Botany Bay City Council v Latham

[2013] NSWCA 363

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Botany Bay City Council v Latham [2013] NSWCA 363

Hearing dates:

22 October 2013

Decision date:

31 October 2013

Before:

Ward JA at [1];
Leeming JA at [2];
Adamson J at [3]

Decision:

(1) Leave to appeal granted.

(2) The draft notice of appeal stand as the notice of appeal in the proceedings, and the further requirements of the rules with respect to its filing and service be waived.

(3) Appeal allowed.

(4) Set aside the judgment of Olsson DCJ.

(5) In lieu thereof, order that there be judgment in favour of the appellant.

(6) Order the respondent to pay the appellant's costs at first instance and on appeal.

Catchwords:

TORTS - negligence - s 5B(1)(c) Civil Liability Act 2002 - obligation to determine whether precautions reasonably required

TORTS - construction of s 45 Civil Liability Act 2002 - meaning of "particular risk"

Legislation Cited:

Civil Liability Act 2002, s 5B, s 5B(1)(c), s 5D, s 45
District Court Act 1973, s 127(2)(c)

Cases Cited:

Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512
Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33
Tran v Nominal Defendant [2011] NSWCA 220
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816

Category:

Principal judgment

Parties:

Botany Bay City Council (Applicant)
Pamela Latham (Respondent)

Representation:

Counsel:
JE Sexton SC and JC Lee (Applicant)
MJ Cranitch SC and AD Campbell (Respondent)
Solicitors:
McCulloch and Buggy (Applicant)
Gerard Malouf and Partners (Respondent)

File Number(s):

2012/376697

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-11-08 00:00:00

Before:

Olsson SC DCJ

File Number(s):

2011/281887

Judgment

1. WARD JA: I agree with Adamson J.

1. LEEMING JA: I agree with Adamson J.

1. ADAMSON J: The Botany Bay City Council (the Council) applies for leave to appeal against a judgment of Olsson DCJ in favour of Pamela Latham in the sum of $87,167.84. Leave is required under s 127(2)(c) of the District Court Act 1973 by reason of the amount of the judgment sum. The application for leave and the appeal were heard concurrently.

1. The proposed grounds of appeal, if leave is granted, are:

(1)   The primary judge failed to give adequate reasons.

(2) The primary judge failed to apply s 5B of the Civil Liability Act 2002 (the Act).

(3) The primary judge failed to apply s 45 of the Act.

The Facts

1. On 12 April 2011 Ms Latham and her partner Michael Osborne were walking from the bus stop near the intersection of Botany Road and Coward Street after attending a function at the airport. They crossed Botany Road and continued along Coward Street, a main street in Botany, towards Ms Latham's home, which was about a block away. It was 4 pm and daylight. Part of the footpath was in shade. Ms Latham described the footpath as "mossy". The footpath in the area of the northeastern corner of the intersection comprised brick pavers. At intervals there were trees in the footpath around which brick pavers had been laid.

1. Ms Latham, who was wearing closed, flat shoes, was walking beside Mr Osborne on the side of the footpath closer to the buildings. He was walking closer to the trees.

1. Ms Latham tripped and fell heavily to the west of a tree close to the intersection with Botany Road. She broke her wrist and injured her ribs and teeth and bruised her face. The wrist required surgery. Neither Ms Latham nor Mr Osborne saw what had caused her to fall.

1. Ms Latham and Mr Osborne returned to the area the following day and took photographs of the area where she had fallen. They noted that there was a line of yellow paint on the pavers around the tree near where she fell. It was common ground that the yellow paint had been there on the previous day. Neither could identify in their evidence the difference in height between contiguous pavers at the place where she fell or, indeed, if there was any difference.

1. The day after its occurrence they reported the fall to the Council. The Council Works Supervisor, Steven Burtenshaw, inspected the area on the day of the complaint. He reported on his inspection of the area in an email dated 19 April 2011:

". . . I had no prior knowledge of the condition of the path at this location.

At the base of the tree at the side of the building in Coward St there is a gradual heaving that is common to surrounding areas where there is a tree of this size. The tree at that location is the cause of the deflections in the path. There are no sharp or pointed edges present there. This is quite safe due to its gradual impact..."

1. Some time after Ms Latham's fall, the Council placed barricades in the vicinity of the area where the plaintiff had indicated she had fallen. Some pavers in the area were replaced by others of a slightly different colour. Ms Latham identified one such paver as replacing the one on which she had tripped. Her later selection did not correspond exactly with the location she had indicated when she visited the site the day after her fall. Nonetheless it was in the same general area.

