SUTHERLAND SHIRE COUNCIL v HENSHAW

SUTHERLAND SHIRE COUNCIL v HENSHAW - [2004] NSWCA 386 - NSWCA 2004 case summary — Zoe

CATCHWORDS : NEGLIGENCE - highway - pedestrian injured by fall at hole in broken edge of asphalt paving on footpath - consideration of significance of observability of hazard - consideration whether duty of care owed if the hazard can be observed by pedestrian - extensive consideration of Brodie at [163] - Trial Judge's findings of negligence and no contributory negligence were reasonably available - appeal dismissed LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1965 s.10 Highways Act 1980 (U.K.) s.41 Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512 Searle v. Metropolitan Water, Sewerage and Drainage Board (1936) 13 LGR 115 Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317 Webb v. The State of South Australia [1982] 56 ALJR 912 Wyong Shire Council v. Shirt (1980) 146 CLR 40 Smith v. Broken Hill Proprietary Co Ltd (1957) 97 CLR 337 Miller v. McKeon (1905) 3 CLR 50 Liftronic Pty Ltd v. Unver (2001) 75 ALJR 867 Pelley v. The Maitland Benevolent Society [2004] NSWCA 323 Alford v. Magee (1952) 85 CLR 437. CASES CITED : Richmond Valley Council v. Standing (2002) 127 LGERA 237 Burwood Council v. Byrnes [2002] NSWCA 343 Rallis v. Pang [2003] NSWCA 202 Temora Shire Council v. Stein [2004] NSWCA 236 Newcastle City Council v. Lindsay [2004] NSWCA 198 Graham Barclay Oysters Pty Limited v. Ryan (2002) 211 CLR 540 Boroondara City Council v. Cattanach [2004] VSCA 139 Greater Shepparton City Council v. Davis [2004] VSCA 140 Almeda v. Attorney General for Gibraltar [2003] UKPC 81 Gorringe v. Transport Commission (Tasmania) (1950) 80 CLR 357 Thompson v. Hampshire County Council [2004] EWCA (Civ) 1016 Avenhouse v. Hornsby S.C. (1998) 44 NSWLR 1 PARTIES : Sutherland Shire Council - Appellant William Henshaw - Respondent FILE NUMBER(S) : CA 40104 of 2004 COUNSEL : P.R. Garling SC and K. Morgan - Appellant S. Norton SC and M. Fraser - Respondent SOLICITORS : Phillips Fox - Appellant Bryden's Law Office - Respondent

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FRIDAY 10 DECEMBER 2004 SUTHERLAND SHIRE COUNCIL v. WILLIAM HENSHAW Judgment 1 SHELLER JA: I have had the benefit of reading the judgments in draft form prepared by Hodgson and Bryson JJA. Bryson JA has set out the facts giving rise to Mr Henshaw's claim against the Sutherland Shire Council and the relevant parts of the trial Judge's reasons for judgment. I agree that the trial Judge's findings on the facts are not shown to be erroneous. The trial Judge was not persuaded that Mr Henshaw was in breach of the duty that he had to take reasonable care for his own safety. Accordingly, applying what was said by the High Court in Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512 particularly at 581 [163], this appeal should be dismissed with costs. However, I would like to make the following additional comments. 2 In Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 403 Gaudron, McHugh, Gummow and Hayne JJ said: "It should be emphasised that it is for this Court alone to determine whether one of its previous decisions is to be departed from or overruled; compare Jacob v Utah Construction and Engineering Pty Ltd (1966) 116 CLR 200 at 207." 3 In Re J & E Holdings Pty Ltd (1995) 36 NSWLR 541 at 551, I referred to Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 where the High Court stressed the importance of uniformity of decision in the interpretation of uniform national legislation. In that context when considering a decision of the Appellate Division of the Victorian Supreme Court, I said: "Even if I retained some residual doubt about the Victorian Court's conclusion I think we should follow it. To do otherwise would seem to me to be giving but lip service to what the High Court has said. Certainty in the law, in my opinion, requires that only in an extreme case would an intermediate appellate court or a judge of first instance not follow the latest decision by an intermediate appellate court if, in that latest decision, the arguments have been fully reviewed and a conclusion reached that an earlier decision of another intermediate appellate court was plainly wrong." 4 That passage in my judgment was quoted with apparent approval in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 272. 5 In Richmond Valley Council v Standing (2003) 127 LGERA 237 Heydon JA, with whom Handley JA and I agreed, said at 246-247 [29]: "The first question is whether the defendant owed a duty of care to the plaintiff [a pedestrian]. That turns on whether the failure of the defendant to repair the footpath created a 'foreseeable risk of harm' to pedestrians. That expression appears to be a reference to a reasonably foreseeable risk, since in Brodie v Singleton Shire Council (2001) 206 CLR 512 at 580 [161] Gaudron, McHugh and Gummow JJ said: 'Not all failures to repair will create risks to the users of a road, or at least not risks which would, as a matter of the reasonably foreseeable, pose a risk of injury.' The existence of a duty must be assessed in part by reference not to any requirement that the footpath 'be safe … in all circumstances', but by reference to the position of 'users exercising reasonable care for their own safety' (at 581 [163]). This was said to be particularly important in relation to pedestrians. The question is whether there was a reasonably foreseeable risk of harm to a pedestrian exercising reasonable care for her own safety, bearing in mind the particular advantages of pedestrians. The issue of the capacity of the defendant to deal with particular risks and the competition between claims on scarce resources is not specifically relevant to the question of the scope of duty, but to the question of its breach." 6 At 255 [54] Heydon JA said: "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." 7 In my opinion, that case was decided on the basis that the duty of care was as described by Heydon JA in the first passage from his reasons for judgment which I have quoted. As Bryson JA has pointed out, Burwood Council v Byrnes [2002] NSWCA 343 was decided on the same day. Handley JA was a party to that decision and delivered a judgment, in which Beazley and Hodgson JJA concurred. Bryson JA has quoted what Handley JA said at [28]. Handley JA at [29] quoted from the judgment of Gleeson CJ and the joint judgment of Gaudron, McHugh and Gummow JJ at [163] in Ghantous. Handley JA continued: "31 At para [166] they agreed with the finding by Callinan J that Mrs Ghantous failed 'because the footpath was not unsafe for a person taking ordinary care'. … 33 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' [para 29 above]. 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." 8 On 14 November 2003, the High Court (McHugh and Kirby JJ) refused special leave to appeal from the decision of the Court in Burwood Council v Byrnes. Counsel for the applicant said: "In particular, your Honours, we say two things, The first is that the statement of the duty laid down by this Court was, with respect, rather overstated by the Court of Appeal at para 33, [quoted above] of the judgment … and, secondly, your Honours, we say that to formulate the duty in that way has the unintended effect of shutting out the scope for the application of the apportionment legislation in relation to contributory negligence." 9 In refusing the application for special leave McHugh J said: "This is a case concerning a highway authority's duty to take care for the safety of those using the highway and its adjoining footpaths. The applicant seeks to exclude entirely from consideration of the existence of the duty of care owed by the highway authority the postulate of a plaintiff's obligation to take reasonable care for his or her own safety. The applicant contends that the latter obligation only arises in considering breach and any question of contributory negligence. We do not agree with this contention. We see no error in the reasoning of the Court of Appeal. There is no issue in the case warranting the grant of special leave to appeal." 10 On 21 July 2004, this Court gave its decision in Temora Shire Council v Stein [2004] NSWCA 236. Giles JA gave the principal judgment, in the course of which his Honour said: "39 On my reading, the reasoning in the joint judgment in Brodie v Singleton Shire Council and Ghantous v Hawkesbury Shire Council made the proposition that persons using the road will themselves take ordinary care one of the matters in the balancing of matters in accordance with Wyong Shire Council v Shirt. On the approach that obviousness of the risk to the careful pedestrian goes to breach of the duty of care, if there is a foreseeable risk then in the balancing of matters the response of the reasonable council takes into account that pedestrians are able to see and avoid imperfections and 'will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards …' (see at [163]). 40 It does not automatically follow that, in arriving at the response of the reasonable council, a defect obvious to the reasonable pedestrian needs no attention. As their Honours added (at [163]), 'some allowance must be made for inadvertence'…" 11 The appeal was upheld with the result that the verdict and judgment for the respondent pedestrian was set aside. In that sense, as Bryson JA has pointed out, Giles JA's remarks might be regarded as obiter. Hodgson JA agreed with the orders proposed by Giles JA and "substantially with his reasons." His Honour having said that "the determination of what the duty requires in a particular case is a question of fact to be considered when addressing the question of breach", continued: "58 However, this question of fact is one which is to be determined in accordance with legal requirements, in particular the requirement that regard be had to the competing considerations referred to by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. One thing that must be considered is the magnitude of the risk of injury to the plaintiff or to a class of persons including the plaintiff, that a reasonable person in the defendant's position would have foreseen his or her conduct involved. Also, Brodie v Singleton Shire Council (2001) 206 CLR 512 shows that, in relation to road users generally and pedestrians in particular, the relevant risks to which road authorities should have regard are the risks of injury to persons exercising reasonable care for their own safety."

