Council of the City of Sydney v Bishop

[2019] NSWCA 157

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Council of the City of Sydney v Bishop [2019] NSWCA 157
Hearing dates:	14 March 2019
Date of orders:	28 June 2019
Decision date:	28 June 2019
Before:	Basten JA at [1]; Macfarlan JA at [12]; Brereton JA at [41]
Decision:	(1)   Appeal allowed. (2)   Set aside the judgment and orders made at first instance on 10 July 2018. (3)   Give judgment for the appellant against the respondent. (4)   Order the respondent to pay the appellant’s costs of the proceedings at first instance and on appeal. (5) Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).
Catchwords:	TORTS – negligence – personal injury – respondent tripped on kerb in pedestrian precinct – duty of care to warn pedestrians of height differential – whether risk obvious – whether failure to use yellow highlighting constituted breach of a duty to warn – whether absence of warning causative of harm to person aware of hazard and not looking down
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5F, 5H Suitors’ Fund Act 1951 (NSW)
Cases Cited:	Alameddine v Glenworth Valley Horse Riding Pty Ltd (2015) 324 ALR 355; [2015] NSWCA 219 Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 Collins v Clarence Valley Council (2015) 91 NSWLR 128; [2015] NSWCA 263 Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32 Glad Retail Cleaning Pty Ltd v Alvarenga (2013) 86 NSWLR 191; [2013] NSWCA 482 Hawkesbury Sports Council v Martin [2019] NSWCA 76 Jaber v Rockdale City Council [2008] NSWCA 98 Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 Laoulach v Ibrahim [2011] NSWCA 402 Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394 Phillis v Daly (1988) 15 NSWLR 65 Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 Wyong Shire Council v Vairy [2004] NSWCA 247
Category:	Principal judgment
Parties:	The Council of the City of Sydney (appellant) Karen Bishop (respondent)
Representation:	Counsel: J Sexton SC w D Kelly (appellant) D Campbell SC w J Wilson (respondent)   Solicitors: McCulloch & Buggy (appellant) RMB Lawyers (respondent)
File Number(s):	2018/ 211856
Decision under appeal	Court or tribunal: District Court of New South Wales, Wollongong Jurisdiction: General List Date of Decision: 5 July 2018 Before: Curtis ADCJ File Number(s): 2016/ 274838

Headnote

[This headnote is not to be read as part of the judgment]

The respondent tripped and fell on a kerb in a pedestrian precinct and sustained a subcapital fracture of her right hip. The kerb, which separated the walkway from a footpath, was 16 centimetres high at one end, and decreased in height over a length of eight metres until the walkway and footpath became flush; it was approximately four to five centimetres where the respondent tripped.

The District Court judge found the appellant owed the respondent a duty of care and was negligent in failing to install, or requiring the developer to install, a yellow reflective strip along the kerb, and that such negligence was causative of the respondent’s fall and injuries, and awarded substantial damages.

The Court held (Basten and Macfarlan JJA, Brereton JA dissenting), allowing the appeal:

(1) The respondent had not established the underlying facts necessary to found a duty of care in the Council: Basten JA at [9].

(2) If there was a duty of care, the risk was an ‘obvious risk’ as defined in s 5F(1) of the Civil Liability Act 2002 (NSW), so that the appellant did not owe a duty of care to warn the respondent: Basten JA at [10]; Macfarlan JA at [28]-[29]; Brereton JA contra at [60]-[61].

(3)   The risk of a person tripping on the kerb was not such that a reasonable person in the appellant’s position would have taken the precaution identified by the primary judge: Basten JA at [10]; Macfarlan JA at [30]; Brereton JA contra at [75]-[76].

(4)   If duty and breach were established, the respondent nevertheless did not prove that her injuries were caused by the breach, as she was aware of the location of the kerb even though she was not looking at it, a more prominent colouring of the kerb would not have told her anything that was not already present to her mind, and so the absence of a yellow reflective strip was not a necessary condition of her injuries: Basten JA at [10]; Macfarlan JA at [37]-[38]; Brereton JA contra at [81], [100].

Judgment

1. BASTEN JA: On 31 January 2013 Karen Bishop tripped while stepping over a kerb in Llankelly Place, Potts Point. She fell, breaking her right hip. On 13 September 2016 she commenced proceedings for damages in the District Court. The only defendant was the Council of the City of Sydney.

2. The plaintiff’s pleading alleged that the Council “had the care, control and management and was in occupation of … footpaths and walkways” of Llankelly Place. The pleading also referred to a duty of care to ensure “its premises” did not pose a risk of injury.

3. The basis for the pleading that the Council had “care, control and management” of the land on which the kerb was located was obscure; it may have been intended to invoke the Council’s role as a roads authority, on the basis that Llankelly Place was a public road. The concept of occupation implies that the Council had some form of interest in the land, not necessarily ownership of a fee simple estate.

4. The trial judge (Curtis ADCJ) made a very brief finding as to the basis of the duty of care owed by the Council to Ms Bishop:

“6 Mr Kelly for the defendant argues faintly that because there is no evidence that the kerb was on Council land rather than the developer’s land, the plaintiff has failed to establish a duty of care. I reject that submission. The Council had overall control of the development and power to compel the developer to adopt the directions of its planning personnel.”

5. This passage appears to hold that the Council owed a duty of care in its role as consent authority with respect to the development of land adjoining Llankelly Place. No such duty of care was pleaded and, given the agreement of the experts that the approved development did not breach any Australian standards, a possible duty of care with respect to pedestrians on the open paved area in front of the building, presumably unlimited as to the time, would have involved a novel proposition. No such case was argued.

6. The approach adopted by the judge appears to have had two sources. First, the plaintiff tendered documents created by Council officers at the time the development application was being considered in July 2009, in order to demonstrate that a Council officer believed, at that time, that the raised kerbing might form “a trip hazard.” Secondly, in final submissions, the plaintiff’s case with respect to duty was articulated as follows: [1]

“The duty we would say is the duty of the owner of the road having the care, control and management of that who has also assumed the collateral responsibility for allowing entertainment activities to exist and allowing developments to take place which create problems for those road users, that is the pedestrians.”

1.    Tcpt, 21/06/18, p 124(5).

7. That statement assumed, seriatim, that (i) the kerb formed part of a public road of which the Council was the owner, (ii) the Council had care, control and management of the paving between the building and the roadway, and (iii) the Council was the consent authority which approved the development, including the kerbing.

8. It is not clear what the trial judge meant in describing the Council’s opposition as “faintly argued”. The relevant allegations were in part denied and in part not admitted in the Council’s defence and, in final submissions, counsel stated, without direct contradiction, that “the plaintiff hasn’t established that the defendant is relevantly an owner or an occupier”. [2] Counsel then accepted the defendant’s role as consent authority for the development, but stated “that doesn’t create a duty.” [3] That proposition was not squarely challenged either.

   2.    Tcpt, 21/06/18, p 108(50).

   3.    Tcpt, 21/06/18, p 109(15).

9. In these circumstances, the judge should have dismissed the case on the basis that the plaintiff had not established the underlying facts necessary to found a duty of care in the Council.

10. If that analysis be correct, there is no need to consider questions which depend upon identification of an appropriate duty imposed on the Council as the owner (or occupier) of the roadway, and without reference to Pt 5 of the Civil Liability Act 2002 (NSW). However, on the assumption that the case run below turned on the failure of the Council to place (and presumably maintain) a bright yellow strip along the kerbing, I agree with Macfarlan JA that (i) the risk was an “obvious risk” for the purposes of s 5H of the Act, and therefore no duty to warn arose; (ii) if there were a duty to warn, there was no breach within the terms of s 5B(1)(c), and having regard to s 5C(b), in failing to take the proposed precaution; and (iii) if there were a breach by failing to provide a bright yellow strip, the omission was not factually causative of the plaintiff’s trip and therefore of her injury, as required by s 5D(1)(a).

