Gold Coast City Council v Hall
[2000] QCA 92
•24 March 2000
SUPREME COURT OF QUEENSLAND
CITATION: Gold Coast City Council v Hall [2000] QCA 92 PARTIES: GOLD COAST CITY COUNCIL
(defendant/appellant)
v
CATHERINE DIMPNA HALL
(plaintiff/respondent)FILE NO/S: Appeal No 4354 of 1999
DC No 200 of 1997DIVISION: Court of Appeal PROCEEDING: Personal Injury - Liability and Quantum ORIGINATING COURT: District Court at Southport
DELIVERED ON: 24 March 2000 DELIVERED AT: Brisbane HEARING DATE: 7 March 2000 JUDGES: McPherson and Thomas JJA, Wilson J
Judgment of the CourtORDER: Appeal dismissed with costs to be assessed CATCHWORDS: HIGHWAYS – CONSTRUCTION, MAINTENANCE AND REPAIR – FOOTPATHS – PAVING, KERBING AND GUTTERING, ETC – GENERALLY – where the identity of the repairer of a footpath under Council control was unknown – whether the Court can draw inferences adverse to the party with control
HIGHWAYS – NEGLIGENCE AND NUISANCE – INJURIES TO USERS OF HIGHWAYS – LIABILITY OF HIGHWAY AUTHORITY – IN RESPECT OF WHAT MATTERS – NON-FEASANCE – HAZARD PRODUCED BY CONSTRUCTION OR REPAIR – where Council exempt for non-feasance, but not for misfeasance
TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – whether pedestrians should keep a proper lookout – whether apportionment was outside the bounds of discretion
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – NON-PECUNIARY DAMAGE – PAIN AND SUFFERING – whether the amount awarded for general damages was excessive – where evidence of two Doctors was in conflict and no clear preference had been given for one view
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – whether the awards for pre-trial economic loss and future economic loss were excessive
Local Government Act 1993 (Qld) s 4, s 90(1)
Albert Shire Council, By-law No 2, cl 247, cl 251Buckle v Bayswater Road Board (1936) 57 CLR 259 considered
Hughes v Hunter’s Hill Municipal Council (1992) 78 LGERA 415 distinguished
Jones v Dunkel (1959) 101 CLR 298 considered
Richard Evans & Co Ltd v Astley [1911] AC 674 considered
Wheat v E Lacon & Co Ltd [1966] AC 552 consideredCOUNSEL:
SOLICITORS:
Mr S C Williams QC, with him Mr P Hackett, for the appellant
Mr Hinson, with him Mr S J Given for the respondentO’Keefe Mahoney Bennett for the appellant
Shane Ellis for the respondent
McPHERSON JA, THOMAS JA, WILSON J: At about 8.30 am on 19 July 1996 the plaintiff Catherine Hall was going to the automatic teller machine at the Westpac Bank in Station Road, Nerang. She got out of the car in which she had been driven there and walked towards the Bank. In walking over the footpath her foot got caught in a crack or crevice in the concrete surface and she fell down fracturing her left elbow. At the trial she identified a photograph (ex 1) showing the area where she fell. On that or another photograph (ex 9) she marked the place where her foot got caught. In the footpath there were in fact two sections of concrete, one longer and narrower than the other, which had been repaired by being patched. In her evidence the plaintiff nominated the longer and narrower patch; but his Honour found as a fact that she had caught her shoe in the other section. This finding was not challenged on appeal.
The learned trial judge found it was the defendant Council that had repaired the footpath by patching it, and that the work had been done negligently. So far as negligence is concerned, the evidence of Professor Dux is that the concrete patch in question was badly cracked and that spalling had taken place at its edges. The patching or repair work was old; but, on the strength of Professor Dux's evidence, his Honour considered that the patching work was performed negligently in that the repaired areas of the footpath had not been designed and constructed to ensure the safety of users and in a way that would reduce the likelihood of injury to those using it. Ground (d) of the notice of appeal is that the finding of negligence was wrong; but, there is evidence to support his Honour's finding to that effect. There is no sound reason for setting it aside.
The real issue on appeal is whether it was the Council that had effected the repair work by patching the footpath. If it was not proved to have done so, then the Council was not legally liable for the resulting injury and loss suffered by the plaintiff. That is because the Council is the relevant highway authority and the law is that a highway authority is liable only for acts of misfeasance, such as negligently designing and constructing repair work, and not for nonfeasance in allowing the highway to fall into disrepair. See Buckle v Bayswater Road Board (1936) 57 CLR 259. It was accepted on appeal that for this purpose the footpath formed part of the highway: cf. Hughes v Hunter's Hill Municipal Council (1992) 78 LGERA 415.
