Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson
[2012] NSWCA 340
•26 October 2012
Court of Appeal
New South Wales
Case Title: Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson Medium Neutral Citation: [2012] NSWCA 340 Hearing Date(s): 16 October 2012 Decision Date: 26 October 2012 Jurisdiction: Before: Meagher JA at [1]
Hoeben JA at [2]
Tobias AJA at [90]Decision: (1)The appeal is allowed in part.
(2)His Honour's judgment in favour of the respondent in the sum of $223,381.58 is set aside.
(3)In lieu thereof, judgment is entered in favour of the respondent in the sum of $213,381.58.
(4)Otherwise, the orders made by his Honour on 19 January 2012 are confirmed.
(5)The appellant is to pay the respondent's costs of the appeal.[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORT - negligence - visitor slipping on steps of rotunda in park - park including rotunda property of a trust - Council trustee of trust - relationship between Council and trust not explored at trial - whether s 42 Civil Liability Act 2002 applied to Council as trustee - whether Council could rely upon "principles" in s 42 without calling any evidence - application of s 5B Civil Liability Act 2002 - whether defect in steps reasonably foreseeable by Council - if so what if any was a reasonable response - admissions made by injured plaintiff - what inferences could properly be drawn from those admissions - what inferences could be properly drawn when neither party called evidence as to previous accidents or complaints - whether trial judge impermissibly used photographic evidence - whether causation established - DAMAGES - s 13 Civil Liability Act 2002 - future loss of earning capacity - whether any evidentiary basis for finding of trial judge. Legislation Cited: Civil Liability Act 2002 - ss 5B, 13, 41, 42
Crown Lands Act 1989 - s 92
Local Government Act 1993Cases Cited: C Van der Lely NV v Bamfords Limited (1962) IA IPR 86 [1963] RPC 61
Husher v Husher [1999] HCA 47; 197 CLR 138
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009] NSWCA 263
Short v Barrett [1990] NSWCA 164
St George Bank Ltd v Commissioner of Taxation [2009] 176 FCR 242; 256 ALR 391; FCAFC 62Texts Cited: Category: Principal judgment Parties: Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust - Appellant
Gregory Thompson - RespondentRepresentation - Counsel: Counsel:
Mr R Sheldon SC - Appellant
Mr M Neil QC/Mr M Thompson - Respondent- Solicitors: Solicitors:
DLA Piper Australia - Appellant
Gerard Malouf & Partners - RespondentFile number(s): 2012/43333 Decision Under Appeal - Court / Tribunal: - Before: Nicholson SC DCJ - Date of Decision: 07 November 2011 - Citation: - Court File Number(s) 2010/212559 Publication Restriction:
JUDGMENT
MEAGHER JA: I agree with Hoeben JA.
HOEBEN JA:
Nature of appeal
On 10 November 2007 the respondent suffered serious injuries when he fell while descending steps on a Victorian era rotunda, located in Machattie Park, Bathurst. He brought proceedings in negligence against the appellant as the trustee of the occupier of the rotunda. He was successful and recovered damages against the appellant.The appellant has appealed against the finding of liability and in respect of the award of damages for future loss of earning capacity.
Factual background
The respondent, with a teaching colleague and a friend, Ms Gray, travelled to Bathurst on the Remembrance Day weekend in November 2007. On 10 November the three visited Machattie Park, which is the property of the Bathurst City Council Crown Reserves Reserve Trust (the Trust). The case was conducted on the basis that the Bathurst Regional Council (the appellant) was the Trustee. The respondent had not been to the park since his childhood days.
Located in the park was a Victorian era rotunda. The floor surface of the rotunda was raised and there were four entrances to it. Each entrance comprised a number of steps. While in the park, the three entered the rotunda and spent some three minutes or so admiring aspects of the park. They then determined to leave the rotunda from the north-western entrance/exit. This entrance/exit comprised four concrete steps, bordered by two sandstone retaining walls. It was different to the one by which they had gained access to the rotunda.
As the respondent left the rotunda deck, he placed his left foot on the top step. The front half of his foot was overhanging that step. As he carried his right foot through the air with the intention of placing it onto the next (lower) step, his left foot also moved involuntarily forward in response to the transfer of his full body weight to that foot. Unable to maintain his footing, he fell down the stairs, seriously fracturing his left tibia and the neck of the fibula.
The respondent was aged 50 at the time of the accident and had worked as a teacher since 1979 at the Bowral Public School. Before this accident he had no physical disability. He ran, walked, played tennis and on occasions visited the gymnasium. As part of his teaching duties, he taught Physical Education, as well as training and coaching sporting teams.
Following the accident, the respondent was taken by ambulance to the Bathurst Base Hospital and from there was transferred to the Bowral Southern Highlands Private Hospital. Surgery was performed on his left leg on the Sunday afternoon. He remained at the Southern Highlands Private Hospital for a week. While convalescing, he developed a staphylococcal infection in the wound. He did not return to work until the end of April 2008, initially on a part-time basis. He has been left with a significant limitation of movement in the left leg but despite his disability, has been able to continue in his employment as a teacher.
The evidence at trial
On the day following the accident, the respondent's two companions returned to the rotunda. The evidence of Ms Gray, with respect to that visit was:
"Q. What did you do on this further visit to the Machattie Park on the Sunday?
A. Went and had a look at the steps around the rotunda.Q. What did you observe?
A. That the steps we walked up were different to the steps we walked down and that the steps we walked down, the top step was narrower than any of the others." (Black 43P-R)The respondent went to Machattie Park just before he returned to work for the purpose of having a look at the place where the injury occurred. His evidence on this issue was:
"A. I noticed - sort of went through the accident again, if you like, with a little bit of trepidation standing on the top of the floor of the rotunda at the stairs where I walked forward and slid down. I noticed that the step on the - on the top of the staircase which I went to go down was much narrower in width than the length of my shoe. In actual fact, if I put my foot onto the top step, like I did on that day then when I just pivoted that forwarded that the ball of my foot, that front area behind the toes is actually not supported by any stair at all and I could see it was - no wonder that when I lifted my right foot off there was nothing to actually support my - my weight as I made my normal progression down the staircase." (Black 22D-G)
Exhibit A6 is a photograph showing the respondent's left foot on the relevant step, in the position that he described in his evidence. The photograph shows a little over half of the foot supported by the step. In particular, the ball of the foot and toes were not on or supported by the step.
