TURNBULL v. ALM & ANOR [2004] NSWCA 173

Court of Appeal (NSW)|2004-08-26|Before: Giles JA, Tobias JA, Bryson JA

CITATION : TURNBULL v. ALM & ANOR [2004] NSWCA 173 HEARING DATE(S) : 02/06/2004 JUDGMENT DATE : 26 August 2004

JUDGMENT OF : Giles JA at 1; Tobias JA at 2; Bryson JA at 3 DECISION : Dismiss appeal by Occupier against Entrant: allow cross-appeals so as to award 50% contribution against City Council; See para [79]

CATCHWORDS : NEGLIGENCE - Occupier's Liability - footpath on private land outside shops at periphery of shopping area - Occupier landlord leased out shops and retained Common Areas including footpath - plaintiff using footpath while shopping after dark tripped and fell in hole 4" wide 6" long 1" deep in otherwise regular concrete footpath - Trial Judge wrongly applied test requiring Occupier to ensure safety - liability reconsidered on facts - challenges to factual findings of Trial Judge considered - City Council repaired footpath inadequately several times - Occupier took no action to repair - negligence found against both and apportioned 50%-50%. LEGISLATION CITED : Evidence Act 1995 s.54 Tame v. State of New South Wales; Annetts v. Australian Stations Pty Ltd (2002) 211 CLR 317 Cafest Holdings Pty Ltd v. Tombleson [2003] NSWCA 210 Australian Safeway Stores Ltd v. Zaluzna (1987) 162 CLR 479 Phillis v. Daly (1988) 15 NSWLR 65 CASES CITED : Wyong Shire Council v. Shirt (1980) 146 CLR 40 Waverley Municipal Council v. Swain [2003] NSWCA 61 David Jones Ltd v. Bates [2001] NSWCA 233 Richmond Valley Council v. Standing [2002] NSWCA 359 Brodie v. Singleton Shire Council; Ghantous v. Hawkesbury Shire Council (2001) 206 CLR 512 Gai Lynette Turnbull - Appellant PARTIES : Gillian Thesere Alm - Respondent/Cross-Appellant The Council of the City of Dubbo - Cross-Respondent FILE NUMBER(S) : CA 40911/2003 J. Maconachie QC and P. Perry - Appellant COUNSEL : L. King SC and P. Regattieri - Respondent/Cross-Appellant P. Arden SC and R. Anthony - Cross-Respondent Ebsworth & Ebsworth - Appellant SOLICITORS : Peacocke, Dickens & Price - Respondent/Cross-Appellant Leitch Hasson Dent - Cross-Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 21 of 2002 FILE NUMBER(S) : LOWER COURT Woods DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40911/2003

GILES JA TOBIAS JA BRYSON JA

Thursday 26 August 2004 GAI LYNETTE TURNBULL v. GILLIAN THERESE ALM & THE COUNCIL OF THE CITY OF DUBBO Judgment 1 GILES JA: I agree with Bryson JA. 2 TOBIAS JA: I agree with Bryson JA. 3 BRYSON JA: The appellant Mrs Turnbull appeals from the decision of Sir Robert Woods CBE, Acting District Court Judge, in the District Court at Dubbo on 19 September 2003. The respondent Mrs Alm as plaintiff claimed damages for personal injuries which she suffered on 3 July 2001 when she stepped into a hole in the footpath adjacent to shops in Tamworth Street, Dubbo, fell and sustained injuries. In the District Court Mrs Turnbull was the first defendant; the Council of the City of Dubbo ("the City Council") was the second defendant and the learned Trial Judge gave judgment for Mrs Alm against Mrs Turnbull, and judgment for the City Council against Mrs Alm. Mrs Turnbull by a Cross-claim claimed damages, contribution or indemnity against the City Council; the Trial Judge dismissed that Cross-claim. While the appeal was pending Mrs Turnbull by leave amended the Notice of Appeal to add the City Council as second respondent in the appeal. At a later stage, Mrs Alm by leave filed a Notice of Cross-appeal against the City Council. In these ways Mrs Turnbull and Mrs Alm came to be entitled to argue on appeal for the remedies which they claimed against the City Council at the trial. 4 On 3 July 2001 Mrs Turnbull owned a building comprising four shops in Tamworth Street, Dubbo, which stood on the land in Lot 20 Deposited Plan 547917. This building is part of a shopping centre, which includes other buildings with other owners. The layout of the shops in Lot 20 appears from the title diagram annexed to the report of Mr Surveyor Astley, which was marked as Exhibit E (Blue 15). Tamworth Street runs east and west: proceeding from west to east the four shops are the South Dubbo Newsagency, Tim Koerstz Chemist, Payless Liquor Barn and a vacant shop on the corner of Sterling Street. Sterling Street runs north and south and intersects with Tamworth Street at the east of the vacant shop. Around the corner and standing to the south of the vacant shop is the Seven-Day Supermarket which has an easterly frontage to Sterling Street. A concrete footpath approximately 2.9 metres wide running from west to east past the frontages of the shops separates the shops from Tamworth Street; Tamworth Street is owned by the City Council while the concrete footpath is situated on the land of which Mrs Turnbull is the owner and is not part of Tamworth Street. Between the footpath and the concrete kerb of Tamworth Street ran a strip of rough, stony and unsurfaced ground. Mr Surveyor Astley does not give the width of this strip but on view of his title diagram it might be in the order of one metre wide. This strip was part of Tamworth Street owned by the City Council. Beyond the concrete kerb is the bitumen surface of Tamworth Street, and the part of Tamworth Street closest to the shops is formed into a car park. At a later time, well before the hearing and before some further photographs were taken in 2002, the rough section was paved with bricks or paving tiles, so as to form a continuous surface from the concrete footpath to the concrete kerb in Tamworth Street.

5 Photographs in evidence show that the footpath is covered by an awning which is supported by the retail shop building. They also show that, with the exceptions of the crevice and the hole at the site where (as the Trial Judge found) Mrs Alm fell and of expansion joints at regular intervals, the footpath is smooth, level and regular. 6 In the lease of Payless Liquor Barn the concrete footpath is not part of the area leased as the shop, but is referred to as the common area. The tenant of Payless Liquor Barn has an entitlement, under express or implied terms of the lease, to have the common area kept available for access by the public, and it is probable that Mrs Turnbull's other tenants have similar rights, by implication or perhaps by express provisions in their leases. The concrete footpath has not been dedicated to the public as a road, but it must be inferred that Mrs Turnbull, continuing what happened in the time of her predecessors in title, made it available or left it available for the public to use to gain access to the shops she leased out, and to pass between the shops and make use of the shopping area generally. Obviously it serves the purposes and interests of Mrs Turnbull that the public, including Mrs Alm, should use the footpath and walk along it when they go to her shops or the shopping area. 7 The lease to Payless Superbarn (NSW Pty Ltd) (Blue 83) by Mrs Turnbull's predecessors in title was a lease of part only of the land to which they had title, described as ground floor lock up premises. There are references in the lease to the retail shopping building of which the leased premises were part, and to the common area which was defined at length in a way which shows that, among many other things there were walkways, pavements, passages, corridors, vestibules and halls. Enjoyment by the lessee of the rights granted by the lease plainly required that the common area, which was not demised, was to be available for public use in association with the shopping centre. Clause 9(a) of the lease required the lessors to maintain and repair the common area (Blue 93). Mrs Alm did not derive rights from the covenant; the covenant illustrates, by reference to the terms of the lease, that Mrs Turnbull was the occupier of the common area.