1. Letters and emails of complaint regarding the footpath on Coward Street addressed to the Council and dated between 2004 and 2010 were tendered on behalf of Ms Latham. Although none of them nominated the precise area where she fell, the primary judge identified a common theme that the footpath in "numerous places" was "uneven and potentially dangerous to walk on".

1. A report of Mr Laverty, a consultant aborist, was tendered on Ms Latham's behalf. When he attended the location of her fall in December 2011 he observed that several pavers had been lifted by a notable amount and inferred that the damage had been caused by tree roots. He said that soft surface flexible paving material could have been used around the trees which, if used instead of pavers, would have resolved the risk that the edges of pavers would be raised by the movement of tree roots. According to Mr Laverty this material had been used for around the last ten years. The evidence was that the pavers had been laid about 15 years ago.

The approach of the primary judge

1. The primary judge identified the sections of the Act that were principally relevant.

1. Section 5B of the Act provided:

General principles

(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.

1. Section 5D of the Act provided:

General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

1. Section 45 of the Act provided:

Special non-feasance protection for roads authorities

(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.

(2) This section does not operate:

(a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or

(b) to affect any standard of care that would otherwise be applicable in respect of a risk.

(3) In this section:

carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993.

roads authority has the same meaning as in the Roads Act 1993.

The application of s 5B of the Act

1. The primary judge found that it was more probable than not that Ms Latham tripped on a paver or pavers that were raised by reason of adjacent tree roots. Her Honour described the comment in Mr Burtenshaw's email referred to above, there were "no sharp or pointed edges present", as not particularly helpful, since it did not address the question whether there were uneven pavers.

1. Her Honour identified the risk of harm at [60]:

"The risk was that by constructing the footpath as it was, with large street trees in a hard paved path, areas of paving would be lifted and moved as a result of the growth of tree roots and that by not regularly inspecting the footpath for uneven pavers and carrying out timely repairs, a person such as the plaintiff might trip and be injured."

1. Her Honour found the risk to be foreseeable since the Council knew, as a general matter, that there were problems with the footpath in Coward Street and also knew that the roots of large street trees can distort footpaths over time. Her Honour also found at [67]:

"The risk was not insignificant in that the risk imposed was that someone might trip on the uneven ground and cause serious injury to themselves."

1. The primary judge found, at [70], that the Council could have installed a flexible membrane around a tree to prevent subterranean movement.

1. Her Honour found that the provision of a safe, functional footpath is one of the principal responsibilities of Council and that a reasonable person would have taken the precaution of regular inspections ([71]). Her Honour found that the "taking of precautions was a matter fundamental to the provision of safe footpaths" ([73]).

1. The primary judge made the following findings in addition to those set out above:

(1)   In the area that Ms Latham identified as the area where she tripped there was a paver or pavers that were not sitting flush with each other ([75]).

(2)   The Council was aware that large street trees present a particular risk of raising or distorting hard paved surfaces ([76]).

(3)   The Council had received many and varied complaints about lifted pavers in Coward Street in the years before Ms Latham's fall ([77]).

(4)   The Council knew, or ought to have known, that a particular hazard was at risk of occurring ([77]).

(5)   The Council knew that tree roots in Coward Street were presenting an actual problem to the hard paved footpath, as evidenced by the presence of yellow paint around the tree adjacent to where Ms Latham fell ([78]).

(6)   Ms Latham was unaware of the hazard at the time she fell ([80]).

(7) The primary judge was not satisfied that Ms Latham was not keeping a proper lookout and not taking adequate care for her own safety; accordingly the defence under s 5H of the Act failed ([80]).

(8)   Had Ms Latham been looking at the footpath with greater care, she would probably have noticed the hazard and been able to avoid it. Her behaviour was not so devoid of reasonable care for her own safety as to place her outside the category of pedestrians to whom the Council owed a duty of care but was sufficiently careless to warrant a discount for contributory negligence of 15% ([81]).

The parties' submissions

1. The Council submitted that there was an issue that was unresolved by the primary judge as to where, and on what, Ms Latham had tripped. It contended that the primary judge could not determine whether the duty the Council owed to Ms Latham had been breached without making such a finding since a road authority does not owe duty to provide pedestrians with a smooth surface. The Council referred to Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512 (Brodie and Ghantous) and in particular the statements in Ghantous about the obligations of road authorities towards pedestrians.

1. The Council contended that since the primary judge determined neither the place of the fall nor the magnitude of any height differential between contiguous pavers her Honour could not determine whether the risk was not insignificant, its probability of occurrence, the likely seriousness of the harm or the burden of dealing with any such irregularity having regard to the total length of footpaths in the Council area. It argued that the primary judge's reasons were inadequate in failing to deal with these matters.