11. I agree with the orders proposed by Macfarlan JA.

12. MACFARLAN JA: The circumstances that gave rise to this appeal are set out fully in the judgment of Brereton JA which I have had the advantage of reading in draft. For the following reasons I have however reached a different conclusion to his Honour and would allow the appeal and direct the entry of judgment for the appellant.

13. By the conclusion of the hearing at first instance, the respondent’s sole contention as to breach of duty was, as subsequently found by the primary judge to be the case, that a reasonable person in the appellant’s position would have applied a reflective yellow strip to the top of the kerb in question, to draw attention to the change in level between the pedestrian laneway and the footpath. Seemingly, the primary judge contemplated that the strip would have extended for the full length of the kerb, irrespective of the gradually reducing height of the kerb. His Honour found that the difference in height between the laneway and the top of the kerb where the respondent tripped was approximately 50-60 millimetres.

14. By the end of the hearing, the respondent did not contend that the kerb was constructed contrary to any design standard or that a different construction method should have been adopted to obviate the need for a kerb.

Duty of Care

15. Regard is to be had to the provisions of the Civil Liability Act 2002 (NSW) in determining whether the appellant is liable to the respondent. So far as duty of care is concerned, s 5H(1) of that Act provides that “[a] person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff”. “Obvious risk” is defined in s 5F(1) to be “a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person”.

16. Although not made by reference to the Civil Liability Act, observations made in the High Court decision of Ghantous v Hawkesbury City Council [reported with the decision in Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29] are relevant to the present case, in particular as to the question of whether the risk of a person such as the respondent tripping on the kerb was obvious.

17. In that case, the plaintiff fell after stepping from a concrete footpath on to an earthen verge which had subsided about 50 millimetres below the level of the concrete. The claim in negligence against the authority responsible for the footpath and road failed. Callinan J (with whom Gaudron, McHugh and Gummow JJ agreed) stated at [355]:

“…I would conclude that there was no failure [of the authority to exercise reasonable care] because the footpath was not, despite what the expert witness was allowed to say, unsafe… 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.”

18. Gaudron, McHugh and Gummow JJ also observed at [163]:

“As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v The State of South Australia), or the surrounding area (as in Buckle, where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a ‘trap’ or, as Jordan CJ put it, ‘of a kind calling for some protection or warning’. In Romeo, Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises ‘is generally entitled to assume that most entrants will take reasonable care for their own safety’. Each case will, of course, turn on its own facts.”

19. Earlier, in Phillis v Daly (1988) 15 NSWLR 65 at 74, Mahoney JA had made the following observations to a similar effect in an action for damages against an hotel owner brought by a visitor in respect of injuries she suffered when she stepped onto and fell from a log situated in the hotel’s parking area:

“There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed.”

20. Mahoney JA’s observations were cited with approval by Gleeson CJ in Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 at [24]. His Honour added at [23]:

“There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective.”

21. In the present case the plaintiff was walking along a paved pedestrian laneway before she turned and tripped on the kerb separating it from the slightly higher footpath which was also paved. The kerb was constituted by a strip of concrete, wider by some margin than a shoe. Between this concrete strip and the footpath was a metal drain approximately twice the width of the concrete. As can be seen in the photograph reproduced below, taken at about the time the area was reconstructed in 2010, the concrete kerb had, as the respondent’s expert described it, a “light-coloured surface”, whereas the laneway was a “dark grey pavement”. The contrast between the two can be seen in the photograph. It is difficult to see how the application to the kerb of a “reflective yellow strip”, as the primary judge concluded should have occurred, would have added significantly to the prominence of the kerb, at least during daylight hours.

22. It is also difficult to determine from the evidence whether other photographs that were in evidence were taken shortly after the respondent’s fall in January 2013, or only after the commencement of the District Court proceedings in 2016. Assuming in the respondent’s favour that they were taken in 2013, they suggest that there had been wear of the kerb in the two to three years since its installation such that its colour was not as consistent or as bright as it had been when constructed. Nevertheless, the respondent’s expert acknowledged that a contrast remained between the kerb and the laneway, albeit that it was not in his opinion sufficient for the area to be safe. The appellant’s expert took a different view on the safety issue in concluding that “the light coloured surface of the concrete kerb provides sufficient contrast with the dark grey pavement of the laneway to draw attention to the kerb… In my opinion, the kerb is obvious”.

23. These expert opinions were arguably inadmissible (see for example Hawkesbury Sports Council v Martin [2019] NSWCA 76 at [27]-[33]) although no objection to their use was taken at first instance or on appeal. It can at least be said that the expert opinions were of limited weight and did not preclude the Court from forming its own view about what was in essence a matter of ordinary experience (see Ghantous v Hawkesbury City Council at [355]).

24. The limited nature of the assistance that the Court could derive from the experts’ reports in the present case was emphasised by the absence of cross-examination of either of them and the fact that neither of them inspected the scene of the accident at night. They were therefore not able to express a useful view about the impact of the lighting in the area (which may in any event have changed in the four years between the accident and the experts’ reports). All that was before the primary judge as to the position at night was a photograph that was of limited utility because the glare of the lights rendered it indistinct. Nevertheless it showed a contrast between the light coloured kerb and the dark coloured paving of the laneway. It was for the respondent, on whom the onus of proof rested, to show that the kerb was not sufficiently discernible to pedestrians at night. In my view, she did not discharge that onus. In particular, her evidence that the area was “not well lit” and that it was not light enough to read a book did not do that, especially when pedestrians walking through areas that are “not well lit” can be expected to exercise increased vigilance to avoid tripping.

25. I accept that small differences in height (as was the case along much, if not most, of the kerb) are often more difficult to detect than large ones. Nevertheless, I consider that the kerb, being differently coloured to the laneway, gave a sufficient visual cue to pedestrians of a change in height. The respondent herself was well aware of the kerb and therefore of the change in height, as in Ghantous v Hawkesbury City Council (see [17] above).

26. I should add that I do not, with respect, agree with Brereton JA’s observation at [64] below that there was no challenge on appeal to the primary judge’s finding that it was probable that (absent a yellow reflective strip) a pedestrian would fail to detect the risk of tripping on the kerb. In its Notice of Appeal, the appellant challenged his Honour’s findings as to obvious risk, duty and breach (as well as causation). As its submissions demonstrated, this necessarily raised for this Court’s determination the correctness of his Honour’s inferences as to the probability of the risk of tripping eventuating.

22. I also add that the primary judge did not have any significant advantage over this Court in determining whether the risk of a person such as the respondent tripping was obvious because (i) his Honour did not have a view of the accident site, (ii) the respondent readily admitted in her evidence that she was well aware of the existence of the kerb and, as I have said, (iii) the experts were not cross-examined.

23. In my view the risk of a person such as the respondent tripping on the kerb was an obvious one for the purposes of s 5H of the Civil Liability Act. As a consequence the appellant did not owe a duty of care to warn the respondent of it. As in Ghantous v Hawkesbury City Council, there was a “discernible difference” between the kerb and the lower level and “[t]here was no concealment of the difference in height. It was plain to be seen”. Further, as the extracts from that case quoted above indicate, occupiers are entitled to assume that people will take care not to trip on the multitude of obstacles, both large and small, that are likely to be in their paths in walking from one place to another. Pedestrians are not entitled to assume that they are traversing “a level playing field” (ibid at [355]).

24. There was nothing in the circumstances of the present case that rendered it necessary for the appellant to draw further attention to the step constituted by the concrete kerb. It was a hazard of an ordinary character that a person walking through the pedestrian precinct could be expected to encounter and could be expected to watch out for. A contrast can be drawn with a situation such as that in Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103 at [66]-[69] where the plaintiff tripped over a low but raised platform which the Court found that a pedestrian would not ordinarily expect to encounter in a hotel lobby.