There were no signs anywhere about the rotunda, warning of the narrowness of the top step. Although the issue of contributory negligence was run at trial, it was not raised in the appeal. The appellant accepted that the respondent exercised appropriate care when descending the steps.
Support for the respondent's case was provided by an engineer, Mr Burn. He visited the rotunda in April 2011 and prepared a report, dated 23 April.
Mr Burn observed that there were no handrails associated with the rotunda steps. The park was well maintained with landscaped gardens, a fernery, a flower house and a fountain. The rotunda was located adjacent to the fountain. He described the rotunda as a wooden structure, surrounded by a flowerbed.
Mr Burn described the steps on which the respondent was injured. They were constructed of concrete, which had worn with time. There were no anti-slip strips on the nosings of the steps, which were exposed to the elements. The steps were cracked with pieces missing. The landing had a timber tread, which was worn smooth with cracks.
When Mr Burn measured the goings (i.e. the width) of the steps on which the respondent fell, the top step measured 190 mm and the lower three steps each measured 240 mm. The top step was that on which the respondent slipped. In relation to that step, Mr Burn said:
"The step is not of sufficient width to accommodate the foot and therefore does not provide stability, shape/lateral position under shoe." (Blue 12R)
Mr Burn observed what appeared to be modifications to the rotunda in that concrete had been poured on the inside of it as part of a maintenance program. This had the effect of raising the interior level of the rotunda. It also had the effect of allowing concrete to encroach upon the top step, thereby reducing the width of its going. In relation to that work, Mr Burn said:
"On completion of this work and at regular intervals, risk assessment inspections ought to have been undertaken to reveal hazards caused by the work or due to wear and tear. Had this procedure been undertaken, the hazard would have been identified and could have been remedied." (Blue 14D-F)
Mr Burn described the circumstances prevailing at the time of the accident as follows:
"Therefore, at the time of injury, the following situation was in place:
(a)The treads of the landing and steps were worn, cracked and with pieces missing.
(b)The nosings of the steps were rounded and worn.
(c)The top going was shortened by modification works and was not of sufficient width to provide stability when descending.
(d)There were no anti-slip strips at the nosings.
(e)There was no handrail.
(f)The steps were perceived as being uniform (as is typical with most non-spiral stairs).
(g)There were no warnings signs." (Blue 15C-J)Mr Burn suggested that the accident could have been avoided by the following action:
"(a)Placing warning signs advising of the dangers of using the steps at suitable locations near the exit.
(b)By installing railings to provide stability.
(c)By placing anti-slip strips at the nosing of each step and landing.
(d)Reconstruct the rotunda steps in accordance with current standards (at the next rotunda refurbishment) to remove the hazard presented by uneven steps." (Blue 20Q-U)Mr Burn gave evidence and was cross-examined. In that evidence, Mr Burn explained that where the edge of a step was worn it effectively reduced the available going of that step. If the going of a step were too narrow, this would cause a person descending those steps to "overstep", which "increases the risk the foot will slide off the edge and the person will be thrown off balance". (Black 59M)
Mr Burn said that the nosing on the steps could be repaired for $100 for each step. The cost of non-slip metal edges would have been approximately $100 per step to a maximum of $1000 for all four steps.
In relation to the concrete which had encroached upon the top step, Mr Burn advised that it could be removed by chipping away that section of cement so as to cause the going of that step to match the steps below it. His estimate of cost for that was "a few hundred dollars at least" (Black 72L, 73H, 73L).
Mr Burn described the process as follows:
"Q. How could you propose alterations to the steps without knowing how the rotunda was built?
A. From examining that top step, the front edge or the riser has been modified in the past by the fact that it has a different texture and a different coloured concrete and it has spilled out under what looks like a bit of timber used to form it up, so to me that means that top step has been modified in the past so all I'm looking at doing is taking a modification off to go back and widen the step." (Black 79O-R)"Q. But you have no basis for making that assumption do you?
A. The fact that the concrete is different, the fact that it shows evidence of having been formed up at a later time with the concrete across the - going on that top step gives me the - you only see that when you form concrete and pour it and you don't seal it properly at the bottom and it spills out of the formwork so that means at some stage that has been modified from what it was originally." (Black 79W-Y, 80C)Mr Burn estimated that the modifications affecting the top step had been carried out between 10 and 15 years before he made his inspection. He reached that conclusion on the following basis:
"A. The difference in colour of the concrete, the age of the structure, the last time it was likely refurbished, being the sort of thing it is you have to periodically maintain them." (Black 83P-Q)
"Q. Part of the basis for that conclusion is your experience about how often buildings need maintenance?
A. Having worked in Local Council and having been involved and - well having worked with the Parramatta park engineer when I was at Parramatta knowing how often they had to maintain the structures in Parramatta Park, that sort of life expectancy between major maintenance was quite normal." (Black 84F-H)No evidence was called by the appellant. By consent, counsel for the appellant read onto the record the following admissions made by the respondent:
·The rotunda was designed by J Hine and built in 1890.
·The rotunda is heritage listed.
·The rotunda is one of the pivotal features of Machattie Park.
·The rotunda is used by many people, including the Bathurst City and RSL Concert Bands.
Proceedings in the District Court
Nicholson DCJ, in his judgment delivered on 7 November 2011, rejected the appellant's submission that, because "many people" used the rotunda and no evidence had been adduced of any accidents, the Court should infer that no accident involving the rotunda steps had occurred. In that regard, his Honour noted that neither the appellant nor the respondent led any evidence as to the past accident history of the rotunda. He noted that there was no evidence that any accidents had occurred, nor was there evidence that accidents had not occurred.
