Ainger v Coffs Harbour City Council

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NEW SOUTH WALES COURT OF APPEAL

CITATION:      Ainger v Coffs Harbour City Council [2005]  NSWCA 424

FILE NUMBER(S):
40713/04

HEARING DATE(S):               1 July 2005

JUDGMENT DATE: 05/12/2005

PARTIES:
Suzanne Lynda Ainger (Appellant)
Coffs Harbour City Council (Respondent)

JUDGMENT OF:       Mason P McColl JA Hunt AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 125/01

LOWER COURT JUDICIAL OFFICER:     His Honour Judge Twigg, QC

COUNSEL:
M J Cranitch SC/M Inglis (Appellant)
P R Cummings (Respondent)

SOLICITORS:
MBT Lawyers (Appellant)
Hunt & Hunt Lawyers (Respondent)

CATCHWORDS:
NEGLIGENCE – Council's non-delegable duty to take reasonable care that the exercise of its powers to carry out road works did not create a foreseeable risk of harm to a class of persons which included the plaintiff - reconstruction works commissioned by Council created an uneven section of footpath upon which a pedestrian tripped and fell - whether Council in breach of duty of care – COURTS AND JUDGES – statement of reasons for decisions – obligation to expose reasons for resolving a point critical to the contest between the parties - CONTRIBUTORY NEGLIGENCE – whether primary judge erred in finding pedestrian guilty of contributory negligence – inadvertence – DAMAGES – whether primary judge's reasons for assessing damages inadequate (D)

LEGISLATION CITED:
Civil Liability Act 2002
Suitors’ Fund Act 1951

DECISION:
(1) Appeal allowed (2) Set aside the verdict in favour of the respondent (3) Enter verdict and judgment in favour of the appellant (4) Respondent to pay the costs of the trial before Twigg DCJ (5) Remit the matter to the District Court of New South Wales for hearing on damages only (6) Respondent to pay the appellant’s costs of the appeal and to have a certificate under the Suitors’ Fund Act 1951 if otherwise entitled.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA         40713/04
DC         125/01

MASON P
McCOLL JA
HUNT AJA

Monday 5 December 2005

Suzanne Lynda AINGER v COFFS HARBOUR CITY COUNCIL

The appellant was injured on 22 December 1998 when she tripped and fell on a lip created by an uneven paver in the footpath in Beach Street, Woolgoolga.  She brought proceedings against the respondent, Coffs Harbour City Council, which was responsible for the care, control and management of the footpath.  The Council had engaged Bomac Engineering (NSW) Pty Limited to undertake reconstruction work on the footpath earlier in 1998 (the “reconstruction works”).  The reconstruction works involved, inter alia, laying pavers along a 300 – 400 metre length of footpath, which included the area where the appellant fell.   The works were completed on 7 July 1998.  Following completion, the respondent complained to Bomac about defects revealed after a final inspection of the reconstruction works, including pavers, which were higher than the adjacent concrete.  The respondent directed Bomac that the pavers required “lowering to provide flush even walking surfaces”.  After another complaint to Bomac concerning (inter alia) trip hazards, which were “still present adjacent to pavers”, the respondent terminated Bomac’s contract and undertook rectification work…

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Details
Case
[2005] NSWCA 424
Decision Date

CaseChat Overview and Summary

The appeal concerned a negligence claim brought by the appellant, a pedestrian, against the respondent, Coffs Harbour City Council. The appellant had tripped and fallen on an uneven section of footpath, which she alleged was created by road works commissioned by the Council. The primary judge had found in favour of the Council, and the appellant appealed to the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the primary judge erred in finding that the Council had not breached its duty of care to the appellant. Specifically, the court considered whether the Council had failed to adequately inspect the road works, ensure their completion to an acceptable standard, or warn pedestrians of the hazard. Additionally, the court had to assess whether the primary judge erred in finding the appellant guilty of contributory negligence and whether the reasons provided for the assessment of damages were inadequate.

The Court of Appeal allowed the appeal, finding that the primary judge had failed to adequately expose his reasoning process, particularly concerning the evidence relevant to the Council's breach of duty. The court noted that the primary judge had not sufficiently examined evidence suggesting the Council was aware of trip hazards in the area, had retained funds to rectify them, and had promptly repaired the specific defect after the appellant's fall. The court also found that the primary judge's reasons for finding contributory negligence and assessing damages were inadequate.

Consequently, the Court of Appeal set aside the verdict in favour of the respondent and entered a verdict for the appellant. The matter was remitted to the District Court for a hearing solely on the issue of damages, with the respondent ordered to pay the costs of the trial and the appeal.