Breach of Duty

30. For the same reasons, I consider that the risk of a person tripping on the kerb was not such that a reasonable person in the appellant’s position would have taken the precaution identified by the primary judge. An occupier’s duty is to exercise reasonable care to make their premises safe for entrants exercising reasonable care for their own safety (Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [45]). Here the risk of a person who was exercising reasonable care for his or her own safety tripping was very low, such that it cannot be said that a reasonable person in the appellant’s position “would” have taken the identified precaution. That such an occupier “might” have taken that step and that that step might have avoided the accident is not significant, as is emphasised by s 5C(b) of the Civil Liability Act which states that:

the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done.

Causation

31. The issue of causation does not arise as, on my view, the respondent’s claim fails on the issues of duty and breach. Nevertheless, I make the following brief observations as to whether the respondent established that her injuries were caused by the breach of duty that she alleged.

32. In her evidence-in-chief, the respondent said that as she walked along the laneway on the night in question there were people ahead of her “socialising, drinking and whatnot”. As a result she turned to her right but tripped on the kerb in doing so. She said that she was probably looking forward, not down. In cross-examination she agreed on some nine occasions that when she tripped she was trying to step up onto the “ledge” (that is, the kerb). She said that she was aware that the ledge was there and had seen it many times before. She said that attempting to step up onto the ledge was “just something I did, it was just part of my routine”. Over objection, her counsel was permitted to ask her in re-examination whether she saw the ledge before she fell. She answered “[n]o”.

33. Neither this nor any other evidence in my view established that the respondent’s injuries were caused by the appellant’s alleged breach of duty. If the alleged breach of duty had not occurred the kerb would, on the respondent’s case, have been of a more prominent colour. There is no basis for concluding however that if it had been more prominent, the respondent would probably have observed it and not tripped.

34. The primary judge referred to, and gave reasons for not attaching weight to, a history given by the respondent to Dr Thomas Rosenthal that “she tried to take a step up on the ledge but tripped on the ledge and fell” (at [40]). His Honour also referred to cross-examination of the respondent which he said sought to have her “concede that she actually saw the raised surface of the kerb before she fell”. His Honour continued at [42]-[43]:

“Although there may have been concessions to this effect, they were inconsistent [with] other answers in cross examination, inconsistent with her evidence in chief, and inconsistent with common sense. It is more probable than not that if she was aware of the curb she would have lifted her foot to the appropriate height. She had made the transition many times in daylight without tripping or falling. In any event Mr Prakash the approving officer [of the local council] was of the opinion that a height differential of only 65 millimetres itself created a risk.

I believe that Ms Bishop’s concessions in cross examination were made in retrospective reconstruction. The true position, that she did not see the kerb before stepping to the right, emerged clearly in re examination.”

35. These observations do not, with respect, focus on the critical point that, time and again, the respondent acknowledged that she was attempting to step up onto the kerb when she tripped. Neither in re-examination nor elsewhere did she contradict that evidence. The effect of her evidence was that, although she was not looking down and therefore did not see the kerb, she was well aware that it was there and when she turned, as she had done before to avoid people on the laneway, she instinctively lifted her foot to step up onto the kerb that she knew was there, in her words, as “part of [her] routine”.

36. The primary judge concluded on this issue at [50] as follows:

“It may be concluded that a yellow reflective strip would have been obvious to Ms Bishop as she approached Llankelly Place reminding her of the presence of the curb before she found it necessary to step off the central pavement. I conclude that the absence of a yellow reflecting strip on the kerb was a necessary condition of the plaintiff[’]s injury.”

37. The respondent did not however need to be reminded of the presence of the kerb. She was aware that it was there as she turned, even though she was not looking at it. A more prominent colouring of the kerb would not have told her anything that was not already present to her mind.

38. For these reasons, if duty and breach had been established, I would have nevertheless concluded that the respondent did not prove that her injuries were caused by the breach.

39. I add the following in relation to the primary judge’s reference in the quotation in [34] above to a view of Mr Prakash. This was a reference to the view Mr Rajnesh Prakash, the appellant’s Public Domain Coordinator in 2009, expressed to the developer of the area where the respondent tripped that “a kerb height of 65 millimetres, is not acceptable as it would form a trip hazard”. Mr Prakash suggested a design change that would have obviated the need for a kerb. What was intended at that time, so far as visual prominence of the kerb was concerned, is not known. It is sufficient to note that, one way or the other, the Council was satisfied with the development that was undertaken the following year. The recorded comment of Mr Prakash is not therefore of any present relevance.

Conclusion

40. For these reasons, I propose the following orders:

1. Appeal allowed.

2. Set aside the judgment and orders made at first instance on 10 July 2018.

3. Give judgment for the appellant against the respondent.

4. Order the respondent to pay the appellant’s costs of the proceedings at first instance and on appeal.

5. Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

41. BRERETON JA: On 31 January 2013, at about 8:15pm, the respondent Karen Bishop, then 57 years of age, was walking, as she had hundreds of time before, from her work place in Macleay Street, Potts Point, to Kings Cross station in order to catch a train home. As she walked south along the walkway in Llankelly Place, a pedestrian precinct, she saw a group of patrons of one of the restaurants/bars which were located ahead of her on the eastern side (her left) of Llankelly Place. In order to avoid them, she turned to her right to the footpath, which is separated from the walkway by a kerb which progressively and gradually decreases in height from a step of about 16 centimetres at its northern end, to become flush with the walkway eight metres south of there. At the point which she had reached when she turned to step from the walkway to the footpath the kerb was, so far as can be ascertained from the photographs in evidence, perhaps four to five centimetres in height. As Ms Bishop stepped from the walkway to the footpath, she tripped on the kerb, fell, and sustained serious and incapacitating injuries.

42. In proceedings in the District Court, she sued the appellant, the Council of the City of Sydney, for damages for negligence, on the footing that it was the occupier, or at least controller, of the walkway and kerb. In an ex tempore judgment delivered on 21 June 2018, Curtis ADCJ held that the Council, having “overall control of the development and power to compel the developer to adopt the directions of its planning personnel”, owed Ms Bishop a duty of care, notwithstanding that there was no evidence that the kerb was on Council land rather than the developer’s land; [4] that the Council was negligent in failing to install or require that there be installed a yellow reflective strip along the top of the kerb; [5] that the absence of such a strip was a necessary condition of Ms Bishop’s injuries; [6] and accordingly, that the Council was liable to Ms Bishop for damages, which his Honour assessed at $1,019,556 – which was later amended to $977,864, and ultimately, on 17 September 2018, to $750,000, by reason that the defendant had not consented to the extended jurisdiction of the District Court.

    4. Judgment at [6].

    5. Judgment at [22].

    6. Judgment at [50].

43. The Council appeals to this Court, on the question of liability only. Though the Notice of Appeal enumerates five grounds, there are in substance three issues:

1. As to duty: did the Council owe no duty of the kind found by the trial judge, by reason that the duty found was a duty to warn, but the risk was an “obvious” one in respect of which there could be no such duty. This invokes s 5H of the Civil Liability Act 2002 (NSW).

2. As to breach: would a reasonable person in the Council’s position have installed or insisted on installation of a yellow reflective strip along the kerb, having regard inter alia to the burden of taking precautions to avoid similar risks of harm elsewhere within the city. This involves s 5B(1)(c) and s 5C(a) of the Civil Liability Act.

3. As to causation: was the absence of a yellow reflective strip a “necessary condition” of the occurrence of Ms Bishop’s injuries. This involves s 5D(1)(a) of the Civil Liability Act.

Duty of Care

44. Before turning to the question of “obvious risk”, which is the only issue raised in this context by the grounds of appeal, it is appropriate to observe that there was some ambiguity in the basis upon which the Council’s duty was said to arise.