8 Mrs Turnbull was the registered proprietor and legal owner of the footpath and as such had a legal right to control who went there, and members of the public must be understood to do so with her permission, and indirectly in her interests. These facts and circumstances furnish a clear basis upon which Mrs Turnbull should be found to have control over the footpath, and to owe a duty of care to members of the public who made use of it. 9 Mrs Alm's description of the hole and estimate of its dimensions are the only material which can be relied on to base a finding. Her evidence is to the effect that the hole was a long crevice an inch deep, about six inches long and four inches wide. Mrs Alm also said that the hole was a crack in the footpath which was about one and half feet wide (Black 18). Exhibit B is a photograph of the hole which according to Mrs Alm's evidence was taken at the site about a month or six weeks after her injury (Black 22). The photograph is not clear and is of no real value for corroborating or testing her description. 10 In his findings Woods ADCJ said: The evidence from the plaintiff is that on the evening of the 3rd July at about 5.45 pm she had attended a shop at what is referred to as the Tamworth Street shops and on leaving one shop, the newsagency, she was walking along the footpath adjacent to a liquor outlet to proceed to another shop in the area and when moving sideways to pass some other people walking along the footpath her foot caught a defect in the footpath and as she said 'I tripped and fell.' 'My shoe caught in a hole in the pavement. A hole about 4 inches wide and just a long crevice or crack in the footpath and 1 inch deep. About 6 inches long.' There were people coming the other way and 'I tried to avoid them, a middle-aged couple and a tall lady with a baby in arm. They were in line across the pavement. I tried to avoid the man. I took a step to the left.' 'I had thought I had broken my arm. I had hit my head, the man lifted me up. I was feeling nauseated. I thought I had broken my arm'. She returned to the scene about 7 days later to see where it had happened and she was with her grandson and he took some photographs of the pavement. She saw a large hole in the footpath. And a lot of loose pieces of concrete. Some photographs were tendered into evidence and she identified the place where she fell as being at a place where a hole was indicated in a photograph and where repairs had been done in other photographs. 11 The Trial Judge also found: After considering all the evidence and even after considering what the witness Mr Treloar may have said in a statement some time after the incident I am satisfied that the plaintiff did fall and injure herself by virtue of the defect in the pavement outside the leasehold shop where the witness Mr Treloar worked. 12 The Trial Judge did not in express terms find that the description was correct; his Honour quoted Mrs Alm's evidence and description. Although there is no express finding accepting her description, later references in the judgment reflect such acceptance and give no indication that her description was not accepted. It should be understood that it was found that the hole at which Mrs Alm tripped and fell was, as she described it, about four inches wide, a long crevice or crack in the footpath, one inch deep and about six inches long.

13 The finding that Mrs Alm tripped and fell in the way his Honour found was contested by Mrs Turnbull, both at the trial and on appeal. Only two persons gave oral evidence at the trial, Mrs Alm and Mr Steven George Treloar, who was the Manager of Payless Liquor Barn and was in attendance at the store at the time of Mrs Alm's fall. His Honour's principal findings relating to Mr Treloar and his observations were as follows: (RED 18) A witness Stephen Treloar gave evidence of being the manager of the liquor outlet business fronting the footpath where the plaintiff stated that she fell. And his evidence was that he was working in his shop on the day that the Plaintiff fell and he was aware that something had happened outside his shop at that time when he heard an exclamation, and he came out in time to see the plaintiff being assisted to her car. It was submitted that on the basis of a statement he made at some time he did actually see her fall and from a view of the scene and considering whether he could have seen her fall if as he said he was serving a customer from the rear placed sales point he could not have seen the place where the alleged hole in the footpath was it is submitted that therefore she could not have fallen because of being caught by the alleged hole. However he insisted that he did not actually see her fall, but his evidence was that when he saw her after something happened it was adjacent to the area of the footpath where the hole in the pavement was. 14 Mrs Turnbull's counsel went into great lengths to emphasise that it was not possible for Mr Treloar to have observed that Mrs Alm tripped at the site of the crack in the footpath. Counsel contended that on a correct view of the evidence Mr Treloar had a restricted view of the footpath so that the area he could see ended two metres west of the hole at which Mrs Alm claimed to have fallen; that Mr Treloar's evidence was that he observed the aftermath of Mrs Alm's losing her footing, meaning that all he could see was not her falling but the fact that she had fallen; and that he could not have possibly seen the crack and the hole in the footpath from where he was because the line of sight did not permit it. 15 During the course of the trial and before Mr Treloar gave evidence the Trial Judge and counsel had a view of the locus at the liquor shop, at which Mr Treloar was present; and some observations at the view were referred to in Mr Treloar's oral evidence. An agreed position about what had been observed at the view was recorded in a statement by Mrs Turnbull's counsel which although interrupted is to the following effect (Black 182): it was agreed that as recorded at the view the distance from the eastern most point of the slab forming the concrete footpath visible from the position of Mr Treloar at the more southerly workstation in the liquor shop to the position of the hole was two metres; in other words, that the line of sight of the concrete footpath available to Mr Treloar fell two metres short of giving him a view of the hole in the concrete footpath, and accordingly two metres short of giving him an opportunity to make observation that Mrs Alm tripped at the hole. It was contended that the Trial Judge just put these observations to one side because it was an inconvenient fact for the analysis of the cause of Mrs Alm's fall. 16 Mr Treloar's evidence shows that at the time of the event he was working as Manager of Payless Liquor Barn. The entrance to the shop was a door 2.9m wide on the north frontage to Tamworth Street and the concrete footpath; the door was at the west of the shop front. Mr Treloar served customers from a workstation at a counter inside the doorway; the counter was right in the middle of the entrance, and ran north to south at right angles to Tamworth street. Customers entering the shop would pass just to the eastern side of the counter. There were two workstations on the counter, and the one most used was the southerly workstation which was just under three metres from the entrance to the shop. At the time of the event Mr Treloar was at that workstation and had a view of a section of the footpath in Tamworth Street. The front wall to the east of the door was plastered with signage and his line of sight was restricted by the wall. While he was at the workstation an event caught Mr Treloar's attention. He said: (Black 154) I heard an exclamation of somebody falling or it indicated to me that that's what it was, I just - I was serving a customer at the time, I just glanced out the doorway and noticed two people sort of go towards to obviously assist the person that had fallen. He gestured with his hands to indicate: … Basically yes, it was like a, you know, normal reaction that someone might do to help somebody or something that might have been falling.

Mr Treloar continued to serve his customer, which took a minute or two, and then went out of the shop. For the first time he saw Mrs Alm, whom he recognised; he saw that she was being assisted into a car by someone. 17 The following passages appear in the cross-examination of Mr Treloar:(Black 182): Q. The people that you saw assisting Mrs Alm were they right next to her? A. When? Q. They put their hands out to help her? A. I didn't see that, I'll take that back - when I heard Mrs Alm or a person make a exclamation of they were falling, and I turned and looked out the front door I could see two people that were walking in [an] easterly direction, sort of lunge forward to give some type of assistance. Q. That means these two people, if they'd kept walking would have walked past your front door towards the chemist? A. I said easterly direction so they would have walked continued past the liquor store. Q. When you saw them they were virtually right next to Mrs Alm weren't they, these two people? A. At which stage? Q. When you first saw them? A. No they were at the front of my liquor store, like at - in my view of the - out the entrance of the liquor store. Q. But relative to Mrs Alm they were very close to her, to assist her immediately you heard this exclamation? A. They possibly would have been three metres - four metres away.

Q. You heard the exclamation and you popped your head out of the store to see what the noise was about? A. No I just turned my head from where I was serving customers. Q. And you looked to where the noise came from, did you see Mrs Alm falling or already fallen? A. No I did not see Mrs Alm falling, I did not see her on the ground. Q. But you saw Mrs Alm? A. After I'd finished serving the customer I walked to the front door, she was being assisted. 18 Mr Treloar was cross-examined by Mrs Alm's counsel on the terms of what was described as a statement that he had made. This document, which became Exhibit Q when tendered by Mrs Alm's counsel and was not objected to, was a form of affidavit of Mr Treloar which he had not sworn. Mr. Treloar said in evidence to the effect that he gave a statement to Mrs Turnbull's solicitors, that he had not signed it and that Exhibit Q "looks very much like a statement that I would have given them." (Black 164) 19 Paragraphs 8 and 9 of Exhibit Q are in these terms: (BLUE 154). 8. On 3 July 2001, while working in the liquor store, I heard an exclamation from outside the shop. I looked out through the open door and saw a female person falling forward at the site of the crack I have referred to in this affidavit. I also saw two people lunge forward appearing to catch the person who had fallen. From where I was standing I could not and did not see the person who had fallen strike the ground.

Very shortly afterwards, I went out of the store and to the position where I had seen the event. By this time, the lady who I had seen falling was on her feet and getting into a car parked in Tamworth Street. I recognised her as a customer of both Payless Supermarket and the liquor store. 20 After he read para 8 Mr Treloar's evidence continued. (Black 164)

Q. Having read that do you say now that you might be mistaken about not seeing the two people lunge towards the person - to appear to catch the person who had fallen? A. They were - made the movement that they were going to catch or assist somebody.