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Pearlman AJA agreed with Giles JA. 12 Bryson JA has referred to two decisions of the Victorian Court of Appeal, Boroondara City Council v Cattanach (2004) VSCA 139 and Greater Shepparton City Council v Davis (2004) VSCA 140, both decided on 20 August 2004. In the first of these cases, Chernov JA, with whom Winneke P and Bongiorno AJA agreed, said: "Reference has already been made to the recognition in Brodie of the importance and formulation of such a duty of the obligation of such a pedestrian to exercise reasonable care for his or her own safety. And, as Handley JA … pointed out in Burwood City Council v Brynes … this requirement enters into the definition of the duty and is not relevant only to contributory negligence." 13 In the second Victorian case, Winneke P referred to the transcript of the special leave application in Burwood Council v Byrnes in a footnote and to Giles JA's judgment in Temora Shire Council v Stein. His Honour said: "The better view, as it seems to me, is that the 'obviousness' of the defect goes to the content of the duty of care." 14 So far as the formulation of the duty of care owed by highway authorities to pedestrians, Gaudron, McHugh and Gummow JJ have said in Ghantous: "[163] 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, as in Ghantous , the plaintiff was a pedestrian. In general, such person 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 , person 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 (as in Webb v South Australia (1982) 56 ALJR 912), or the surrounding area (as in Buckle (1936) 57 CLR 259 at 266, 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. These hazards will include dangers in the nature of a 'trap' or, as Jordan CJ put it, 'of a kind calling for some protection or warning'. In Romeo , Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger ( Romeo (1998) 192 CLR 431 at 455 [52]). Kirby J pointed out in the same case that even an occupier of premises 'is generally entitled to assume that most entrants will take reasonable care for their own safety' (at 478 [123]). Each case will, of course, turn on its own facts." 15 The effect of this paragraph, in cases involving claims by pedestrians against highway authorities for injuries in using pavements in the care and under the control of the highway authority was stated and applied by this Court in Richmond Valley Council v Standing and Burwood Council v Byrnes. To quote again from the judgment of Handley JA at 33: "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." 16 The two members of the High Court hearing the special leave application went so far as to say that they saw no error in the reasoning of the Court of Appeal. In Garcia, the High Court reminded this Court that it is for the High Court alone and accordingly not for the Court of Appeal to determine whether a previous decision of the High Court is to be departed from. Not only are there two decisions of this Court which authoritatively define what was said by the High Court in Ghantous but there are two decisions of the Victorian Court of Appeal. While these decision are, of course, subject to review by the High Court and may be no more than the better view in the eyes of some members of this Court and of the Victorian Court of Appeal, it seems to me that certainty in the law requires that this Court follow them. 17 Otherwise for the reasons given by Bryson JA, I agree with the orders proposed by Bryson JA. 18 HODGSON JA: I agree with the order proposed by Bryson JA, and substantially with his reasons. 19 I adhere to the views that I expressed in Temora Shire Council v. Stein [2004] NSWCA 236:

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(5) that this may require separate consideration in relation to different classes of pedestrians, such as pedestrians of normal physical capacities using the footpath in daylight, or such pedestrians using the footpath at night, or pedestrians with disabilities, and so on. 20 In the present case, there is no suggestion of disability, and there seems no reason to consider any narrower class than pedestrians of normal physical capacities using the footpath in daylight. 21 In relation to such persons, in my opinion it was open to the primary judge to conclude that the risk was substantial. The hole was quite deep, it was immediately below an irregular edge that could be difficult to comprehend at a glance, the colour and texture of the surfaces on either side of this edge were not strongly contrasted, and the edge itself could be considered as not obvious to a person approaching from the direction from which the respondent approached. 22 In my opinion also, it was open to the primary judge to conclude that, having regard to the length of time he inferred the hazard had been there and to the relatively low cost of substantially reducing it, the appellant should, by the exercise of reasonable care, have detected it and remedied it before the respondent's accident occurred. 23 The primary judge's description of the hazard as obvious was in the context of consideration of whether it should have been detected in a proper routine assessment of the condition of footpaths. It was not a finding that it was obvious to pedestrians approaching it from the direction and in the circumstances applicable to the respondent in this case. 24 BRYSON JA: The respondent Mr Henshaw, plaintiff in the District Court, was injured on 12 July 1999 when he fell while walking on the footpath in President Avenue, Sutherland. Mr Henshaw who was then aged 45 suffered a significant injury to his knee, and other minor injuries. His knee injury was diagnosed as a tear of the left medial meniscus, and it aggravated a pre-existing osteoarthritic condition, causing reactive synovitis and effusion. He underwent minor operations for the removal of fluid from the knee. Pain and disability relating to his knee continued. In December 2000 he had a second arthroscopy, when a loose body was removed and it was noted that arthritis was developing. He continues to have some degree of disability and restriction, with pain, adverse impacts on his employability and restriction of his previously vigorous sporting activities. The Trial Judge (Judge Walmsley SC) assessed his damages at $120,123.65, and this assessment was not challenged at the hearing of the appeal. Argument on appeal related to liability of the appellant Sutherland Shire Council, defendant in the District Court, to pay damages. 25 At the time of his injury Mr Henshaw was walking eastwards on the footpath on the northern side of President Avenue towards Glencoe Street, about 600 or 700 yards further east, where he lived. President Avenue carries heavy motor traffic, two lanes in each direction, between Sutherland and Cronulla. No element in the facts suggests that the footpath carries unusually heavy foot traffic. On the northern side of President Avenue there is an unusually wide grass verge separating the formed concrete footpath from the carriageway. Photographs show that the verge is partly grassed, but most of its surface is gravel. To the north and to Mr Henshaw's left was land occupied by a private high school. The high school land was formerly intersected by Belmont Street, but Belmont Street was blocked off by gates along the property line, so Mr Henshaw had to cross what had been the east and west kerbs and the sealed surface of Belmont Street. A concrete bollard and a line of three white posts ran generally eastwards from the intersection, to the right of Mr Henshaw's progress. The concrete bollard seems to have been the end point of a boom gate. From about 1996 onwards a project was under way of transferring ownership of Belmont Street beyond the property line to the private school and reconstructing the roadwork to provide a place for school buses to pull in, but this was not completed until several years after 1999. When it was completed the road and footpath surfaces in the area were completely remade, so that they are no longer recognisable. 26 Mr Abbott, who gave evidence for the appellant, is a professionally qualified engineer with long experience in civil engineering, including periods totalling well over twenty years in Local Government, most of it with the appellant. From January 1992 to August 1999 he was the appellant's Director of Engineering. Since November 1999 he has been practising as a Consultant Engineer dealing principally with civil engineering aspects of Local Government. He was very well qualified to give expert evidence by participation in the appellant's affairs. He made a report which the appellant tendered (CAB 190), and he gave oral evidence. He gave this description in his report: 2.1.2 President Avenue runs approximately east west and is a major traffic route from Sutherland in the west to Caringbah in the east. The incident occurred at the intersection of President Avenue and Belmont Street between Glencoe Street and Rawson Parade Sutherland. [At] this location President Avenue is a four-lane road with a concrete footpath on the northern side. The incident is alleged to have occurred, approximately 6m east of the kerb line on the eastern side of Belmont Street, which at the time was still a trafficable road controlled by a boom gate. The footpath reserve in this are of President Avenue is much wider than normal being about 10m from face of kerb to property boundary. 2.1.3 In the vicinity of the incident the concrete footpath, (which is in reasonable condition) ends about 8 m short of the eastern side of Belmont Street. At the relevant time the area between the path and the kerb was paved with asphalt which was generally in reasonable condition, however there is some evidence from the Plaintiff's photographs that a section of the asphalt paving had settled or been replaced. The asphalt area was wider than the concrete footpath and at the point where the alleged incident occurred it dropped off about 50-60mm along its southern edge to a gravel surface. There is a Telstra pit located within the asphalted area and it appears there may have been a trench excavated and restored from this pit to the point of the incident. 27 The arrangement of the road and footpath surfaces is well shown by photographs in evidence: Exhibit B (CAB 117), Exhibit C (CAB 119) and the four photographs in Exhibit 2 (CAB 210 and 211). I will give a description, although the photographs make matters much clearer, particularly as Mr Henshaw made marks on Exhibits B and C before they were shown to Mr Abbott. As Mr Henshaw proceeded east he crossed the sealed surface of what had been Belmont Street. Then he crossed a low kerb. Beyond the kerb was a wide area paved with asphalt or tar ("the asphalt paving"). The layout of the area including the kerb indicated that the asphalt paving was for pedestrians to walk on. Six or so metres further east where the asphalt paving was less wide it joined a smooth regular concrete footpath about a metre wide, which proceeded east towards Glencoe Street. The asphalt paving was not completely regular. More or less in a direct line proceeding from the low kerb towards the concrete path there were first a metre or so of asphalt surface, then a Telstra junction box with two concrete lids set into the asphalt surface and flush with it, and then beyond that a shallow depression; this appears to have once been a trench excavated in association with the Telstra junction box, refilled and resurfaced with asphalt, with settlement after resurfacing so as to form a shallow depression in the shape of the trench. Beyond that was the edge of the asphalt paving, running approximately north-east so as to taper inwards towards the edge of the regular concrete footpath. The edge of the asphalt paving was extremely irregular. It is very improbable that the edge was originally laid out in the jagged shape which it had assumed, and the shape indicates that parts of it had weathered away, in a process which on any reasonable understanding must have taken some years. Directly east beyond the edge was gravel and soil surface, part of the wide verge on the northern side of President Avenue; this verge separated the concrete footpath from the gutter and the traffic by some metres, far wider than is usual in suburban situations. There was a drop from the edge of the asphalt paving to the gravel and soil surface of the verge.