The source of the duty

45. The Statement of Claim pleaded that the Council “had the care, control and management and was in occupation of various footpaths and walkways situated on Lankelly [sic] Place”, and “owed the Plaintiff a duty to ensure its premises did not pose risks to health and safety and that reasonable care was taken to avoid exposing the Plaintiff to unnecessary risks of injury”. Those allegations, which appear to invoke occupier’s liability, were “not admitted” in the defence.

46. In the defendant’s submissions at trial, counsel said, in response to his Honour’s question “You say there’s no duty?”:

KELLY: In respect of any of those allegations because the plaintiff hasn’t established that the defendant is relevantly an owner or an occupier, who would be the only person who would be responsible for paving it or barricading it or creating it.

HIS HONOUR: But the occupier was subject to the direction of the Council?

KELLY: Your Honour, I left (a) and (j) which, I’m not disputing that the Council then, as an adjoining occupier but more importantly as having some say in what’s done, doesn’t have a duty. But as your Honour well knows and we’ve all been reminded many times, it’s essential to identify the nature and content of the duty that’s alleged to have been breached. So I say, your Honour, the plaintiff cannot succeed (b), (c), (d), (e), (f), (g), (h), (i), (k), (l), I say, all could be matters, with respect, to someone who did the building or who was the occupier or who owned the property and we’re none of these things, but I think your Honour raised the fact that, for example, (j) is a failure to identify and I don’t dispute, given the documents establish the Council’s role in authorising the construction or the final product or the finished product, I don’t dispute that that doesn’t create a duty.

I’m simply saying that your Honour has to identify the basis and I’m also not disputing your Honour’s fairly quick focus about what the relevant issue was, with respect, which was whether or not we should have whacked a line of yellow paint on it, I’m simply going through the process of identifying the legal issue.

47. Before the trial judge, the plaintiff’s submission was:

The duty we would say is the duty of the owner of the road having the care, control and management of that who has also assumed the collateral responsibility for allowing entertainment activities to exist and allowing developments to take place which create problems for those road users, that is the pedestrians.

48. His Honour’s reasons dealt with this issue as follows:[7]

Mr Kelly for the defendant argues faintly that because there is no evidence that the kerb was on Council land rather than the developers land, the plaintiff has failed to establish a duty of care. I reject that submission. The Council had overall control of the development and power to compel the developer to adopt the directions of its planning personnel.

7. Judgment at [6].

49. At the outset of the trial, counsel for the defendant had eschewed reliance on any of Civil Liability Act, s 42 (Principles concerning resources, responsibilities etc of public or other authorities), s 43 (Proceedings against public or other authorities based on breach of statutory duty), s 43A (Proceedings against public or other authorities for the exercise of special statutory powers), s 44 (When public or other authority not liable for failure to exercise regulatory functions), and s 45 (Special non-feasance protection for roads authorities). Given the submission made by counsel for the plaintiff as set out above, and the eschewing by counsel for the defendant of any reliance on the provisions of the Civil Liability Act which protect public and planning authorities, the case appears to have been conducted on the basis that the Council was the occupier of the roadway and adjacent kerbs. As the only ground upon which his Honour’s holding that the Council owed Ms Bishop a duty of care was challenged was the contention that the risk was an obvious one of which there could be no duty to warn, it is unnecessary to consider further the basis on which the duty arose, and to do so would introduce issues which were not litigated at trial, and not raised by the grounds of appeal.

Obvious Risk

50. Civil Liability Act, s 5H, provides that there is no duty to warn of an “obvious risk”:

No proactive duty to warn of obvious risk

(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.

…

51. What amounts to an “obvious risk” is defined in s 5F, as follows:

Meaning of “obvious risk”

(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

52. In Wyong Shire Council v Vairy,[8] Tobias JA, with whom Mason P agreed, adopted and explained the definition to be found in the Second Restatement:

161 At this point it is appropriate to comment that, according to my research, none of the Australian cases attempt to define what is meant, at least generally, by an obvious risk. This is not to say that the authorities referred to above are inconsistent in approaching the question of whether a risk is, in fact, obvious in a given circumstance. However, I see no reason not to adopt the definition found in the commentary to §343A of the Restatement (Second) of Torts (1965) (Rest 2d Torts §343A). This definition is consistent with the Australian authorities discussed above which have emphasised the importance of an individual taking care for his or her own safety. In the commentary, "obvious" is defined as follows:

“‘Obvious’ means that both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the [plaintiff], exercising ordinary perception, intelligence, and judgment.”

162 In this definition "condition" refers to the factual scenario facing the plaintiff. Thus, in a diving case the condition might typically be the fact that the plaintiff is faced with water of unknown depth. Under such a condition the risk would be that diving into the water (while the depth remains unknown) might result in (serious) injury. This risk would be considered obvious if, in the context of the case, it was perceptible to a reasonable person in the position of the plaintiff that if you do not know the depth of a body of water into which you are about to dive, then to dive into such water under such conditions inevitably brings with it the risk of injury.

8. [2004] NSWCA 247 at [161]-[162] (Tobias JA); see also Jaber v Rockdale City Council [2008] NSWCA 98 at [35]-[36] (Tobias JA, with whom Campbell JA and Handley AJA agreed).

53. While the test is an objective one, the reference in s 5F(1) to a risk that would have been obvious in the circumstances means that it must be applied in the context of and having regard to the particular circumstances in which the harm is incurred. The definition of "obvious risk" incorporates an objective test but one that is to be applied to the position of the person concerned. In a passage that has been frequently cited, Tobias JA said in Fallas v Mourlas:[9]

98 … It is clear from the definition of “obvious risk” in s 5F that one is required to have regard to the particular circumstances in which the respondent suffered the relevant harm and determine whether the risk which resulted in his suffering that harm would have been obvious to a reasonable person in his position. In other words, as with the case of determining whether the activity in which the respondent was engaged was a “dangerous recreational activity” as defined, all of the surrounding circumstances which occurred immediately prior to the respondent's suffering the relevant harm must also be identified for the purpose of determining whether the risk which materialised was “obvious”.

9. (2006) 65 NSWLR 418; [2006] NSWCA 32 at [98]; see also Glad Retail Cleaning Pty Ltd v Alvarenga (2013) 86 NSWLR 191; [2013] NSWCA 482 at [58] (Sackville AJA, with whom Barrett and Gleeson JJA agreed).

54. The extent to which it is necessary to descend to the particular circumstances in which the harm is incurred is illustrated by CG Maloney Pty Ltd v Hutton-Potts,[10] in which the plaintiff slipped on unbuffed polish on the wooden floor of a hotel left by a cleaner who was still working nearby. The proposition that the plaintiff ought to have been aware of the hazard arising from a cleaner carrying out floor polishing in the vicinity was rejected, because the risk that materialised was not that a recently polished floor would be slippery because it was polished, but that there was invisible unbuffed polish remaining on the floor. [11] Similarly, in Alameddine v Glenworth Valley Horse Riding Pty Ltd,[12] an eleven year old girl was injured during a quad bike excursion in a recreational park. Liability was established because the leader of the excursion accelerated his quad bike, which then led the plaintiff also to accelerate to an excessive speed. Macfarlan JA described the relevant risk as “the risk of injury resulting from an instructor riding faster than was safe for inexperienced or young participants and effectively giving such persons no real choice but to also do so in order to keep up with him”. [13]

    10. [2006] NSWCA 136.

    11. [2006] NSWCA 136 at [173]-[174] (Bryson JA). See also Collins v Clarence Valley Council (2015) 91 NSWLR 128; [2015] NSWCA 263 (where the relevant risk was “the injury that might be suffered from a cyclist falling after their wheel becomes stuck in the holes or gaps in the planks on the bridge”).

    12. (2015) 324 ALR 355; [2015] NSWCA 219.