Q. Would you agree with me that on a pervious occasion you've told the first defendant's solicitor that you saw two people lunge forward appearing to catch the person who had fallen, you told them that didn't you? A. Yes.

Q. And that's what you actually saw happen didn't you? A. Well from what I written here it does.

Q. But isn't that the case that that's what happened? A. Well I'm going on moments afterwards and before, at that time I would have to say that now the time's passed I would have to say that the recollection is getting a little vague. 21 It can be seen that Mr Treloar's evidence does not accord with the second sentence of para 8. Otherwise paras 8 and 9 do accord with his evidence. It is not clear to me on what basis the statement went into evidence. If Exhibit Q went into evidence for the purpose only of illustrating the questions which were put to Mr Treloar by reference to para.8, it could have little significance. However no limitation or condition was imposed on admitting it. Paragraph 8 is literally available to be treated as evidence that Mr Treloar: "… saw a female person falling forwards at the site of the crack …", but to treat it in this way and base a finding on it would not in my view be reasonable having regard to the terms of his oral evidence. Of course, the Trial Judge did not do so. 22 Other passages in Exhibit Q deal with attention which Mr Treloar gave earlier and later to having repairs effected to the site of the crack. These passages are in accordance with his oral evidence, and with other evidence in the case. 23 Notwithstanding the attention and emphasis given in counsel's submissions to the limits on Mr Treloar's line of sight, I do not see it as of great significance because on the correct understanding of Mr Treloar's evidence he did not claim to have made any observation that Mrs Alm tripped at the hole. The Trial Judge had that correct understanding. The Trial Judge had the advantage of observations which his Honour himself was able to make at the view, and was entitled to act on those observations, as well as on the agreement of the parties as to what had emerged at the view; see Evidence Act 1995 s.54. I do not see how the Trial Judge could possibly have misunderstood what was then observed and agreed. Notwithstanding submissions made by counsel I see no basis for thinking that his Honour misunderstood the position in any way. 24 A demonstration that Mr Treloar could not have made any useful or relevant observation would not necessarily lead to the rejection of Mrs Alm's case about the location and cause of her fall. Mrs Alm's case called for consideration even if it were not supported by Mr Treloar's evidence in any way. Mr Treloar's evidence furnishes some support for Mrs Alm's claim that she tripped and fell at the hole of which she spoke in her evidence, but that support is only of a general kind. Mr Treloar knew of the hole, he regarded it as calling for repair, and he arranged to have it repaired on several earlier occasions. Mr Treloar saw the movement of persons, who it should be inferred were walking easterly behind Mrs Alm, and he saw their movements which indicated that they wished to assist her as she fell; it should be understood that they were unable to assist her. Mr Treloar saw Mrs Alm (whom he knew) one or two minutes later being assisted into a car. The support so given by Mr Treloar to Mrs Alm's case could not be regarded as doing much more than generally corroborating that some such event as Mrs Alm spoke of probably took place, and that it probably happened at a point which was at or quite near to the hole in the footpath.

25 Counsel for Mrs Turnbull made extensive submissions which challenged the Trial Judge's principal finding to the effect that Mrs Alm tripped and fell when her shoe caught in the hole in the footpath which she described. The contention was to the effect that it should be found that Mrs Alm did not fall by tripping in the hole, but that she fell off the edge of the concrete path at its border with the unpaved area, which was to her left; or it could be that there was some defect in the footpath which she did not see and upon which she tripped. It was contended that if Mr Treloar was to be accepted as making accurate observations the point of which Mrs Alm tripped could not be the area which she nominated as being in the centre of the footpath. I reject this contention, as the centre of the footpath was not within Mr Treloar's view, he made no claim in his evidence that he had observed Mrs Alm trip and fall, and the Trial Judge's findings accepted Mr Treloar's evidence that he did not actually see Mrs Alm fall.

26 To illustrate a line of reasoning on the facts with which submissions by Mrs Turnbull's counsel dealt I set out the summary of argument in para 35 of counsel's written submissions (Orange 16 and 17):

a. The respondent [that is, Mrs Alm] left the newsagent, well to the west of the place where she fell, and moved promptly to the left hand side of the concrete pathway to this was in keeping with a well established practice followed by the respondent for many years.

b. To her left, the area was not paved, and depicted in more recent photographs, but rather an area of dirt with pieces of stone.

c. There were three pedestrians walking towards the respondent, that is from east to west.

d. The three pedestrians, one of whom was carrying a child, were not in single file but three abreast across the pavement.

e. It is clear that the method which the respondent employed to avoid these three pedestrians was to step to the left.

f. The respondent stepped to the left "to avoid the gentleman because he was in a direct line with me." (T19:45, Black 19 T).

g. Yet the defect in the footpath was at the point shown by the respondent to Gareth Shepard in the photograph which is figure 1 on Exhibit N (Blue 113).

h. The respondent fell almost instantaneously as she stepped to the left (T20:10, Black 20 F).

i. A consideration of the photograph referred to above demonstrated, it is submitted conclusively, that the respondent could not have stepped left into the defect indicated to Mr. Shepherd.

j. To step into a defect at that point, the respondent would have to be quite close to the advertising posters on her right side of the footpath.

k. Yet she stepped left to avoid the northern most of three pedestrians walking abreast toward her.

l. That she fell as a result of stepping off the paved surface and catching her left foot in some uneven part of the unpaved section just north of the footpath is an explanation that not only sits comfortably with the positioning of all parties just prior to the fall, but is also consistent with the respondent not having seen the large and obvious defect in the pavement.

m. Where the respondent fell: "It was dirt and pieces of stone; that's why I hit my head." (T65:59, Black 65 V). This is consistent with a fall on the dirt and stone of the area just to the north of the pavement, consistent with a step to the left, and not consistent with a fall at the point indicated in the photograph referred to. 27 It is significant to examine the evidence of Mrs Alm relevant to the course she was taking and the position on the footpath at which she fell; and to see whether there was a basis for a finding that she tripped not on the hole in the footpath but the edge or on the rough ground to the north of the footpath. In her evidence in chief Mrs Alm gave evidence to this effect (Black 18): She walked towards the point where she fell, there were a few people in the area of the liquor store and she recalled distinctly three people walking towards her; there were other people also walking in the general area of the chemist shop and the liquor store at that time, possibly four or five people. Of the three people walking towards her she said (Black 19) Q. And where were you when you first saw these people? A. I was on the footpath approaching Stirling Street. Q. Outside which store? A. I'd just gone, just gone past the, I was just passing the liquor store.

Q. Now what did you do in relation to these people? A. I tried to avoid them, they were coming straight towards me.

Q. And who were these three people, did you know them? A. I don't know them, there was a middle aged couple and a very tall lady with a baby in her arms.

Q. And how were they walking towards you? A. Directly - Q. Were they together or were they dispersed? A. They were in a line.

Q. In which direction were they forming this line? A. From the liquor store window out to the footpath.

Q. And what did you do in relation to avoid them? A. I tried to avoid the gentleman because he was in direct line with me.

Q. What did you do about that? A. I took a step to the left.

Q. And what was their relative positions as you were looking at them where was the lady and the gentleman and - A. They were very close to me.

Q. Where was the lady, the elderly lady and gentleman and the lady with the baby, what was their position relative to each other as you were looking at them? A. The gentleman was to my left and the middle aged lady was in front of me to the right and then the lady with the baby was very much to my right.

