And later still she said she saw the rise (ie the rise at the top of which her foot became caught), or "would have". The plaintiff gave no specific evidence whatever about "her usual attention" being "directed further down the footpath towards the location where [her] vehicle was parked" or about "not giving close direct visual attention to the pavement immediately in front of her feet". It is also to be noted that to some extent the plaintiff's evidence on this issue appeared to rest on reconstruction based on the probabilities, rather than on a clear recollection of a specific observation. Thus she said more than once she "would have" seen the crack and she also said she "would have" seen the rise up to it. It is no criticism of the plaintiff either as a witness or as a person to note these facts: it is understandable that she may not have made specific observations or, if she did, that the shock of her painful injury distorted any clear recollection of them.
43 The present point is simply that the plaintiff's evidence does not support Dr Adams' dogmatic assertion about what the plaintiff was looking at. If that dogmatic assertion was intended to be an assumption, the evidence does not correspond with it. If it was intended to be a conclusion in the nature of a circumstantial inference, it was a piece of testimonial impertinence on Dr Adams' part to offer it. If it was intended to be a statement of what was in her mind, it was absurd.
44 Dr Adams' second explanation for the plaintiff's failure to see the hole is based on conclusions drawn from observations of a very different scene from that which in fact confronted the plaintiff. The scene before her consisted of a pavement interrupted by the "drive-in" or "driveway", which moved down to gutter level and up again. Another plain feature of the scene was that there were cracks in the sense of straight lines of division between the paving blocks, other non-straight cracks moving in the approximate direction in which the plaintiff was walking, in directions approximately at right angles to it, and in other directions, and holes at numerous points along all these cracks. The photographs reveal a lot of pebbles, stones and gravel lying around. Initially the plaintiff could not recall whether they were there when she fell, though later she said there were pebbles in the hole. The plaintiff denied slipping on pebbles on the footpath, and did not recall telling a doctor that she had. The trial judge accepted her denial. There is no reason to disturb that finding. But since no other aspect of the surface had changed between the time of the fall and the time when Dr Adams' photographs were taken, and since the plaintiff said there were pebbles in the hole, it is probable that there were pebbles, stones and gravel on the surface in the same way as revealed in the photographs.
45 It would be difficult for this Court to describe the scene as revealed in the photographs, and as Mr Moir considered it was at the time of the accident, better than Mr Moir did. He said:
"The concrete vehicle crossing was of the same width across the footpath as the concrete footpath itself. The length of the crossing, measured along the line of the gutter, was estimated as some 6 metres. As a consequence of the vehicle crossing being constructed some time after the concrete footpath and infill the footpath, the infill and the kerb had to be broken out to permit the construction of the vehicle crossing.
The photographs suggested that even when the existing footpath was broken out, the cuts across the concrete footpath and infill were made by a percussion or chipping tool which left a ragged, broken edge lacking in a neat workmanlike finish. It is noted that good practice required that the existing concrete be first cut with a diamond saw along the intended joint before the unwanted concrete was broken out.
The vehicle crossing was constructed in three sections.
(a) The main body of the slab for the crossing proper. It was a large slab trapezoidal in shape (almost rectangular) extending from the outer face of the gutter to the line of the inner edge of the footpath. The back edge of the slab was at the same level as the inner edge of the footpath slab and the level of the outer edge or roadside edge of the slab was slightly higher than the gutter invert.
(b) and (c) Two narrow wedge-shaped fillets at each end of the main slab. The fillets acted as transitions between levels of the original footpath, and the levels of the main body of the crossing slab. The wedge base length at the kerb was estimated as some 1/3rd metre long and the other two sides across the footpath each some 2 metres long.
It was also noted that:
(i) The junctions between the fillets and the original footpath and the fillets and the main body of the slab were sharp edged and without rounding transitions.
(ii) The main body of the slab and the fillers were not constructed in panels, or marked out in panels, to control the shrinkage cracking that would subsequently take place.
At the date of the accident the main slab and the end fillets were badly cracked and fragmented. It was the opinion of the undersigned that cracking had commenced shortly after the construction and had progressively worsened with time. The cracks were considered to be due to failure of the concrete slab and its foundation as structural members. The principal cracks roughly quartered the main slab while lesser cracks cut across section corners or further fractured the principal segments. Settlement and tilting also occurred in places.
The wedge of the eastern end of the slab was badly cracked as would be expected from its proportions. It had broken into at least 5 segments with major cracks along each side of the wedge. The trip lip which caused the accident had been formed by double cracks, spalling of concrete, and settlement at the joint between the wedge and the original footpath concrete.
The number of the cracks, their width, their positions, their directions, the tilting and level differences between some sections indicated that the following defects had existed:
(a) The foundation for the vehicle crossing had not been properly constructed, nor was it strong enough to serve the purpose required of it.
(b) The concrete was too thin for the purpose required of it, and for the size of the panels.