Orders

Orders of the court

(1) Appeal allowed (2) Set aside the verdict in favour of the respondent (3) Enter verdict and judgment in favour of the appellant (4) Respondent to pay the costs of the trial before Twigg DCJ (5) Remit the matter to the District Court of New South Wales for hearing on damages only (6) Respondent to pay the appellant’s costs of the appeal and to have a certificate under the Suitors’ Fund Act 1951 if otherwise entitled.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Neither Mr Davison nor Mr Ford was called. The respondent did not explain their absence.The judgment below At the end of the trial in May 2004, the primary judge reserved his decision. He delivered his judgment delivered on 9 August 2004. His Honour identified the issues as being whether the respondent had failed to inspect these construction works adequately to ensure their safety for pedestrians, had had failed to ensure that Bomac completed the work to an acceptable standard, failed to ensure the pavers were level and had failed to warn pedestrians of the danger. He summarised most of the evidence, although he did not refer to the entirety of the respondent’s correspondence with Bomac. His Honour reviewed a number of cases, including Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 250; (2001) 206 CLR 512 (“Brodie”) and many decisions of this Court which could loosely be described as “footpath cases”. Based on that analysis, he identified the primary question as whether the respondent owed “a foreseeable duty to the plaintiff to avoid a lip of about a half-inch or twelve and a half millimetres in the paver/concrete in Beach Street?” His Honour summarised the parties’ submissions. He recorded the appellant’s submissions that the area where she fell had been under construction recently, that the state of the paver when she fell was as it had been left after that work was completed and that the lip had been repaired simply and inexpensively the day after her accident. He noted that the appellant argued that the lip created a hazard, that there had been stumbles on it before her fall, that she was keeping a proper lookout “although not watching the pavement directly in front of her” and that the Council “knew or ought to have known that it created a hazard likely to be a danger to a pedestrian keeping a proper lookout for her own safety”. He noted the appellant’s reliance on Mr Gilkinson’s evidence that he had classified the lip as a “trip hazard”, had put barricades around it after the accident and had said that if it had been properly inspected by an engineer before the accident, it would have been “obvious to that observer”. Insofar as contributory negligence was concerned, his Honour recorded the appellant’s submissions that she had been “walking normally, keeping a proper lookout and wearing appropriate footwear” and that “the real cause of her fall was the creation by the [Council] of a trip hazard, not any negligence by the plaintiff”. His Honour then recorded the respondent’s argument that it did not owe a duty of care to protect the appellant from “an obvious unevenness in the lip of the paver that was twelve and a half millimetres”, that such an unevenness did not create an unacceptable risk” and that “such a variation of height in the lip should generally be expected, particularly where the plaintiff had been aware for some time that there was a mosaic pattern created by the insertion of the pavers into the footpath”. The respondent also submitted that there was an “obvious change of texture between the pavers and the concrete”, that “many pedestrians had traversed it over the preceding six months without harm” and that “the plaintiff was looking further ahead and at people around her and not looking at the footpath”.

Ratio Decidendi

Legal Principle Established

There were also a number of grounds of appeal relating to damages. ConsiderationAdequacy of reasons Mr Cranitch SC, who appeared with Mr Inglis for the appellant on appeal but not at trial, complains both that the primary judge erred in failing to examine all the evidence relevant to the question whether the respondent had breached its duty of care - so that there was an “error in the process of fact finding” - as well as that the primary judge failed sufficiently to expose the reasons for his decision in a manner which would facilitate appellate review: see Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [129] – [130] per Hayne J (with whom McHugh J at [26]) and Gummow J (at [27]) agreed; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 259 per Kirby P. Mr Cummings, who appeared for the respondent on appeal but not at trial, accepted that it was incumbent upon the primary judge to expose his reasoning process, but argued that his Honour was not obliged to spell out every detail of the reasoning process he had pursued, nor to sift through all the evidence and analyse everything which was conceivably inconsistent with his findings and conclusions. He relied on Zaronias v Papaiani[2002] NSWCA 207 at [7] per Meagher JA. Mr Cummings also argued that the primary judge had not simply accepted the respondent’s submissions without explaining why he did so. He submitted that he had made “short, but pivotal factual findings which disposed of the conflict between each parties’ position, which his Honour had carefully spelt out in his judgment”. The appellant’s written submissions identified examples of evidence, arguably supportive of her case, which she submitted the primary judge had not dealt with adequately, if at all, in his reasons. Those matters included the evidence that the respondent had identified trip hazards in the area where she fell since at least 20 July 1998, that other people had tripped in the vicinity of the lip prior to the appellant’s accident, that the respondent had retained money from Bomac to rectify trip hazards but had failed to rectify the lip over which she tripped, that the respondent identified the lip as a trip hazard after her fall and took immediate measures to repair it, that the personnel were, and “had been at all times”, available to rectify the defect and that the area in which the accident occurred was a “high traffic area” with a traffic volume of up to 500 people per day. Mr Cummings argued there was no evidence the respondent had identified trip hazards in the area where the appellant fell prior to her accident, that to the extent there was evidence of stumbles in the vicinity of the lip prior to the accident, those constituted a “vanishingly small percentage of footpath users” and that the lip had been rectified after the appellant’s accident because there had been a trip on it and it was relatively easily fixed. Mr Cummings contended that, in this light, the matters the appellant contended the primary judge had failed to consider adequately were not inconsistent with his Honour’s findings. Accordingly, the question as to whether he should have dealt with them in his reasons fell away.