Whittlesea City Council v Merie [2005] VSCA 199

2. The finding that the plaintiff's fall was as a consequence of her slipping in the hole (Grounds 3, 4, 5).

3. The council's breach of duty (Grounds 6, 7, 8, 9, 10).

4. The plaintiff's contributory negligence (Ground 11).

5. The award of damages in three respects (Grounds 12, 13, 14).

The Duty of Care

10 The appeal before us was conducted on the basis that the council had a statutory authority to carry out works on footpaths within the municipality. The majority of the High Court Brodie v Singleton Shire Council[4] declared the duty of care owed by such local authorities in these terms:

"Authorities having statutory powers of the nature of those conferred by the [Local Government Act 1919 (N.S.W.)] upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff."[5]

In the case where the duty in question is directed to pedestrians, it is not to all pedestrians using the footpath that such a duty is owed: it is only to those pedestrians exercising reasonable care for their own safety.[6]

11 More particularly, such a class of pedestrians has been described in this Court as "the reasonable pedestrian of ordinary physical capacity"[7] or "the ordinary and reasonable pedestrian" exercising "sufficient care to see where they were going and perceiving and avoiding obvious hazards"[8]. In Moyne Shire Council v. Pearce[9] Gillard, A.J.A. accepted that the law in this State is as expounded in these cases and stated the position in these terms:

"The law that applies in this State is the law stated by the High Court as explained by this Court in the two cases just mentioned. This means that there is a specialised duty of care which only arises in circumstances where it is established by the plaintiff that at the time when he or she fell over suffering injury, the pedestrian was exercising reasonable care for his or her own safety. If the pedestrian was not exercising reasonable care, then as the law now stands there is no duty of care owed. In one of the later New South Wales cases of Hastings Council v. Shirley Dawn Geise[10] which was discussed in the present case at trial, Tobias, J.A. underlined the approach in this area when he said:

'Even making allowance for inadvertences adumbrated in the joint judgment in Ghantous, in the present case the undulation or depression in question did not constitute an unreasonable hazard or danger giving rise to any duty of care on the part of the appellant to eliminate it."[11]

12 In that case Chernov, J.A., who was a party to each of the earlier judgments of the Court of Appeal to which I have referred, said this:

"It is reasonably clear from the decision of the High Court in Brodie v. Singleton Shire Council; Ghantous v. Hawkesbury City Council[12] (as explained in Boroondara City Council v. Cattanach[13] and Greater Shepparton City Council v. Davis[14]) that a road authority in the position of the appellant does not owe a duty to any user of a footpath (in which I include a surface used as a footpath) to prevent or eliminate hazards in it merely because it is reasonably foreseeable that they might result in the injury being suffered by the user. Councils and like bodies owe such a duty to ordinary pedestrians who take reasonable care for their own safety. And it is for the plaintiff pedestrian to establish that he or she was an ordinary pedestrian who exercised reasonable care at the relevant time or, put another way, that the hazard was not one which, with the exercise of reasonable care by such a pedestrian, could have been seen or avoided by him or her[15]."[16]

13 The trial judge expressed the duty of care at the commencement of her judgment in terms which were described by counsel for the council as being orthodox. She said this[17]:

"5. Local Councils have a duty to pedestrians to take reasonable care to prevent dangers in the road or footpath. However that duty is not to prevent or eliminate 'obvious hazards' which 'could possibly be an occasion of harm'.[18]

6. The standard of care is 'that which is reasonably required to protect pedestrians who are themselves taking reasonable care for their own safety'.[19] Thus pedestrians are required to protect themselves by keeping a proper lookout as they walk and taking care for their own safety. Liability will fall on Councils however if the surface of a footpath 'contains something unusual or unexpected which creates a real danger for ordinary pedestrians'.[20] "

14 Later, after analysing the evidence she posed for herself two questions:

"71. Was the hole left after the concrete patch broke away an obvious hazard which the Plaintiff should have noticed and avoided? If it was then the Defendant is not liable. If not, then was the hole (repeating the words of Handley J.A. in Burwood Council v Byrnes) 'something unusual or unexpected which creates a real danger for ordinary pedestrians.'?"