1. The Council submitted that her Honour had failed to apply s 5B(1)(c) of the Act in that her Honour had not addressed whether, in the circumstances, a reasonable person in the position of the Council would have taken the precautions that Ms Latham contended ought to have been taken against the risk of her falling. It contended that, had the primary judge applied s 5B(1)(c), her Honour would have found that a reasonable person in the Council's position would not have replaced the paver on which Ms Latham tripped because the surface of the footpath at that location conformed with the type of surface on which pedestrians are regularly required to walk.

1. Further, the Council submitted that in the absence of a finding as to the height differential where the plaintiff fell, the primary judge failed to address the "particular risk" of which the Council was required to have "actual knowledge" for the purposes of s 45.

1. The Council submitted that the evidence about complaints about the footpath on Coward Street was insufficiently specific to establish actual knowledge of the particular risk in circumstances where it could not be said that the irregularities at other positions on the footpath and the irregularity which her Honour found to have caused the plaintiff to trip were the product of a common cause.

1. The Council contended that the risk identified by her Honour was a general, rather than a particular, risk and that the immunity conferred by s 45 of the Act had not been displaced by actual knowledge of the particular risk.

1. Ms Latham submitted that it was not necessary for the primary judge to identify the precise paver since the area where she fell was made up of irregular pavers because of the growth of the tree. She contended that such pavers were undoubtedly a trip hazard because she did, in fact, trip. She relied on the "remediation" put in place by the Council after this event to support the primary judge's inference that the pavers were so irregular as to require remediation.

1. Ms Latham submitted that her Honour considered and applied the Act correctly and that leave to appeal ought be refused. She also contended that there was no error in her Honour's findings that the Council had actual knowledge of the state of the footpath on Coward Street where Ms Latham tripped.

1. Ms Latham also sought to distinguish Ghantous and submitted that in that case the plaintiff was aware of the discrepancy between the hard footpath and the lower earthen surface whereas she did not discern the height differential of the paver on which she tripped because of the shade and moss.

Reasons

Grounds 1 and 2: inadequate reasons and s 5B(1)(c) of the Act

1. These grounds can be addressed together since the sufficiency of reasons is related to the submission that the primary judge failed to apply s 5B(1)(c) of the Act. This is a case where the necessary findings have not been made, as opposed to a failure in the process of fact-finding: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [129]; Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33 at [42]-[58] per Basten JA. In other words, the primary judge's reasons exposed her Honour's failure to apply s 5B(1)(c) of the Act.

1. Her Honour accepted Ms Latham's evidence about where she fell but did not address that Ms Latham had identified two positions in two photographs, Exhibits A (taken on the day after the fall) and C (taken some time later after some pavers had been replaced). It is therefore not possible to know whether her Honour accepted that Ms Latham tripped on one of the pavers that was subsequently replaced or merely a paver in that general area.

1. The evidence did not permit the primary judge to make a finding about the extent of the unevenness said to have caused the fall. There is, accordingly, no such finding.

1. The pavers that bordered the earth surrounding the tree could not have been implicated in the fall since they were within Mr Osborne's, rather than Ms Latham's, path.

1. It is difficult to discern in the photographs tendered any pavers in the area closer to the buildings identified by Ms Latham that created a height differential with a neighbouring paver or pavers such as would cause the ground to be uneven in a material way. There are well known difficulties in the use of photographs to determine such matters: see the cases referred to by McColl JA in Tran v Nominal Defendant [2011] NSWCA 220 at [172]. However, I infer that the difficulty the plaintiff encountered the following day in locating the place where she tripped was the result of there being no notable discrepancy in the heights of contiguous pavers in the relevant area. Mr Burtenshaw did not detect any such discrepancy, in circumstances where it can be assumed that he was looking for it.

1. The primary judge's duty to give reasons required her Honour to find, if the evidence permitted such a finding, where Ms Latham had fallen and what had caused her to trip. The primary judge's conclusion that the Council was liable, notwithstanding no such finding, appears to have derived from her Honour's view that the relevant duty was a duty to make the footpath safe for pedestrians such as Ms Latham, as expressed in the following passage:

". . . the provision of a safe, functional footpath is one of the principal responsibilities of Council and in my view a reasonable person would have taken the precaution of regular inspections."

1. Section 5B of the Act in terms sets out general principles that limit the circumstances in which negligence can be found against a putative tortfeasor. Decisions such as Ghantous, which was decided before the commencement of the Act, are, however, still relevant since the Act is to be read against the background of the common law. In Ghantous, the High Court applied common law principles of negligence and found that a local council was not liable to a pedestrian who lost her footing when she slipped off a hard footpath surface onto the adjacent earth verge about 50mm below.

