Sutherland Shire Council v Pallister [2002] NSWCA 66 | Case summary

There was no indication of any further correspondence with Mrs Purkis. 8 Mrs Pallister's accident, as mentioned, occurred on the 7th January 1997. Mrs Pallister and her husband had driven to Gymea to take her aunt to the doctor. They angle-parked their car adjacent to the pedestrian crossing on the western side of Gymea Road, next to the area where Mrs Pallister later fell. Mr Pallister remained in the car while Mrs Pallister took her aunt over the pedestrian crossing into the doctor's surgery on the other side of the road. Her aunt realised that she had left her purse in the car and Mrs Pallister went back to get it. She described what happened in the following terms: "So I just came out of the doctors surgery, across the Gymea Bay Road and the next thing I knew I was, sort of, I tripped and I tried to save myself and I remember tripping another two times and then I hit a bench seat and then this garbage, I ended up, you know, that side of my face, left side of my face on a metal garbage bin." 9 Mr Pallister saw the accident from the passenger's seat of their car. He said that his wife walked at a normal pace across the pedestrian crossing. When she came off the crossing, she seemed to verge towards the car, around the tree. He described the accident as follows: "At this moment she went forward. I noticed one of her feet, I can't remember which one, right or left, I can't remember, was, as though it was caught in one of the pavers, on something anyway. Right, then she went, probably four feet, four foot and it happened she got her toe caught again and from then on she, I couldn't see, because there was a seat where she had her hand on the seat, couldn't see her feet, I could see her face and the next time she was on her side, on top of the garbage bin. It was pretty quick." 10 After the accident Mrs Pallister was taken to the doctor's surgery. About half an hour later Mr Pallister returned to the area where she had fallen. He observed that the pavers were uneven, and that some of the edges were up by as much as ¾" to an inch. The unevenness, he said, was more pronounced near the trees than it was closer to the shops. 11 A number of photographs were taken later in January 1997 showing the general area where the accident occurred. These show obvious lipping between some of the pavers at the point where Mrs Pallister apparently fell. 12 In May 1997 Mrs Pallister's solicitors instructed an engineer, Mr Sherson, to inspect the site of the accident and report his findings. On 27 May 1997 Mr Sherson, accompanied by Mr and Mrs Pallister, went to the site of the accident. By coincidence, when they arrived the pavement was in the process of being repaired by Council officers. Mr Pallister described them as lifting the pavers, cutting and removing tree roots, and relaying the pavers so that there was an even surface. 13 Mr Sherson's report dated 17 June 1997 was before his Honour. Mr Sherson himself was not cross-examined. The only witnesses in the plaintiff's case were Mr and Mrs Pallister. 14 Mr Sherson's report constituted the touchstone of the plaintiff's case before his Honour. As relevant here, it said as follows: "…Pavement Condition : The paving of this main walkway area was very uneven, showing ridging in the vicinity of 40 to 50 mm over tree roots with individual lipping of pavers of up to 20mm. During the repair being undertaken roots of over 40mm diameter were removed from under pavers as is shown in photos 5, 6, 7, & 9. Unipave pedestrian crossing pavers were relatively uniform and unaffected. The Injury : Discussion with Mr and Mrs Pallister on site determined that after crossing Westward across the pedestrian crossing {(1) on plan} they were proceeding toward the southbound footpath to an appointment in one of the adjacent commercial premises. Mrs Pallister tripped {(2) on plan} on an uneven paver in front of the seat, and in trying to regain her balance stumbled forward falling onto the garbage bin. {(3) on plan} injuring herself in that fall. Was the Footpath Safe: It is our considered opinion that the footpath area between the pedestrian crossing and the western footpath was sufficiently uneven to provide an unexpected hazard to pedestrians. Why is it not Safe : The irregularity in joints between pavers was limited to about 20 mm maximum but the sum of distortions in a ridge across the direction of travel was about 50 mm which in combination with the lipping edges of pavers provided a distinctly hazardous situation. The laying of the pavers in a stretcher bond in the direction of travel would not have distinctly alerted a pedestrian to that hazard as perpend joints do not form straight lines and distortions are not as obvious as in straight lines and distortions are not as obvious as in straight bed joints. Pedestrians would have just crossed a sound pavement across the road and would expect to continue on a sound pavement. Was This Foreseeable: It is our considered opinion that the unsafe condition of the pavement was reasonably foreseeable. The planting of London Plan trees and similar species is a well known source of tree root problems in urban streetscape planting. Published literature on the design of pavements incorporating masonry units has established that bond between paving units is greatly reduced when rectangular units are used, particularly in stretcher bond or square stacked configurations. The combination