Her Honour's reference to the judgment of Handley J.A. in Burwood Council v. Byrnes is a further reference to paragraph [28] of his Honour's judgment in that case, which reads as follows:

"28 Pedestrians on the other hand are in a position of relative advantage because they can generally protect themselves from uneven surfaces on footpaths and other public areas by keeping a lookout and taking care for their own safety. The position will be otherwise if the surface contains something unusual or unexpected which creates a real danger for ordinary pedestrians."[21]

Her Honour then considered the nature and extent of the hole in order to determine whether it was not such an obvious hazard. In paragraph [72] her Honour referred to the evidence of Mr Iulianetti that it was minor and to a submission put on behalf of the council that it was "there for all the world to see". The trial judge had had a view of the pram ramp in the course of the trial. We were told that this was to enable her Honour to better understand the evidence. Her Honour was conscious of this, for she noted that her inspection in March 2003 was made several years after the event. She had, however, the evidence of the witnesses which described the hole and its surroundings and the bundle of photographs taken by Mr Lightfoot a few months only after the incident and, doubtless, her inspection of the locus informed her understanding of the evidence.

15 Her Honour does not in terms state that the condition of the ramp at the time was such that it created a hazard to the suppositious pedestrian taking reasonable care for their own safety. She did, however, analyse the position of Mrs Merie and in particular, whether she as a pedestrian who did not see the hole, should have seen it in the circumstances. Her Honour's conclusion [22] was that the plaintiff's failure to see the hole was not, to adopt the words of Gillard, A.J.A. in the passage from Pearce's case which we quoted above, [23] a failure to "exercise reasonable care for her own safety".

16 This, it was submitted, was to fall into the error which was identified by Chernov, J.A. in Pearce's case[24], that of investing the suppositious careful pedestrian with the particular characteristics of the plaintiff. We think not: it is clear from the cases in this Court to which we have referred that the duty in question is a duty which is or is not owed to the plaintiff. The plaintiff is entitled to the benefit of the duty if, at the relevant time, she falls within the class of reasonable pedestrians of ordinary physical capacity exercising sufficient care to see where they are going and perceiving and avoiding obvious hazards, subject always to acts of mere inadvertence. Her Honour's approach to the question of duty of care was consonant with that of this Court in Moyne Shire Council v. Pearce[25].

17 We were invited by counsel for the council to form our own view of the hole in the circumstances in which it existed and to determine for ourselves whether such a pedestrian would have perceived it. We were reminded that, as it is a matter of inference, this Court is in an equally good position to undertake the task. There are, however, two difficulties in the way of our doing so. First, unlike the trial judge, we have not had the benefit of her view of the locus. Second, it is a regrettable feature of this case that a transcript of evidence is not available. We have only the trial judge's notes supplemented by those of the articled clerk employed by the solicitors for the council. Full as these notes appear to be, they are clearly not a verbatim account of the five day trial. We add, too, that we do not consider that it would be helpful to analyse this question simply by reference to the dimensions of the hole. Whether it poses a hazard of the kind which will give rise to a duty of care must depend not only upon these characteristics but also upon its colour, its location and the services which surround it, matters as to which her Honour was well informed.

18 We therefore conclude that the trial judge did not fall into error in her formulation of the relevant duty of care or in its application in concluding that the counsel owed to the plaintiff a duty of care to eliminate the hazard constituted by the existence of the hole and to avoid harm to her which might be occasioned by that hazard. Grounds 2, 2A, 2B and 2C therefore fail.

Was the Plaintiff's Fall due to her slipping in the hole?

19 This is essentially a question of fact. There is no doubt that Mrs Merie fell to the ground in the vicinity of the hole and that no witness saw her fall. She herself said she slipped in the hole and thereby fell to the ground, and her evidence was accepted generally by the judge as reliable. Her Honour was prepared to accept and act upon the evidence of those who also saw the hole and its environs. She observed that the plaintiff's injury was consistent with the fall which the plaintiff described. This was corroborated by the description she had of the plaintiff's movements at and immediately prior to the fall and by her husband's observations of the plaintiff's position after the fall.

20 We reject the submission advanced on behalf of the council that her Honour's conclusion on this matter ought not to have been made on the evidence. There was indeed evidence to support the inference and the inference was available on the balance of probabilities. We reject Grounds 3, 4 and 5.