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28 From 1996 onwards when negotiations for the sale of Belmont Street began with the owners of the private high school the appellant was reluctant to carry out other than minimal maintenance to the footpath; that would have seemed like a waste of money, as it was contemplated that the road and footpath surfaces would be remade to provide a school bus parking recess. In oral evidence Mr Abbott explained what happened thereafter as follows: (CAB 40) Q. And so the council you tell me deliberately decided not to effect repairs to this area notwithstanding what was there, is that right? Is it right please? A. Yes it's partly right. It's right in that the area to be properly repaired needed major reconstruction. Minor repairs of that nature would probably still have been done if they were aware of it. 29 In his report Mr Abbott said: (CAB 190) 2.2.3 At the time of the alleged incident negotiations were progressing for the eventual closure of Belmont Street between President Avenue and Flora Street, and for its sale to St Patrick's College. Council was reluctant to carry out other than minimal maintenance knowing that in a relatively short time the area where the incident is alleged to have occurred would be reconstructed with new concrete footpath and grassed verge. (The consent issued on 9 April 2001 clearly indicates the removal of existing kerb and gutter, road pavement and other surface work, reshaping and replacement with a concrete footpath, new kerb and gutter in President Avenue and turfed verges) Any major repairs or construction would have been a waste of much sought after resources and could not be justified. Councils are faced with huge demands for finite, limited resources. Every project whether it be new or maintenance must compete on a priority basis against all other demands for resources allocation. Given the potential sale and reconstruction of the area it seems logical and judicious not to expend funds on expensive repairs. 30 Mr Abbott qualified his evidence about priority by saying that the priority might be affected in this way (CAB 35A-D): A. It would depend upon circumstances, but if it was in a high pedestrian area or in an area where it was a hazard that one might not expect to be there, then it might get a higher priority than one where a hazard might be seen as being very predictable and people would realise there was a hazard there. 31 The Trial Judge found (Red 36): "Three years after it commenced its negotiations with the school which led to the rearrangement of the footpath, part of the footpath next to President Avenue was in a very poor state of repair. Photographs taken shortly after attest to that." The photographs fully bear out these findings. 32 The Trial Judge's findings on the event in which Mr Henshaw was injured are as follows (Red 37 D-S): Late in the afternoon of that day, on his usual route after finishing work, he observed in front of him on the footpath some mud and broken glass. He diverted to avoid the debris. At the point to which he diverted, part of the bitumen had subsided and the surface was uneven. Suddenly he heard a screech of brakes from a passing car. He instinctively looked to his right, feeling momentarily afraid. He was still in motion. There was a deep hole to the right of the subsided area and to the edge of it, that hole being in the bitumen footpath or adjacent to the bitumen footpath surface. It was on the route to which he had diverted so as to avoid the glass and mud. He did not see the hole. As he put a foot down, it went into the hole and his body twisted and he fell onto his left knee and hands. He found himself in considerable pain. He was yet 600 to 700 yards from his home. Using a brick wall at times for support he made his way home slowly. His left knee was swollen and painful. 33 Although the time of the event was disputed, the Trial Judge found that it took place late in the afternoon at about 5 pm. 34 A photograph in evidence (CAB 117) has markings by Mr Henshaw which show that the broken glass and mud were to the left of his course, lying partly on the concrete covers of the Telstra junction box and partly to the left of that. 35 The Trial Judge also found (Red 38): I am satisfied that the plaintiff was, at the time, taking reasonable care for his own safety. His diverging from the mud and broken glass, having observed that hazard, was I think indicative of his taking reasonable care. Yet though exercising what I am satisfied was reasonable care, he was nonetheless unable, I find, to avoid the hazard presented by the hole. In Ghantous v. Hawkesbury City Council (2001) 206 CLR 512 at [355], Callinan J said, "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". I do not see the occurrence to the plaintiff as having been "in the ordinary course". First, he was in the course of avoiding a different hazard. Secondly his attention was momentarily taken by the screech of the passing car's brakes. I am satisfied however that he was aware of a nearby manhole cover, and some patching in the asphalt near the hole, as he conceded in cross-examination.

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I am satisfied that the Shire from 1996 onwards gave low priority to the carrying out of repairs to that part of the footpath by reason of pending changes to the design of the footpath which had not occurred by 1999. There was no evidence before me of any particular budgetary restraints or priorities resulting in this footpath's being treated in the way that it was. The main evidence on the issue was from the said former employee of the Shire who, in a report, said that so far as the Shire was concerned it would have been a waste of much sought-after resources and could not be justified. The Shire had a system of inspection. I am satisfied that had a proper inspection been carried out in the way that a prudent person in the position of this Shire would have then such an inspection would and should have revealed the hole and that it was obvious. I am satisfied that prior to the plaintiff's accident it had been in that condition for a lengthy period of time. The evidence shows that even high priority matters were not necessarily dealt with by the Shire in 1996 or thereafter. There were no records before me of any inspections having been done between 1997 and 1999. It is hard to see that any efficient inspection was done in that period but even if it had been the evidence suggests to me that nothing would have been done to fix the hole. The former Shire officer, Mr Abbott, said the bitumen adjacent to the hole was "clearly uneven", (see page 4 of exhibit 1,) and "quite degraded", (see page 6 of exhibit 1.) He said when he managed footpaths for the Shire in the period 1997 to 1998 priority was given to repairs for a trip hazard which was defined as a fall greater than a 20 mm or more drop, which this hole clearly was. He conceded that the Shire could have taken quite inexpensive and easy steps to make the area safer, such as by erecting barricades or blocking it off. He said that such inspections as might have occurred would not have been "walk-ups" but rather simply by somebody driving past looking from a car. And he conceded that had it been seen by somebody carrying out an inspection then such a hole would have been regarded in the normal course as one deserving of high priority action by the Shire. I am satisfied a reasonable person in the Shire's position would have carried out inspections of the footpath and of such a kind as would have located this hazard and that a reasonable person in the Shire's position would have fixed it or barricaded it or taken other steps to eliminate the obvious hazard. I find that by not fixing the hole or barricading it at the time the plaintiff was injured the defendant was in breach of the duty which I am satisfied that he was owed by it. Although the defendant pleaded and argued contributory negligence it is hard to see, in the circumstances, what the plaintiff could have done. This was a man using reasonable care and engaging in the ordinary and everyday use of a footpath, picking his way past one hazard onto a second, the depressed area, then into a third, namely the hole, the last movement contributed to by the noise of a passing car. I am not persuaded that he was in breach of the duty that he had to take reasonable care for his own safety. There will be a verdict and judgment for the plaintiff. 36 Written submissions on behalf of the appellant included the following: (Orange 6 and 7) 4. The Appellant's duty to pedestrians is to take reasonable care, within its local government boundaries, to prevent or eliminate dangers to pedestrians taking reasonable care for their own safety: Ghantous v. Hawkesbury City Council (2001) 206 CLR 512, Burwood Council v. Byrnes [2002] NSWCA 343 4/11/2002.

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Q. So that affects its priority does it? A. It may well do yes. 40 It is unfortunate that the recording of Mr Abbott's answers is not complete and for a few questions the full answers are not available; elsewhere in the transcript there is a reference to some deficiency in the recording equipment. So far as can be understood from the evidence recorded the Trial Judge did not, in my view, fail to give due weight to the qualifications expressed by Mr Abbott. The qualifications do not significantly detract from the view that the hole and drop were a hazard to pedestrians, and that if they had been observed by the appellant's staff in an inspection they would have been accorded priority and would have been repaired in a short time. This observation is illustrated by an event described in evidence to which the Trial Judge did not refer: in the appellant's Defects Inspection records, which were available from January 2000 onwards, no defects were recorded for this location prior to 28 April 2000, when a trip hazard greater than 20 mm was found and assigned a priority of one; and this was repaired on 1 May 2000, that is, three days later. This followed a reorganisation of Council's inspection procedure in January 2000. 41 Mr Abbott described the previous inspection procedure prior to January 2000 in these terms: (CAB 195) 2.3.1 Prior to January 2000, Council managed its road assets maintenance using a procedure, which involved the use of Precinct Maintenance Gangs. The whole of the Shire area was divided into precincts and gangs of four or five staff were allocated several precincts each to maintain. [passage rejected]. This involved the Overseer doing prior inspections of the precinct, determining the defects to be rectified including defects, which had been the subject of previous complaint, determining a priority and instructing the gang what and how to do the work. Council did keep some records of the work done in each precinct although they were not well detailed.

