). A copy of what appears to be the document in question was before us. It is apparent from an examination of it that the primary judge was clearly correct in rejecting it, for the reasons he gave.

Ground 7 - the Local Government Act

36 The primary judge rejected the appellant's contention that the respondent was in breach of a duty of care which arose by virtue of s 9.56 and s 9.57 of the Local Government Act 1995 (WA), finding that those provisions did not give rise to a duty of care. His Honour was undoubtedly correct. Section 9.56 and s 9.57 deal with certain circumstances in which a local authority or certain persons associated with a local authority are protected from liability. They are not capable of giving rise to a duty of care on the part of the respondent.

Ground 9 - the adequacy of the respondent's discovery

37 The appellant submitted, in effect, that the respondent had failed to give discovery of documents which would have demonstrated that, contrary to the oral evidence of Mr Dalton, no prior inspection of the footpath in the area of the accident had been carried out.

38 The question of the adequacy of the respondent's discovery was the subject of another appeal to this court by the appellant which was heard at the same time as this appeal: Rankilor v City of South Perth [2016] WASCA 28. That appeal concerned two pre-trial applications the appellant had made for discovery of particular documents, on the basis that the respondent's discovery was deficient. Each of the applications had been dismissed by a deputy registrar of the District Court and an appeal from those decisions to a judge of the District Court was also unsuccessful. We in turn found there was no merit in the appellant's appeal from the decision of the District Court judge.

39 There is nothing before this court that might support the appellant's contention that the respondent failed to discover documents contradicting Mr Dalton's evidence or to suggest that there was any other material deficiency in the respondent's discovery.

40 We should also mention that on the appeal the appellant submitted that the trial should have been adjourned until after the appeal on discovery had been determined by this court (appeal ts 28). Two things need to be said about that. First, in light of the outcome of the appeal on discovery, that would not have altered the outcome of the trial. Secondly, the appellant did not seek an adjournment of the trial. The prospect of an application for an adjournment on that basis was canvassed at the commencement of the trial but the appellant ultimately elected to proceed with the trial (ts 292 - 294).

Grounds 2 and 3 - whether the protruding slab would have been visible to a pedestrian exercising reasonable care - the breach of duty

42 These grounds can conveniently be considered together.

43 The existence of a duty of care is to be determined according to common law principles: Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217 [77]. The question whether any duty of care found to exist has been breached is to be determined by reference to the Civil Liability Act, in particular s 5B: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [27].

44 Section 5B of the Civil Liability Act provides as follows:

5B. General principles

(1) A person is not liable for harm caused by that person's fault 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.

45 The primary judge made an unchallenged finding, in substance, that the respondent was under a duty to take reasonable care to keep the path reasonably safe for ordinary use; that is, reasonably safe for users exercising reasonable care for their own safety. On the question of breach, his Honour found there was a risk, of which the respondent knew or ought to have known, that a pathway in close proximity to tree roots may become uneven as a result of tree roots causing some pavers to protrude above the rest and that a person using the pathway may trip on such a paver and suffer harm: s 5B(1)(a); and that it was not an insignificant risk, in that it was more than far-fetched or fanciful: s 5B(1)(b).

46 The question then was whether a reasonable person in the position of the respondent would have taken the precautions the appellant alleges should have been taken; that is, to inspect and maintain the footpath so as to prevent tree roots from lifting the paver.

47 As the primary judge noted, claims by pedestrians who have been injured as a result of tripping on an irregularity in a pathway have often come before the courts. In such cases the courts have consistently pointed out that uneven paving stones and differences in levels in a pathway are part and parcel of daily life, and ordinarily pedestrians will be expected to exercise sufficient care by looking where they are going and observing and avoiding such hazards. A pedestrian is not entitled to expect that an outdoor pathway will be smooth and perfectly level.

48 It is sufficient for present purposes to refer to only a sample of the many authorities to that effect. While some of the cases pre-date the Civil Liability Act, they remain relevant as the Act is to be read against the background of the common law: Stephens (t/as CTS Plumbing) v Giovenco [2011] NSWCA 53 [28].

49 It is appropriate to start with the leading case of Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; [2001] HCA 29; (2001) 206 CLR 512. Brodie and Ghantous were heard together. Relevantly for present purposes, in Ghantous the applicant lost her balance and fell when she stepped from a concrete footpath onto an adjoining dirt surface, which due to soil erosion had subsided so that it was approximately 50 mm below the concrete surface. Her claim in negligence against the local authority was dismissed. In a well-known passage, Gaudron, McHugh and Gummow JJ said:

The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where ... the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger, ... or the surrounding area (as ... where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety ... Each case will, of course, turn on its own facts [163]. (footnotes omitted)

50 Their Honours agreed with Callinan J that there was no breach of duty by the respondent 'because the footpath was not unsafe for a person taking ordinary care' [166] - [167].