Breach of Duty

21 There were in fact two distinct breaches alleged against the council and accepted by the trial judge. The first related to the patching which was carried out in 1997. This, her Honour found, was defective. The second was that of failing to rectify the paving or to eliminate the hazard which the hole constituted. In the first case, the council has undertaken work but performed it negligently; in the second, it has failed to provide the suppositious careful pedestrian with a hazard-free pavement. While considerations of cost and priorities may have had a role to play in the latter case it is hard to suppose that it might have a role to play in justifying bad workmanship or in avoiding the harm which this may cause.

22 In the present case, it was not suggested that, accepting that the hole constituted a hazard to careful pedestrians, there was any reason why it should not have been rectified. The argument put on behalf of the council was that it was not in truth such a hazard. The judge found that the council was aware of its existence and that it took no remedial action. Accordingly, the finding of breach of duty was inevitable. Grounds 6, 7, 8, 9 and 10 must fail.

Contributory Negligence

23 As has been pointed out[26], the notion of contributory negligence can have little role to play where the Brodie duty of care is made out. The judge found that the failure of the plaintiff to notice the hole was nothing more than mere inadvertence. The allegation of failure to keep a proper look out must fail in the light of that finding[27]. The other particulars all pre-suppose that the plaintiff was aware of the hole and did nothing to avoid it. Ground 11 has not been made out.

Damages

24 The judge awarded damages made up as follows:

(i) past medical expenses $4,703

(ii) future medical expenses $10,000

(iii) past loss of domestic capacity $24,000

(iv) future loss of domestic capacity $30,000

(v) past loss of earning $10,000

(vi) future loss of earnings $70,000

(vii) pain and suffering $100,000

The total is $248,703. This total was rounded off by her Honour to the sum of $240,000. Items (iv), (v) and (vi) were challenged in grounds 12 and 13 on the basis that the awards were against the weight of the evidence; and item (vii) in ground 14 as being so excessive as to be erroneous or plainly or wrong.

25 As a matter of general principle, a court assessing damages of this kind is not constrained by any requirement to apply some mathematical formula or to produce a perfect result.[28] Some components depend upon a prediction of what might occur in the future. Where it is necessary to form some impression of the quantum of a loss which has been demonstrated to have been suffered, the trial judge may make allowances for the uncertainties that inevitably face the tribunal of fact in determining how injuries will affect a plaintiff in the future and what the future generally might hold for her. The medical evidence in this case shows how this must be so. This is not to say that the judge might not find some assistance from calculations based on life expectancies, current wage levels and discount tables in order to determine as best she may the sum of money which, all things considered, fairly represents the measure of compensation to which the plaintiff is entitled and which is, at the same time, fair to the defendant.

26 The allowance of $24,000 for past loss of domestic capacity was not challenged. This was assessed on the basis of a need for 10 hours per week at $12 per hour. This represents about $6,000 per annum over the four years since the accident.

27 With respect to item (iv), the loss of this domestic capacity in the future, the figure is an approximation of the projected loss at the lesser rate of $80 per week over a period of 10 years. Applying a 10 year multiplier this produces a figure of $36,000, which her Honour reduced to $30,000. This reduction was said to cover, on the one hand, the prospect that the loss would continue beyond 10 years and, on the other, that the plaintiff's need might become less.

28 The challenge to this and to other figures with respect to future loss involved an analysis of the evidence of the likely duration of her disability and the uncertainties as to the plaintiff's plans in the future. As to the evidence, we think that her Honour was justified in concluding that the disabling pain which the plaintiff suffered would continue indefinitely. Her own evidence, which the judge accepted, was that in 2003, some four years after the incident, she had suffered and continued to suffer from severe or chronic pain as a result of the fall[29]. The plaintiff's orthopaedic surgeon, Mr Haw, concluded that the fracture to her sacrum had healed by August 2000 but that she had residual symptoms which might interfere with her social activities and her sexual life. The difficulty is that her physical condition has been exacerbated by post-traumatic stress reaction which, in the opinion of her psychiatrist, Dr Koshar, means that she has no prospect of gainful employment and will have on-going difficulties in managing her domestic duties. Professor Byrne confirmed this. Mr Kahan, another orthopaedic surgeon, spoke of her having partial permanent impairment of function as an after effect of the injury. Mr Brian Davie, the orthopaedic surgeon retained on behalf of the counsel, examined Mrs Merie in 2001 and 2003. In his April 2001 report he concluded as follows:

"I doubt whether there will be any permanent impairment as a result of this fall but there is no doubt that fractures in this area can be slow to heal and can cause considerable pain, and in certain individuals who are psychologically unstable or worry about these things, the symptoms can last for a long time. However eventually she should get better.