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It was Mr Abbott's evidence that, under the old system of inspection, footpaths were examined at a minimum yearly (CAB 41 I). 42 The appellant further contended to the effect that it is obvious from other findings that the Trial Judge had made an imputed finding that an inspection would have led to the hazard being repaired or surrounded by a barrier; and it was contended to the effect that this imputed finding was not consistent with Mr Abbott's evidence (Orange 10J-O). It is clear that such a finding must be imputed and that overall his Honour was of that view; and in my opinion there is no inconsistency between the imputed finding and Mr Abbott's evidence. The cumulative effect of there being a regime of annual inspections, the assignment of priority one to discrepancies of level greater than 20 mm, the nature of the hazard in question, and its ready visibility on an inspection specifically directed to footpath safety make it altogether probable that an inspection would have led to the hazard being repaired. 43 Related to this is the finding about how long the hazard had been present. The Trial Judge's finding "I am satisfied that prior to the plaintiff's accident it had been in that condition for a lengthy period of time" was made in a context of consideration of the system of annual inspections, and the context shows that the lengthy period of time referred to was treated by his Honour as well over the period necessary for the hazard to be noticeable in at least one annual inspection. In the absence of records which would have shown whether inspections were in fact carried out between 1997 and 1999, this is not a matter on which it was possible for the Trial Judge to make a precise finding. Mr Abbott, who was in charge of this part of the appellant's affairs at the time, could not find records relating to inspections between 1997 and 1999 when he made his report for the purpose of these proceedings. Oral evidence of Mr Abbott dealt with how long the hazard had been present; Mr Abbott would not accept that the hazard had been there for years, but agreed that it could well have been there for "some time". The passage in his evidence is as follows (CAB 41): Q. Looking at that photograph, that this damage or this difference in height between the edge of the bitumen and the gravel below has been there for a substantial period of time? A. How reasonable, period of time yes. Q. Years, do you agree? A. I wouldn't say years but certainly it could well have been there for some time yes. Q. Yes, could well have been there for years? A. Yeah, it could also have been washed out a couple of months before or something. 44 Mr Abbott's reference to the possibility that the difference in height could have been washed out a couple of months before the accident cannot be wholly rejected; the possibility can be seen, but where fact-finding takes place in accordance with probabilities I regard it as extremely unlikely that the hazard had been present only for a short time. The Trial Judge's finding of "a lengthy period" is a rejection of the possibility that the hazard had arisen within only a few months. Taking general experience of life and the environment into consideration, and given the unlikelihood that the edge of the asphalt paving was irregular when first laid down, it would take years of weathering for the edge to form the jagged shape and deep drop shown in the evidence and indicated in the photographs in a clear way which I am unable to render into language. A graphic aspect of the photographs is that the size and depth of the hole were illustrated by placing a brick in it; only a relatively small part of the brick appears above the edge of the hole. A brick is usually about 80 mm or 3 inches high and about 105 mm or 4 inches wide; given that only a small part of the brick is visible above the edge, the Trial Judge's finding that the hole was undoubtedly deep is well justified. Mr Abbott said in his report (CAB 194M) that where the alleged incident occurred the asphalt "… dropped off about 50-60 mm along its southern edge to a gravel surface." There is no reason to think that this was an overstatement. The Trial Judge found to the effect that the hole was approximately two inches deep and most of the width of a house brick (Red 39P-R), and that the depth of the hole was clearly greater than a 20 mm drop (Red 40). The evidence did not enable the depth of the hole to be found in more exact terms. 45 In relation to whether the hole was a hazard the appellant's counsel pointed to the following findings. The footpath was in a very poor state of repair. The footpath was Mr Henshaw's usual route home after work, and it was his habit to walk along the footpath two or three times a week on his way home from work. As he walked he was aware of a nearby manhole cover and of some patching in the asphalt on the footpath. He observed in front of him on the footpath some mud and broken glass (referred to as debris). He diverted to avoid the debris. At the point to which he diverted, part of the bitumen had subsided and the surface was uneven. The hole at which he fell was undoubtedly deep; it was approximately 2 inches deep, most of the width of a house brick. Had a proper inspection been carried out by the appellant such an inspection would and should have revealed the hole as the hazard was obvious. 46 Senior Counsel for the appellant referred to a number of passages in the evidence of Mr Henshaw in support of a claim that it should be found that the hazard was obvious. In my understanding these references were put in support of a contention that the Court of Appeal should make a further finding as to the obviousness of the hazard. 47 The references were to these effects. The accident took place roughly six or seven hundred yards from Mr Henshaw's home. It took place in daylight; it was late afternoon but there was still light. The respondent had been using the path two or three times a week for a period of five to six months. He was reasonably familiar with the condition of the footpath, and was generally aware of the state of the path as he walked along. He saw that the surface was patched with bitumen when he walked along it. He noticed the debris when approaching the area. Immediately before the accident he was looking ahead and was aware of the two manhole covers, of three white posts at the side of the footpath (and the posts were to the right of his course), and of patching areas on the footpath. As he looked ahead he also noticed cracks and subsidences in the kerb and gutter. Prior to taking one step on to the edge of the asphalt paving Mr Henshaw was looking ahead. He did not see the edge because he was not looking and he did not look towards the edge of the asphalt paving. 48 Submissions of Senior Counsel for the appellant were squarely based on the proposition that there is no duty of care on the part of the appellant where the pedestrian does not take reasonable care for his or her own safety. If these submissions are to raise an issue of law they need to be supported by reversal of distinct findings of the Trial Judge which excluded negligence of Mr Henshaw. As appears from the passage I set out earlier, the Trial Judge found that although Mr Henshaw was exercising reasonable care he was nonetheless unable to avoid the hazard presented by the hole. Senior Counsel for the appellant contended to the effect that this conclusion was not well based upon other findings to these effects. Mr Henshaw diverted to avoid the debris. The divergence put him on a course which took him towards the hole on the edge of the footpath. He was unaware of the hole. Suddenly he heard a screech of brakes from a passing car. He instinctively looked to his right, feeling momentarily afraid. He was still in motion. He did not see the hole, stepped into it and fell. According to the appellant's submissions, the conclusion that should have been based upon these findings was that Mr Henshaw did not take reasonable care for his own safety and hence there was no duty of care towards him. 49 Questions were directed to Mr Henshaw in cross-examination (CAB 20R- 21F) which appear to have assumed that it was a criticism of Mr Henshaw's conduct that he did not walk directly towards the concrete footpath, and that if he had done so he would not have reached the edge of the asphalt paving. This passage in the cross-examination appears to have been affected by some misunderstanding between the cross-examiner and Mr Henshaw. Not put to Mr Henshaw, and not explained to the Court of Appeal, was any reason why Mr Henshaw should have walked directly towards the concrete path, or why he would not have been careful if he had walked off the asphalt paving onto the gravel beyond if he chose to do so. The underlying suggestion might have been that the trip hazard was so obvious that although he had sufficient reason for walking to the right of the debris and the depressed area at the filled trench, he should have stayed clear of the edge of the asphalt paving. If this was the suggestion it was not clearly expressed in cross-examination. 50 The Trial Judge found to the effect that from the point of view of a Council officer making an inspection for hazards, the hazard would have been obvious. The finding that the hazard was obvious to someone carrying out an inspection of footpaths is not a finding that the hazard was obvious or should have been obvious to a pedestrian exercising reasonable care for his or her own safety; there is no such finding, and the two cannot be equated, as there would be different opportunities and motivations for observations. The jagged edge of the asphalt paving, the hole and the lower level of the gravel beyond were there to be seen by a pedestrian who took the course taken by Mr Henshaw and particularly directed attention to the edge of the asphalt paving. I am not able to adopt the expression "obvious" used by Senior Counsel for the appellant, as Mr Henshaw was approaching the hole and was not confronted by the edge of the drop; but they were there to be seen. The hole was deep, the edges irregular, the risk of harm was real and the possibility that the attention of a pedestrian might be claimed by some event on the nearby heavily-trafficked President Avenue was clearly foreseeable. In my opinion the Trial Judge's conclusion that notwithstanding that Mr Henshaw was taking reasonable care he was unable to avoid the hole has not been shown to be erroneous. 51 In my opinion the Trial Judge's findings on the facts have not been shown to be erroneous. 52 If I may permit myself to depart briefly from the confines of discussing the facts of the present case in the context of legal rules, it seems to me altogether clear that from the point of view of an ordinary citizen, rate-payer and traveller on the Cronulla train the conduct of the appellant was unsatisfactory and careless in not finding out the state of the asphalt paving, its irregular edge and the drop from the paving surface to the gravel surface, which must have resulted from some years of weathering, and in not carrying out some repair to eliminate the sharp drop and the hole at which Mr Henshaw fell. The ordinary citizen would not have any difficulty in saying that the appellant's carelessness was at least one of the causes of Mr Henshaw's injury. If carelessness of the appellant were legally sufficient for Mr Henshaw to succeed, then he would succeed; but it is not sufficient, and I am to decide this case according to principles of law and I am to conform to judicial opinion, including binding authority, as I do so. 53 Until the law was extensively restated by the High Court of Australia in Brodie on 31 May 2001 the liability of a highway authority for negligence in the exercise of powers to construct, repair and maintain roads was limited to acts of misfeasance; misfeasance was distinguished from mere nonfeasance, and the distinction was tortured and difficult. Notwithstanding divisions of opinion in the High Court, the judgments in Brodie put an end to the view that a rule of law limits the liability of highway authorities in this way. Among the many reasons given by Gaudron, McHugh and Gummow JJ for abandoning the former law, their Honours adopted an expression of the view that it produced harsh results and made unsatisfactory distinctions to avoid harsh results: Brodie at 557 [98], [99]. After extensive review of earlier authorities, including decisions of the High Court, their Honours said at 377-378: [149] The better course is that indicated in the passage from Webb v. The State of South Australia [(1982) 56 ALJR 912 at 913; 43 ALR 465 at 467-468.] set out earlier in these reasons. The Court there gave to the duty of care of the highway authority a content reflecting what had been said by Mason J in Wyong Shire Council v. Shirt [(1980) 146 CLR 40 at 47-48].