Even if I were to assume that an action in negligence lay against the respondent for any failure to maintain or improve the footpath to keep or make it safe ... I would conclude that there was no failure in that regard because the footpath was not ... unsafe. The case of the applicant in negligence was that a differential in height [of '50 mm or so'] between the concreted part of the footpath and the earthen part of it created a dangerous situation ... There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this [355].

...when general principles of negligence ...were applied, the courts insisted that an injured plaintiff had to show that the road or footpath was dangerous... The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land [6]. (footnotes omitted)

53 Gleeson CJ quoted with approval the following passage from the judgment of Cumming-Bruce J in Littler v Liverpool Corporation [1968] 2 All ER 343, 345:

Uneven surfaces and differences in levels 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.

54 In Burwood Council v Byrnes [2002] NSWCA 343, the respondent had tripped over a paver in the footpath and fallen heavily. The paver had sunk, resulting in a height difference of about 20 mm with adjacent pavers. The trial judge found for the respondent, concluding that the condition of the paver was discoverable on reasonable examination and the appellant was negligent in failing to repair it. That decision was overturned on appeal. In the course of his judgment, Handley JA (with whom Beazley and Hodgson JJA agreed) said:

The accident occurred in broad daylight in fine weather. The plaintiff had a good view of this part of the footpath and there was nothing to prevent her seeing the uneven surface. ... If the plaintiff had been keeping a proper lookout she could have passed in safety either by avoiding the sunken area or by taking additional care as she walked across it.

A height differential of 20 mm is not an unexpected or unusual danger to a pedestrian in the Sydney metropolitan area who is taking reasonable care and keeping a proper lookout [25] - [26].

55 His Honour then discussed Ghantous and concluded:

A Council's duty to pedestrians is therefore to take reasonable care to prevent or eliminate the existence of dangers in the road or footpath. The duty is not to prevent or eliminate 'obvious hazards' which 'could possibly be an occasion of harm' .... The standard of care is that which is reasonably required to protect pedestrians who are taking reasonable care for their own safety. The care which pedestrians must themselves take enters into the definition of the duty and is not relevant only to contributory negligence [33].

56 In Richmond Valley Council v Standing [2002] NSWCA 359, the 62 year old plaintiff was walking along a footpath when the toe of her shoe went into a crack or gap in the concrete of the path, her foot caught in it, and she fell. An appeal against a finding of negligence on the part of the local authority was upheld. Heydon JA (with whom Handley and Sheller JJA agreed) said:

The plaintiff, like pedestrians generally, was in an excellent position to see and avoid imperfections in the surface. There could have been no expectation on her part that the surface would be smooth. The unevenness in the paving slabs, the cracks and the holes at the place where the plaintiff was moving were as obvious as similar features all over the country, and as obvious as other common features like raised tree roots and manhole covers. There was no concealment of any of the features of the site which the trial judge criticised. There was no inadequacy in the lighting, or obscuring of the hazard by grass or otherwise. It was reasonable to expect the plaintiff to have seen what lay ahead of her as she walked along in broad daylight: what was there was obvious and called for no special vigilance.

So far as there was any hazard it was both not only obvious but insignificant and common. The condition of the pavement was typical of innumerable kilometres of pavements in the cities, suburbs and towns of this country. The imperfection was of a kind which users of footpaths have from childhood habituated themselves to look out for and avoid, in view of the fact that surfaces which pedestrians use may be uneven, not flat and not smooth. The imperfection was not a danger, a hazard or a trap ...

The reasoning of Hodgson JA (Foster AJA and Brownie AJA concurring) in Lombardi v Holroyd City Council [2002] NSWCA 252 at [32] applies here:

I do not accept that a plainly visible step of 25 millimetres in a footpath is correctly regarded as high risk or unacceptable risk. It is desirable that even obvious steps of 25 millimetres in footpaths be avoided and eliminated if possible; but that is not to say that the failure of a Council to detect and eliminate all such risk is negligent. As a general rule, in my opinion it is not [54] - [55].

57 In Botany Bay City Council v Latham [2013] NSWCA 363, the respondent tripped and fell while walking on a shaded, brick-paved footpath. Whilst the respondent could not identify precisely what she had tripped on, the primary judge found it was more probable than not that she had tripped on a paver or pavers that had been raised by adjacent tree roots. The primary judge found for the respondent, concluding that the appellant was negligent. That was reversed on appeal. The court found that the respondent had failed to establish there was any apparent irregularity in the footpath beyond what might be expected on an unexceptional footpath in a suburban street. The appellant was not negligent in failing to inspect the area or eliminate unevenness in the pavers.