    13. At [46].

55. In Glad Retail Cleaning Pty Ltd v Alvarenga, [14] Sackville AJA, with whom Barrett and Gleeson JJA agreed, said:

60 In Council of the City of Greater Taree v Wells [2010] NSWCA 147; (2010) 174 LGERA 208, Beazley JA (with whom McColl and Basten JJA agreed) summarised the authorities construing the definition of "obvious risk" as follows:

“[75] Whether a risk is obvious is determined objectively, having regard to the particular circumstances in which the ... plaintiff ... was in: see Fallas v Mourlas (2006) 65 NSWLR 418, where Ipp, Basten and Tobias JJA determined that "the position of the plaintiff" comprehended the particular circumstances in which the risk materialised and the harm was suffered.

[76] The question of obvious risk requires a determination of whether the [defendant's] conduct involved a risk of harm which would have been obvious to a reasonable person in the position of the [plaintiff]: Carey v Lake Macquarie City Council [2007] Aust Torts Reports 81-874 at [93]. In Great Lakes Shire Council v Dederer [2006] Aust Torts Reports 81-860 Ipp JA (Handley and Tobias JJA agreeing) stated that the position of the plaintiff will include the plaintiff's knowledge and experience of the relevant area and conditions (see Ipp JA at [152]). (The question of obvious risk was not dealt with by the High Court in Roads and Traffic Authority of NSW v Dederer; see also Santow JA in CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [106]-[108]). In Fallas v Mourlas Basten JA, at [153], stated that for the purposes of s 5F, it was necessary to identify the circumstances and extent to which ‘the aspects of “the position” of the plaintiff’ are to be ascribed to the reasonable person.”

61 Since the test is objective, it is not the plaintiff's state of mind that is determinative, but what a reasonable person in his or her position would regard as obvious.

14. (2013) 86 NSWLR 191; [2013] NSWCA 482.

56. Because the test is objective, the plaintiff’s actual knowledge of the existence of a risk is irrelevant to the question whether the risk would have been obvious to the hypothetical reasonable person in the circumstances of the plaintiff, save insofar as the manner in which the plaintiff acquired such knowledge may be relevant to the forward looking inquiry. This was explained in Liverpool Catholic Club Ltd v Moor, by Meagher JA, with whom Emmett JA and Tobias AJA agreed (emphasis added):[15]

32 There are difficulties with this analysis. First, although at [84] the primary judge describes the relevant risk of harm as being or including the risk of slipping or falling when descending the stairs while wearing ice skating boots, he does not address whether within s 5F(1) that risk would have been “obvious“ to someone in the position of the respondent. Instead, he proceeded upon the basis that although such a risk would have been clearly apparent, the risk in question also involved the uneven dimensions of the stairs and the fact that they were wet. He considered whether that risk was obvious by focussing on whether the respondent had actual or constructive knowledge of either of those matters. The inquiry as to the respondent’s actual knowledge of those matters was irrelevant, except to the extent that how he acquired any actual knowledge may have been relevant to the forward looking inquiry as to whether the risk would have been obvious to a reasonable person in the circumstances of the respondent.

15. [2014] NSWCA 394 at [32]; see also Collins v Clarence Valley Council [2015] NSWCA 263 at [139].

57. For the appellant, Mr Sexton SC submitted, with reference to s 5F(4), that here the risk was “physically observable” and thus must be “obvious”. However, while s 5F(4) provides that a risk can be obvious even if it is not physically observable, that does not mean that every physically observable risk is obvious. Obvious in this context refers to something which is clearly apparent, or easily recognised or understood. [16] In Jaber v Rockdale City Council, Tobias JA, with whom Campbell JA and Handley AJA agreed, said (at [35]):

35 … Whether or not a risk is “obvious” may well depend upon the extent to which the probability of its occurrence is or is not readily apparent to the reasonable person in the position of the plaintiff.

16. Jaber v Rockdale City Council [2008] NSWCA 98 at [35]; Laoulach v Ibrahim [2011] NSWCA 402 at [79]-[80].

58. An obvious risk is one which is readily apparent to a person who confronts it. A risk which, while physically observable, would be appreciated only as a result of consideration and reflection is not an obvious one. This is illustrated by Ratewave Pty Ltd v BJ Illingby [17] – a case which bears a number of parallels with the present case – in which the respondent had been injured when he tripped over the corner of a raised timber platform while walking across the lobby of the appellant’s hotel. Meagher JA, with whom Macfarlan JA agreed, held that the risk of tripping on the raised platform would not have been “obvious” to a reasonable person in the respondent’s position, and that certain “visual cues” as to the existence of the platform were not such as to render it “obvious”. His Honour said:

60 I have already noted that the experts disagreed as to whether a person crossing the foyer and taking care could be expected to have seen that the platform was raised. The evidence of those experts as to the obviousness or otherwise of that hazard may be tested against the respondent’s account of what he and his sister did and saw, which the primary judge accepted and which is not challenged on appeal.

61 The respondent’s evidence was that as he walked towards the bar area, he was looking straight ahead and saw the sculpture but “thought [it] was sitting on the floor”. He also saw the slatted timber divider and focussed on the “clear walkway to the left” of its slatted panels. He disagreed with the suggestion that he was not looking where he was going. At the same time he accepted that as he proceeded across the lobby he was talking to his sister and that he might have turned his head towards her whilst he was doing so. However he rejected that as a reason for his not having seen corner of the platform on which he tripped. He also said that he had “no reason to think there would be a platform there”.

62 The disagreement between Dr Cooke and Mr Burn was as to how someone walking towards the bar area might observe and interpret the “visual cues” presented by the wooden surface of, and sculpture on, the platform. Those cues were identified as the colour contrast between the timber surface and the marble floor (together with the lighting onto that floor from the base of the platform) and the position of the sculpture on the timber surface and the timber screen behind it.

63 Dr Cooke considered the first provided a “strong” indication of the existence of the raised platform and that the second was a cue that the observer was “approaching an obstacle”. Mr Burn, on the other hand, said that whilst there was a contrast in colour between the surfaces that contrast was explained as due to a difference in the surface materials rather than in those surface levels. He considered that the position of the sculpture and timber wall drew attention away from the edge of the timber surface and did not provide a visual barrier directing the path of a person crossing the foyer away from the edge of the platform, as distinct from the edge of the sculpture and wall.

64 The respondent’s evidence (see [12] ff above) indicates that he saw each of these visual cues, but interpreted them as Mr Burns suggested they might be interpreted. That evidence also shows, contrary to the appellant’s submission, that the respondent was looking where he was going sufficiently to see the objects before him which Dr Cooke considered he would have seen if he was taking reasonable care for his safety.

65 Accepting the respondent’s evidence as to what he did see, and taking account of the difference between the experts, the presence of the low platform on which he tripped was not so obvious that from the perspective of an occupier considering the hazard which it represented it could confidently be predicted that a person walking towards the bar area who was looking where they were going would necessarily have become aware of its presence.

17. [2017] NSWCA 103.

59. In the present case, the relevant risk was that of injury from falling as a result of tripping on the kerb. In the terms of the Second Restatement definition, the condition would be the change of level between walkway and kerb, and the risk would be that of injury from tripping on the kerb.

60. The relevant circumstances here are those of a pedestrian, walking along Llankelly Place – a precinct which was reserved for pedestrians and from which vehicular traffic was excluded, so that it should be expected that a pedestrian’s sense of safety would be heightened, and their index of suspicion and vigilance less acute – after dark and in poor lighting, who reasonably decides when she encounters a crowd on the walkway in front of her to avoid walking through it, and turns to step from the walkway to the footpath, at a point where the difference in level is somewhere between three and six centimetres. While there was some colour contrast between the walkway, the kerb and the footpath, this appears to have faded since the precinct was first developed and was not nearly so stark as it had been a couple of years earlier. More significantly, and as had been the case in Ratewave Pty Ltd v BJ Illingby, the colour contrast reflected a difference in the surface materials rather than in the surface levels. Indeed in the present case this was all the more so, because the colour contrast between the “footpath” and the “walkway” extended consistently throughout Llankelly Place from its northern end to its southern end, without regard or relevance to presence or absence of any difference in the surface level; in other words, the same “visual cue” of a change in surface colour was present where the footpath was flush with the walkway, just as it was where there was a kerb. It therefore did not provide a cue as to the existence of the kerb – or at least, could be so interpreted.