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F. Content and breach of the duty of care [150] The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the [Local Government Act] upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers wh ich might reasonably be suspected to exist. [151] The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v. Shirt , a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances [The result, in broad terms, may not differ from the recommendation as to the obligations of local government bodies by the Public Bodies Review Committee of the New South Wales Parliament in its report, Public Liability Issues Facing Local Councils , November 2000, Recommendation 9 at 10:]. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case. [152] In dealing with particular cases and in determining factual issues respecting breach of duty, it may be convenient to differentiate between the design and construction of a roadway, between subsequent works done on it and between courses of inspection to ascertain its soundness. These matters are not mutually exclusive and sometimes may overlap. 54 In Webb v. The State of South Australia [1982] 56 ALJR 912, in a passage set out in Brodie at p539-540 [54], Mason, Brennan and Deane JJ analysed the duty of the highway authority in that case with respect to the risk presented by an artificial construction in terms of the analysis described in Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47-48 by Mason J; allocation of the alleged negligence as misfeasance or mere nonfeasance was not treated as significant. 55 In Brodie, when dealing with breach of duty in relation to repair and maintenance Gaudron, McHugh and Gummow JJ said: (at 579-580) [158] A rejection of the "immunity" for "highway authorities" and the recognition of a duty of care in terms expressed above with reference to Wyong Shire Council v. Shirt does not necessarily involve the imposition of an obligation in all cases to exercise powers to repair roads or to ensure they are kept in repair. An authority may have various statutory powers invested in it and would be under a duty not to use, misuse or fail to use those powers to create a situation of danger which creates a reasonably foreseeable risk of injury to a user of the road. [159] The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works [ Greater Bendigo City Council v Miles (2000) 31 MVR 137 at 137-138.], from a failure to remove unsafe items in or near a road [An issue adverted to by Hayne J in Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 488 [153]. See, eg, Stovin v Wise [1996] AC 923; cf Weir v Commissioner for Main Roads (1947) 17 LGR 1; Vale v Whiddon (1949) 50 SR (NSW) 90.], or from the placing of items upon a road which create a danger [ Thompson v Bankstown Corporation (1953) 87 CLR 619.], or the removal of items which protect against danger [ Flukes v Paddington Municipal Council (1915) 15 SR (NSW) 408.]. [160] In dealing with questions of breach of duty, whilst there is to be taken into account as a "variable factor" the results of "inadvertence" and "thoughtlessness" [ Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 343.] , a proper starting point may be the proposition that the persons using the road will themselves take ordinary care [ Miller v McKeon (1905) 3 CLR 50 at 60.] . 56 Smith v. Broken Hill Proprietary Co Ltd (1957) 97 CLR 337 at 343 illustrates the difference between inadvertence and thoughtlessness. Their Honours gave as authority for their proposition about the proper starting point a passage in Miller v. McKeon (1905) 3 CLR 50 at 60. In Miller the High Court (Griffiths CJ, Barton and O'Connor JJ) dealt with a case which was alleged to be based on misfeasance: a country road ran through a cutting with steep sides up to 10 feet high; the plaintiff, a passenger in a buggy travelling at night without lights, got out of the buggy to locate the entry to the cutting; unknown to him the buggy had been driven up the bank to one side of the cutting, and in the dark he fell over the edge and was injured. It was alleged that there was negligence in the construction of the cutting in that the access up the bank at the side was not blocked off by a fence. Griffiths CJ said at 60: (and I have emphasised some words) The Government of a new country, forming for the first time a practicable road upon land which has been technically dedicated as a highway, but is impassable for wheeled traffic, is not bound by the rules which govern persons (other than the highway authority) who interfere with the surface of an ancient highway, as that term is understood in England. If the Government improve the so-called highway, and render it more useful to the public than it previously was, they are not guilty of a misfeasance merely on the ground that they have interfered with a highway. The analogy is rather to the case of a private owner who invites the public to pass through his land by a track which he has there constructed, and which is reasonably safe for persons using ordinary care. If such an owner, after granting the permission, puts, or allows to be put upon the track which he so offers, a new obstacle or danger by which persons using reasonable care would be liable to be injured, he is liable for the consequences: Corby v. Hi ll [ 4 C.B. N.S., 556; 27 L.J. C.P., 318. ]. But in the absence of such acts of commission, he is not liable merely by reason of the imperfections of the road which he offers. So the Government of a newly-settled country, which undertakes the first formation of a road, whether the soil has or has not been formally dedicated as a highway, is bound to use such care to avoid danger to persons using it as is reasonable under all the circumstances. These circumstances include the nature of the locality, the extent of the settlement, the probabilities as to the persons by whom the road is likely to be used, and the moneys available to the Government for the purpose; it being always assumed that the persons using the road will themselves take ordinary care . If the Government use such care they are not guilty of misfeasance. And if, by reason of altered circumstances, the conditions of the locality become such that, if the road were to be made anew, further precautions might reasonably be taken, the original act does not therefore become unlawful. 57 In the leading judgment in Brodie at 581 [163] Gaudron, McHugh and Gummow JJ also said: [163] 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, as in Ghantous , 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 (as in Webb v. The State of South Australia [(1982) 56 ALJR 912; 43 ALR 465.]]), or the surrounding area (as in Buckle , where the hole was concealed by grass [(1936) 57 CLR 259 at 266.]). In such circumstances, there may be a foresee able risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a "trap" or, as Jordan CJ put it, "of a kind calling for some protection or warning"[ Searle v Metropolitan Water, Sewerage and Drainage Board (1936) 13 LGR 115 at 117. ]. In Romeo , Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger[302]. Kirby J pointed out in the same case that even an occupier of premises "is generally entitled to assume that most entrants will take reasonable care for their own safety"[ (1998) 192 CLR 431 at 455 [52]. ]. Each case will, of course, turn on its own facts[304].

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(Their Honours' reference to Searle v. Metropolitan Water, Sewerage and Drainage Board (1936) 13 LGR 115 was made for the illustration furnished by Jordan C.J.'s use of language, not as a source of law: Searle did not relate to a highway authority or to maintenance or repair of a highway, but to active operations of a water authority which had lawful authority to dig a trench in which to place copper pipes; during the work a copper pipe was left across the footpath: it would seem, pending placing the pipe in the trench.) 58 In disposing of Ghantous v. Hawkesbury City Council, which related to a claim by a pedestrian, their Honours said at 582: [166] The facts are considered by Callinan J on the footing that an action in negligence would lie against the Hawkesbury City Council for failure to maintain or improve the footpath in question and to keep or make it safe. His Honour concludes that there was no failure in that regard because the footpath was not unsafe for a person taking ordinary care. [167] We agree with his Honour's analysis of the facts and with his conclusion that there was no breach of duty by the Council, either in the construction of the footpath or in the failure to keep level the concrete strip and verges. 59 The passage in the judgment of Callinan J to which their Honours referred is at 639 [355]: [355] In my opinion the application should fail at the outset. The respondent has not abandoned its contention that it was not negligent, whether as a highway authority or otherwise [Respondent's submissions, pars [4] and [5].]. 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, whether as a matter of misfeasance or otherwise, I would conclude that there was no failure in that regard because the footpath was not, despite what the expert witness was allowed to say, unsafe. The case of the applicant in negligence was that a differential in height between the concreted part of the footpath and the earthen part of it created a dangerous situation. A court is not obliged to accept an expert, especially when his or her evidence is evidence purportedly resolving and concluding an issue of the kind which arose here[ Naxakis v Western General Hospital (1999) 197 CLR 269 at 306 [110], fn 137.]. A court is not bound to accept that a matter of ordinary observation such as the readily apparent state of the footpath is a matter calling for expert opinion. But in any event the expert's opinion (uncontradicted as it was) did not go so far as to say that the "poor maintenance" which caused the "hazard" actually caused one of such a nature that to leave it unrectified was negligent. 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. The applicant herself admitted in cross-examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the earthen verges. There was no negligence on the part of the respondent either in the construction of the footpath or in not keeping the concrete strip and verges level. 60 The disposition of Ghantous in the leading judgment was not produced and was not influenced by their Honours' decision to abandon the distinction between misfeasance and mere nonfeasance. In their Honours' view there was no breach of duty. The terms of para [167] show clearly that this was the ground of decision, and so too do the terms of Callinan J's judgment at [355]. Gleeson CJ, who dissented in Brodie on the misfeasance and nonfeasance test, was of the opinion, agreeing with Callinan J, that no case of negligence was made out against the Hawkesbury City Council: see p525-526 [5-8]. Gleeson CJ did not adopt the reasons given by Callinan J, and the Chief Justice's reasons do not refer to an assumption that pedestrians will take reasonable care for their own safety. Kirby J reached a similar conclusion that no breach of duty was shown on the part of the highway authority; see 605-606 [244-248]. Paragraph [247] shows that not only was his Honour not of the view that there was any contributory negligence of Mrs Ghantous, but also that his Honour was of the view that the highway authority's duty of care was not affected by any assumption about the care to be taken by pedestrians: "I would not rest my conclusion in [the plaintiff's] case upon any enlarged assumptions about a pedestrian's need for vigilance for his or her own safety. I do not agree in the latter-day enthusiasm for the notion of contributory negligence that is abroad. Cf Liftronic Pty Ltd v. Unver (2001) 75 ALJR 867 at 884 - 885 [87] - [88]." (In Liftronic Kirby J collected many authorities in the law of employer's liability relating to allowance for inadvertence, misjudgement or inattention by an employee. Pelley v. The Maitland Benevolent Society [2004] NSWCA 323 at [18] shows the continuing vitality of this consideration.) Hayne J agreed with the reasons of Callinan J for disposition of Ghantous; see 636 [339]. 61 Overall, the ground on which Ghantous was disposed of was that there was no negligence, not that there was no duty of care. Gaudron, McHugh, Gummow and Hayne JJ expressly adopted Callinan J's ground of disposition, and Gleeson CJ and Kirby J's conclusions were similar in this respect. The decision of the High Court in Brodie is not an authoritative source for a legal rule that, whatever result might otherwise be produced by applying the Shirt Calculus to the facts, no duty of care is owed by a highway authority to a pedestrian who does not take reasonable care for his or her own safety. Judgments in Brodie do not make any such rule its ratio decidendi. 62 Support for the view that there is such a qualification on the existence of a duty of care is found in the opening sentence of para [163] in the leading judgment in which their Honours 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, as in Ghantous, the plaintiff was a pedestrian." I respectfully observe that their Honours had not earlier formulated the duty in terms which required that a road be safe only for users exercising reasonable care for their own safety, although the terms of that sentence suggest that they had. In paras [150] to [152] there is no limitation of this kind to the class of road users to whom a duty is owed. The earlier formulation referring to persons using the road and themselves taking ordinary care is found in para [160] dealing with questions of breach of duty. 63 What their Honours said at [160] treats the proposition that the persons using the road will themselves take ordinary care as the starting point when dealing with questions of breach of duty, not questions of the existence of duty, and if there were no duty towards persons who do not exercise reasonable care for their own safety there would be no room for taking the results of inadvertence and thoughtlessness into account as a variable factor. In my respectful view it is not a correct reading of the leading judgment, notwithstanding the terms of the opening sentence of para [163], that Gaudron, McHugh and Gummow JJ intended to establish a qualification which would override what might otherwise be the result of the application of the Shirt Calculus to the facts, and would exclude pedestrians who do not take reasonable care for their own safety from any duty of care which might otherwise be owed by highway authorities to pedestrians.