His Honour said:
"96... The absence of evidence can hardly amount to proof of a proposition for which there is admittedly no evidence. Sometimes it may make an inference available. However, in this case, the absence of evidence did not amount to proof of the claim made in the defence pleadings that the defendant had not received prior reports, or that there had been no injury. Both sides had made contradictory assertions in their pleadings. For different reasons, neither side proved its claim. The state of the evidence was really to take prior accident history and prior knowledge or absence of knowledge of accident history out of action for either side." (Red 25V-X, 26B-C)
His Honour found the phrase "many people" to be imprecise in that there was no evidence as to which steps were used on the rotunda, what was the pattern of movement through the rotunda and what was the profile of persons using the rotunda, e.g. were they school children on class excursions or elderly citizens, tourists or locals? Accordingly, his Honour found the concession "many people used the rotunda" to be imprecise and not particularly helpful.
At trial the appellant sought to rely upon s 42 of the Civil Liability Act 2002 (CLA). His Honour rejected this submission on two bases:
"104While there is no doubt Bathurst Regional Council is a body politic constituted under the provisions of the Local Government Act 1993, the party who is in truth the defendant to these proceedings is the Bathurst City Council Crown Reserve Trust. Section 41 of the Act contains a comprehensive definition of "public or other authority". There was no dispute that definition embraces Bathurst Regional Council. However, there is no part of that definition that on its face applies to a trust. In particular there is no part of that definition that appears to apply to the Trust, which is the nominated defendant to these proceedings. Nor was any evidence led to advance a case of the Trust being a "public or other authority" entitled to the benefits provided by Part 5 of the Act. I reject the defence submissions on this aspect.
105... Frankly there is no direct evidence one way or the other as to the defendant's resource base or cash flow." (Red 27L-R)
An important part of the appellant's submissions at trial and in this appeal was that there was no evidence that it knew, or ought to have known, about any problem with the top step on the north-western entrance/exit of the rotunda. The appellant submitted that because the problem was not obvious until the step was measured, and there was no evidence of any regular inspection, foreseeability was not made out. This was because it was not reasonable to expect the appellant to be aware of the problem with that step.
His Honour rejected that submission in the following terms:
"107I reject the submission that it is only through regular inspection that the defendant could have discovered the narrowness of the step closest to the deck. The plaintiff's case is not that the narrowness of the stairs was not obvious - but rather it was not obvious from the rotunda deck to a person about to embark upon descending the stairs. The narrowness of the stair close to the deck would be obvious to someone climbing it (see exhibit A4) and possibly to someone approaching them to ascend (exhibit A3).
108Further, my view is that the defendant must have knowledge of the dimensions of the stairs imputed to it from the time of construction. It is inconceivable to me that the defendant through its trustee constructed these stairs without a plan being approved by or on behalf of the trustee. The relevant step had been in existence for 10 to 15 years. Did no-one associated with the Trust visit this pivotal feature of the Machattie Park in all those years to inspect and sign off on the construction work associated with the rebuilding of the step?
109It was also argued that the proposition that discovery of the irregular geometry of these stairs required measuring them, and if that were so, in order to protect itself, the only way Council had of addressing the problem was to measure all stairs in the Local Government area. There are three problems with that submission. I am not concerned with the Local Council here - I am concerned with the Trust, which is the real defendant in these proceedings. There was no evidence as to the extent of the land holding of the Trust.
110Secondly, there is no evidence that the discovery of irregular geometry was dependent upon measuring stairs. I have already suggested construction plans containing information. Visual inspections, reports and complaints are other methods.
111Finally, if one is concerned about the criteria of negligence, as determined by the interactions of the relevant parts of s 5B of the Act - surely the pre-eminence of a park and the pre-eminence of its pivotal features would play a part in determining whether probability of foreseeable harm demands response. A remote and little used area in a remote and little used park may be of less concern than a pivotal feature in a major park." (Red 28B-P)
His Honour also rejected the submission by the appellant that because the rotunda was heritage listed, no remedial action could be taken in relation to it such as erecting a sign or making any change to it. He did so because there was no evidence as to what restrictions, if any, the heritage listing imposed on the use of the rotunda. In the absence of such evidence, it would only be speculation on the court's part to reject the remedial steps proposed by Mr Burn on the basis that they would not be allowed because the rotunda was heritage listed. His Honour did accept the appellant's submission that a railing for these steps and not the others on the rotunda could adversely affect its symmetry.
His Honour did not take into account Ordinance 70 and Australian Standard 1428.1, both of which regulated the width (going) of steps in certain circumstances. His Honour said:
"127Mr Sheldon's submissions urging little weight for Mr Burn's report is partially successful. I accept that Ordinance 70 and AS 1248.1 have not been demonstrated to have binding force upon the defendant. Burn's fallback position was that they had some relevance as standards by which best or, at least good practice, could be gauged when considering issues of safety and of minimal risk. As against that proposition which I am inclined to accept, there is no evidence of any general or broad based recognition of those standards for that purpose by the community, or builders, or indeed, the defendant or those advising it at the time when the north-western stairs, or top step, were constructed up to 15 years ago. For that reason the standards as found in Ordinance 70 and AS 1428.1 will play no further part in the outcome of this matter." (Red 31H-M)
His Honour then set out his primary factual findings:
·"The rotunda is a pivotal feature of Machattie Park.
·One of the attractions of the rotunda is its compass point uniformity with the stairway and stairs being the key feature of the compass point uniformity.
·The rotunda is on flat ground and each of the four stairways has approximately the same number of stairs.
·The plaintiff accessed the rotunda deck from the south-eastern side.
·The step closest to the deck of the rotunda on the south-eastern side has a going of 210 mm.
·In the absence of a warning sign there was no reason for the plaintiff to believe the north western exit stairway was constructed any differently to or contained any hazard not existing on the south eastern stairway.
·As he moved to the north-western stairs he looked at the approach to the stairs.