The learned judge found that the Council was the occupier of the footpath over which it had control and for which it had responsibility. The appellant Council submitted that this conclusion was wrong because the area in question was part of a crossing or driveway leading to the Westpac Bank land. The plaintiff accepted that the area was part of a crossing in that sense but not that, in consequence, the Council ceased to be in control of it. Section 90(1) of the Local Government Act 1993 provides that "a local government has control of all roads in its area". The word "road" is defined in s 4 of the Act to include a pedestrian path. Control is what imposes responsibility and legal liability on an occupier of land or premises for their state or condition. See Wheat v E Lacon & Co Ltd [1966] AC 552, 578‑579. The Council was therefore the occupier and as such responsible for this portion of the footpath. If it were necessary to go further, By-law No 2 of the Albert Shire Council (which is the predecessor of the defendant here) defines "footway" as "the part of any street or road which has been appropriated to the use of foot traffic …".
But, says the Council, this area was not simply a footpath or part of it, but a vehicular crossing. In cl 247 of By-law No 2 there is an elaborate procedure to be followed when an owner or occupier of land abutting a footway or road wishes or is required to construct a crossing over a footway. As regards repairs, cl 251 of the By-law provides:
"Repair to Crossing
251(i) Every crossing shall be repaired and maintained by the owner or occupier of the premises to which the same leads in conformity with the notice, if any, relating thereto and to the satisfaction of the Council.
(ii) If any crossing is or becomes out of repair, and the person liable by the By-laws to maintain and repair the same, for seven clear days after the notice from the shire clerk to that effect, neglects properly and completely to repair the same, he shall be guilty of an offence, and, in addition, the Council may effect such repair at his expense."
It is not clear that this provision assists the Council in any way. On ordinary canons of construction, cl 247(i) is fairly open to the interpretation that the crossing must be repaired and maintained by the owner or occupier of the premises to which it leads "to the satisfaction of the Council" and in conformity with the notice, if any, relating to it. If the subject repair to the crossing was in fact effected "to the satisfaction of the Council" in this case, it may be that, in being satisfied with the repair work, the Council would have gone beyond the limits of "mere" or "pure" nonfeasance, and so became legally liable for the consequences of any negligence on its part in doing so. It is, however, not necessary to pursue that question here because there is no evidence that any notice requiring repair of the crossing was ever given to Westpac or its predecessor in title; or that the Council ever expressed its satisfaction about the way in which the repairs had been carried out. In answering an interrogatory delivered to it, the Council admitted that it was "responsible for general inspection of the footpath area", but was unable to state on what date or dates it inspected the area: answers 1(b)(iii) and 1(c)(I). It did, however, admittedly carry out "general inspections in the general locality as part of its responsibility in constructing, inspecting and maintaining footpaths" (answer to interrogatory 15).
The fact that the Council was the occupier of the footpath including the crossing, and that it was negligent in allowing it to fall into disrepair, does not itself make it legally liable for the plaintiff's loss. The legal liability of an occupier for the static condition of premises is a liability for nonfeasance from which the Council as highway authority is exempt at common law. But we are at this point concerned with identifying the person who repaired the footpath in the manner found to be negligent. Legal liability apart, the circumstance that the Council is the occupier in control of and responsible for the footpath tends to make it more likely that it was in fact the Council that carried out the defective repair work. The Council in its defence simply denied having done so, leaving it to the plaintiff to prove it had done so, while emphasising the hypothesis that the repair work could have been done by anyone.
There is a strong element of artificiality in the submission. The notion that the repairs were effected by some unusually public-spirited or officious interloper is plainly absurd. So is the possibility that it was repaired in a fit of remorse by the person who damaged it. Rationally, the only other person who might conceivably have carried out the work is Westpac. There is no evidence at all to suggest that it did so. Notice to repair was not shown to have been given to it by the Council at any time. Ordinary human experience is that banks busy themselves with banking and not with repairing footpaths. The only other not quite implausible suggestion is that the work might have been done by a service provider such as Telstra. But while perhaps prone to digging up concrete and other hard surfaces, the appearance of the area shown in exs 1 and 9 does not suggest that it harbours "works" of any kind. The photographs are not of high quality; but the two steel box drains that are seen protruding from one end of the patched area appear to contain nothing resembling a cable or other objects characteristic of telecommunications or "utilities" of a comparable kind. There is no sign in the concrete of the distinctive Telstra logo that is commonly visible at such sites.