1. In so far as her Honour's statement that the provision of a safe, functional footpath is one of the principal responsibilities of the Council ought be read as a finding as to the scope of the Council's duty of care owed to Ms Latham, it is inconsistent with the High Court's enunciation and application of the common law in Ghantous. In Ghantous Gleeson CJ said at [6] (footnotes omitted):

Even so, when general principles of negligence, unqualified by any rule of immunity, were applied, the courts insisted that an injured plaintiff had to show that the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land.

1. Statements to similar effect were made by Callinan J, (with whom Gleeson CJ agreed at [8], Gaudron, McHugh and Gummow JJ agreed at [167] and Hayne J agreed at [339]), who rejected the proposition that a difference in height between the concreted part of the footpath and the earthen part of it created a dangerous situation and said at [355]:

There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this. The applicant herself admitted in cross-examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the earthen verges. There was no negligence on the part of the respondent either in the construction of the footpath or in not keeping the concrete strip and verges level.

1. The extract from her Honour's judgment set out above indicates, in my respectful view, that the primary judge proceeded from her finding as to the scope of the duty to the need for inspections without considering what was required by s 5B. Her Honour appears to have assumed that the Council was reasonably required to take precautions because someone might trip and fall. Her Honour then proceeded to consider the cost and social utility of taking such precautions without addressing the antecedent question whether they were reasonably required.

1. In the circumstances of the present case, s 5B(1)(c) obliged the primary judge to determine whether a reasonable person in the position of the Council would have undertaken regular inspections of the footpaths in its area and, if so, whether any action would have been taken to reduce unevenness. Her Honour's failure to make such a determination also amounted to a failure to give adequate reasons.

1. It is accordingly necessary for this Court to apply s 5B(1)(c) itself. Ms Latham could not establish that there was any apparent irregularity beyond that which might be expected on an unexceptional footpath in a suburban street. Accordingly, in my view, even had the Council inspected the area prior to the fall with a view to identifying irregularities in the surface of the footpath that could give rise to the risk of pedestrians tripping and falling, nothing would have been done in the relevant area because nothing was reasonably required to be done. The effect of s 5B(1)(c) of the Act in these circumstances is that the Council was not negligent for failing to inspect the area or eliminate unevenness in the pavers and is therefore not liable to Ms Latham.

1. For these reasons, the first and second grounds have been made out. Leave to appeal ought be granted, the appeal allowed and the judgment of the primary judge set aside.

Ground 3: s 45 of the Act

1. Ground 3 raises the application of s 45 of the Act. The "harm" referred to in the last words of s 45(1) is a reference to the "particular harm" which has resulted from the materialisation of the "particular risk", being the "particular harm" to which the determination of causation in s 5D is addressed.

1. It follows that "the particular risk" is s 45(1) is at the same level of generality. In this case, given the way Ms Latham put her case that a particular paver that was uneven or irregular caused her to trip, the actual knowledge required is actual knowledge of the particular risk posed by the unevenness or irregularity of the very paver that caused her to trip and fall. It would not be sufficient for the Council to know of the more general risk that she might trip and fall on an area of irregular pavers between the tree and the adjacent building, as was contended on her behalf on the appeal.

1. The primary judge identified three distinct levels of generality in respect of which her Honour found there was "particular risk" for the purposes of s 45. In [76] the "particular risk" identified was the general risk of large street trees causing disruption to pavements. In [77] the risk of raised pavers in Coward Street was identified and a finding of either actual or constructive knowledge was made. This finding was refined in [78] where her Honour inferred from the presence of the yellow paint around the tree nearest to where Ms Latham fell that the Council had actual knowledge of the risk.

1. At no point did the primary judge descend to the requisite level of detail required by the words "particular risk" in s 45: namely, the need for there to be actual knowledge of the unevenness or irregularity of the paver that created the risk which later ensued when Ms Latham walked along the footpath and tripped on it.

1. There was no evidence that the Council had actual knowledge of the particular paver which caused Ms Latham to trip. Such evidence as there was (the email sent by Mr Burtenshaw referred to above), was to the contrary. Accordingly, in my view, the evidence was insufficient to establish that the Council had "actual knowledge of the particular risk, the materialisation of which resulted in the harm" within the meaning of s 45.

Proposed orders

1. I propose the following orders:

(1)   Leave to appeal granted.

(2)   The draft notice of appeal stand as the notice of appeal in the proceedings, and the further requirements of the rules with respect to its filing and service be waived.

(3)   Appeal allowed.

(4)   Set aside the judgment of Olsson DCJ.

(5)   In lieu thereof, order that there be judgment in favour of the appellant.

(6)   Order the respondent to pay the appellant's costs at first instance and on appeal.

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Decision last updated: 31 October 2013