·When at the top of the staircase he saw the treads of the stairs leading to the pebble pathway in the lower aspect of his vision. I am satisfied he was not relying upon his peripheral vision - but rather some lowering of the eyes so that the lower area of his vision was focused on the stairs and path below.
·At that angle, what he saw was an apparent uniformity of the stairs (see exhibit A5), consistent with the south-eastern stairs he earlier had climbed. From this vantage the risk of harm from the narrow tread of the closest stair was not obvious to him.
·What was hidden from his vision - because of a wooden beam forming the north western lip of the rotunda deck, was the narrowness of the step closest to the rotunda deck by comparison with the corresponding step on the south-eastern stairway.
·Likewise what was hidden from his vision - because of that wooden beam was the narrowness of the step closest to the rotunda deck by comparison with the other three steps he was intending to place his boot upon.
·The step closest to the rotunda deck on the north-western exit has a going of 190 mm - 20 mm narrower than the corresponding step on the south eastern side and 50 mm narrower than the three steps below it.
·Because of the difference in size of the going on the corresponding step on the south-eastern stairway, his prior experience in ascending those steps had an effect of misleading him as to the significant difference in size of the closest step on the north-western stairway.
·The plaintiff placed his left foot on the tread of the closest step to the wooden beam. I am satisfied it was placed close to the riser - but am not prepared to find it was jammed back against the riser.
·If it had been placed close to the riser, the plaintiff would only be able to fit something in the order of 56-58 percent of his boot upon this step.
·The plaintiff's footwear was more than appropriate for the task in hand.
·The treads of the landing and steps, including the closest step, were worn and cracked with pieces missing.
·The nosing of the steps including the closest step were rounded and worn.
·There were no anti-slip strips at the nosing of the closest step - or any other step.
·There was no handrail to hold so as to retain balance or minimise the fall.
·The going of the closest step had been shortened by modification works.
·The going of the closest step was of insufficient width to provide stability to an adult male wearing a boot the same size or larger than the boot size worn by the plaintiff.
·The plaintiff lifted his right foot from the wooden beam, intending to place it on the tread of the step one lower than the closest step.
·As he commenced to transfer his weight from the right to the left and adjusting the distribution of his weight in anticipation of the right foot landing on the lower step, there was insufficient tread surface to support enough of the front portion of his left foot, which as a consequence skidded off the closest step.
·The absence of an anti-skid strip on the nosing and the generally poor surface condition of the tread meant there was nothing to inhibit or restrict the skidding left foot even momentarily to provide an opportunity for reflex action by the plaintiff.
·The forward momentum of the upper body and the right foot meant the plaintiff lost all balance. Meanwhile his left leg slipped down across the lower step and the next one. The plaintiff's weight following the motion of his right foot resulted in his turning to his right as he fell.
·In the course of falling by some mechanism I am not able to identify with precision, intolerable pressure was placed on the tibia and the neck of the fibula. The plaintiff heard a loud crack caused by the fracture of these bones.
·The plaintiff finished the fall straddled across the staircase." (Red 32H-33R)
His Honour's reasoning towards a finding of negligence was:
"135The principal factors playing a part in this injury are the absence of a warning sign, the narrowness of the going of the closest step; the poor condition of the surface of that step, and causes was the absence of a warning sign and the narrowness of the going. I am satisfied if there had been a warning sign or the going had been at least the same width at the south eastern going on the corresponding step or the width of the other going on the lower steps on the north western stairway, the fall would not have occurred.
136... But it is also common knowledge the narrower a stair tread the greater the risk of injury. There comes a point in time when a stair tread can be so narrow as to be inherently dangerous.
...
139In this case what lifts the risk from an insignificant foreseeable risk to a significant one is the geometry of the closest stair, and the absence of any warning sign indicating a narrow step and the need for care or caution. This incident occurred in daylight on a dry day . ... This risk is heightened if the persons visiting the rotunda are unfamiliar with it. In the absence of any history to the contrary, and reliance, as the defence have urged, upon the plaintiff's admission of many people using the rotunda, the probability of harm occurring in the absence of remedial action is at least substantial and the more likely to be realised the greater the number of visitors, particularly visitors unfamiliar with the park.
...
141... However, the prospects of really serious injury occurring on a downward journey when the weight bearing foot is dislodged because of inadequate foot support is a different prospect. In those circumstances, really serious injury would not be unexpected.
142In the absence of direct evidence, I am forced to draw some inferences about the resources available to the trust. I have deliberately distinguished the defendant trust from the trustee. No evidence of the defendant's resources has been led by the defence - I can only assume that to have done so would not have been of advantage to the defence. Such inferences as I draw must be consistent with the available evidence. The pictures I have seen of the rotunda and its surrounds make clear the defendant has resources sufficient to maintain the heritage building, its immediate surrounds, gardens, fountain and the park generally to a very high standard. Any burden of taking precautions must be measured against that standard. Likewise, I have no evidence of any commitment the defendant has beyond Machattie Park. My assessment of the burden of taking precautions must be measured against what I know - rather than speculating. I am satisfied the placing of a warning sign or signs on either pillar forming the outer border of the stairwell appropriately worded so as to caution against the identified risk of a narrow stair would not be overly burdensome to the defendant. In this case a warning sign would have been sufficient. I have already made that finding. It can be made with some confidence because the uncontested evidence of the plaintiff is he would have heeded an appropriate warning sign.
143The item creating the risk of harm is the narrow stair tread on the top step. The social utility of that step is determined by the part it plays in access to and egress from the deck of the rotunda. It also forms part of the four stairways that add a visual aesthetic quality to the rotunda.
144The cost of repairing the stair would be significantly more than placing a sign. Mr Burn's solution to widening the step without reconstructing the whole stairway required removing the raised concrete band that abuts the timber. The effect of that would be to make the stair tread level throughout, but that action does not represent an optimum solution. It would serve to mitigate, although not remove the step as a contributor to a risk of injury. The remedial step proposed by Mr Burn would not interfere with the social utility of the stairs, but would enhance the safety of the stair in the performance of social utility activity. I am satisfied there are remedial actions available that would not impede or diminish the social utility of the stair.