58 In Sutherland Shire Council v Henshaw [2004] NSWCA 386, Bryson JA commented that there had been many cases arising from trips and falls on footpaths since Ghantous and, whilst noting that each case must turn on its particular facts, went on to observe:

As a generalisation, cases based on tripping hazards where there are height discrepancies in the order of 25 mm or 1 inch between otherwise regular paving slabs generally do not succeed; discrepancies treated as tripping hazards are usually greater and often are highly irregular or have some other unusual features [70].

59 While it is important to emphasise that cases in this area are fact-sensitive, his Honour's observation nevertheless reflects the difficulty that a plaintiff will ordinarily face in establishing, in the absence of some special factor, that a height discrepancy of such a magnitude on an ordinary footpath renders the footpath unsafe for users exercising reasonable care for their own safety.

60 On the appeal to this court, the appellant placed considerable weight on her contention that the raised paver was not readily visible because it was obscured by the shade from an adjacent tree, and that as a consequence she could not see it. The appellant submitted that the primary judge was in error in not so finding. We do not agree. The only relevant evidence in relation to this contention was the appellant's evidence and (insofar as it was supportive) the evidence of Mr Cannon. His Honour was not bound to accept that evidence and he was not in error in declining to accept it.

61 The appellant's claim that the shade had obscured the protruding paver was not referred to in the statement the appellant gave to an assessor, which she signed on 15 April 2012 (exhibit 9). In the statement, the appellant described the accident, relevantly, as follows:

1. The weather was fine and dry and the visibility was good. I was wearing walking shoes.
2. I was walking slightly behind [Mr Cannon]. He was on my left hand side nearest the road and I was walking nearest the property line when in front of number one Angelo Street I caught my foot on a raised expansion joint and fell hitting the left side of my face, hands and knees on the ground.
3. ...
4. The path was raised about an inch across the width of the expansion joint. I tripped on this height difference. (emphasis added)

62 The issue was also not mentioned in the appellant's statement of claim, where the accident was described as follows:

At 10.15 am on 18.3.12, I was walking along Angelo Street in South Perth in South Perth on the right side of the footpath (corner Labouchere Road) with Mr Keith Cannon. I caught my foot on a raised expansion joint and fell face first onto the concrete slab ... The path was raised about an inch across width of expansion joint [sic]. I tripped on the height difference.

63 The accident was described in similar terms in the appellant's opening but she added:

At the time it was fine and sunny but there was a big willow tree casting this huge shadow ... (ts 302)

64 In her evidence in chief, the appellant described being in Angelo Street, walking 'maybe a metre and a half' behind Mr Cannon, and continued:

And anyway, at this location, there's a huge peppermint willow tree. And I tripped over the raised slab, went face first down onto the pavement. (ts 305)

65 The allegation that the appellant could not see the protrusion because of the shade was made for the first time in cross-examination of the appellant, as follows:

And you'd agree it was a bright, sunny day about 10.15 or 10.30?---It was a bright sunny day but the tree this huge shadow over the area so I couldn't see it [sic].

So you weren't looking down when you were walking?---Well, I didn't think it appropriate to be looking down. I mean, I was just walking as I normally walked.

Which is, what, looking straight ahead but not looking down?---Well, pretty much. I wasn't looking down, I wasn't looking up at the sky. I was just walking as any normal person would be. (328 - 329)

66 It was not a matter referred to in Mr Cannon's evidence in chief. In the course of cross-examination by counsel for the respondent, Mr Cannon gave the following evidence:

Mr Cannon, on the date of this incident, which I understand to be 18 March 2012, was the weather fine and dry?---Yes. Yes.

And visibility good?---It was good, yeah.

Yes. And when you were walking along in front of [the appellant], was there anything to obstruct your view on the path? You know, could you see straight ahead?---The shade - there was shade from the ...

Sorry?---There was shade from the tree.

Yes?---Something disrupted my visibility because I didn't see the gap. If I'd of seen it, I'd gone - I would - I would have gone around [the appellant]. (ts 369) (emphasis added)

67 A little later in the cross-examination, Mr Cannon was asked about a photograph of the scene (exhibit 19) that the appellant said had been taken about a year after the accident and which 'shows the shaded conditions of the footpath at that sort of time of the year' (ts 365). His evidence regarding the photograph was as follows:

Can you see any shadows that would stop you from seeing where you're going or?---I was on the footpath, going up the footpath and - and it's all covered in shadow.

Like - was it just like that? Take us back on 18 March?---I - I guess it was just like that, but you walk - probably a different angle.

