Issue 3 - Alleged breach of the duty of care owed
59The plaintiff relied upon the following allegations of negligence:
(a)Failing to take any or any adequate precautions for the plaintiff's safety;
(b)Putting the plaintiff in a position of peril in the circumstances;
(c)Failing to maintain or adequately maintain the said pavers;
(d)Failing to heed repeated community and business complaints in respect to the unevenness of the said pavers;
(e)Failing to erect suitable barriers so that pedestrians would not trip over those pavers;
(f)Failing to warn or adequately warn the plaintiff that the said pavers were generally uneven and particularly uneven in the area where she tripped and fell.
60Those allegations can be summarised into a more unified formulation to the effect that the defendant failed to maintain the pavers on the footpath in a good and safe state that did not pose an unreasonable danger to pedestrians taking reasonable care for their own safety.
61At about 6.20pm on Friday, 17 April 2009, the plaintiff's daughter, Marcia Seebacher, emailed an officer of the Council with a completed incident report form, which provided a narrative of the aftermath of the plaintiff's fall, including a description of the assistance provided to the plaintiff until an ambulance arrived to take her to hospital: Exhibit "3".
62Significantly, in her covering email, Mrs Seebacher stated that the paver on which the plaintiff had tripped, incorporated a 3mm rise. I infer from that description that Mrs Seebacher had measured the protrusion height of the paver on which the plaintiff had tripped, and which she had photographed.
63The Council had already been placed on notice of the raised pavers and the characterisation of those raised pavers as a possible trip hazard, as the raised pavers in question had been the subject of some specific correspondence with the Council in January 2006: Exhibits "F" and "G".
64In that correspondence, on 6 January 2006, the Padstow Park Progress Association wrote to the Council to draw attention to a previous meeting at which the pavers in the footpath outside 65 and 63 Howard St, Padstow were apparently discussed: Exhibit "F". That letter drew attention to the fact that the pavers there were uneven, and in need of repair, noting that this state of the pavers was causing residents to trip. The Council was asked, whilst repairing the pavers in Howard St, to check on all the pavers in the shopping centre, as many were uneven.
65That letter was replied to on 10 January 2006, the reply advised that the request by the Padstow Park Progress Association had been referred to the Civic Roads Department of the Council to have the pavers adjusted to reduce trip hazards: Exhibit "G".
66The plaintiff tendered a document comprising a Council performance standard for repairs and interventions in response to reported footpath defects: Exhibit "C". That document stated that a 20mm step or misalignment of a footpath had an expected response time of 60 days where it was considered that the defect constituted a hazard to motorists or pedestrians. The standard required a compulsory intervention. Presumably more promptly than 60 days, in the case of misalignments greater than 40mm. The document referred to various response times of 60 days, 30 days and 14 days. The document also identified rated traffic scores of 1, 2, 3 and 4 respectively. The evidence did not explain those ratings.
67The evidence did not disclose whether the unevenness of the pavers, as at 6 January 2006, fell within any of the performance standards set out in Exhibit "C". There was no evidence of measurements of any raised portions. On the state of the evidence, it is not appropriate to draw any inference as to the height of any raised paver as at January 2006.
68Nevertheless, In view of Exhibits "F" and "G", the defendant cannot be heard to say that the plaintiff's trip and subsequent fall was not reasonably foreseeable according to the requirement of s 5B(1)(a) of the CL Act.
69Furthermore, as the defendant was on notice, as a result of the identified correspondence, that the pavers in the area constituted a potential trip hazard that required precautions to be taken (s 5B(1)(c) of CL Act; and see the Council's intervention protocol, Exhibit "C"), commonsense dictates that the presence of raised pavers within the footpath constituted a "not insignificant" risk of tripping: s 5B(1)(c) of the CL Act.
70Some of the matters relevant to determining whether a reasonable council would have taken precautions against the harm posed by the tripping hazard of raised pavers are set out in s 5B(2)(a)-(d) of the CL Act. In that regard, it seems clear that since, in 2006, residents were tripping on the pavers, that the probability of harm would be significant if precautions, such as levelling the pavers, were not taken: s 5B(2)(a).
71Serious harm is known to result from relatively simple occurrences, so no real issue arises under s 5B(2)(b) as to the potential for serious harm. There is a high social utility in Council providing attractive paved neighbourhood footpaths but this has to be considered in light of the cost to the defendant, a public utility: s 5B(2)(d) of the CL Act.
72Of particular relevance to the evaluative exercise required by s 5B is a consideration of the burden of taking precautions against the risk of occurrence of the harm: s 5B(2)(c).
73I consider that in applying the required prospective analysis of the risk of harm occurring by tripping on a 3mm raised footpath paver, it would be unreasonable to require that the defendant, a Council road authority, act to remove or otherwise minimise that risk by levelling the raise or otherwise eliminating the problem where the defendant had no specific or actual notice of the dangerous condition of the footpath posed by a 3mm rise in the paver: s 45 of the CL Act.