145In light of the above reasons, I am satisfied the injury to the plaintiff was the result of the negligence of the defendant, its employees or agents. I base my finding of negligence on the failure of the defendant to provide a step of sufficient width to adequately support the plaintiff's foot, accompanied by a failure to warn the plaintiff that the step was of inadequate width. As I noted above, the defendant's failure to provide a slip-resistant edge on the step also played a part - although a less significant one." (Red 33S-35U)
THE APPEAL
Submissions and considerationGround of Appeal 1: His Honour erred in finding that the occupier of Machattie Park (the Park) at Bathurst was the "Bathurst City Council Reserve Trust".
Ground of Appeal 2: His Honour should have found that the occupier of the Park was the Bathurst City Council or Bathurst City Council as trustee for the Bathurst City Council Reserve Trust.
Ground of Appeal 3: His Honour erred in failing to apply the provisions of s 42 of the Civil Liability Act 2002.
These grounds of appeal can be conveniently dealt with together since they raise the same issue. It is assumed that the reference in the Ground of Appeal to the Bathurst City Council is a reference to the Bathurst Regional Council which was the party named in the pleadings.
The relevant provisions of the Civil Liability Act 2002 (CLA) are:
"41In this Part:
...
public or other authority means:...
(d) a local council, or
(e) any public or local authority constituted by or under an Act, or...
42The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:
a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,
(b) the general allocation of those resources by the authority is not open to challenge,
(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),
(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate."
The appellant submitted that his Honour erred in failing to apply s42 CLA because he concluded that the true occupier of the park and rotunda was the Bathurst City Council Reserves Reserve Trust which was not a "public or other authority" to which the provisions of s42 CLA would apply. The appellant submitted that a trust was not a separate legal entity and had no separate existence (St George Bank Ltd v Commissioner of Taxation [2009] 176 FCR 242; 256 ALR 391; [2009] FCAFC 62, Perram J at [88]). The appellant submitted that the Trust could not in truth be the defendant. The true defendant was therefore the appellant which came within the definition of a public authority in s41 CLA and accordingly, his Honour was obliged to apply s42.
The appellant submitted that the application of s42 to the facts required that his Honour apply the principles set out in the section. It submitted that if his Honour had applied those principles, he would have recognised that there was a limitation on the resources available to it. It submitted that he would have had to consider the broad range of its activities when assessing whether it was reasonable to require it to eliminate the risk created by the step on which the respondent slipped.
There are a number of difficulties with this submission. The first is that the point that the Trust was not a legal entity was not taken at trial. On the contrary, the appellant in its pleadings admitted that it was the Trustee and that the Trust occupied the park including the rotunda. No information or evidence was provided to the court concerning the relationship between the Council and the Trust.
The following submissions were made at trial:
"HIS HONOUR: I want to ask you about that. It's being sued in its role as a Trustee of this park; do I have to be concerned about what responsibilities it had in other parks?
COUNSEL: Yes your Honour. Because it is the Local Government authority and s 42 of the Civil Liability Act, which I can hand a copy up to your Honour, says that your Honour has to take account of all of the public authority's responsibilities.
HIS HONOUR: Even when its being sued as a Trustee for some other mob?
COUNSEL: As I understand the section your Honour, but I would have to concede that that point has not been decided ...HIS HONOUR: Does this only apply to them when you're suing them - and maybe they are being sued as a public authority, but it seems to me they're being sued as the trustee, but it may be that the mob that they're trustees of is a public authority, I don't know. It's a query whether s 42 applies and somebody's going to have to tell me.
COUNSEL: In my submission it does your Honour and so far as I am aware, there's no authority which says that because it's being sued as a Trustee for a public park, it is no longer to be treated as a public authority for the purposes of s 42. But in any event, the section does say whether a public or other authority has a duty of care or has breached a duty of care.HIS HONOUR: I'll have a look at that. At first blush you'd think that they must have covered it somehow. I know nothing about parks; I mean are all parks set up in this way?
COUNSEL: Some are vested directly in the Council your Honour and some which as I understand the way it works, some which were once State run, upon creation of the Council vest through a trust. I wouldn't want to take it any further than that your Honour at this stage, I'd need to have a look at precisely how it worked in this case. But a proposition which I won't go too deeply into elaborating at this point until I can enlighten your Honour as to the sequence by which we became the trustee, the general proposition is that your Honour has to have regard to the functions required to be exercised." (Black 102B-F, M-X)That is how the matter was left and no further assistance was provided to the court. For this point to be now taken, it was necessary for the appellant to provide at the very least, evidence as to the matters foreshadowed in the exchange with the trial judge, i.e. more information about the relationship between the Council and the Trust.
The Trust is described in the statement of claim as "Bathurst City Council Crown Reserves Reserve Trust". That suggests that a reserve trust may have been formed under Division 4 of Part 5 of the Crown Lands Act 1989. Under s 92 of that Act, the Minister administering the Act may by notification in the Gazette establish and name a reserve trust and appoint it as trustee of one or more specified reserves. That reserve trust is constituted as a corporation (s 92(2)) and charged with the care, control and management of the reserve (s 92(5)). Under s 95(1), the Minister may, by notification in the Gazette, also appoint a local council to manage the affairs of the reserve trust. Where a council manages a reserve trust, the trust has all the functions of a council under the Local Government Act 1993 in relation to public reserves (s 98(1)). Those provisions are relevantly conferred in respect of public land by Part 2 of Chapter 6 of the Local Government Act.