of these factors should have been apparent at the design stage. Normal regular street maintenance would have obviously shown the problem with gross distortions in the kerb. Was it Avoidable: By selection of a tree species with a less aggressive root system, and minimal surface roots, and containment of roots within a structure {pipe or similar], and the selection of a paving system where units bond together to provide a surface resistant to local distortions {similar to the Unipave used in the pedestrian crossing} the constructing authority could have avoided this hazard developing. By regular inspection of their asset the owning and maintaining authority could have avoided this hazard by early detection and correction. Conclusion Mrs Pallister suffered an injury as a result of tripping on a hazard in a public walkway generated by planting the wrong tree in the wrong place, and installing a poorly resistant paving system adjacent to them, which was obviously not adequately maintained." 15 There was also a report before his Honour from a horticulturalist, John Gabriele, which was tendered on behalf of Mrs Pallister, and a response from David Sheils, the Council's Landscape Project Manager, which disputed a number of assertions in both Mr Sherson's and Mr Gabriele's reports. Mr Sheils asserted that the London plane tree is not regarded as being aggressive to pavements. Otherwise it is unnecessary for present purposes to refer to either of these reports. 16 The sole witness for the Council was Robert Mathis, a civil maintenance manager employed by the Council. Through him the Council tendered a document entitled "Sutherland Shire Council Policy on Footpaths". This policy was adopted on 12 October 1992 and was in force in January 1997. As relevant here, it contains the following provision: "ii) Inspection or rectification of complaints and work requests be acted upon on a work/resource available priority basis subject to a) and b) below, provided that notification of such complaint or work request shall be deemed to have occurred at the time the complaint or work request was received by the department or section responsible for taking appropriate action:- (a) That no maintenance, repair or rectification be carried out on any paved footpath where the vertical and/or horizontal displacement of a footpath traffic surface is less than twenty (20) millimetres, unless otherwise determined by resolution of Council or by the General Manager/Shire Clerk in accordance with the authority delegated to him by Council:" 17 Mr Mathis said that in the twelve months before he gave his evidence (which was in December 2000) the Council had changed its policy so that defects of over 20 millimetres were to be rectified urgently. Defects of between 10 and 20 millimetres were to be rectified within twenty days. However as at January 1997 the Council's policy was that only defects which exceeded 20 millimetres were to be repaired. 18 Judge Phelan found in favour of Mrs Pallister both on negligence and contributory negligence. His principal findings were as follows: "In this case I am satisfied that the council planted the tree and created the pavement. Whether London plane trees are appropriate or not and whether triangular pavers contributed to the condition or not, and on this issue the plaintiff's and defendant's experts reports are in conflict, it seems to me that in the long term it was foreseeable that the roots would affect the level of the pavers and create a hazard. I am satisfied in the light of Mrs Purkis' letter that the council had been informed of the danger but decided that there was no danger because of its then policy limited to 20 millimetre gaps. The council in any event had a procedure of regular inspection, particularly of those areas which were seen to be the subject of heavy pedestrian traffic. In any event if I accept Mr Sherson's description of the ridging, the danger went beyond what was stated in the policy because the ridges were said to be in the vicinity of 40 to 50 millimetres. His observations are borne out by photographs, particularly exhibit C, taken on 31 January 1997. Moreover I am satisfied that from the point of view of a pedestrian the dangerous state of the footpath was not immediately obvious and this was particularly so when in the height of summer on a fine day the plaintiff moved from direct sunlight and glare into the deep shadow cast by a mature plane tree. I conclude that the council had a duty of care in respect of the state of the artificial structure, namely the tree. It failed to remove the danger. I am further satisfied that its breach caused the plaintiff to fall and injure herself in circumstances where she was not hurrying and in my view keeping a proper lookout. I am thus not satisfied that contributory negligence has been proved." 19 The Council appealed against his Honour's findings on negligence and contributory negligence. Numerous grounds of appeal were raised, most of which were not pressed by Mr Garling QC who appeared for the appellant. 