In his most recent report dated 6 March 2003 Mr Davie records that an MRI scan performed in May 2001 reported "no significant abnormalities in the lumber spine and an old fracture of the sacrum. The central canal of the spinal column was good and there was no evidence of nerve compression." The surgeon did, however, note a suggestion of a psychological reaction to the injury about which he expressed no opinion.

29 In her judgment, the trial judge accepted that the plaintiff would have had a reasonable prospect of returning to work as a machinist but that in the light of her injuries she no longer had this prospect and was unlikely to be employed. Nevertheless she was not satisfied that the plaintiff would before the injury have undertaken full time work soon after the time of the fall and continue this to retirement age. Her Honour rejected the invitation of counsel for the plaintiff to make estimations for past and future losses of earning capacity based on notional weekly amounts and the tables as suggested by counsel although it may be that she had some regard to these in fixing the range of figures which were appropriate.

30 Returning to the judge's estimate of future loss of domestic capacity it is apparent that she has accepted that Mrs Merie would have a probable on-going dependence upon domestic assistance for about 10 years. This was apparently in acceptance of the submission put on behalf of the plaintiff that the dependence would continue so long as she had the burden of two school-age daughters. At the end of 10 years the daughters would be 20 and 17 years respectively. This finding was open on the evidence and we see no reason to criticise it and the calculation which her Honour made upon it.

31 Item (v) refers to past lost earnings for which the judge awarded $10,000. Her Honour simply states that this is the appropriate amount without giving reasons. She was criticised for this and for her similar treatment of item (vi). In our opinion this criticism is justified. A defendant, as well as a plaintiff, is entitled know, not only the amount of an adverse award of damages, but also the reasoning which underlies it. This, however, was not a ground of appeal.

32 Her Honour found that, at the time of the fall, Mrs Merie was planning to seek work but she had not made active enquiries to that effect.[30] In fact, she had not worked since the birth of her first child[31] in 1993. Counsel on her behalf sought about $15,000 under this head on the basis that she might otherwise have worked for 12 months over the four year period since the incident and earned $300 per week. As we have mentioned, her Honour rejected as inappropriate an estimation based on calculations such as this. Nevertheless, having regard to these matters we consider that the adoption of a figure which is two-thirds of the suggested loss lends some support to the conclusion that her estimate of $10,000 was within the range of figures which, on the evidence, would fairly compensate Mrs Merie for this loss. It is not unsupported by the weight of the evidence; we would not disturb it.

33 Item (vi) concerned future loss of earnings for which the judge awarded the plaintiff $70,000. Again we are faced with a bald statement from the judge that this appropriate compensation for this loss. Her Honour's estimate for this item must reflect, on the evidence, the uncertainties of Mrs Merie's employment prospects and of her intention to work in the future, had she not suffered her injury. The calculation must also allow for the uncertainties as to whether employment would have been available to her many decades in the future and the chance that her disability would continue to affect her working capacity throughout this period. It is regrettable that her Honour did not set out how it was that the amount of the award reflected these matters.

34 On the plaintiff's behalf it was contended before the trial judge that the award should assume a loss of weekly earning capacity of $400 per week for the rest of her working life, that is, until age 60. The multiplier for this is approximately $920 so that the loss, without adjustment, is of the order of $368,000. There was evidence upon which her Honour could have so concluded. Counsel then proposed a 40 per cent discount for uncertainties, producing a figure of $220,800. This figure formed the basis of a submission that the plaintiff be awarded $200,000 under this head. Her Honour's response was, as we have mentioned, to award the plaintiff $70,000.