(c) The concrete was too weak.
(d) The concrete lacked steel reinforcement.
(e) The wedge-shaped fillets should never have been constructed as separate sections of concrete. These sections had not been correctly proportioned, profiled or graded. (Wedge-shaped fillets such as those present at the site could not but crack, and break up).
Other design/construction defects observed were:
(a) Failure to use formwork to hold the back edge of the concrete pour straight and true.
(b) Failure to construct a properly proportioned dish crossing at the gutter.
(c) Failure to remove the existing kerb and gutter back to a pre-existing construction joint.
(d) Incorrectly constructing the slab for the vehicle crossing as a continuous member over the base of the original kerb.
(e) Failure to use compression/expansion membranes at construction joints with the original concrete.
(f) Failure to design the junctions with the original concrete so that no differential movement would take place and create trip lips.
It was also considered that it was probable that there had been a failure to properly cure the concrete after it was poured. This omission would have led to a more rapid onset of cracking failure.
It was the opinion of the undersigned that the cracking, the gaps in the concrete, the missing pieces of concrete, the differential settlements and tilting of the crossing slab, the formation of trip lips, and the existence of a trip lip 15 millimetres in height (the trip lip which caused the accident) were the direct consequences of defective design and construction of the slab."
46 Obviously the plaintiff would not have drawn the conclusions which Mr Moir's expertise enabled him to draw, but it was plainly open to the plaintiff, as a lay observer, to see the "ragged broken edge", the junctions which were "sharp edged and without rounding transitions", the "badly cracked and fragmented" slab and end fillets, consisting of "principal cracks" which "roughly quartered the main slab while lesser cracks cut across section corners or further fractured the principal segments", the settlement and tilting, the "gaps in the concrete", "the missing pieces of concrete" and the "trip lip 15 millimetres in height".
47 This is an "environment" which, though "built", is radically different from the condition of the "stairways and concourses in the underground railway system of the city" of Sydney. It was the behaviour of pedestrians in those stairways and concourses which Dr Adams used as the basis for his statements about the likely behaviour of persons moving along the footpath where the plaintiff fell. Judicial notice may be taken of the fact that those stairways and concourses are extremely smooth and, except where there are steps, level: there are hardly ever any uneven cracks or holes or pebbles or height differentials. What is more, the stairways and concourses are commonly thronged with busy pedestrians moving with speed and determination to and from their places of employment or about their affairs. And the concourses are bordered by shops and advertising hoardings. The effect of the entire arrangement is to permit and encourage pedestrians, subject to not running into other pedestrians, or persons handing out leaflets or free papers, or persons soliciting charitable donations, or prams, or wheelchairs, or the occasional delivery vehicle, and subject to avoiding any slippery patches ahead, to look at the shop windows and the advertising signs to be seen on walls and stair risers. It is not possible to take the way pedestrians do behave or ought to behave in those conditions and infer from it any valid conclusion about how the plaintiff behaved or ought to have behaved just after she left the grassy schoolyard and began walking with her daughter along the cracked and pebbly pavement, including the area of the pavement where there was the driveway, towards her car. This is particularly so since she had only been there twice before, and since she, being 62 and thus more vulnerable to the consequences of falls than younger persons and less likely to be able to regain her balance if she slipped or stumbled than younger persons, should have been seeking to observe closely the area in front of her feet as she moved along.
48 Dr Adams' report, then, did not justify any conclusion that the "footpath was in an unsafe condition and would pose a danger to somebody such as the plaintiff" or that it was "a significant trip hazard" if the plaintiff had been looking out for what lay ahead of her.
49 Turning to Mr Moir, his description of the physical features which he noted and his explanations for the existence of those features have already been set out. Under the heading "The Hazard Created By The Trip Lip" he said:
"It was normally recognised by safety engineers and experts on pedestrian safety that trip lips and level discrepancies having a height of 10 millimetres or more in a footpath presented a potential safety hazard for pedestrians. It is noted that the trip lip at the accident site was somewhat greater than the minimum lip height considered to be a potential tripping device and safety hazard.
Further, if the trip lip were effectively disguised or concealed by changes in slope between panel sections, or by spalling of concrete and broken areas containing loose stones adjoining the trip lip, or by a multiplicity of cracking and textural effects in the nearby concrete, or in some situations, by a build up of leaves and soft debris against the trip lip, then the potential hazard became much greater and the likelihood of a tripping accident increased.
Because a number of these factors acted at this site, it was the opinion of the undersigned that the existence of the trip lip which caused Mrs Standing to trip would have [been] virtually undetectable to her if she had not been previously alerted to the hazard and not specifically looking out for it. The trip lip would have effectively been a hidden trap.
The trip lip at this site was a much more serious hazard than its 15 millimetre height might, at face value, suggest.