Q. In relation to your movement to your left how soon after that did you fall? A. Almost instantaneously.

Q. And where were these three people? A. The gentleman was to my left, the lady was - I touched her as I tried to grab her as I was falling. 28 The position of Mrs Alm in relation to the three persons she spoke of was dealt with in cross-examination (Black 65). She said, confirming evidence in chief, that where she hit her head was dirt and pieces of stone, showing that her head did not hit part of the paved concrete path. The photograph annexed to Exhibit N (Blue 113) was incorporated in an engineer's report prepared on the instructions of Mrs Alm's solicitors. The photograph shows Mrs Alm standing at the site of a crack across the concrete slab at a point where there appears to have been some disturbance or repair; the position is approximately in the middle between the northern and southern boundaries of the concrete footpath, the southern boundary being the frontage of Payless Liquor Barn. The engineer's text says: "The approximate position and orientation of Mrs Alm prior to tripping and falling is indicated in [the photograph]." 29 When cross-examined (Black 72 and following) she said that she moved to the left, "Not right to the left but I try and keep away from people who … are coming towards me." She said that she always goes to the left on a pavement. She again said to the effect that the three people were straddled across the footpath and that there were a few people milling around the doorway to the liquor store. At a later point when cross-examined Mrs Alm agreed that she walked along the left-hand side of the concrete slab and then: (Black 123-124) Q. You had to move to your left in order to avoid the three people coming towards you didn't you? A. Yes.

Q. As you walked towards them I think you said that your attention was upon them because you needed to work out how you were going to avoid them, is that fair? A. Yes.

Q. If your attention was on the three people you continued to walk towards them, isn't that right? A. Yes.

Q. And you then took the evasive action? A. No I deviated to the right because of the lady with the baby and a gentleman was moving further out to his right, the lady was next to him and the lady who I assume was with them who had a baby was way out to the right and I started to the right then this gentleman came from the paving - well it wasn't paving it was dirt actually, and that is where I then deviated to the left, so in actual fact I had gone to the right but I was still watching these people and that's how I noticed that there were people at the doorway [to the] liquor store.

Q. Can you tell me again then please when you say, can you tell me again please what it was that somebody did in order to oblige you to move to your left? A. Because the three people as you say is quite a restricted area there, the three people were taking up the whole of the footpath plus a little bit of the dirt section.

Q. And then - I see that, so the three people were-- A. As you say they're not wide here.

Q. I appreciate that, the three people were taking up the whole of the footpath plus a bit of the dirt section? A. The gentleman was on the dirt.

Q. What was it that caused you to move to the left, did you tell me that the gentleman moved back? A. Because the three of them closed up a little and then I tried to get around the gentleman on the left, on my left.

Q. And you fell very shortly - virtually immediately after you made that move to the left didn't you? A. As I made it yes.

Q. And you bumped your head, isn't that right? A. On the ground yes.

Q. And when you recovered your senses you had dirt on your forehead? A. On the side of my head.

Q. Your left arm is the one that got injured? A. My left elbow and - yes and forearm.

Q. What you had done you see I would suggest to you is a little short of the point that you have indicated where that crack in the pavement is, you'd fallen off the edge of that concrete slab and hurt yourself you see? A. I fell in the crack, I tripped in the crack, in the hole.

Q. The reason that you didn't see anything on the pavement as you walked that day was because the people who you have mentioned, that's the three people, were in the process of crossing that defect and in fact had crossed it at the time that you collided with them Mrs Alm? A. No. …

REGATTIERI: Q. You remember you were asked some questions yesterday about you crossed over? A. Yes. Q. You used that expression a few times? A. Yes. Q. What did you mean when you used that expression? A. I have a thing about keeping to the left on a pavement, it's something I was always taught to do and I do this, I go to the left to walk ahead. I mean I wasn't right over to the left but I-- Q. You said you left the newsagent and you crossed over? A. Yes. Q. What did you mean by that, what did you do? A. I walked to the left to the centre of the pavement. 30 It was contended that upon the facts there was a very powerful case that Mrs Alm's fall could not possibly have resulted from her placing her foot in the hole, that this had been subject of detailed cross-examination and a lengthy submission to the Trial Judge but that the Trial Judge had simply not dealt with this submission. It was submitted that to reject the submission the Trial Judge had overlooked this significant body of evidence, and that to have done so was an error. 31 In my opinion the evidence does not provide a substantial basis for a finding that Mrs Alm walked off the edge of the concrete footpath, or tripped and fell on the rough unpaved section, or at the junction between the concrete footpath and the rough paved section. Mrs Alm herself interpreted the event, immediately after it had happened, as that she had tripped in the hole; the Court is not to act on her interpretation, but on a finding it makes itself. It will be seen that, while not everything Mrs Alm said about the course she took is clear, she quite distinctly denied that she fell off the edge of the concrete slab when she hurt herself, and she did not give any account of the events in which she passed to the left or north of the man who was the northernmost of the three persons who were approaching her. At all points in her evidence her account of the matter was inconsistent with her passing to the left of or outside the three approaching persons. There is no substantial basis for a finding that some movement to avoid the persons approaching Mrs Alm, or any of them, took her off the edge or to the edge of the concrete footpath. Endeavours were made in the course of cross-examination to lay the ground for some such finding, but they did not succeed. 32 If the Trial Judge accepted Mrs Alm's evidence, as it is plain that his Honour did, the probabilities favoured, by a very substantial degree, the conclusion that she tripped at some point on the concrete footpath, and that she tripped at the point at which the state of the concrete footpath presented a risk of tripping. Even if the Trial Judge had rejected her evidence it would not have been open to the Trial Judge to make a positive finding that she tripped and fell at some different point to that referred to in the finding. I do not regard it as an error of the Trial Judge not to have dealt in detail with his reasons for rejecting this view of the facts, as it was based upon an unsuccessful endeavour to lay ground for it in cross-examination. 33 On making my own address to the facts as they should be found, the probabilities are very adverse to the view of the facts now submitted; that view of the facts is substantially unsupported, and no finding in accordance with it should be made. In my view, the finding which should reasonably be made upon the evidence is that the hole was as Mrs Alm described it. In its nature and in the hazard which it presented it is very different to tripping hazards presented by a difference in level of the junction of pavement slabs; its size and its irregularity distinguish it. The Trial Judge's finding (Red 19Q): "… I am satisfied that the plaintiff did fall and injure herself by virtue of the defect in the pavement outside the leasehold shop where the witness Mr Treloar worked" is well based on the evidence, is well supported by the probabilities and indeed is the only finding which it was reasonable to make. The evidence and the probabilities support, overwhelmingly in my view, the finding which the Trial Judge made. 34 In the Trial Judge's judgment, his Honour addressed the duties and responsibilities of Mrs Turnbull in relation to the footpath. His Honour said: (RED 19) Clearly there was a prime duty of care in the First Defendant being the owner of the land where the footpath was situated. This is the duty of care owned by the occupier to an invitee. The First Defendant being the owner of the shopping development which included the footpath had a clear duty of care to all members of the public who came onto that footpath to ensure that the footpath was constructed properly with no hidden obstacles and hazards. By creating a shopping area from which the owner of the property was expecting to gain a profitable advantage by inviting all members of the public onto that common area she had a high duty to ensure at all times that the common area was safe. 35 In my respectful view the Trial Judge was in error by treating Mrs Turnbull as having a duty to ensure that the footpath was constructed properly. This overstated her duty, which was a duty of care under the law of negligence authoritatively established by Australian Safeway Stores Ltd v Zaluzna (1987) 162 CLR 479. It was inconsistent with that authority to state the duty as higher than a duty of reasonable care. Mrs Turnbull's counsel referred to warnings against the error of conflating the questions for decision in Tame v. State of New South Wales; Annetts v. Australian Stations Pty Ltd (2002) 211 CLR 317 at 353 [99] (McHugh J) and Cafest Holdings Pty Ltd v. Tombleson [2003] NSWCA 210 at paras 15 and 18 (Meagher JA). On appeal Mrs Turnbull is entitled to obtain a decision of the Court of Appeal on the claim of negligence against her on the basis of findings of the Trial Judge, on any other relevant facts which can be found, and on inferences which can be drawn on these findings. Duty of care, standard of care and breach are separate subjects.

36 In my opinion Mrs Turnbull owed Mrs Alm a duty to take reasonable care for the safety of Mrs Alm; the care to be taken was such care as was reasonable in all the circumstances of the case, which included the nature of Mrs Turnbull's control over the concrete footpath, her entitlement to control and its basis in her ownership, her interest in the presence of persons such as Mrs Alm who made use of shops and the common area, the lawful and ordinary nature of Mrs Alm's activity, the means available to Mrs Turnbull, and also to Mrs Alm, of knowing of the presence of the hole in the footpath, and the means available to Mrs Turnbull of bringing it about that the footpath was repaired and kept in good repair. The principal authoritative statements of the relevant law are found in Australian Safeway Stores Ltd v. Zaluzna and in Phillis v. Daly (1988) 15 NSWLR 65 at 72C-D, 75B-C. Further stages of decision are required after it has been decided that a risk of damage is reasonably foreseeable and that means of preventing the risk are available; it is always necessary to apply the process commonly referred to as the Shirt Calculus (Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47-48) and to come to a view on the standard or scope of duty, that is to say, on the response to the risk of a reasonable person in a position of control.