We are left, then, with the following circumstances. The Council is the authority on whom control of and responsibility for the footpath is imposed by statute. It admittedly carries out general inspections of the area as part of its responsibility in constructing, inspecting and maintaining footpaths. It has not shown that it ever gave any notice under the by-laws to Westpac to repair the footpath. After the incident in which the plaintiff was injured on 19 July 1996, it reconstructed the area of the footpath in question (ex 12). It made no allegation and gave no evidence suggesting that anyone else repaired the footpath by patching it. The answers given to the interrogatories delivered for its examination are noteworthy for their reticence. Those answers were given and sworn on behalf of the Council by a person describing himself as "Insurance Manager of the Defendant". As was pointed out in the course of the appeal, the answers are not in the required form. They do not say that inquiries had been made of Council officers, or searches made of Council records, before the answers were sworn and delivered. There is a complete absence of anything to suggest that the proper officers of the Council did not know by whom or when the repair work was done. The most that is said (and it is said by the deponent in the answer to interrogatory no 7) is that the defendant "to my knowledge" was not aware of the condition of the subject areas "as there was no reason to be aware of this specific subject area". Whether there were others such as the works managers or foremen and the like, whose knowledge of the subject area might be expected to be more detailed than that of the defendant's insurance manager is nowhere stated or sworn to.
In this state of the evidence, or lack of it, the court is entitled to be bold in drawing inferences adverse to the Council as the defendant to the action. The case is not one raising "conflicting inferences of equal degree of probability, so that the choice between them is a mere matter of conjecture". See Jones v Dunkel (1959) 101 CLR 298, 304. On the contrary, it is one which satisfies the requirements that:
"… according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon the balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood."
See Jones v Dunkel (1959) 101 CLR 298, 310, citing from Richard Evans & Co Ltd v Astley [1911] AC 674, 687. Here the course of common experience is that footpath repairs are ordinarily carried out by the local authority. In the absence of evidence suggesting that these repairs were not, the natural inference is that, on the balance of probabilities, it was the defendant Council that patched the concrete on which the plaintiff fell and was injured on 19 July 1996. The appeal against the finding of liability therefore fails.
The appellant next contends that the apportionment of contributory negligence (15 per cent) against the plaintiff was inadequate. No such issue is raised in the notice of appeal, although the finding of liability against the appellant was challenged. However, submissions on contributory negligence were made in the outlines of argument of both the appellant and the respondent, and again in oral argument. Such an issue ought to be specifically raised in the notice of appeal, but in the circumstances the submissions will be considered as if the appropriate amendment had been sought and granted.
The basis of the appellant's liability was that it created the condition of the footpath which caused the plaintiff to fall. It created the dangerous situation without which there would have been no accident. In relation to the plaintiff's contributory conduct the learned trial judge made the following observations:
"It would appear from the evidence that the plaintiff failed entirely to observe the condition of the footpath on which she was walking. The defect in the surface was not so significant as to amount to an obstacle to safe passage. It would have taken very little care on the plaintiff's part to have avoided stepping into the crack or catching her shoe on some protuberance in the vicinity of the repair work or in preventing whatever it was which caused her to lose her balance. She does not appear to have been walking at speed or operating in any sort of emergency such as might cause her to fail to take care for her own safety in a way that could be excused. I find that she was negligent in failing to keep a proper lookout and that her negligence was a significant cause of her own injury. I would apportion liability as to 15% in the plaintiff and 85% in the defendant."
Mr Williams QC on behalf of the appellant submitted that the respondent tripped in broad daylight when the relevant patch on the crossing was clearly visible. She had been to the area previously. He suggested that there is a high level of responsibility upon citizens to take care whilst walking and that local authorities should not be visited with unduly high responsibility for such mishaps. He submitted that the apportionment should have been 50/50. The submission is essentially an assertion and was not supported by example or precedent. It was further contended that the damaged concrete was not a substantial hazard to users of the footpath. That submission is however two-edged in that it might not appear to the respondent to call for a close lookout in respect of every step she took. Pedestrians in public places must of course keep a proper lookout but that does not necessarily involve walking with eyes fixed upon the ground at all times. At the same time it is recognised that it would be impossible for public authorities to keep surfaces over which the public might range in impeccable condition. In the present case it would have been open to the learned trial judge to have assessed a greater proportion of liability against the respondent. However a 15 per cent apportionment does not lie outside the bounds of the wide discretion available to a trial judge in such an exercise.