61. The presence of the kerb, at the point at which the plaintiff tripped on it, was not so obvious that, from the perspective of an occupier considering the hazard which it represented, it could confidently be predicted that a person walking along Llankelly Place in the circumstances which I have described would necessarily have become aware of, or adverted to, its presence. As I have observed, the plaintiff’s prior knowledge that there was a kerb for part of the length of Llankelly Place is irrelevant to whether the risk was obvious to a reasonable person in her position. In my judgment, in the circumstances which I have described, the condition, let alone the risk, would not be obvious to a person in the position in which Ms Bishop was.

62. Accordingly, Grounds of Appeal 1, 2 and 3, which challenge his Honour’s finding that the Council owed Ms Bishop a relevant duty of care, fail.

Breach of Duty

63. The trial judge found that a reasonable person in the defendant’s position would have taken the precaution of installing, or requiring the developer to install, a yellow reflective strip along the length of the kerb.

64. In conclusions which are not challenged on appeal, his Honour found that it was foreseeable that pedestrians would trip and suffer injury on the kerb; that (absent a yellow reflective strip) it was probable that a pedestrian at night would fail to detect the risk; and that such risk was significant, as it was probable that a pedestrian at night would in the absence of a yellow reflective strip fail to detect its existence and, if it materialised, the potential consequences extended to catastrophic injury or death. As to what a reasonable person in the Council’s position would have done by way of taking precautions, his Honour had regard to the probability that a pedestrian would fail to detect the risk, the very serious harm that could result from a fall, the trivial cost of installing a yellow reflective strip (no more than $500, which his Honour said would in any event be visited on the developer and not the Council), and the absence of any adverse impact on social utility, and concluded:[18]

Having considered the relevant legislation I find that the risk was foreseeable and not insignificant. A reasonable person would have obviated the risk. It was probable that harm would occur if care was not taken. That harm included the possibility of catastrophic injuries or death. The burden of reducing or eliminating the risk was trivial.

18. Judgment at [37].

65. The appellant rightly acknowledges that the question posed by s 5B(1)(c), namely whether in the circumstances a reasonable person in the defendant’s position would have taken the relevant precaution, does not necessarily turn on the particular circumstances known to the plaintiff, but rather on whether in a more general sense the occupier of Llankelly Place would take the precaution of marking the kerb against the risk that a pedestrian might fail to advert to the kerb and trip on it.

66. It is of course established that the mere existence of something on which a pedestrian may trip does not necessarily oblige an occupier to remove it, or to take any other precaution to reduce it,[19] and that pedestrians are not entitled to assume that they are “on a level playing field”. [20] Thus in Ghantous v Hawkesbury Shire Council, Callinan J said:[21]

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.

19. Phillis v Daly (1988) 15 NSWLR 65.

20. Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 at [7]-[8] (Gleeson CJ), [163] (Gaudron, McHugh and Gummow JJ), [247]-[248] (Kirby J), [355] (Callinan J).

21. (2001) 206 CLR 512; [2001] HCA 29 at [355] (Callinan J).

67. It must be accepted that reasonable precautions do not require the occupier of land to eliminate every change in level on which a pedestrian might trip, nor to warn of its existence. However, that is not to say that there is no case in which removal, or a warning, will be required, as appears from the judgment of Gaudron, McHugh and Gummow JJ in Brodie:[22]

163 … It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger …, or the surrounding area …. In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a "trap" or, as Jordan CJ put it, "of a kind calling for some protection or warning".

22. (2001) 206 CLR 512; [2001] HCA 29 at [163] (Gaudron, McHugh and Gummow JJ).

68. The thoroughfare in question in the present case was not an infrequently used footpath in a sparsely populated suburb. Nor did the kerb separate a footpath from a street through which the passage of traffic would itself alert pedestrians to danger. Llankelly Place had been developed as an exclusively pedestrian precinct, with no vehicular traffic. In it were restaurants, bars and cafes whose occupancies encroached onto the walkway, on which they had outdoor areas. The precinct was intended to and did attract patrons to dine at restaurants and drink at bars. Plainly, its users would include some who were not at the peak of their powers of discernment and perception. And, as I have observed in connection with the question of “obvious risk”, the very fact that it is a pedestrian precinct would naturally heighten their sense of safety and reduce their vigilance.

69. Moreover, this was no ordinary or regular change of level. At the northern extremity the difference was some 16 centimetres, but over a distance of about eight metres the difference in level walkway reduced until the walkway and the footpath were flush. As the difference decreased, so did its perceptibility. It was not far from the point at which they became flush that Ms Bishop tripped and fell, and there the differential was slight. The lighting by night was not good; it appears – from a photograph in evidence – to have been intended more for atmospherics than for illumination; as Ms Bishop described it:

Q. What was the lighting like as you were going down this road, that is this walkway with these people on it, that night?

A. Well it was dark. As I said Llankelly Place isn’t very well-lit. You get the lights from … the restaurants and there was a kind of hanging pendants they had.

Q. You mean like a cover over it or - - -

A. They were colourful more than not giving light up.

70. As the trial judge pointed out, the defendants’ expert Dr Cooke recognised that some visual cue to the existence of the change in level was appropriate; he said:

If the general perception and expectation of a pedestrian is of a pedestrian surface with no changes of surface level, then it is good practice to draw attention to potential hazards (such of changes of level) so that a pedestrian will see the hazard in time to avoid a loss of footing. In my opinion, the light coloured surface of the concrete kerb provides sufficient contrast with a dark grey pavement of the laneway to draw attention to the kerb.

71. Neither Dr Cooke nor the plaintiff’s expert viewed the location after dark; both inspected it by day. Although there are in evidence two photographs taken in 2010 when the development was brand new (at about 10:00am when the light was good) which clearly depict the kerb in a whitish colour contrasting with its grey surrounds, that contrast is much less apparent in the photographs taken for the plaintiff post-accident, some of which appear to depict the paint as having worn off in spaces. Indeed, the contrast can be detected barely – if at all – in the single photo which appears to have been taken after dark. Moreover, as the trial judge pointed out, the contrast – to the extent that there is any – is constant from the position where the kerb begins at a height of 16 centimetres and continues the length of Llankelly Place, beyond the position where the kerb ends and the pavement becomes level with the footpath. [23]

    23. Judgment at [32].

72. To the extent that the colour contrast operated as a visual cue, it existed both where there was and where there was not a change in surface level. In those circumstances, the contrast between the colour of the kerb and the walkway was not adequate to warn a pedestrian of the existence of the slight change in surface level proximate to where the surface of the walkway became flush with the footpath – which is where the respondent tripped and fell.

73. I have concluded, above, that the presence of the kerb, at the point at which the plaintiff tripped on it, was not so obvious that, from the perspective of an occupier considering the hazard which it represented, it could confidently be predicted that a person walking along Llankelly Place in the circumstances which I have described would necessarily have become aware of, or adverted to, its presence. In my view, it was plainly foreseeable that a low kerb in a pedestrian precinct where people would be expected to walk, posed a risk of such persons tripping on it, and that such persons might do so because they were not aware or did not advert to the existence of the raised structure as they stepped or moved – including in order to avoid obstacles, such as crowds, in their route – in a way which resulted in their tripping.