35 On behalf of the council it was submitted that this award was against the evidence and the weight of the evidence. Mention was made of the judge's findings that the plaintiff had not worked since the birth of her first child and that she was hoping for another pregnancy. In fact her Honour discussed these matters in her judgment, concluding nonetheless, that "had the injury not occurred the plaintiff would have undertaken full time work soon after the time of the fall and continued this to retirement age"[32]. Some allowance, however, must be made for her desire to have another child and the consequent loss of some working years as well as for the uncertainties attending her medical prognosis and the availability of work in the 25 years until her retirement age.

36 The sum awarded may be seen as representing the calculated whole of life loss of $368,000 less 80% for uncertainties. Looked at in this light we can see nothing in the complaint of the defendant in this case.

37 Item (vii) deals with pain and suffering for which the award was $100,000. This is always a difficult item to value or, indeed, to criticise. Her Honour found that Mrs Merie suffers long term chronic pain with all the impact that this has and will continue to have upon the life of this 35 year old woman. We will not rehearse the matters which her Honour identifies in her judgment. Counsel for the plaintiff suggested a figure in the range of $80,000 to $100,000. We do not consider this unreasonable. We find no error in her Honour's assessment. Grounds 12, 13 and 14, therefore, must fail.

Conclusion

38 We therefore reject all of the grounds of appeal. The appeal will be dismissed.

[1] The proceeding pre-dates the commencement of Part 12 of the Wrongs Act 1958 on 3 December 2003, so that the provisions of that Part have no application: Wrongs Act 1958 s. 87(3).

[2] She also sued Cathy Zop Nominees Pty Ltd as the contractor which carried out the work on the footpath in 1977, but this claim was withdrawn early in the trial and nothing more need be said about it.

[3] Date of birth 12 September 1968**.**

[4] [2001] HCA 29; (2001) 206 C.L.R. 512.

[5] [2001] HCA 29; (2001) 206 C.L.R. 512 at 577 [150], per Gaudron, McHugh, Gummow JJ.

[6] [2001] HCA 29; (2001) 206 C.L.R. 512 at 581 [163], per Gaudron, McHugh, Gummow JJ.

[7] Boroondara City Council v. Cattanach [2004] V.S.C.A. 139 at [18].

[8] Greater Shepparton City Council v. Davis [2004] V.S.C.A. 140 at [36] ], per Winneke, P. (Chernov, J.A. and Bongiorno, A.J.A. concurring)..

[9] [2004] V.S.C.A. 246.

[10] [2003] N.S.W.C.A. 178.

[11] [2004] V.S.C.A. 246 at [89], per Winneke, P. (Chernov, J.A. and Bongiorno, A.J.A. concurring)..

[12] [2001] HCA 29; (2001) 206 C.L.R. 512.

[13] [2004] V.S.C.A. 139

[14] [2004] V.S.C.A. 140.

[15] See Brodie v. Singleton Shire Council [2001] HCA 29; (2001) 206 C.L.R. 512 at [12], [14], [15]-[18], per Gleeson, C.J.; Greater Shepparton City Council v. Davis [2004] V.S.C.A. 140 at [28], [33], [34], per Winneke, P. (Chernov, J.A. and Bongiorno, A.J.A. concurring).

[16] [2004] V.S.C.A. 140 at [9] ], per Winneke, P. (Chernov, J.A. and Bongiorno, A.J.A. concurring).

[17] References taken to footnote.

[18] Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 C.L.R. 512 at 639 [355], per Callinan, J.

[19] Burwood Council v Byrnes [2002] NSWCA 343 at [28], per Handley, JA.

[20] Ibid.

[21] Ibid.

[22] Judgment para [76].

[23] At para [11].

[24] [2004] V.S.C.A. 246.

[25] Ibid.

[26] Moyne City Council v Pearce [2004] V.S.C.A. 246 at [91], per Gillard, A.J.A.

[27] See Moyne City Council v Pearce [2004] V.S.C.A. 246 at [7], per Batt, J.A.

[28] See Sharman v. Evans [1977] HCA 8; (1977) 138 C.L.R. 563.

[29] Judgment para [88].

[30] Judgment para [67].

[31] Judgment para [95].

[32] Judgment para [95]