37 Argument on appeal directed attention to evidence about the state of the lighting at the time and place of the accident. Consideration of this subject was introduced by a submission by Mrs Turnbull's counsel that there was nothing about the footpath that put it in the category of a danger or hazard or in any similar category which of itself bespoke a breach of duty of care; and that people are expected to deal with changes in level and defects in surfaces of footpaths on which they walk. Counsel referred to Richmond Valley Council v Standing [2002] NSWCA 359 at [54] (Heydon JA). While putting this submission counsel referred to the particular circumstances of Mrs Alm; it was submitted that she did not suffer from any illness or frailty and that she had had experience tramping or bushwalking. 38 There was no particular of negligence and it was not part of Mrs Alm's case that some deficiency in the provision of lighting constituted negligence of Mrs Turnbull. The state of the lighting appears to me to be relevant at several points. The Shirt Calculus and consideration of the standard of care required of an occupier who owes a duty of care and whether there has been a breach proceed on the assumption that the persons to whom the duty of care is owed are themselves acting reasonably; whether they are acting reasonably in the relevant circumstances necessarily directs attention to the state of the lighting. The state of the lighting is also relevant to contentions that contributory negligence of Mrs Alm caused or contributed to her injury, and to the probabilities relating to whether the event occurred in the way which Mrs Alm alleged, that is that she tripped on the hole in the footpath. 39 There is no finding or reference in the judgment of the Trial Judge to the state of natural or artificial lighting or to the visibility of the hole in the circumstances. The evidence does not deal in a clear or systematic way with the sources or intensity of lighting over the footpath at the time of the event or with the visibility of the hole in the footpath in the then state of the lighting. The event occurred at about 5.45 pm on 3 July and the Court should take notice that in Dubbo in mid-winter that was about 40 minutes or so after sunset. There are some indirect references in evidence to the state of the lighting, and references to observations which were made provide some basis for inference about the visibility and the state of the lighting. 40 Mrs Alm said in evidence to the effect that at the time of the event which was 5.45 pm, it was dark, the sun had gone down, there was no natural light and that she did not recall there being any artificial light (Black 17). Mrs Alm's evidence about the event shows that she was able to see other persons walking on the footpath and make observations of what they were doing. Mr Treloar said in cross-examination to the effect that from a position at the northern end of the counter in the liquor shop the hole could be seen, quite clearly, both in the day and night time, if the observer was looking at it (Black 160). Mr Treloar from his position within the shop was able to see people moving on the footpath outside the shop, and when he left the shop one or two minutes later he was able to see and recognise Mrs Alm being assisted into a car. Photographs A1 and A2 (Blue 1 and Blue 2) and also in Exhibits 1 and 2 (Blue 156 and 157) were shown to Mr Treloar in evidence in chief (Black 148). They showed that two sets of fluorescent lights with double tubes and a fluorescent advertising sign indicating the presence of the liquor shop were fixed to the underside of the awning. Mr Treloar's evidence shows that these lights were turned on automatically by a timer in the supermarket power board from about 4.45 pm until 6 am (Black 149). On the probabilities it should be found that these lights were illuminated. 41 On this material it should be found that lighting was provided by fluorescent tubes fixed to the underside of the awning, and that there was a further source of light from the advertising sign although the purpose of that sign was not to illuminate the footpath but to draw attention to the liquor shop and to advertise liquor. It should be further inferred that lighting within shops which were trading, including the liquor shop, cast some light on the footpath outside. The lighting was sufficient to enable a person near the door of the liquor shop, that is several metres from the crack, to see the hole if the observer was looking at it; the lighting was not strong and was not specifically directed to illuminating the hole or warning of its presence. Whether a person walking on the footpath and taking ordinary care would observe the hole would depend on what other claims there were on that person's attention. A group of persons were approaching Mrs Alm in the opposite direction and she had to give attention to negotiating her way through or past them. 42 In Waverley Municipal Council v. Swain [2003] NSWCA 61 at [114] Spigelman CJ noted decisions from which it is possible to identify a change in the law in the direction of greater weight's being given to the proposition that people will take reasonable care for their own safety. This is a proposition for consideration, with other considerations, which present themselves when addressing the succession of questions which a negligence case raises, including the question of reasonable response to foresight of risk: it is not a rule of law and does not impose a clear or "bright line" limit to responsibility. Allowance must be made for inadvertence: Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512 581 [163] and a shopkeeper owes a duty of care even to careless customers: see David Jones Ltd v. Bates [2001] NSWCA 233 at [17] to [19] (Davies AJA) and authorities there cited. 43 In the Shirt Calculus the consideration that a duty is owed to persons who take ordinary care for their own safety is only one of the elements in the calculus; the nature and the difficulty of the measures which would overcome the risk, and the likelihood that the risk will come to realisation at some time in the course of use of the footpath by the public are also elements in the calculus; all have to be taken together. The decisions to whether Spigelman CJ referred include decisions relating to the liability of highway authorities and also to the liability of occupiers: these are different areas of the law of negligence, with different histories and different considerations affecting foreseeability of risk and also reasonable response to foresight of risk. To my mind there is no easy transition between decisions and judicial experience relating to highway authorities, with their context of public duty, public resources and legal right to use the road, and decisions and experience relating to occupier's liability, in particular for commercial and retail premises where entrants are present with the permission and, however indirectly, in the interests of an occupier who is entitled to control and (as a matter of right) to forbid their presence but allows their presence in a context which includes that their access and presence suit the occupier's interests. While an adjudication on what is reasonably required should take place in each case on the facts and circumstances of each case, and the development of standard responses and patterns of interpretation for recurring situations of fact should be received with caution, what should be regarded as reasonable care for their own safety and as acceptable inadvertence on the part of entrants to retail premises, even on the periphery as in this case, is likely overall to be less exacting of them than what is regarded as reasonable care for their own safety on the part of persons exercising their legal rights to use roads over which public authorities have powers of maintenance and repair imposed by public law. The relationships are completely different, and the calls for self-regarding vigilance are different. 44 In Mrs Alm's circumstances I am of the view that her not observing the hole should not be regarded as a failure to take ordinary care, or a failure to take reasonable care for her safety. It is not a correct view to ask, with the knowledge of hindsight, whether she would have observed the hole in the footpath if she had specifically looked for it in the footpath; there was nothing in the circumstances to direct her attention to such a possibility, and there were other claims on her attention which she had to yield to if she were to avoid colliding with other persons. 45 Counsel for Mrs Turnbull sought to rely on contributory negligence alleged against Mrs Alm. Although this defence was raised in the pleadings and at the trial, it was not referred to in express terms in the Trial Judge's judgment. While considering what were the duties and responsibilities of Mrs Turnbull and the City Council in relation to the footpath his Honour said (Red 20) "The evidence was that to Mr Treloar the hole in the footpath was obvious, he had clearly seen it and had complained about it. But that does not mean that a casual member of the public who ventures onto the area when other pedestrians are walking along would see it as clearly; Mr Treloar was working adjacent to it so had good reason to note it whereas it is unreasonable to expect a non regular member of the public to be as observant or to be aware of the hazardous nature of the hole when meeting up with other persons in the area." Although these findings were made in a different context, they are inconsistent with the contention that Mrs Alm was guilty of contributory negligence; this inconsistency may well explain the absence of any explicit reference to contributory negligence later in the judgment. In my view the finding relating to what was to be reasonably expected of a person in Mrs Alm's position is well based on the evidence and is correct, and should not be disturbed. In deciding whether Mrs Alm was guilty of contributory negligence, regard has to be paid to the whole of the claims on her attention, the presence of other pedestrians and her need to negotiate her way in the presence of other pedestrians, as well as to the state of the lighting and the otherwise highly regular state of the footpath on which she was walking. In my opinion the Court of Appeal should not find that there was contributory negligence on the part of Mrs Alm. 46 Counsel for Mrs Turnbull contended that it was not as a matter of law the responsibility of Mrs Turnbull to take care for the safety of users of the footpath. It was contended that the reality of the situation was that the footpath was a public footpath, that it was accepted as such by the City Council and that responsibility for it was assumed by the City Council. In support of this submission it was pointed out that the footpath had the ordinary appearance of a public footpath, as indeed it had, and that users of it, if they thought about the position at all, would have assumed that they were using it as an exercise of their ordinary rights to use public streets including footpaths. It was further pointed out that the City Council's officers readily accepted that the defect in the footpath was something that they should attend to when complaints to them were repeatedly made by Mr Treloar and other persons who must have made the same assumption. The submission was put repeatedly, and with some emphasis, that the substance of the matter was that the footpath was a public footpath and the repair of the hole was a responsibility of the City Council. 47 In my opinion this contention is quite wrong: the facts do not support it and it cannot be accepted. The submission is not supported by any evidence to the effect that Mrs Turnbull believed or had reason to believe that the footpath was owned by a public authority and was not owned by her. In my opinion it would not have been reasonable for her to have so believed; it should ordinarily be inferred, unless some other position is proved, that the owner of real property knows of her ownership, including where the boundaries are and how far her ownership extends. But further, the duty of Mrs Turnbull as occupier, and the standard of care to which she was subject are largely determined by the circumstances as they objectively existed, and in this case I do not see that a belief held by Mrs Turnbull that the footpath was a public footpath, or that it was the responsibility of the City Council, would have diminished or affected her duty of care even if either of those beliefs had been proved: they were not things which it was reasonable for a person in her position to believe. The lease of the liquor shop in evidence refers to the footpath as common area; the need for use of the footpath for public access to shops is obvious and is in Mrs Turnbull's interests, and the slightest attention given by Mrs Turnbull, or by anyone managing the premises on her behalf, would have revealed straight away that the footpath was within an area of land which she owned, was entitled to control and for which she had obligations in relation to her control. In any event her actual knowledge is not in my view conclusive for establishing the extent of her power, obligation and opportunity to exercise control. The relationship between a public authority owning a road and a pedestrian or other road user is different, in respects material to the Shirt Calculus, from the relationship between the occupier of a group of shops and the footpath in a common area and persons attending the shops. An occupier of land could not in my judgment discharge her duty of care to users of the footpath by leaving the safety of users to be attended to by the City Council. The duty of care owed by the City Council in relation to publicly owned footpaths may well impose a less onerous standard of care than the duty imposed on an occupier of commercial premises. 48 I do not think that the reasonable response of the occupier is much affected by the circumstance that the City Council, which actually had no duty to repair the hole, thought that it had and from time to time made repairs which repeatedly proved ineffectual. There is no evidence and there can be no finding about whether or not Mrs Turnbull in fact knew of the presence of the hole, or of the measures which were taken by the City Council, or knew that those measures were ineffectual; but whether or not she knew these things, the fact that the City Council was making repeatedly ineffectual interventions does not, in carrying out the Shirt Calculus, appear to me to have any tendency to diminish the standard of care required of or to excuse the occupier from taking measures which she otherwise should have taken.