74. In Ratewave Pty Ltd v BJ Illingby, to which I have referred above, Meagher JA, with whom Macfarlan JA agreed, said:

66 Accordingly addressing whether a reasonable person in the appellant’s position would have sought to warn of that risk of harm, the following factors are significant: that people using the hotel lobby would not ordinarily expect to come across a low but raised platform in an area providing pedestrian access to and from different facilities in the hotel; that people walking in the lobby area would include those who were looking where they were going, with varying degrees of care, as well as those who might be distracted or inattentive; that it was not to be expected, in part because of the nature of the platform and where it was, that people exercising care for their safety would necessarily see and avoid it; that a person tripping on the platform could sustain serious injuries; that people could be made aware of the existence of the raised platform in a way which enabled them to avoid it if it was isolated by roping it off or by placing some form of warning at each of its exposed corners; that these precautions could be taken without difficulty or expense, and that there was little or no social utility in having the platform supporting the sculptures slightly raised above the floor or not accompanied by such a warning. These considerations (which take account of the things in s 5B(2)) would in my view have led such a reasonable person to have taken one or other of those precautions. It follows, subject to the possible application of s 5H of the Act, that grounds 1, 2 and 8 do not result in any different conclusion on the question of breach of duty.

75. In my judgment, much the same applies here: pedestrians walking through Llankelly Place would be exercising varying degrees of care, but most would have a more relaxed than usual sense of vigilance both because it was exclusively for pedestrian use, and because it was designed to attract custom to the bars and restaurants in it, and many would use it by night; the footpath and walkway were for some of the length of the precinct flush but towards the northern end were separated by a kerb, the perceptibility of which varied according to its height and the light; it was not to be expected, in part because of the varying height of the kerb, that pedestrians exercising care for their own safety would necessarily see and avoid it; a person tripping on the kerb could, as is well-known, sustain serious injuries; pedestrians could be made aware of the existence of the kerb in a way which enabled them to avoid tripping on it if its existence was highlighted by a yellow reflective strip; that precaution could be taken without difficulty or expense; and there was no social utility in having the kerb unaccompanied by such a warning.

76. That is by no means to say that every change of surface level needs to be marked with yellow highlighting. It is the circumstances of the nature and user of this particular thoroughfare, the quality of the lighting, and the fact that the relationship between the footpath and the walkway changes from flush to different levels gradually, such that the existence of a change in surface level is least likely to be perceived where it is at its slightest, that generates the duty in this case.

77. For those reasons, I am unconvinced that the trial judge erred in finding that a reasonable person in the Council’s position would have installed, or required to be installed, a yellow reflective strip to the top of the kerb. Ground of Appeal 4 therefore fails.

Causation

78. The appellant challenges his Honour’s causation conclusion on two bases. The first is that, assuming the facts as his Honour found them, causation was not established. The second is that his Honour erroneously preferred evidence given by the plaintiff in re-examination to concessions made by her in cross-examination and a prior statement made by her to a doctor, supposedly to the effect that it was not failure to advert to the presence of the kerb, but a misstep in attempting to ascend it, that caused her fall.

His Honour’s causation finding

79. His Honour found that a yellow reflective strip would have been obvious to Ms Bishop as she approached Llankelly Place, reminding her of the presence of the kerb before she found it necessary to step off the walkway. [24] Counsel for the respondent submitted that the presence of the yellow strip as she entered Llankelly Place would have alerted her to the existence of the kerb.

    24. Judgment at [50].

80. The trial judge did not find, and it was not submitted before us, that when Ms Bishop diverted from her course along the walkway to avoid the crowd by turning right and stepping onto the footpath she would at that time and place have observed, and reacted to, a yellow reflective strip. She would not have done so for the very reasons she did not notice the kerb immediately before she tripped and fell, namely that as soon as she changed her direction of travel, she tripped on the kerb, and she was looking ahead, not down. In other words, she was so close to the kerb that when she stepped to the right it would not have been in, but beneath, her field of vision.

81. However, if she was so close to the kerb as to trip on it as she stepped to the right, she must have walking more or less parallel to it for at least several steps previously, if not from the point at which she entered Llankelly Place. A yellow reflective strip along the top of the kerb up to the point where there ceased to be a kerb would have been on her immediate right, and projecting to her front, for about eight metres from her entry into Llankelly Place until the point where the kerb petered out and the walkway became flush with the footpath. Such a line, to her immediate right, would have emphasised the existence of the danger, and the point to which it extended – which the indiscriminate contrasting colours of the kerb and its surrounds did not (indiscriminate, because it did not differentiate between where there was and was not any kerb). In my view, in the presence of a yellow reflective strip along the kerb to the point where the walkway and the footpath became flush, the plaintiff – walking immediately adjacent and parallel to it – could not have avoided seeing it, and would have been reminded of the existence of the kerb extending beyond the point where she attempted to cross to the footpath. So reminded, she would either have not attempted to cross until the kerb ceased after another couple of steps, or would have used additional care if she were to attempt to cross it where she did.

82. Accordingly, on the facts found by his Honour, I would not disturb the finding of causation.

The evidence

83. However, the appellant points to evidence said to demonstrate that Ms Bishop was not inadvertent to the presence of the kerb when she endeavoured to cross it, but tripped in deliberately endeavouring to cross it. If that is correct, then the presence of a yellow reflective strip would have made no difference.

84. In her evidence-in-chief, Ms Bishop said that as she progressed south along the walkway she observed 10 or 20 people congregated outside one of the bars, and decided that rather than negotiate her way through them she would turn to her right, “and that’s where I tripped on that edge”. She explained that she turned “probably ten paces” before the congregation outside the bar, took a step to the right and immediately tripped and went down. She was asked (emphasis added):

Q. … did you know at that point that there was a change in height?

A. I had walked that way before.

Q. Had you moved off that roadway at that point before?

A. Yes, I had.

Q. Do you know how it was that your foot struck the raised area?

A. How?

Q. Did you see it or not?

A. I am sorry, I - - -

Q. Did you see what caused you to fall or not?

HIS HONOUR: This is before [or] after?

CAMPBELL. Q. Before?

A. No. Well, I realised when I fell that I’d tripped on the edge.

Q. What were you doing with your eyes immediately before you struck the area you fell?

A. I was probably looking forward and then peering over.

…

Q. … do you remember what you were doing with your eyes immediately before you fell?

A. No, not really, but I assume I was looking forward. I don’t normally walk with my eyes down.

85. Thus in chief, it was her evidence that she did not notice the kerb before she tripped on it, and was not looking “down” so as to observe it.

86. In cross-examination, she was questioned, at considerable length, about her historical use of Llankelly Place as a thoroughfare, and she agreed that she had used it many times, and as a result – including of having on occasion stepped up onto it – was aware, in a general kind of way, of the existence of the kerb:

Q. There’s no question you were aware the ledge was there?

A. I had walked there before.

87. The cross-examination then proceeded:

Q. I want to suggest to you Mrs Bishop, that you on this evening, did exactly the same as you had done on a number of previous occasions, that is you decided to go around the crowd and you tried to step up onto the ledge but you caught your toe and tripped?

A. Yes.

Q. You agree that that’s what happened?

A. Yes.

88. The question to which her assent was obtained was one which contained multiple elements. Read literally, it involved an admission that she had caught her toe and tripped on a number of previous occasions, which was presumably not intended. Her answer does not to my mind necessarily involve that, on the occasion in question, she adverted to the presence of the ledge and was deliberately attempting to ascend it; it involves no more than that she was endeavouring to step from the walkway to the footpath, which (with the benefit of hindsight) she may have appreciated involved a step “up”.

89. Presumably because the cross-examiner appreciated the risk that this was so, she was then asked:

Q. I want to make sure you don’t misunderstand the question, I’m suggesting to you that you knew the ledge was there, and that you tried to step up and in doing that you caught your toe?

A. I don’t know if I caught my toe or my shoe, but yes.

Q. But it was in the process of attempting to step up over the ledge, when that occurred, correct?

A. Yes.

90. However, those questions were asked in a context where the cross-examiner had established, at some length, that Ms Bishop had walked up and down Llankelly Place many times, and was aware that there was a kerb there. Her acceptance that she “knew the ledge was there”, and was “in the process of attempting to step over the ledge”, in that context, does not necessarily involve acceptance that she adverted to its presence and was deliberately attempting to ascend it when she fell.