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65 I feel that if the High Court intended to establish some clear barrier of that kind instead of the previous state of negligence law, the intention of the High Court would have been clearly stated, and would have been accompanied by supporting reasoning explaining why what would otherwise be the operation of the Shirt Calculus was limited, and resolving apparent anomalies. This is not the kind of rule which the High Court could be understood to have instituted otherwise than in an entirely distinct way: distinct in the way in which the rejection of the misfeasance and non-feasance test was distinct. In my understanding and notwithstanding its literal terms, the first sentence of para [163] relates to breach of duty. Whether or not my understanding is correct, that sentence cannot be treated as authority for an overriding rule of law exempting highway authorities from any duty of care at all to pedestrians who do not take ordinary care in their use of the road. 66 Such a rule would be anomalous with the modern law of contributory negligence established by the Law Reform (Miscellaneous Provisions) Act 1965 s.10, and would not conform with the earlier law relating to contributory negligence, which did not bar recovery on the ground of absence of a duty of care, but did so on the ground that causation by the plaintiff's negligence made it unjust that he or she should recover against the defendant whose negligence also caused the loss: see Alford v. Magee (1952) 85 CLR 437. 67 A rule of law which meant, or had the effect that if a hazard in a road is so obvious that a pedestrian can observe it, the highway authority is not obliged to do something about it on the calculation that pedestrians will take reasonable care for their own safety has an air of parody; that the hazard was so bad that nothing needed to be done about it. Only in a Savoyard parody should a highway authority maintain that its own negligence was so egregious that everyone should have observed the hazard which it produced, and that as a result the highway authority had no responsibility to the users of the road. Such a rule would create an incentive for a highway authority not to take remedial action to deal with a known danger in a footpath, a consequence of the previous law on misfeasance and non-feasance to which the leading judgment in Brodie referred at 572 [135] as showing that the previous law was unsatisfactory. 68 Such a rule would be in plain conflict with the majority holding in Webb v. The State South Australia, of which no disapproval was expressed in Brodie: rather it seems to have been approved of in some respects: see Brodie at 539 [54], 551 [83], 577 [149] and 581 [163] (Gaudron, McHugh and Gummow JJ). The passage in the majority judgment in Webb (Mason, Brennan and Deane JJ) which immediately preceded the passage cited in Brodie at 539 [54] was: Of course a pedestrian could avoid the possibility of injury by taking due care. However, the reasonable man does not assume that others will always take due care; he must recognize that there will be occasions when others are distracted by emergency or some other cause from giving sufficient attention to their own safety. It seems to us that the courts below gave undue emphasis to the circumstance that injury could be avoided by a pedestrian who took reasonable care for his own safety.

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This passage can hardly have escaped some disapproving observation if the High Court intended to state the law in terms quite inconsistent with it. 69 The reference to Webb in [163] of Brodie is not easy to follow: their Honours said: "Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v. The State of South Australia) …" yet the false kerb which created the danger in Webb was found at trial to be "a very obvious feature" and was accepted throughout to be so, and the majority of the High Court in Webb said (at 913 column 1D) "The happening of the accident demonstrated, if demonstration be needed, that the construction had the potential to cause injury" and (at G) "Here the risk of significant personal injury was obvious; the occurrence of such an injury was a distinct possibility," and accepted that the plaintiff's injury could have been avoided by his taking reasonable care for his own safety. 70 I am not free to act solely on my own views about what may be authoritatively established in Brodie. I turn to address decisions later than Brodie in the Court of Appeal. There have been many decisions of the Court of Appeal in cases arising from trips and falls on footpaths, some before Richmond Valley Council v. Standing (2002) 127 LGERA 237 and Burwood Council v. Byrnes [2002] NSWCA 343 and many later. These cases fulfil the prediction in the last sentence of para [163] in Brodie: "Each case will, of course, turn on its own facts". As a generalisation, cases based on tripping hazards where there are height discrepancies in the order of 25mm 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. 71 In Standing Heydon JA at 246 [29], when addressing whether the defendant public authority had a duty of care to a pedestrian who tripped and fell on an irregular paved concrete surface at the junction between the footpath and a driveway, applied the opening sentence of paragraph [163] in Brodie in its literal terms when considering the circumstances in which duty of care existed. However his Honour did not dispose of the appeal upon the ground that the pedestrian was not exercising reasonable care for her own safety and was outside any duty of care for that reason. In my understanding the ground of disposition was that there was not a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety (see [54]). His Honour said at [55] and [59]: [55] So far as there was any hazard it was both not only obvious but insignificant and common. and [59] The conditions of the site were so obvious and so typical of those commonly to be encountered in daily life that the defendant was not under any duty to undertake inspections to identify them.

[38]

Handley and Sheller JJA agreed with Heydon JA. In my opinion Richmond Valley Council v. Standing is not a decision in which the Court of Appeal adopted or applied a limitation on the circumstances in which a duty of care comes into existence. 72 Byrnes was decided on 4 November 2002, the same day as Standing, although there are no references in either decision to the other. The leading judgment is that of Handley JA with whom Beazley and Hodgson JJA concurred. The plaintiff tripped at a point in a footpath where a section of pavers had settled creating a trip slab with a height differential of about 20mm to the adjoining pavers. Observations by Handley JA include: [25] 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. [28] Pedestrians on the other hand are in a position of relative advantage because they can generally protect themselves from uneven surfaces on footpaths and other public areas by keeping a lookout and taking care for their own safety. The position will be otherwise if the surface contains something unusual or unexpected which creates a real danger for ordinary pedestrians. [33] 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" [para 29 above]. 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. 73 After making (at [29-32]) a number of references to passages in judgments in Brodie Handley JA stated (at [33]) the aspects of duty of care and the law of negligence which his Honour regarded as engaged. His Honour did not consider pedestrians' taking reasonable care for their own safety as an element in the Council's duty, and referred to that matter as an element in the standard of care reasonably required. Nonetheless, in disposing of the appeal at [39] his Honour said:- [39] It follows in my judgment that the judgment under review was vitiated by legal error because the Judge misdirected himself as to the Council's duty of care. 74 In Burwood Council v. Byrnes the High Court refused special leave to appeal on 25 November 2003 [2003 HCA Trans 462]. Some observations during argument support the view that Brodie established that there was no duty of care. Observations of McHugh and Kirby JJ show that the High Court disposed of the application on the ground that there was no duty of care in the circumstances; McHugh J said: This is a case concerning a highway authority's duty to take care for the safety of those using the highway and its adjoining footpaths. The applicant seeks to exclude entirely from consideration of the existence of the duty of care owed by the highway authority the postulate of a plaintiff's obligation to take reasonable care for his or her own safety. The applicant contends that the latter obligation only arises in considering breach and any question of contributory negligence.

[40]

These extemporised observations were not made in the exercise of appellate power, are not authoritative, and did not resolve any question except the availability of special leave to appeal. The argument "The applicant seeks to exclude entirely …" attributed to the applicant would introduce a further obscurity in a field where they are already in plenty. 75 In Rallis v. Pang [2003] NSWCA 202 at para [21]- [23] Tobias JA said: [21] It is clear that the primary judge properly directed himself as to the relevant legal principles as articulated in the then recent decision of the High Court in Ghantous . That decision has been followed and applied in this Court on numerous occasions. Those decisions establish that a pedestrian has no expectation that the surface of a footpath will be smooth and lack imperfections or defects. This is so because pedestrians are in a position of advantage as they can protect themselves from uneven surfaces of footpaths by keeping a proper lookout for the purpose of taking care for their own safety. This is particularly the case where the hazard is one which is obvious. [22] In the present case, the footpath, to the knowledge of the claimant, was in an obvious state of disrepair and, therefore, constituted a hazard of which she was well aware. As a consequence, when she was able to do so, she had avoided the footpath by walking on the adjoining road. However, it was submitted by the claimant that irrespective of whether she stepped on a rock, a piece of concrete a brick or some other object, that which caused the claimant to lose her balance was concealed from her view by grass which had grown within the footpath area. [23] In my view the fact that part of the footpath surface may have been covered by grass should, if anything, have alerted the claimant that the grass covered area was to be avoided as it was more likely than not that the surface underlying the grass was rough and uneven (consistent with the footpath generally) and, therefore, a hazard. This is not a matter relevant only to contributory negligence as the care which pedestrians must themselves take also enters into the definition of the duty of care: Burwood Council v. Byrnes (2002) NSWCA 343 at [33] per Handley JA (with whom Beazley and Hodgson JJA agreed) 76 Temora Shire Council v. Stein [2004] NSWCA 236 relates to a fall on a footpath which was not sealed or paved, at a junction with a raised concrete driveway crossing the footpath, and the edge of the driveway where the plaintiff tripped was approximately 30 to 40mm above the footpath. The plaintiff fell and was injured when she was delivering brochures at about 11pm. She was aware of the raised driveway because she had tripped on it about a year earlier. In my respectful view Giles JA made a much closer examination of Brodie and subsequent cases, and a much closer consideration of what in principle is involved than has appeared in any other judgment. Giles JA examined closely at [20] to [30] passages in Brodie which deal with content and breach of duty of care in the context of liability to pedestrians. Giles JA said, after referring to Brodie: [31] The later decisions are legion, but firmly establish that the content or breach of the duty of care of a council (or other entity responsible for a public area) involves regard to the obviousness of the risk to a pedestrian exercising reasonable care for his or her own safety. I refer only to illustrative cases.

[41]