Yes. Okay?---Of that. (ts 370)

68 As might be inferred from Mr Cannon's somewhat hesitant evidence, an examination of the photograph, exhibit 19, indicates light shade, rather than dense shade, over the area.

69 In our view, the primary judge was entitled to find that the protruding paver was not so obscured by shade that it was not clearly visible to a person navigating the pathway with reasonable care.

70 In any event, we do not regard the issue of the shade over the footpath as decisive. The pathway was an ordinary suburban footpath. There was no reason a pedestrian using the pathway might reasonably expect it would be free of hazards such as uneven paving, tree roots, holes and the like commonly found in such pathways. The protruding paver was an imperfection that was no different from the sort of imperfection that a pedestrian might reasonably expect to come across in any ordinary suburban footpath. The mere fact that an adjacent tree cast shade over the pathway in the location of the accident did not of itself take it out of the ordinary. It is commonplace for footpaths in suburban streets to have shade cast over them by adjacent trees (both street trees and trees in adjacent residential gardens), buildings and other structures.

71 There was no evidence that anyone had previously tripped on the protruding paver or that the respondent was aware of the protrusion until the appellant reported the accident. The primary judge accepted that the footpath in the area in question had been inspected some 12 to 14 months previously for hazards and no irregularities had been found. His Honour took into account the burden on the respondent in inspecting and maintaining the 230 km to 240 km of footpaths for which it was responsible and found there was no evidence that there was available another practicable system of inspecting and maintaining the footpath that would have reduced the risk.

72 It was plainly open to his Honour to conclude, as he did, that the respondent was not in breach of its duty of care. His Honour did not make any material error in arriving at that conclusion and his decision that the respondent did not breach its duty of care was correct. It follows that the appeal should be dismissed.

Ground 8 - the s 5Z defence

73 In light of our opinion in relation to grounds 2 and 3, it is unnecessary to consider the primary judge's findings in relation to the respondent's defence under s 5Z of the Civil Liability Act. The application of s 5Z to the facts of the present case involves a significant question as to whether the definition of a 'road' for the purposes of s 5Z includes a footpath. While the equivalent New South Wales provision was considered in somewhat similar circumstances in Botany Bay City Council v Latham, the definition of 'road' in the New South Wales Act is in different terms to the Civil Liability Act. As we have not had the benefit of full argument on the proper construction of s 5Z, we would leave this issue to another occasion.

74 This issue does not arise in light of our finding that the appeal should be dismissed and it is unnecessary to deal with it.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RANKILOR -v- CITY OF SOUTH PERTH [2016] WASCA 29 (S)

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : RANKILOR -v- CITY OF SOUTH PERTH [No 2] [2014] WADC 125

Costs - Appeal dismissed - Application to set aside costs order in favour of respondent - No reason to depart from usual order as to costs

Rankilor v City of South Perth [2016] WASCA 29

1 JUDGMENT OF THE COURT: This is an application by the appellant to set aside a costs order made against her following the dismissal of her appeal.

2 On 12 February 2016, this court dismissed an appeal by the appellant from a decision of Bowden DCJ in the District Court who had dismissed the appellant's claim against the respondent for damages for personal injury: Rankilor v City of South Perth [2016] WASCA 29. The appellant was ordered to pay the respondent's costs of the appeal. As the appellant did not attend when the court delivered judgment on the appeal, despite having been given prior notice of the time and date of judgment delivery, an order was made that the appellant have liberty to apply by 4.00 pm on 17 February 2016 to set aside or vary the costs order.

3 In an email to the court dated 14 February 2016, the appellant said that she was in Melbourne visiting relatives and sought an extension of time to 29 February 2016 to apply to set aside the costs order. That extension was allowed.

4 The application was filed on 29 February 2016, accompanied by an affidavit of the same date. It is unnecessary to canvass the contents of the affidavit. Suffice it to say there is nothing contained in it that might justify a departure from the costs order made on 12 February 2016. The appellant's only material contention is that this court was in error in dismissing the appeal. That is not a basis upon which the costs order might be altered. It is a matter that, if it is to be pursued, can be pursued only by way of an application to the High Court for special leave to appeal - a course the appellant says in the affidavit that she intends to take. As matters stand, the respondent was the successful party on the appeal and there is nothing before us that might justify a departure from the usual rule that the successful party is entitled to an order for costs.

5 However, without descending into the detail of the reasons the appellant contends this court was in error in dismissing her appeal, we should note that her assertion that the court found the respondent had a complete defence based on s 5Z of the Civil Liability Act 2002 (WA) is simply wrong. We found, in substance, that the appellant had failed to establish any breach by the respondent of its duty of care. In light of that finding, we considered it unnecessary to deal with the respondent's defence under s 5Z of the Civil Liability Act and expressly declined to make any finding on it.