The proceedings were conducted on the basis that the appellant owned and occupied the park in its capacity as a trustee. It should be noted that this does not accurately reflect the true position as to ownership of the park. The Bathurst City Council Crown Reserves Reserve Trust was established by a notification in New South Wales Government Gazette No 57 dated 12 May 1995. That notification also appointed that reserve trust as trustee of Machattie Park (being the reserve land in Dedication 590114 notified in the Government Gazette dated 10 December 1904). In addition, the notification in Gazette No 57 appointed Bathurst City Council to manage the affairs of that reserve trust. Bathurst Regional Council is the successor of the Bathurst City Council and was constituted in May 2004.
Had the proceedings been conducted on the basis that the reserve trust was a separate legal entity and responsible for the care, control and management of the park, it would have been necessary, when addressing the operation of s 42 CLA, to consider whether the reserve trust is the "Crown" or a "public or local authority" within the meaning of s 41 CLA. Although the proceedings were conducted on the basis that the appellant owned and occupied the park as a trustee, it is unnecessary to consider the appellant's argument that s 42 was capable of applying to it notwithstanding that the council was acting in a capacity as trustee. That is because the appellant led no evidence so as to engage the application of s 42.
Implicit in the appellant's submission is an assumption that the trial judge was obliged to take into account those "principles" even if no evidence of any of the matters in s42 was adduced. That is not so. A simple reading of the section makes that clear. There has to be evidence of "the financial and other resources" that are available to the authority and "the general allocation by it" of those resources. There needs to be evidence as to the range of the authority's activities. Without that basic material, a court has nothing upon which to apply the principles in the section.
If there were any doubt as to the correctness of that approach to s42, it was resolved by the careful analysis of the section by Campbell JA and Sackville AJA in Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009] NSWCA 263. There, Campbell JA relevantly said:
"395The effect of section 42(a) in the present case is that what the RTA can be required by the law of negligence to do is limited by the financial and other resources that are reasonably available to the RTA for the purpose of carrying out the care, control and management of freeways and any other roads that are under its care, control and management. Its budget for that purpose is so large that any expenditure that would have been involved in earlier screening of the Glenlee Bridge, or indeed in earlier screening of all overpasses on freeways would have been well within its budget.
396When section 42(b) uses the expression "those resources" it is referring back to section 42(a). What section 42(b) requires not to be challenged, in the present case, is the "general allocation" by the RTA of those resources that are reasonably available to the RTA for the purpose of the care control and management of freeways and other roads under its care control and management.
397There is an important difference in prepositions between section 42(a) and section 42(b). Section 42(a) is concerned with the resources reasonably available to the authority, while section 42(b) is concerned with the allocation of those resources by the authority. In other words, section 42(b) starts from the position that certain resources are reasonably available to the authority, and considers the allocation that is made by the authority of those resources."
Sackville AJA made observations to similar effect:
"449Subject to the effect of ss 42 and 43A of the Civil Liability Act, I see no compelling reason in the present case, whether deriving from distinctions sometimes drawn between policy and operational matters or otherwise, for the Court to shy away from undertaking the assessment contemplated by s 5B, in particular weighing up the matters identified in s 5B(2). This requires the Court to determine whether a reasonable person in the position of the RTA would have fenced the Glenlee Bridge notwithstanding competing claims on its resources to address similar risks of serious injury elsewhere. In making this determination, the Court needs to consider whether the RTA's ordering of priorities was a departure from standards to be expected from a reasonable person in the RTA's position. The Court should also take account of the opportunities reasonably available to the RTA to gain additional funding from the Commonwealth or other sources for the purpose of addressing particularly acute risks of which it was aware or should have been aware.
450Campbell JA's analysis of the facts in this case seems to me to show that the RTA appreciated in a reasonably timely fashion the nature and magnitude of the risk to road users, including the risk to users of the F5 from the Glenlee Bridge, by reason of objects being thrown or falling from overpasses. The RTA's response to the risk, having regard to the burden of taking precautions to alleviate the risk of harm to all road users from similar sources, was not shown to be unreasonable. The RTA adopted a rational and apparently systematic (although not perfect) approach to assessing priorities for the erection of protective fencing on the basis of the magnitude of risk. It acted on that assessment within the limits of available resources. The evidence does not demonstrate that a reasonable authority in the position of the RTA would have sought additional funding from the Commonwealth or that, if it did, such funding would have been made available for fencing the Glenlee Bridge before the incident that led to Mr Evans' death."
Not only do those paragraphs helpfully set out how s42 is to be applied but it is apparent from their content that the issues there under consideration depended upon the evidence which the RTA gave concerning the particular subject matter of s42. Without that evidence, there was no subject matter to which the s42 principles could be applied.
No evidence of any of those matters was adduced by the appellant. It follows that even if his Honour had found that s42 applied to this case, the section had no practical application in the absence of some evidence with respect to the various subject matters referred to in it. These grounds of appeal have not been made out.
Ground of Appeal 4: His Honour erred in that he failed to properly apply s5B of the Civil Liability Act 2002.
Ground of Appeal 7: His Honour erred in finding that the appellant knew of the geometric deficiency in the stairs on which the respondent fell.
Ground of Appeal 9: His Honour erred in finding that the appellant had been negligent.
Section 5B CLA provides:
"5(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm."
The appellant accepted that there was always a foreseeable risk of injury when a person descended stairs, but it did not concede that there was any basis for a finding that it knew, or ought to have known, about the particular risk of harm which this step gave rise to, i.e. the risk of falling because of the inadequacy of its width.
The appellant specifically challenged the findings of his Honour at [107] - [111] of his judgment (see [31] hereof). The appellant submitted that his Honour had speculated as to the existence of a plan when the modifications to the rotunda and top step had taken place 10 or 15 years before the inspection by Mr Burn. The appellant submitted that there was no evidence to support the existence of any such plan. It submitted that even if the existence of a plan could be properly inferred, there was no evidence of the detail which it would have possessed.
The appellant submitted that the finding that an inspection of the steps would have revealed the narrowness of the top step was contrary to the evidence of Mr Burn. It submitted that the evidence of Mr Burn was that the steps gave the appearance of being uniform in size and that it was only when the steps were actually measured that the problem with the top step was revealed. The appellant submitted that there was nothing about the appearance of the steps to alert a person to the fact that they were not uniform. The appellant submitted that his Honour impermissibly sought to gain support for this finding from his interpretation of the photographs.