20 Mr Garling did not dispute the existence of a duty of care or the foreseeability of risk of injury. His submissions were directed to whether a breach of duty had been established on the part of the Council. The Council's policy required that only defects of over 20 millimetres should be repaired. The policy, Mr Garling submitted, should be taken to be reasonable in the absence of evidence to suggest that it was unreasonable in the Wednesbury sense, namely so unreasonable that no reasonable council could have adopted it. (Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223) No such evidence was adduced in this case. Therefore, the submission proceeded, the respondent had failed to show any breach of the Council's acknowledged duty to take reasonable care for Mrs Pallister's safety. Mr Garling relied on the following passage from the judgment of Gaudron J in Crimmins v Stevedoring Industry Finance Committee (1999) 67 ALR 1 at 9 - 10: "To say there is nothing to preclude the existence of a common law duty of care on the part of the Authority to waterside workers is, however, not to say anything as to the content of that duty. Ordinarily, a duty of care is expressed in terms of a duty to take those steps that a reasonable person, in the position of the person who owes the duty of care, would take to avoid a foreseeable risk of injury to another (50). However, a public body or statutory authority cannot properly be equated with a natural person. Nor is a public body with the powers and functions of the Authority properly to be equated with a reasonable employer of waterside labour and subjected to the same duty of care. A public body or statutory authority only has those powers that are conferred upon it. And it only has the resources with which it is provided. If the common law imposes a duty of care on a statutory authority in relation to the exercise or non-exercise of its powers or functions, it only imposes a duty to take those steps that a reasonable authority with the same powers and resources would have taken in the circumstances in question (51). 21 Mr Garling submitted that the portion of the defendant's footpath where Mrs Pallister fell should not be considered in isolation. The Council, as a public authority, was in charge of hundreds of kilometres of paving, including extensive areas of busy pedestrian use. For the purpose of maintaining an orderly maintenance program it had to prioritise its rectification work. To this end it had adopted a policy requiring that there be defects of over 20 millimetres before action would be taken. This policy was not shown to be unreasonable. There being no evidence that the defect in this case exceeded the 20 millimetre mark, the respondent had failed to prove any breach on the part of the Council. 22 Mr Wales SC submitted that the issue of the 20 millimetre policy was "a complete red herring". In effect, the Council was suggesting that, so long as it adhered to its maintenance policy, the matter was, in effect, non justiciable. This is contrary to both principle and authority. 23 Had it not been for Mrs Purkis's letter, there might have been some substance in Mr Garling's submissions as to the reasonableness of the Council's actions, given the necessity to prioritise its footpath maintenance programme. But that letter places a completely different complexion upon the matter. The Council was told by Mrs Purkis in March 1996 that the pavers were uneven and dangerous in the general area where Mrs Pallister later fell. Also in March 1996 a Council officer inspected the footpath and found it to be in good condition. Judge Phelan considered that "good condition" might reflect the Council's then policy of not repairing pavers unless a protrusion of over 20 millimetres existed. Mr Garling suggested that this conclusion was not warranted. However, I consider that it presents the most probable scenario in the circumstances, namely that the Council officer inspected the footpath and found no areas of lipping which exceeded 20 millimetres. He therefore concluded that the footpath was in good condition and that no repairs need be undertaken. Ten months later Mrs Pallister had her fall. Four and a half months after that, Mr Sherson inspected the footpath. He found no areas of individual lipping which exceeded 20 millimetres. However the paving in the walkway area was uneven with ridging in the vicinity of 40 to 50 millimetres over the tree roots. The combination of the ridging and the lipping constituted, according to Mr Sherson, a "distinctly hazardous situation". It was a hazard which was easily and cheaply rectifiable, as was illustrated by the photographs taken by Mr Sherson at the scene. 24 Thus the Council's policy, far from providing a basis for avoiding liability in this case, was in all probability responsible for the Council's failure to rectify a dangerous situation. The Council was alerted to the danger, but through inflexible application of policy failed to advert to the fact that the lipping between the pavers, when combined with the ridging in the area, created a dangerous situation. Moreover it was a situation which was easily rectifiable, as shown by later events. 25 It is, in my view, difficult to imagine a clearer case of negligence than has been demonstrated here. The Council was alerted to the danger but, through rigid application of policy, failed to take any steps to avert it. This was unreasonable in the circumstances. It constituted a clear breach of its acknowledged duty to take reasonable care for the safety of pedestrians using its footpaths. Mrs Pallister suffered injury as a result. There was no fault on her part. 26 In my view no error has been shown in Judge Phelan's conclusions or the process by which he reached them. I would dismiss the appeal with costs.

Sutherland Shire Council v Pallister

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