and went on to examine Byrnes , Standing and Newcastle City Council v. Lindsay [2004] NSWCA 198. 77 Giles JA then said:- [36] As Ghantous v. Hawkesbury City Council made plain, a council owes a duty of care to pedestrians using its footpaths. The duty was stated as a duty to take reasonable care to prevent foreseeable risk of harm from the condition of the footpath, the foresight of risk of harm including that pedestrians can be expected to take reasonable care for their own safety by perceiving and avoiding obvious hazards. [37] Obviousness to the careful pedestrian has been spoken of sometimes as going to the duty of care, and sometimes as going to breach of the duty of care. Reference to the content of the duty of care may have brought a slide to the existence of a duty of care. On the one approach, risk of harm is not foreseeable if the defect in the footpath is obvious to the careful pedestrian; on the other approach, there is no breach in failing to remedy the defect if the defect is obvious to the careful pedestrian. The language used in the cases has not been uniform, or always consistent: for example, in the summary in Newcastle City Council v. Lindsay (with which I agreed) Tobias JA began by speaking of a duty arising, but ended by speaking of the need for action as a reasonable response to a demonstrated danger. [38] In most situations it will not matter, but for a number of reasons it seems to me that the preferable approach is that obviousness of the risk to the careful pedestrian goes to breach of the duty of care. As I have said, it is plain that a council owes a duty of care to pedestrians using its footpaths. In Brodie v. Singleton Shire Council and Ghantous v. Hawkesbury City Council at [160] the proposition that persons using the road will themselves take ordinary care was for "dealing with questions of breach of duty", and I have referred to the heading associating content with breach, although later passages moved to language of duty. When reasonable foreseeability has become an undemanding test, as lamented by McHugh J in Tame v. New South Wales (2002) 211 CLR 317 at [96]-[99], risk of injury even to the careful pedestrian can usually be found, so regard to pedestrians taking ordinary care would mean little in describing the content of the duty of care. Further, what risk would be encountered by the careful pedestrian can really only be determined by regard to the particular defect, and focus on the content of the duty could lead to the error of a duty of care "formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated", see Graham Barclay Oysters Pty Ltd v. Ryan (2002) 211 CLR 540 at [192] per Gummow and Hayne JJ; see also McHugh J at [106] - "The duty of care owed by a manufacturer or producer to a consumer is a duty to take reasonable care to avoid injury to the consumer. To formulate the duty in more specific terms invites error because it is likely to mix a question of law (whether a duty existed) with a question of fact (whether a breach occurred)." [39] On my reading, the reasoning in the joint judgment in Brodie v. Singleton Shire Council and Ghantous v. Hawkesbury City Council made the proposition that persons using the road will themselves take ordinary care one of the matters in the balancing of matters in accordance with Wyong Shire Council v. Shirt . On the approach that obviousness of the risk to the careful pedestrian goes to breach of the duty of care, if there is a foreseeable risk then in the balancing of matters the response of the reasonable council takes into account that pedestrians are able to see and avoid imperfections and "will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards …" (see at [163]). [40] It does not automatically follow that, in arriving at the response of the reasonable council, a defect obvious to the reasonable pedestrian needs no attention. As their Honours added (at [163]), "some allowance must be made for inadvertence". They had earlier (at [160]) referred to taking into account "as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness'", citing Smith v. The Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 343 where Taylor J spoke of doing that in enquiring what precautions or safeguards the exercise of reasonable care by an employer required. It is not clear whether their Honours meant, by the illustrations following, that inadvertence was failure by a pedestrian exercising reasonable care to perceive a danger where perception of the danger was diminished, for example because of inadequate lighting or concealment by grass, so that the danger was "in the nature of a trap". The line between failure to take reasonable care and inadvertence is fine, and an expecta tion that pedestrians will exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards leaves little room for inadvertence. It has not featured in the decided cases; in Newcastle City Council v. Lindsay it was unsuccessfully argued that the pedestrian was distracted by unusual objects adjacent to the defect in the footpath, but it was said (at [42]) that inadvertence was relevant only if the pedestrian was otherwise exercising sufficient care.

[43]

[42] In the balancing exercise, the ultimate issue is what reasonable care required. All the circumstances of the risk presented to the careful pedestrian must be considered. Equally, see McHugh J in Liftronic Pty Ltd v. Unver (2001) 179 ALR 321 at [25], it is an erroneous assumption that, if there was a reasonably foreseeable risk of injury to the plaintiff that could have been avoided, the defendant was necessarily negligent: as his Honour said, "[t]he issue in negligence is always whether reasonable care required the elimination of the risk having regard to the consequence of the risk, the probability of its occurrence and the cost, expense and inconvenience of eliminating it". See also Tame v. New South Wales at [99] and Calfest v. Tombleson [2003] NSWCA 210 at [18]. 78 Giles JA brought under consideration the passage in the judgment of Gummow and Haynes JJ in Graham Barclay Oysters Pty Limited v. Ryan (2002) 211 CLR 540 at [192] which points out the error of a duty of care "formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated." This observation is important because it leads to the perception that the circumstances in detail of a particular accident which happened, including consideration whether the pedestrian took reasonable care for his or her own safety, are outside the range of matters brought under consideration in the Shirt Calculus in all but most exceptional circumstances, as a highway authority usually does not and cannot have any knowledge of the presence or circumstances of any particular pedestrian in advance of an injury. (There may be exceptions where some circumstances give a highway authority knowledge of some special class of pedestrians, such as persons who are blind, poorly sighted or otherwise disabled, whose presence is related to some nearby activity). 79 Pearlman AJ agreed with Giles JA while Hodgson JA made short observations in agreement, in particular referring to Graham Barclay Oysters Pty Limited v. Ryan. 80 The disposition of Temora Shire Council v. Stein was adverse to the pedestrian, and it cannot be said that the allocation of the pedestrian's carelessness to one part or the other of the considerations arising under negligence law was necessary to the disposition of the appeal, or that Giles JA's observations are binding in the Court of Appeal in a subsequent case such as the present. However I find Giles JA's observations and supporting reasons highly persuasive. They accord with the view I have reached on my own examination of what was said in Brodie. 81 In Boroondara City Council v. Cattanach [2004] VSCA 139, an appeal decided by the Court of Appeal of Victoria, Chernov JA (with whom Winneke P and Bongiorno AJA agreed) said at [15]: [15] Thus, it seems plain enough that a council is not under a duty to prevent or eliminate all dangers in footpaths. Ordinarily, where a council knows, or ought to know, of an impediment in a footpath, it will owe a duty to render it harmless to users of the path only if the danger arising from it would not be obvious to an ordinary, reasonable pedestrian exercising proper care for his or her own safety. [An example of a case where the appeal court overturned a decision in favour of a plaintiff who tripped on a defect in the footpath and suffered injury because the hazard was obvious, is Newcastle City Council v Lindsay [2004] NSWCA 198.] Reference has already been made to the recognition in Brodie of the importance in the formulation of such a duty of the obligation of such a pedestrian to exercise reasonable care for his or her own safety. And, as Handley JA. [With whom Beazley and [Hodgson] JJA agreed.] pointed out in Burwood City Council v Byrnes [2002] NSWCA 343 at [33]] this requirement enters into the definition of the duty and is not relevant only to contributory negligence.[ See also Richmond Valley Council v Standing [2002] NSWCA 178 at [54]-[55] per Heydon JA and Hastings Council v Giese [2003] NSWCA 178 at[21]-[22] per Tobias JA]. It must be borne in mind, however, that whether the fault in the pavement and the danger it poses would have been relevantly obvious depends on the circumstances of the case so that, as the majority in Brodie pointed out, there may be a defect in the path that is not obvious to relevant pedestrians notwithstanding that they exercise due care for their own safety. Nevertheless, it is for the plaintiff to establish that the hazard was not one which, with the exercise of reasonable care by the plaintiff, could have been seen and avoided.[ See Temora Shire Council at [43] per Giles JA] In Greater Shepparton City Council v. Davis [2004] VSCA 140, decided on the same day as Boroondara City Council v. Cattanach , Winneke P, after setting out at [32] a passage from the judgment of Handley JA in Burwood Council v. Byrnes , said at footnote 8:

[45]

Notwithstanding the terms of the second sentence of Chernov JA's para [15] in Boroondara City Council v. Cattanach , both decisions appear to have proceeded on what Winneke P regarded as the better view. 82 In Almeda v. Attorney General for Gibraltar [2003] UKPC 81 the Privy Council, applying the Common Law as in force in Gibraltar in a case where a pedestrian tripped and fell on broken paving stones in a road, did not follow Brodie, and adopted Fullagar J's statement of the law in Gorringe v. Transport Commission (Tasmania) (1950) 80 CLR 357 at 375-376, which Brodie overruled: see Almeda at [11] and [19]. In England such claims are now brought under the Highways Act 1980 (U.K.) s.41 and the Common Law is no longer relied on: see for a recent example Thompson v. Hampshire County Council [2004] EWCA (Civ) 1016, which shows that statutory claims have their own complexities. Only Australian Courts apply Brodie. 83 The grounds on which in Brodie, Ghantous actually was disposed of are at two removes from an authoritative overthrow of the law which required misfeasance and not mere non-feasance to be shown when an injured pedestrian sued a highway authority, with substitution of a rule in which there is no duty of care to a negligent pedestrian: the ground of disposition was that the highway authority was not negligent, so that the question whether its negligence was misfeasance or mere non-feasance was not dispositive of Ghantous, nor was the question whether there was no duty of care because the pedestrian was not taking reasonable care for her own safety. The uncertainties affecting readings by Australian Courts of these auguries include at least a shadow of doubt about whether or not the sacrificial animal is indeed dead. This however has not deterred them. 84 A characteristic difficulty of negligence law is the difficulty of recognizing the part, in the series of considerations raised by a negligence case, to which some fact or some consideration should be assigned. The question whether a pedestrian took reasonable care for his or her own safety cannot be exhaustively assigned to one only of the series of considerations which present themselves: the reasonable foreseeability to a highway authority of a risk of harm to a pedestrian which is not far-fetched or fanciful; the standard of care or scope of duty measured by the response of a reasonable person in the position of the highway authority to foresight of the risk of harm; the breach of duty, that is the act or omission which does not conform to the standard of care; causation by the breach of injury to the pedestrian; and the apportionment of responsibility. The pedestrian is not quite the same concept throughout: at the earlier stages the pedestrian is a hypothetical member of a general class of road users, and as the series progresses the pedestrian becomes more specifically the person who has been injured. Whether this shiftingly conceptualised pedestrian is conceived of as taking or actually has taken reasonable care for his or her own safety is part of the matters under consideration at every stage, but not with uniform focus of attention. 85 At the stage of reasonable foreseeability of harm the conduct of a class of foreseeable road users is relevant: they must be using the road in the ways in which roads are reasonably used, and extremes of conduct may mean that they are not road users for the present purpose because they are outside the range of what it is reasonably foreseeable that road users will do. The undemanding test of foreseeability of risk of harm is limited to uses of the road which will be made by reasonable road users. Limits to behaviour on roads to which duty extends are imposed by the limit which excludes the far-fetched and the fanciful from foreseeability, but passage to and fro on foot or in vehicles by road users as a class is at the centre of the foreseeable. To take an illustration drawn from Miller v. McKeon, a person who walks over an embankment after getting away from the carriageway and up on the top of the embankment may have passed into the realm of the far-fetched and fanciful and outside the realm of reasonable foreseeability. Otherwise pedestrians are road users, and they are within reasonable foreseeability of risk of harm from defective conditions of the road no matter whether or not they are being careful and no matter where they are looking. At the next stages, standard of care and breach, the possibility of inadvertence or momentary inattention is among the things which the highway authority should reasonably consider when deciding what is to be its response to the foreseeability of risk; that is, when deciding what is to be done. It would not usually be a reasonable response to adopt some course which leaves the road user who acts with inadvertence or momentary inattention without any protection: the choice of response has to be within the range of reasonable responses, as the inadvertent pedestrian is still a neighbour. At the stages of causation and apportionment of responsibility, failure of the road user to take reasonable care for his or her own safety, if he or she did so fail, is specific to the actual road user in person, time, place and conduct. 86 In my opinion the commitment of negligence law to the concept of the reasonable means that a categorical statement that failure of the road user to take reasonable care is conclusive at any particular stage must be wrong. A finding that there was such a failure should be correctly allocated to its places and to its significances among the series of considerations. An allocation which is less than exhaustive can be misleading. 87 It is helpful, up to a point, to speak and to think of the stages of consideration as different considerations or different elements, but they are not separate, and the difficulty of bringing attention to bear on them separately and of assigning facts to one or the other results from their not truly being distinct from each other. I have spoken of the scope of duty and breach as different considerations, but it is usual to treat them as one and to speak only of breach of duty. McHugh J spoke of three elements in Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317 at 348-349 where his Honour said: [88] The common law of negligence has three elements - a duty of care owed to the plaintiff, a breach of that duty and a causal connection between the damage sustained and the breach of duty. Furthermore, the damage must not be too remote from the breach. [89] Central to the elements of breach of duty and remoteness is the concept of reasonable foreseeability. In the absence of a pre-existing duty of care owed by the defendant to the plaintiff, the concept of reasonable foreseeability also plays a vital role in determining whether the defendant owed a duty of care to the plaintiff. Because Acting Sergeant Beardsley had no pre-existing relationship with Mrs Tame, the issue of reasonable foreseeability is central to the issue of duty in this appeal. [90] Although it is usually convenient to discuss negligence law in terms of its three elements, "each element can be defined only in terms of the others"[ John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 at 241-242 per Brennan J cited in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 487 per Brennan J.].