49 The only evidence relating to whether or not there was negligence in the repair work is found in an expert report in Exhibit G commencing at Blue 110, prepared by Mr Gareth Shepherd of The InterSafe Group Pty Ltd. Mr Shepherd is a Chartered Professional Engineer, a Certified Professional Ergonomist who holds an honours degree in Mechanical Engineering and a Master's Degree in Applied Science relating to Safety. Mr Shepherd's report was not challenged in any way (except for objection to and exclusion from evidence of a short passage) and he was not cross-examined. His report includes the following: (Blue 121) There are a range of effective control measures available which could have prevented, or at least significantly reduced the risk of the accident in question. These include: Elimination of the trip hazard. The most reliable control measure is to eliminate the trip hazard by way of appropriate design and/or effective maintenance/repair. Based on the inspection of the fall zone, it appears that the original concrete footpath slab has cracked. The crack has occurred at approximately the centre of the slab and appears to have propagated across the entire width of the slab. The failure mode and mechanism of the original cracking is unknown but may be related to poor design or construction, subsidence and/or thermal expansion/contraction. The crack has exposed underlying footpath material which has allowed for permeation and loosening of the surface such that surface spalling has occurred, with concrete material flaking and breaking away. This would likely occur over a period of time, rather than being an "acute" failure. The traffic of people and other forms of transport over the crack would further aggravate damage. Appropriate design and construction including considerations of footpath material, thickness, subsurface integrity and provision of expansion joints, etc., should minimise the potential for failures, such as those observed. If information becomes available in regard to the footpath design, the author can pass further comment. If a failure does occur, there is opportunity to identify and rectify the hazard. Such failures can be identified via prior reports from the public and/or business owners and/or formal audits by Council personnel. For the situation in question, based on the apparent previous repairs which had occurred, it is assumed that the hazard had been previously identified. Repair work appears to consist of resurfacing the area with a thin layer of concrete over the defect. This has been ineffective, which is predictable given that such a repair does not address the underlying defect and will require repeated resurfacing as the concrete material breaks away. It therefore should be a short term control measure only. An appropriate medium to long term control would be to identify the defect causing the original cracking and subsequent spalling and flaking of concrete and address the problem (eg by repairing and replacing a portion of slab, assessing subsurface issues and fitting expansion joints, etc.) 50 The alleged negligence under consideration does not relate to the original design or construction of the slab or the original appearance of the cracking; it relates to the recurring need for repair and the inadequate repair measures which were in fact undertaken. Mr Shepherd's evidence to the effect that repair work consisted of resurfacing the area with a thin layer of concrete over the defect and was ineffective, and that its ineffectuality was predictable, was not disputed and should readily be accepted. His evidence also shows clearly that appropriate medium to long-term control measures were not undertaken at all. 51 Evidence of Mr Treloar shows that he worked at the liquor shop since 1996 and attended on most days, five or six days a week. He noticed that the crack slowly deteriorated from a smooth surface over time (Black 150). He had seen people in what appeared to be City Council uniforms making repairs. In early March 2000 he noticed that the footpath cracked away again. On 9 March 2000 he made a telephone call to the City Council and reported that the site of the crack had been repaired but it had started cracking out again. After he made this report another repair was carried out "… It was repaired to a flat surface again." (Black 151). By 3 July 2001 the crack deteriorated again (Black 152): "The repaired section had appeared to crumble away again into smaller pieces of the concrete." 52 Exhibit O is a bundle of documents from the business records of the City Council (Blue 142). A complaint sheet dated 18 August 1997 records a complaint made by one Mrs Kentwell to the effect that in Tamworth Street, before Sterling Street on the south side where the concrete footpath stepped up she tripped, fell and suffered a black eye and bruised wrist. Comments in the complaint sheet show that attention was given to the state of the footpath in the "section in front of Payless Discount Liquor". The comments do not clearly indicate that the complaint related to a crack in the footpath at the site of which Mrs Alm later fell, and do not record any repair action. 53 Another Council record shows that a request was received on 4 June 1999 in these terms (Blue 145): Out the front of [Payless Liquor Barn] the footpath has been repaired with a concrete fill. It has come out and someone nearly tripped on it - please repair before accident.

The document records a decision: Response: Investigate Priority: low

This record also shows that the report was made by someone associated with Payless Liquor Barn and by others. This record does not show any repair action. 54 Another Council record shows a request received on 21 June 1999 for (Blue 146): Repair uneven concrete at the northern entrance to Payless Discount Liquor in Tamworth Street.

This request appears to have originated within the City Council's own staff. The decision taken was "Response: Repair; Priority: Medium" and a note records that repair had been completed by 30 June 1999. 55 Another Council record shows that a report was received on 29 February 2000 in these terms (Blue 147): Lady had fall in Tamworth Street on footpath in front of Hairdressers going towards Payless. Caused by uneven footpath.

The report was made by: "Dorothy Stevenson … non ratepayer"; it was not on the face of things associated with Mr Treloar. The decision recorded was "Reponses: Repair; Priority: Medium" and it was noted that action was completed by 21 March 2000. 56 Another record dated 9 March 2000 records a report by Mr Treloar in these terms (Blue 148): Concrete has broken out of footpath again in front of Payless Liquor.