The appellant submitted that there was no evidence of reports or complaints concerning this step, or any of the steps. The appellant submitted that the need to measure the steps in order to disclose the "risk", when coupled with the absence of evidence of any prior injury or complaint, compelled a conclusion that the appellant did not know of the risk and that there was no reason why it should have known. Accordingly, the requirements of s5B(1)(a) CLA had not been made out.
The appellant further submitted that in the absence of any complaint or previous injury in relation to this step, it would have been necessary for the appellant to examine and measure every step within its area of responsibility in order to identify a potential or inchoate risk. This was clearly an unreasonable requirement, given the comparatively heavy use of the rotunda and park, coupled with the absence of any previous injury or complaint.
An important element of the appellant's submission is the proposition, which was rejected by the trial judge, that the lack of evidence of complaint or previous injury, coupled with the use of the park and rotunda by many people, required an inference to be drawn that there were no complaints and no previous injuries.
That submission should not be accepted. The evidentiary position was as explained by his Honour. There was no evidence of complaints or previous injuries. This should be distinguished from evidence that there had been no complaints or previous injuries. They are two quite different things. The absence of evidence on the subject means that there could have been complaints or previous injuries, but there was simply no evidence either way.
His Honour correctly concluded that a lack of evidence on the subject did not assist either party and that not only was he not required to draw the inference sought by the appellant, but it was not open to him to do so.
If any inference were to be drawn, it would have been an inference adverse to the appellant. It was the party in the best position to provide evidence of whether there had been complaints or previous injuries, but it declined to do so. It was open to his Honour to draw an inference, had he so wished, that such evidence would not have assisted the appellant.
In Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 the plurality [Heydon Crennan and Bell JJ] said:
"63The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. ...
64The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party. ..."
The appellant's submissions misunderstand the evidence given by the plaintiff, Ms Gray and Mr Burn and the use which his Honour made of the photographs. Mr Burn's evidence was to the effect that to a person standing at the top of the stairs preparing to descend, the steps would appear uniform. This was particularly so in relation to the first step. This was the very danger to which Mr Burn referred, i.e. that the imperfection in the step was hidden from a person about to descend the stairs. His evidence was not that the difference in width between the top step and the other steps was not visually obvious to a person ascending those steps, or looking at the steps from below. In particular, Mr Burn at no time said that the only way the difference between the top step and the other steps could be detected was by measuring their width.
The evidence of Ms Gray was that she and the respondent's other friend went to the rotunda on the day following the accident and that they observed (without apparently any need to measure) the difference between the top step and the other steps. This was an observation made by the respondent before he returned to teaching. These observations were confirmed by photographs A3 and A4, as his Honour indicated.
This was not an example of the judge impermissibly drawing inferences and reaching conclusions based on his own interpretation of the photographs. His Honour was doing no more than using the photographs to satisfy himself as to the reliability of evidence already given by other witnesses.
The appellant's submissions misunderstand his Honour's analysis of the evidence and the way in which the respondent put his case. The respondent put his case in negligence on two bases - that the dangerous nature of the step had been caused by the deliberate action of the appellant and in the alternative, that there had been a failure on the part of the appellant to take appropriate remedial action by removing the concrete which narrowed the step, or by the other means identified by his Honour. The deliberate action asserted was the creation of the danger when the modification to the rotunda and the step took place some 10 or 15 years before Mr Burn made his inspection.
In its defence the appellant had admitted that "at all material times" the appellant was trustee and that the Trust was the occupier of the park and rotunda. Accordingly, as his Honour found, the alterations to the rotunda, and therefore the creation of the problem with the top step, could only have occurred with the knowledge and consent of the appellant. Although there may not have been a plan prepared in relation to the work, the overwhelming inference is that someone from the appellant's organisation would have checked the work before payment was authorised. It should have been obvious to that person that the alterations to the rotunda had narrowed the width of the top step thereby creating a real and foreseeable risk of injury.
That was a finding open to his Honour which was based on the evidence and logical inferences drawn therefrom.
In relation to the alternative basis upon which the respondent's claim was put, his Honour was entitled to infer that because the rotunda and its surrounds were well kept and were used by many people, that officers from the appellant would from time to time inspect the rotunda with a view to assessing its state of repair and safety. Mr Burn gave evidence to this effect at Blue 14C-F when he said:
"On completion of this work and at regular intervals, risk assessment inspections ought to have been undertaken to reveal hazards caused by the work or due to wear and tear. Had this procedure been undertaken, the hazard would have been identified and could have been remedied."
It follows that his Honour correctly found that the risk created by the narrowness of the top step was a risk which the appellant knew about, or ought to have known about. These grounds of appeal have not been made out.
Ground of Appeal 5: His Honour erred in finding that the evidentiary position in relation to the occurrence of prior accidents was "neutral". His Honour should have found:
(a)The respondent had adduced no evidence of prior accidents;
(b)There was relevantly therefore nothing of which the appellant could have given evidence as to its ignorance; and
(c)That the state of the evidence and admissions established that the rotunda had been used without incident for years.This ground of appeal has already been dealt with at [55] - [59]. As indicated, there is a significant distinction between there being no evidence about whether or not complaints had been made and previous accidents had occurred, and evidence to the effect that there had been no complaints and no previous accidents. The appellant has impermissibly sought to elide that distinction. This ground of appeal has not been made out.
Ground of Appeal 6: His Honour impermissibly construed the meaning of a photograph for himself and not to resolve a controversy in evidence (Short v Barrett [1990] NSWCA 164).