[46]

Attempted enumeration soon dissolves, as in the legend about counting Standing Stones, but for the clearer reason that each element can be defined only in terms of the others. 88 The concept of an obvious risk is very elusive. What is obvious depends first on what the risk physically is. What is obvious also depends greatly on physical conditions: night, day, fog, driving rain; and on what the pedestrian is doing, which may or may not be reasonable, or sensible: walking, running for a bus, chasing a toddler, jogging, running from the police, carrying an armload of goods, dodging a bicycle, responding to a noise which could indicate a danger, marching in step in a procession: and on characteristics of the pedestrian: infant, aged, sober, drunk, blind, lame. The pedestrian might be blind outside a Blind Institution where obviously there are many blind pedestrians, and might be drunk outside a hotel. What is foreseeable about a hypothetical able-bodied fully-sighted sober pedestrian at a walking pace in daylit serene weather is inadequate as a test of the duty of care of a highway authority, whose consideration must be generalised and abstract: its inadequacy is obvious, and interpretation of judicial opinion which seems to make such foresight a test of duty must be a mistaken interpretation. 89 What I understand to be established by the preponderance of opinion in the Court of Appeal, and by adherence to principle so far as principle can be seen, is that Courts should approach the disposition of cases like present case on the view that the question whether a pedestrian who was making reasonable use of a road, such as by walking on a footpath, took reasonable care for his or her own safety does not determine the existence of a duty of care, but is relevant to the standard of care or scope of duty and to whether there was a breach of duty by the highway authority. In relation to those questions inadvertence and momentary inattention of a pedestrian are within the range of risks foresight of which may move a highway authority to take such action as regularly inspecting footpaths and carrying out repairs, subject to considerations of reasonableness. To my reading only a single sentence of the majority judgment in Brodie supports the other view, while passages at [150] to [152], [158] to [160], [169] and the general tenor of the reasons do not. Due regard must be paid to the formulation in para [150] in terms which show that it is a considered statement of the position overall. The second sentence of para [150] states the duty in terms which do not make the conduct of the road user a condition of the existence of the duty: to my reading, what a pedestrian might do is brought under consideration when deciding what are reasonable steps to address the risk. Paragraph [160] is part of the exposition commencing at para [150] and is not a departure from it. 90 In saying this I really leave the subject more or less where I found it. Against the rebuke that I have not enounced a clear rule of decision, a bright line informing highway authorities and pedestrians of their responsibilities so that they can understand and conform to them, I comfort myself that no-one else has either, and that it is late in the history of negligence law to harbour such an ambition. Law which is committed to reasonableness at the stages of legal tests and also of fact-finding is not committed to certainty or to entire predictability. What lies ahead is more experience, not more logic. Echoing Priestley JA, this is a situation to be recognised rather than a problem to be solved: Avenhouse v. Hornsby S.C. (1998) 44 NSWLR 1 at 8. In many situations the existence of a duty of care is clearly established and long has been, and there is no point in attempting re-examination. Even so, formulations which appear precise can be misleading if they deflect attention from the facts in detail of the case in which judgment is called for. 91 In my respectful view the judgment of Giles JA in Temora Shire Council v. Stein states the law as well as it may now be stated and gives the best resolution of what is to be understood from Brodie about the place of the pedestrian's conduct in the highway authority's duty of care. On my view of the law as established in Ghantous when rightly understood, a highway authority does have a duty of care to pedestrians where there is a foreseeable risk of harm which is not far-fetched or fanciful, and it is reasonable that in the exercise of its powers of maintenance the highway authority should repair it, and if pedestrians do not notice a hazard which exists because of the highway authority's negligence, its liability to them may be reduced or may be undiminished, depending on why it was that they did not notice the hazard. 92 The whole subject is negligence in the exercise of powers of maintenance: it is not directly about any duty to maintain roads and footpaths in good order, and there is no such duty. Reasoning back from there not having been any repair work to a conclusion that there was negligence in the exercise of power to carry out repair work is inference-based and is not completely reliable. Everyday experience leads to an assumption that after surfaces have been paved or surfaced highway authorities will have programs of inspection and repair of road surfaces including footpaths. The assumption that a highway authority acting reasonably will have and conform to a program of inspection and repair is readily made for roads and footpaths which have been paved and for places where urban occupation and traffic are relatively intense, but it is an assumption based on relatively intense occupation and traffic, and it cannot reasonably be applied where there is no paving, or where occupation and traffic are not intense. Ordinary experience does not lead to similar assumptions for all roads, or for footways worn by passage of pedestrians on village streets or country roads, or for pathways in parks, where it is obviously not reasonable to expect much maintenance. Ordinary experience suggests that on tracks in National Parks the bush-walker is squarely and solely responsible for where he puts his feet, even if there is a track and even if some public authority has power to maintain the track. 93 Involved in the assumption about programs of inspection and repair are suppositions to the effect that the highway authority has the resources to keep surfaces in repair and to maintain a regime of inspection for hazards and of prompt response to whatever is found, and also a supposition that those resources were sufficient to bring it about that the particular hazard under consideration would have been repaired if there had been a reasonable exercise of the highway authority's powers. These suppositions may not always be true, and reasoning which proceeds from evidence establishing on general considerations what inspection and maintenance programs it is reasonable for a highway authority to have, or what programs the particular highway authority in question does have, to a conclusion that it was reasonable for the highway authority to find out about a particular hazard and to respond by repairing it, may not establish conclusively whether or not there was negligence. A finding about how often an inspection for hazards should be carried out according to a reasonable program of inspection, coupled with a finding about how long the particular hazard had been present, is no more than an indirect basis for an inference that there was negligence in the exercise of the highway authority's powers. There may well be circumstances about the availability or lack of resources, about the existence of competing claims on the available resources, about allocation policies or decisions, which go more directly to establishing whether or not the highway authority was negligent in the exercise of its powers in its actual circumstances; whether the authority did not have, or had, reasonable grounds for not exercising its powers so as to repair the hazard under consideration. Lack of attention to one hazard may without negligence continue if some circumstances have committed the highway authority's resources to dealing with some other hazards. Negligence law does not deprive highway authorities of discretions in the allocation of resources and does not impose liability for not having enough resources. 94 If there never had been paving or roadworks at some place it is in concept possible that it could be proved that there was negligence in the exercise of powers in not providing them. It is unlikely that this concept would ever be realised, but it is useful to notice it because it illustrates where any alleged negligence is. The negligence is in the exercise of the highway authority's powers to decide how to allocate its resources, and then in allocating them. Long-continued inattention to a hazard is a basis for an inference that there has been negligence in the exercise of powers, and the inattention is not itself the negligence which is the object of proof. Unless the evidence travels a considerable distance into the actual circumstances of the highway authority which is alleged to be negligent, a case based only on the existence of a hazard which must have been there for some time, or on further evidence of the intervals at which inspections should take place, with a claim for an inference to be drawn that if such an inspection program had been followed the hazard would have been observed and rectified, may well fail to carry the trial court to a view on the probabilities that there was negligence. 95 The Courts are not able to take over exercise of the powers and discretions of highway authorities and to impose liability if they do not come up to some assumed median standard of performance. If some prima facie view about how often local councils should inspect urban footpaths emerged from a series of decisions, it would remain a prima facie view, and would have far less claim on attention than the policies and programs the particular local council actually had and the considerations which led to their adoption. Whether there has been negligence in the exercise of powers which involve allocating resources cannot ever be a simple and obvious subject. 96 In the present case the proofs offered did not go very profoundly into the appellant's actual circumstances: but the learned Trial Judge's conclusions appear to me to have been available on the evidence, albeit that I do not find the basis for them to be overwhelming. 97 In my opinion the Trial Judge's conclusion that Mr Henshaw's injury was caused by negligence of the appellant should not be disturbed. There should be no finding of contributory negligence. The Court of Appeal should order:

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