And the decision recorded was "Response: Investigate; Priority: High." Plainly this is an event of which Mr Treloar spoke in his oral evidence.

57 Another record in Exhibit O is an electronic message passing between Council officers of 13 July 2001 relating to the Tamworth Street Shopping Centre. This was ten days after Mrs Alm's injury. The message opens (Blue 144): A shop keeper rang me the other day about a footpath hazard where he witnessed a lady suffer a severe fall.

The message referred to three defects observed on inspection and said, among other things: There are also two other surface spalls between the ramp and the grog shop which require patching. Can you get these repaired as soon as possible. Given the number of elderly locals who use this shopping centre the repairs should be made as seamless and as permanent as possible.

A note records that work was completed on 18 July 2001. 58 A further Council record relates to a report by Mr Treloar on 25 June 2002, almost a year after Mrs Alm's injury (Blue 149). This notes that Mr Treloar reported "Footpath concrete cracked in 3 to 4 places needs fixing" at the Tamworth Street shops.

A decision was made to investigate and this led to the following note by a Council officer: "Inspected with Mr Treloar and found to be a private footpath. Mr Treloar is going to notify his landlord. 3.45 27.06.02". 59 These records confirm that on at least three occasions before Mrs Alm's injury Council officers had carried out repairs at the site of the hole at which she fell. There may have been more occasions. The evidence also shows that the means of repair used repeatedly failed, leading to a need for further repair (or, according to the report of Mr Shepherd, for more far-reaching work). It should be inferred that some underlying movement or other mechanism affecting the slab was causing cracking to reappear and the repair work to break down from time to time. 60 Various measures might have been adopted to deal with the problem and its recurring nature. One measure that readily suggests itself is to adopt a program of frequent inspection and patching repairs on the predictable reappearance of cracking and disturbance. Another approach, which has the support of Mr Shepherd's expert evidence, is to take some action to address the underlying defects and overcome the requirement for repeated resurfacing as the concrete material breaks away; such as repairing or replacing a portion of the slab, assessing subsurface issues and fitting expansion joints. There is no evidence that Mrs Turnbull received any reports about the appearance and reappearance of cracking, or about the inadequacy of the repairs or the presence of the hole; she did not receive them from Mr Treloar, who until 2002 was still under the impression that it was appropriate to make his reports to the City Council. No evidence establishes what inspection program or repair and maintenance schedule it was reasonable for an occupier in Mrs Turnbull's position to comply with, but even a very ample and relaxed inspection program, such as an annual inspection of the state of the footpath, would have made the need for repair known to Mrs Turnbull. 61 In my finding it was a breach of duty by Mrs Turnbull to take no action at all. A conclusion that the risk was sufficiently dealt with by leaving it to persons using the footpath to observe and avoid the hole would not in my opinion have been the correct outcome, when a reasonable view is taken of the hole, its depth and other dimensions and its tendency to recur after patching. In the Shirt Calculus it was a fair certainty that the risk presented by the crack would be realised in the course of a few months, that it would cause a pedestrian to fall and that the range of possible injuries included serious injuries, such as Mrs Alm suffered. Given this fair certainty it was not the reasonable response of an occupier to leave the hole unattended, or to take the view that the risk presented by the hole could be disregarded because pedestrians would look out for themselves. It was no less a breach of duty because the City Council was taking action, which it was not obliged to take, and which repeatedly proved ineffective as there were further failures. The problems of cracking, repeated disturbance of the surface and the eventual appearance of the hole described in Mrs Alm's evidence would continue with fair certainty. 62 When the evidence and the facts are addressed on the correct principles for determining liability, which the Trial Judge unfortunately did not apply, the correct conclusions in my opinion are that the presence of a hole on which Mrs Alm tripped, and Mrs Alm's injuries were caused by breach by Mrs Turnbull of her duty of care. 63 The question of the alleged liability of the City Council falls to be addressed on an approach under general principles of the law of negligence. The relationship between the City Council and Mrs Alm does not fall within any well-known class. In particular, the claim against the City Council does not fall to be tested according to principles established by Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council relating to liability in negligence of a public authority responsible for maintaining a road to users of the road. Those principles are based on statutory and other public powers relating to roads: see Brodie at 206 CLR 577 [150], and do not apply to work carried out otherwise than in exercise of those powers. Although it must be inferred that the City Council officers acted until 2002 under the impression and belief that the footpath was part of a public road, they were in error in so thinking; their error did not of itself impose a duty on the City Council. 64 From 1999 onwards, and probably earlier, the City Council repeatedly set about making repairs to the surface of the footpath at the site of the crack, including the point at which Mrs Alm tripped and fell on 3 July 2001. They did so only in response to complaints and not as part of a regular program, and not in response to inspections undertaken from time to time in any systematic way. It was obvious, and Council officers should have understood, that some underlying process was causing the problem to recur and disturbance to the surface of the footpath to repeat itself. It was also obvious that the footpath was used by pedestrians who had access to the shopping centre, and that there was no alternative footpath for persons using Tamworth Street for other purposes. In these circumstances the risk of injury to pedestrians if there was negligence in the manner in which the repairs were actually carried out was plain, and the reasonable response, the standard of care and whether there was any breach of a duty of care fall to be determined according to the Shirt Calculus. 65 The risk of a fall caused by the uneven footpath was not only inherently obvious; a fall was actually reported to the Council in the report received on 29 February 2000. The breakdown of the repair within a year or two was not something difficult to foresee; it had actually happened. Work carried out, not for the first time, by the City Council in June 1999 was followed after about nine months by a similar patch up job in March 2000; then there was an interval about sixteen months until the time of Mrs Alm's injury. The City Council's experience would have suggested, if it had been considered, that a patch up would no longer be reliable after nine months. 66 The City Council would have broken no obligation under the law of negligence if it had done nothing, but if, as actually occurred, the City Council and its officers actually set about conducting repairs, the City Council came under a duty either to carry out repairs in some manner which did not break down within a relatively short time, or to adopt some program which would rectify recurring break-downs, or to use some means of repair which embarked more fully on overcoming the recurrence of the problem, such as putting in an expansion joint. 67 There were potentially difficulties in the City Council's carrying out any work at all, even patching work, let alone more significant interventions such as putting in an expansion joint in the slab. One potential difficulty was that if Mrs Turnbull as owner intervened and forbad any repair work, the City Council would have had to comply. However this consideration is no more than a matter of theory; in reality there was no likelihood at all that action by the City Council would have been interrupted by Mrs Turnbull in any such manner. In my opinion, in the application of the Shirt Calculus the City Council had a duty, as it carried out repairs, either to carry out repairs in some way which ensured that there would be no further breakdown in the near future, or to institute and maintain a program of inspection and regular repair to ensure that the patching process remained effective. By the time of Mrs Alm's injury the previous work had plainly broken down to a very marked degree, producing a significant hazard. In my opinion Mrs Alm's fall and her injuries should be found to have been caused by a breach by the City Council of a duty of care under the law of negligence. The circumstance that the City Council did not have a duty under law to embark on any repair work does not constitute a reason or excuse for doing the repair work which they did carry out to anything less than a reasonable standard. 68 My conclusion is that both Mrs Turnbull and the City Council have incurred concurrent liability in negligence to Mrs Alm. In order to dispose of the Cross-appeal it is necessary to come to some decision apportioning liability between them. As frequently happens, it is difficult to make an apportionment on any clear basis because the involvement of each defendant in the events was quite different to the involvement of the other. In submissions on behalf of Mrs Alm on the Cross-appeal it was contended that it is legitimate to look at Mrs Turnbull and the City Council as principal and agent for the performance of repair work. This is quite wrong: there was no agency or analogous relationship. The City Council acted independently of and without reference to or advertence to the position of Mrs Turnbull, who has not been shown by evidence to have been aware of what the City Council did. There is no basis in the evidence for finding that there was any arrangement or communication between Mrs Turnbull and the City Council relating to the state of the footpath or its repair. Until 2002 Council officers did not know that the footpath had a private owner, and there is no evidence that Mrs Turnbull knew of the City Council's activities, that she approved of the activities or that she relied on the activities. Mrs Turnbull had a duty under the law as occupier; so far as evidence shows she did nothing although the problems relating to the surface of the footpath recurred over several years; it does not even appear that she relied upon the City Council to carry out repairs. Her contribution to causation was simply inactivity in the presence of a duty to act. 69 The City Council's contribution was quite different; Council had no duty to intervene at all, but acted under the impression that it did and took measures which were inadequate. On behalf of Mrs Turnbull it was contended that the City Council having accepted responsibility and undertaken repairs acted positively, and was for that reason much more culpable and had contributed much more to causation than Mrs Turnbull as the land owner who had been inactive, and that as a result the apportionment should be significantly against the City Council or should amount to an indemnity. I do not accept this argument. Nothing in evidence explains Mrs Turnbull's inactivity or suggests that the duty of Mrs Turnbull was discharged; it does not for example appear from the evidence that she relied on the fact that the City Council was active. The City Council in its turn acted under a misunderstanding of its own responsibility. These considerations do not enable me to see the contribution of either defendant to the injury in any way which clearly distinguishes it from the contribution of the other, and in the absence of any sound reason for doing otherwise, the conclusion I reach is that the apportionment of liability should be equal.