For a pedestrian walking across the vehicle crossing from west to east the operative height of the trip lip was increased by the level difference between the slab for the vehicle crossing and the slab for the footpath on the longsection where the lip was located. The longsection where the accident occurred was some third to halfway across the footpath from the gutter. The level difference between the respective slabs was estimated to be some 50 millimetres. Thus the top of the trip lip would have been some 65 millimetres above the level of the walking plane on the approach to the trip lip from the western end of the vehicle crossing, and the chances of the swinging foot clearing the lip were lessened.
The slope across the fillet of concrete was itself hazardous. The slope was 2:1 and gave a ramp that was only some 100 millimetres long for a pedestrian such as Mrs Standing. This slope was too steep and the fillet too narrow for it to function safely as a ramped section of footpath pavement. The sharp cornered and untransitioned fillet or ramp was, of itself, potentially quite hazardous and unacceptable, even without the 15 millimetre trip lip at the top of it.
Alternatively, if the level difference at the fillet were considered to function as a single step in the footpath the single step was, of itself, quite unacceptable and unsafe because of the intrusion of the fillet into the normal tread area of a step and more particularly because of the accidents resulting at single steps, single steps were specifically prohibited under most construction codes."
50 Mr Moir then offered some opinions about when the defects and hazards should have been noticed and how they should have been remedied. Among these opinions was the statement that the hazard was "effectively a hidden trap on the footpath, particularly for an older pedestrian".
51 The trial judge did not appear to accept this evidence at its face value. The trial judge said:
"I take it to be that all he is saying really is that the hole being placed where it was at the top of the fillet made it less visible and therefore potentially more of a danger to a pedestrian particularly since that pedestrian would have to be stepping up over the fillet which, as Mr Moir has indicated, was not capable of being a ramp because it was too narrow and too steep.
Whether it is necessary say to [sic - scil "necessary to say"] that I am not sure. It does appear to me, however, to be consistent with common sense that there would be an extra danger involved in that situation in a place such as this as demonstrated in the photographs and it is really the combination of the trip lip and the fact that it is elevated which is the matter for determination in this case. The fact of its elevation, of course, goes not only to its visibility but also to the fact that a pedestrian would need to step up in negotiating the footpath."
52 In view of the very limited finding made by the trial judge which may or may not have been made on the strength of Mr Moir's report, and which was said by the trial judge to be no more than "consistent with commonsense", it is not necessary to devote much attention to Mr Moir's report. The essential weakness in both the report and the conclusion which the trial judge stated after summarising parts of it is that it is impossible to conclude on the balance of probabilities that there was an "extra danger", let alone a "hidden trap", in view of the condition of the site and the numerous obvious aspects of the surface which were not even, flat or smooth. Mr Moir himself said that before railings were installed along the edge of the footpath at the points where there was no driveway, "the cracking and trip hazard for pedestrians would, more probably than not, have been present in the footpath and readily observable …." If they were readily observable then, they were readily observable to pedestrians using reasonable care for their own safety on the day of the accident.
53 What were the circumstances of the accident? The light was good, since the "accident occurred in the middle of the day [at about 1.20 pm] in broad daylight". The crack was of sufficient dimensions, in depth and across the top, for the plaintiff to see it, and she did see it. The hole in which the plaintiff's foot was caught appears quite clearly in the photographs in evidence. Though the plaintiff's evidence that she did not see the hole was accepted, the size of the hole was large enough to permit the plaintiff to see it if she had been looking. The whole area was so covered by cracks and was so uneven that a pedestrian taking reasonable care for his or her own safety would have to keep a lookout as to ground conditions in the area just in front of the feet. The hole was of a depth which was only 60% of the inch referred to by Cumming-Bruce J and Gleeson CJ as something which pedestrians had to accept. A pedestrian exercising reasonable care for his or her own safety ought to have seen the hole. If the hole had been seen, a pedestrian of that kind would not have placed his or her foot in it.
54 Almost any injury that happens is an injury in respect of which there can be said to have been a foreseeable risk. In that sense, there was a foreseeable risk of injury here. But it was not a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety. 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.
55 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. Neither Mr Moir nor the trial judge demonstrate how Mr Moir's figure of 10 mm depth in the hole as the criterion of liability was crucial, and, if it was, how that view could be reconciled with the reasoning in Brodie's and Ghantous's cases. Though Mr Moir referred to other experts, he did not explain their thought processes.
56 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."
57 Hodgson JA's reasoning in Parramatta City Council v Watkins [2001] NSWCA 364 at [27] also applies; speaking of a 50 mm change of level from the surface of a road to a manhole cover, he said:
"I am inclined to think that sudden variations in level of this magnitude may generally be expected at the edge of footpaths, at transitions between different paths or surfaces, and even between footpath slabs in the vicinity of trees; and also between paved and unpaved areas of road. However, the same may not be true within the paved surface of an apparently well-maintained road, particularly where the change of level is not obvious; and the circumstance that the change in level in this case was in a designated parking area, where it could be partially obscured by a parked car, would add to the risk."