91. Dissatisfied with those answers, the cross-examiner returned to the point the following morning. The following ensued (emphasis added):

Q. I think you agreed yesterday that you knew that the ledge or step was in the area in Llankelly Place?

A. Yes.

Q. That you’d seen it many times before, correct?

A. Correct.

Q. That you had, when taking that journey back towards Kings Cross station, on a number of occasions, stepped up onto the ledge to go to the – to avoid the crowd to go over to the staircase?

A. Correct.

Q. That included stepping up at various positions along the ledge or step, correct?

A. Probably, yes.

Q. That was, I think you agree, the same thing you were doing on this evening, correct?

A. Correct.

Q. I think you also agree that it was in the process of you stepping up on top of the ledge, or trying to take the step onto the ledge, that you somehow tripped and fell?

A. Yes.

HIS HONOUR: Q. Is that from reconstruction or was that your mind at the time?

A. Sorry?

Q. Is that what you believe now, that is; after you fell?

A. Well, I don’t think I was really that aware of it, it was just something I did, it was just part of my routine.

KELLY: Q. The routine included you stepping up onto the ledge or the step, at various locations, for the two and a half years you’ve been walking down Llankelly Place, correct?

A. I didn’t do that every day.

Q. No, but on a number of occasions, you’d taken a step up onto the ledge –

A. Yes, I had.

Q. At various places, correct – yes, you have to say yes, I’m sorry?

A. Yes.

Q. On this evening you knew it was there and you were taking the step up, correct?

A. Correct.

Q. You caught your foot?

A. Correct.

Q. That’s exactly I want to suggest to you what you told Dr Rosenthal when you first saw him, correct?

A. Correct.

Q. That’s because that’s what happened?

A. I was just stepping up, yeah.

…

Q. It’s therefore not correct, is it, Mrs Bishop and I don’t suggest you said this but I just want to make it clear, it’s not correct then to say that you did not know that the step or the ledge was there; that’s not correct?

A. As I said I wasn’t – it was – I’m not aware of whether I was aware of it or – it’s just I know it’s something I did. …

Q. It’s not true, is it, if someone suggested that you had said you did not see the step and you did not try and step up onto it, that wouldn’t be true, would it?

A. No.

92. For the most part, the concessions were that the plaintiff knew that the kerb – or ledge – existed. That had been repeatedly established. What the cross-examination did not establish is that she adverted to its existence at the time that she endeavoured to step from the walkway to the footpath. Indeed, when her attention was focussed on the point, as in the passages emphasised above, her answers suggest otherwise. The high point for the cross-examiner was the last question set out above. However, the question involves multiple concepts, and the answer may have intended no more than acceptance that (with the benefit of hindsight) she was endeavouring to ascend the kerb. The cross-examiner never distinctly put to the plaintiff that immediately prior to tripping she was conscious of the existence of the kerb, and that she tripped not because she was inadvertent to its existence but because she mis-stepped in endeavouring to cross it.

93. In re-examination, admittedly allowed over objection, she was asked:

Q. Can you, by reference only to what you observed on the night of your injury, tell us, in your own words, what happened to you and how you ended up falling?

A. Well it’s – I was walking along, I saw the people, I thought, “I’ve veer off to the right to avoid them”. I remember feeling myself tripping on the edge of the raised area, I remember myself going forward and that’s me falling.

…

Q. You have told us that you came down on this edge as you have just described to his Honour. Did you see the edge before you fell?

A. No.

94. Although I confess that my initial impression was otherwise, on close examination of the cross-examination I do not think his Honour erred in finding that it left open ambiguity as to just what it was that the plaintiff was conceding. In any event, no ground of appeal challenges the allowance of the re-examination.

95. The appellant also referred to the history attributed to Ms Bishop by Dr Rosenthal in his report of 6 December 2016, following an examination on 5 December 2016, in which he recorded:

On the 31st January 2013 she had finished her shift and was walking to Kings Cross Station along Macleay Street and then Llankelly Place Potts Point. There was a raised edge on the footpath and she tried to take a step up on the ledge but tripped on the ledge and fell.

96. The doctor’s contemporaneous notes of the consultation were somewhat more ambivalent:

31-1-13 → left work & walking up to Kings X Station → raised edge on footpath → stepping up & tripped & fell

97. The plaintiff’s chronology at trial reveals that she had seen many other health professionals, some for treatment, some for medico-legal purposes at the request of her solicitors, and some at the request of the appellants’ lawyers. It can be deduced from the transcript that at least some of those reports were in evidence at trial, although they have not been reproduced in the appeal books. It would be surprising if many did not obtain histories from the plaintiff, and his Honour’s observation that “the history taken by Dr Rosenthal is the only medical history in which that version of events occurs” is unchallenged. [25]

    25. Judgment at [46].

98. His Honour attributed Dr Rosenthal’s record to the plaintiff’s limited communication skills, the probability that the doctor misunderstood her, and his acceptance of her evidence-in-chief and re-examination as truthful and reliable. To those considerations might be added that the doctor would not have been concerned to elicit a full account of the incident; what was of interest to him was the mechanism of the injury.

99. His Honour saw and believed the plaintiff, who when asked the question directly, in chief and in re-examination, twice said that she did not notice the ledge before she tripped on it and fell. The cross-examination never secured a distinct admission that when she stepped to the right to cross to the footpath she then noticed or adverted to the existence at that point of the ledge. His Honour characterised her concessions in cross-examination as “retrospective reconstruction”, and referred also to the circumstance that “not being well educated she had some difficulty in understanding and responding to conceptual and at times ambiguous questions”. In the context of the often multi-faceted questions and answers to which I have referred above, the trial judge enjoyed a very considerable position of advantage in making an assessment and evaluation of just what the plaintiff should be taken to be acknowledging and accepting, and on what basis. His Honour’s conclusion was therefore plainly founded on his observations of the plaintiff as a witness, as is manifest from his Honour’s observations about her education, her communication skills, and her difficulty in dealing with conceptual and ambiguous questions.

97. Insufficient basis has been shown for disturbing what amounts to his Honour’s assessment of the plaintiff’s credibility as a witness. To his Honour’s reasons might be added the objective probability that pedestrians are much more likely to trip because they do not advert to a trip hazard, than because they are endeavouring to ascend a trip hazard to which they have adverted.

98. It follows that his Honour was entitled to prefer the plaintiff’s version of events, as related in chief and confirmed in re-examination, to the version which Dr Rosenthal had attributed to her.

99. Ground of Appeal 5, which challenges his Honour’s acceptance that failure to install a yellow reflective strip was a necessary condition of the harm suffered the plaintiff, therefore fails.

Conclusion

103. My conclusions may be summarised as follows:

1. The risk of harm posed by the kerb, particularly towards its southern extremity where it became progressively less noticeable, was not obvious in the circumstances in which the plaintiff was on the evening of 31 January 2013.

2. Given the particular nature and user of Llankelly Place, the lighting, and most especially the circumstance that the kerb while a noticeable 16 centimetres at the northern end reduced to becoming flush eight metres to the south, a reasonable person in the Council’s position would have installed or required installation of a yellow reflective strip along the length of the kerb.

3. The trial judge was entitled to accept the plaintiff’s evidence that she did not advert to or notice the kerb when endeavouring to move across to the footpath.

4. Had there been a yellow reflective strip along the length of the kerb, she would have been walking alongside it and could not have avoided seeing it for its eight metre length, and either would not have crossed until a point after it (and the kerb) had ceased, or if she crossed it earlier would have adverted to the existence of the kerb, and in either case not tripped and fallen.

104. In my opinion, therefore, the appeal should be dismissed with costs.

**********

Endnotes

Amendments

26 July 2019 - paragraph [16] - corrected placement of square bracket

Decision last updated: 26 July 2019