This ground of appeal is not made out. The error identified in Short v Barrett was an interpretation of a photograph by a trial judge in order to resolve a disputed issue of fact, contrary to the opinion of two experts whose evidence on the issue was not challenged. Moreover, the Court of Appeal when examining the same photograph was unable to identify or detect the particular matters on which the trial judge had relied. In identifying this error on the part of the trial judge, Meagher JA (with whom Clarke and Handley JJA agreed) referred with approval to the following dicta of Lord Reid in C Van der Lely NV v Bamfords Limited (1962) IA IPR 86 [1963] RPC 61 at 71:
"But the judge ought not, in my opinion to attempt to read or construe the photograph himself; he looks at the photographs in determining which of the explanations given by the witnesses appears to be most worthy of acceptance."
Here, as previously indicated, his Honour did not interpret the photographs for himself and base his decision upon his own interpretation. On the contrary, he used the photographs to confirm the evidence of Ms Gray, the respondent and Mr Burn and by reference to those photographs was able to satisfy himself that their evidence was reliable. I agree with his Honour's interpretation of the photographs.
Ground of Appeal 8: His Honour impermissibly dealt with the respondent's admission as to the status and nature of the rotunda.
The appellant submitted that his Honour did not give full effect to the admissions by the respondent. It submitted that by reference to the heritage listing of the rotunda, his Honour should have rejected the alternatives suggested by Mr Burn of a warning sign, or making any alteration to any aspect of the steps which were a key feature of the rotunda. The appellant submitted that having made the admissions, it was necessary for the respondent to prove that the erection of a warning sign and/or the modification to the top step could be accomplished within the limits of the heritage listing.
For this ground of appeal to succeed, it was necessary for the appellant to adduce evidence as to the content of the heritage listing and in particular, any conditions applicable to the rotunda. Without that evidence, it would involve speculation to find whether or not a warning sign could be erected and whether or not an alteration could be made to the steps.
In relation to the top step, the proposed alteration was the chipping back of the concrete, which had protruded past the formwork, in order to increase the width of the step so that it conformed with the lower steps. It is difficult to see how such an adjustment could possibly offend any heritage listing.
This ground of appeal has not been made out.
Ground of Appeal 10: His Honour erred in finding that the appellant's negligence was a cause of the respondent's damage.
The appellant submitted that in relation to the failure to erect a warning sign, causation had not been established. It submitted that the respondent's evidence was that he was careful when descending the stairs because they looked steep and that consequently a warning sign would not have altered his behaviour and the accident would still have occurred.
The appellant submitted that there was no evidence that the absence of non-slip strips on the stair nosings would have prevented the accident occurring.
The unchallenged evidence of the respondent was that he would have heeded a warning sign, if one were provided. On the assumption that the warning sign would have identified the hazard with precision, i.e. that the top step was too narrow, it was open to his Honour to find that the respondent would have adjusted his method of descending the stairs to meet that risk.
The evidence of Mr Burn was that the absence of an anti-skid strip on the nosing of a step and the generally poor surface condition of the tread meant that there was nothing to inhibit or restrict the respondent's skidding left foot. His Honour made a finding to that effect at Red 33N, which was open to him on the evidence.
This ground of appeal has not been made out.
Ground of Appeal 11: His Honour failed to conform to the requirements of s13 of the Civil Liability Act 2002.
The appellant submitted that his Honour's finding of future loss of earning capacity was not open on the evidence. It submitted that his Honour's conclusion was that by reason of his injuries and disabilities, the respondent would not be able to take up part-time or casual employment after his retirement at age 67. His Honour found that the respondent would remain in fulltime employment as a teacher, albeit with some limitations, until that retirement age. It submitted that the respondent did not give evidence of any intention on his part to attempt part-time work after retirement. It submitted that his Honour did not explain how the respondent would be able to maintain fulltime employment until retirement age at 67, but thereafter would not be able to engage in part-time employment of a similar kind.
The relevant part of his Honour's judgment was:
"151The parties were in dispute as to whether the plaintiff was entitled to damages for future loss of earning capacity. The parties are agreed he is likely to remain with his present employer on full salary entitlements until he retires. His retirement age is likely to be 67. However, it may be open to him to retire before that time. In any event even after retirement it is not unusual for teachers to place their names on casual staff lists - at both public and private schools. I am satisfied on the balance of probabilities that he has lost earning capacity because of the incapacities I have referred to above. His life expectancy is close to 28 years. His working life would not be as much as that. I accept the plaintiff's submission that the most appropriate means of compensation for loss of earning capacity is to provide a cushion of $10,000 again that head of damage." (Red 36O-T)
The appellant did not dispute that s13 CLA allowed a cushion to be awarded. Its complaint was that there was no evidence to support an intention on the part of the respondent to work beyond retirement age and that there was no explanation of why such part-time work would be foreclosed to him.
The relevant principle was stated by the plurality (Gleeson CJ, Gummow, Kirby and Hayne JJ) in Husher v Husher [1999] HCA 47; 197 CLR 138 at [7]:
"Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff's economic loss "by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss". But damages for both past loss and future loss are allowed to an injured plaintiff "because the diminution of his earning capacity is or may be productive of financial loss". Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained."
In this case, it is clear that the respondent has lost capacity in that his ability to ambulate, carry weights, run and play sports is reduced. What has not been established is that given his occupation as a school teacher, that incapacity would have been productive of economic loss, in particular after his retirement at age 67.
This ground of appeal has been made out.
Conclusion
It follows that the appellant has failed in its challenge to his Honour's findings as to liability but has succeeded in its challenge to one of the heads of damage. Although the appellant has succeeded on that issue, all but a very small part of the appeal was directed to the finding of liability in favour of the respondent. In those circumstances, the respondent should have his costs of the appeal.
The orders which I propose are as follows:
(1)The appeal is allowed in part.
(2)His Honour's judgment in favour of the respondent in the sum of $223,381.58 is set aside.
(3)In lieu thereof, judgment is entered in favour of the respondent in the sum of $213,381.58.
(4)Otherwise, the orders made by his Honour on 19 January 2012 are confirmed.
(5)The appellant is to pay the respondent's costs of the appeal.
TOBIAS AJA: I agree with Hoeben JA.
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