74The general burden on a council to inspect pavements in the absence of specific knowledge of a problem, and to require a council to remove an unevenness due to a 3mm rise in a paver, has to be considered in light of the staffing, financial and material resources available to the defendant, weighed against the risk of harm to persons such as the plaintiff who must be presumed to be acting with reasonable care for their own safety when using the footpath.
75Having regard to the fact that the rise in the paver was only 3mm, the probability of harm caused by persons such as the plaintiff tripping and injuring themselves must be seen to be very low: s 5B(2)(a) of the CL Act.
76One of the factors that must also be considered in a liability analysis is how the Council would have allocated it's resources if it had actually known of the raised paver or a "very bad" condition of the footpath. In that regard, Exhibit "C" provides some insight into priority of allocation of resources to remediate a problem. On a reasonable reading of that Exhibit, a 3mm raise would have been a relatively low priority. There was no evidence to suggest Exhibit "C" constituted an unreasonable standard for risk management.
77The question of allocation of the resources of a council must also be considered in the light of the statutory protection given to public authorities. In that regard, on the fact of this case, absent the defendant having actual notice of the risk in question here, namely the 3mm rise, I consider that a delay in allocating pro-active council inspection resources, which in turn might have delayed recognition of a 3mm raise in the level of a paver, or on a number of pavers for that matter, cannot be shown to have been an omission that no other public authority could properly consider to be a reasonable exercise of its footpath inspection and maintenance functions: s 43 of the CL Act.
78The plaintiff relied upon the notification to the defendant in 2006, of a hazardous condition of the footpath in the form of a tripping hazard for residents. I am not satisfied, on the evidence given in this case, that the risk of tripping on the footpath, as described in Exhibit "F", in January 2006, continued to apply from that time and until the time of the plaintiff's injury, on 16 April 2007.
79In that regard, the evidence of Mr Colac was relevant. He described the condition of the paver where the plaintiff tripped as being a raise of "A millimetre to 4 millimetres" or up to about 1cm: T26.29 - T26.42. He stated that after the plaintiff's fall, he had a look around and saw that there were a few pavers that were "sticking up slightly": T27.44.
80That evidence, which does not of itself bespeak an unsound or unsafe footpath condition, needs to be evaluated in the light of the guidance provided by the decided authorities.
81The fundamental principle is that local authorities are not to be regarded as the insurers for the absolute safety of users of footpaths: Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512, at [248], page 606. In that case, at [355], it was stated that:
"The world was 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. ..."
82That statement aptly applies in this case, and it has been applied in many similar cases, some examples of which follow.
83It has been held that an uneven surface in a footpath to the extent of a height differential of 20mm is not an unexpected or unusual danger to a pedestrian in the Sydney metropolitan area who is taking reasonable care for her own safety: Burwood Council v Byrnes [2002] NSWCA 343, at [26] - [33].
84In this case, the plaintiff was in the special position of advantage in knowing, on the basis of her own assessment, that the footpaths in the area were "very bad". In those circumstances, the plaintiff was in a good position to see and avoid imperfections on the surface on which she was walking: Richmond Valley Council v Standing [2002] NSWCA 359, at [55].
85A modest differential height in a footpath (of 13mm in that case) does render it unsafe for a person taking ordinary care for their own safety: Roads and Traffic Authority v McGuiness [2002] NSWCA 210, at [38].
86For the plaintiff to be in a position, in this litigation, to assert the defendant had actual or implied knowledge of the poor state of repair of the footpath, the circumstances relied upon for such notice must be particularised: Porter v Lachlan Shire Council [2006] NSWCA 126, at [41]. No such particulars have been provided. I do not consider either Exhibit "F" or Exhibit "G" to constitute such particulars.
87In this case, there was no evidence to suggest that attempts had been made to address or clarify that issue through discovery or interrogatories.
88The operation of s 45 of the CL Act is fundamental to the outcome of cases such as this: Council of the City of Liverpool v Turano [2008] NSWCA 270, at [181] - [191]. As in that case, here, there is no evidence of actual knowledge on the part of the defendant, as at the date of the plaintiff's accident, of the essential "basal facts that constituted the particular risk, the materialisation of which resulted in the harm." : Turano, at [191].
89It is well settled that responsibility for a defect or hazard, whether in a road or a footpath, shifts to a defendant authority when it is shown that the authority has knowledge of the defect in question: Hastings Council v Giese [2003] NSWCA 178, at [22]; s 45 of the CL Act.
90I do not consider the correspondence to the Council comprising Exhibits "F" and "G" placed the Council on notice of the specific problem that was instrumental in the plaintiff's trip and fall. The timing was too distant from the event and there was insufficient surrounding evidence to enable a contrary conclusion to be drawn.
91On the evidence in this case, I find that the plaintiff is not in a position to defeat the immunity provided to the defendant by s 45(1) of the CL Act. I accept the defendant's submission in that regard, which must have the effect that the plaintiff has failed to establish a claim in negligence against the defendant.