70 The Trial Judge assessed Mrs Alm's damages at $222,818.90. The elements in this assessment were as follows:

General Damages $60,000.00 Interest on part 2,500.00 Out of Pocket Expenses 3,825.90 Future Economic Loss 35,000.00 Past domestic assistance 13,750.00 Future domestic assistance 88,400.00 Future operation 10,343.00 Future medication 9,000.00

71 In the findings upon which this assessment was based (Red 21-22) the Trial Judge found to the following effects, among other things. Mrs Alm was aged 68 years at the time of the incident. Many years ago she hurt her back while training as a nurse and by 1967 had a lumbar disc prolapse which was operated on in that year; after that operation she was able to lead quite an active life. In 1996 she had a cardiac bypass and in 2000 a doctor noted moderate coronary artery disease. Her recent injuries from the fall would be expected to hasten degenerative change which would have occurred with the normal passage of time and the effects of the old injury. She suffered some permanent injury or aggravation of an earlier problem because of the fall; it is however difficult to calculate its extent as there was some degree of normal degenerative change following the passage of time and the earlier injury. She continued to have a painful loss of movement in her neck, lumbar back pain, limitations in movement of her right hip and pain in her groin. She has incurred pain and suffering, loss of enjoyment of life and limitation in ability to do many normal things including playing tennis. General damages were assessed at $60,000. 72 The Trial Judge also found to the effects that Mrs Alm trained and worked as a nurse, worked as an airhostess and then a ship stewardess until she got married. She had long-continuing family responsibilities with her children and her son's children; the oldest grandchild has now completed schooling. While raising her grandchildren she led an active social life with voluntary work and sport. Although now 68 years of age she would have liked to return to some sort of wage earning employment she would be able to engage in but for her injuries from the fall. The Trial Judge further found that: "There is no reason why she should not have been able to obtain some paid employment with her skills at this age although it is very hard for a court to calculate any future economic loss at this age and with such a long gap since her last employment." 73 There were no more detailed findings about her employment history. The Trial Judge said (Red 22): For Future Economic Loss because of her age and the lack of any set precedent for her in recent years it is impossible to calculate this by way of a set salary for a specific number of years so first I will find that a person of her education and ability and history was quite likely and able to re-enter the workforce when her youngest grandchild completed his schooling but all I can do is to consider a global sum but at the lower end and following a consideration of the type of wage that would be available to her. I will find an amount of $35,000.00. 74 The allowance for future economic loss was challenged in Ground 11 of the Notice of Appeal. The effect of the written submissions in support of this ground is that no allowance should be made or alternatively that the Court of Appeal should assess a smaller sum. Submissions referred to material in the evidence, which was not the subject of detailed findings, which showed that Mrs Alm's last paid employment was some casual work for solicitors between 1982 and 1991; her last full time employment had been in 1982. Mrs Alm gave evidence relating to an employment opportunity which was potentially available to her in a business which one of her sons intended to open; a spa and beauty salon in which her son had in 2002 offered her work as a full-time receptionist and assisting with customers. Her evidence was to the effect that she felt she could not do that sort of work, and she referred to carrying heavy things, anymore. 75 Mrs Alm's evidence, none of which was challenged, showed that she had a varied employment history. In addition to working as a nurse, an air hostess and a ship stewardess, she had experience in office work, managing and conducting a restaurant and later a hotel, and working in the advertising department of the Dubbo Daily Liberal from 1979 to 1982. At a later stage of her employment history she studied and completed an Arts Degree at Macquarie University; and upon completion of the degree she worked as a casual messenger ("gopher") in a large law firm between 1989 and 1991, when she undertook domestic responsibilities for her grandchildren. Since 1991 she has had several employments part time, and she obtained a Real Estate diploma. She had also been participating in volunteer work, in which she worked as a vehicle driver during the Sydney Olympics and worked for Meals on Wheel and for an art gallery. 76 At Black 38 Mrs Alm said to the effect that before her fall she planned to return to the workforce once her eldest grandson completed his High School Certificate examination and that she had had quite a few offers of work for many years. She was contemplating possibly part-time or casual real estate, computer or clerical work, or research work for a barrister. 77 Although there are no detailed findings by the Trial Judge of the facts upon which his assessment of future economic loss was based, the relevant facts appear from evidence of Mrs Alm which was not challenged, and should be accepted because of the Trial Judge's general acceptance of her credibility. It is correct, as Mrs Turnbull's counsel observed, that it has been many years since Mrs Alm last had a full time job. However her evidence shows that family circumstances have brought upon her responsibilities for care of grandchildren, and that these responsibilities were coming to an end. She has had a long working career, with experience in a wide range of fields and indications of ability and enterprise, exemplified by her studying Arts at a mature age and later obtaining a diploma qualification in Real Estate. There is no reason to think that her expressed wish to take further employment, at the age of 68, was not genuine, and her prospects of employment were not limited to the rather nebulous prospects of her working as a receptionist in a business which one of her sons was yet to embark on. Given her experience in a wide range of fields, clerical ability and her energetic disposition, a finding that she has an earning capacity which is of value should be made. As is often encountered, it is difficult to reduce the earning capacity to concrete terms upon which a valuation can be based, but to my mind it is realistic to regard her as having had capacity to earn income, not necessarily from full time employment, at modest rates over several years. The figure of $35,000 adopted by the Trial Judge is consistent with the view that she had prospects of making earnings in the order of $200 per week for four or five years, not an unrealistic view, and not the highest possible valuation. 78 It should be noted that this part of the assessment of damages relates to the valuation of Mrs Alm's earning capacity, and that earning capacity has value whether the person decides to exercise it or makes a choice to dispose of time and energy in some other way; the fact that for some years Mrs Alm's focus of energy has been on domestic responsibilities is not a demonstration that she did not have earning capacity. There is a need to come to some conclusion and to assess damages for a loss of earning capacity which has plainly occurred, notwithstanding the difficulty of establishing integers of calculation. While I call to mind the indeterminate nature of the exercise, my view is that the Trial Judge's assessment is within the range of conclusions reasonably available, perhaps close to the highest extent of such conclusions, but not erroneous. 79

In my opinion the Court of Appeal should make the following orders: Upon the Amended Notice of Appeal of Gai Lynette Turnbull

Dismiss the appeal as between the Appellant Gai Lynette Turnbull and the First Respondent Gillian Therese Alm with costs.
Allow the appeal as between the Appellant Gai Lynette Turnbull and the Second Respondent The Council of the City of Dubbo.
Declare that the Appellant is entitled to contribution from the Second Respondent of 50 per cent of the damages which the Appellant is obliged to pay to the First Respondent.
Order that the Second Respondent pay the Appellant's costs of the appeal but limited to such costs as relate solely to the conduct of the appeal against the Second Respondent. Upon the Notice of Cross Appeal of Gillian Therese Alm
Allow the Cross Appeal with costs.
Order that there be judgment for the Cross Appellant as plaintiff against Gai Lynette Turnbull and the Council of the City of Dubbo the Cross Respondent for $222,818.90 with costs. **********

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