In all the circumstances it cannot be held that a finding of 15 per cent contributory negligence against the plaintiff is manifestly inadequate.
Finally the appellant submits that the assessment of general damages and of damages for economic loss was manifestly excessive.
The challenged items are:
Damages for pain, suffering and loss of amenities - $25,000
Past economic loss - $10,000
Future economic loss - $30,000
The respondent was 36 years old at the time of trial. Her children were then aged 10 and 11. The plaintiff's injury was a fracture of the radial head of the left arm which healed with some irregularity of the articular surface and some limitation of movement of the elbow joint. Evidence was given by two medical practitioners, Dr White and Dr Dodd, expressing markedly different views of the extent of the respondent's disability. Unfortunately his Honour merely summarised their respective views without analysis and without expression of preference.
Dr White assessed permanent disability in the left upper limb as 15 per cent increasing to 20 per cent with the development of degenerative changes. He thought that a further operation would be necessary. He considered that the respondent was likely to be permanently unfit for duties involved in her previous occupation of hairdressing. Dr Dodd acknowledged some residual deformity of the radial head and a pre-disposition to degenerative change. However he did not believe that such changes would be significant enough to warrant surgical intervention. He considered that her disability would not interfere greatly with her day to day activities but might give her some discomfort particularly with repetitive motions such as those involved in hairdressing.
The limited indications given by his Honour do not enable a clear preference to be inferred in relation to one or the other of these doctors. One indication, his Honour's view that no surgery would be needed, suggests acceptance of Dr Dodd's view, at least on that point. On the other hand, his Honour's clear acceptance of the level of disability described by the plaintiff suggests that the level of disability discerned by Dr White is closer to the accepted evidence than that of Dr Dodd. In particular his Honour stated that it was "clear that her ability to earn income in her chosen occupation of hairdresser is impaired" and observed:
"The fact that she has been able to earn income in that occupation and in domestic work which it would appear to be work of a kind in strong contrast to that recommended by Leonie Green and Associates is really a measure of her stoicism and of the genuineness of her complaints".
The genuineness of the respondent's complaints having been accepted, it is clear that the respondent's injury causes her pain particularly with repetitive movements when performing housework or hairdressing. Her activities in lifting objects such as shopping bags and hanging out washing are impaired by pain. There was further evidence from an occupational therapist (again recited by his Honour without any indication of acceptance or rejection) opining that the respondent will be unable to maintain employment where work requirements exceed "light work" and that her disabilities greatly restrict her potential for future achievement and earnings in her occupation as a hairdresser. Furthermore, both doctors accepted that there would be arthritic change, that is to say there was a prospect of deterioration.
Without canvassing the evidence in greater detail, it is clear enough that the level of her injury and its effect upon the respondent's daily activities both personal and vocational are significant enough to justify an award for pain, suffering and loss of amenities of life of $25,000. It may be mentioned that counsel for the appellant conceded that such a figure would be appropriate if the evidence of Dr White had been preferred. It is by no means clear that there was such a preference, but the unreserved acceptance of the genuineness of the respondent's complaints is the best indication of a relatively serious view of the effect upon the respondent's life, and is sufficient to justify this aspect of the award.
Prior to her accident on 19 July 1996 the respondent had been engaged for two weeks in full-time occupation with Simone Watson Hairdressing earning $368 net per week. However her commitments would not have permitted her to work full-time on a regular basis. She had worked 12 months full-time in 1993, but, until the two week period preceding the accident she had been on part-time work. In the two financial years immediately preceding the accident her net earnings averaged between $256 and $284 per week. The median is $270. If the 1996 tax return (that immediately preceding her injury) is taken, the figure would be $284.
Following her accident the respondent was unable to work for six weeks and then undertook limited part-time work. A loss of opportunity then occurred through the closure of the salon at which she worked. This disadvantage may be thought likely to have emerged whether or not the accident had intervened, although the level of her disability may well at that time have affected her capacity and enthusiasm for resumption of work. There is little doubt that this respondent was well motivated to work, principally on a part-time basis, recognising her need to support her two children and also to care for them.
Prior to trial (which commenced in April 1999) the respondent had recommenced work, for the most part undertaking four hours of hairdressing work and 15 hours of domestic work per week. Her earnings from these sources were approximately $230 per week, but during the months preceding trial her actual earnings varied between $182.50 and $240 per week
With these facts in mind there is nothing unreasonable in the award of $10,000 for pre-trial economic loss. Mr Hinson SC for the respondent pointed out that this part of the award covers 143 weeks preceding trial and allows damages at an average of $70 per week. Although the loss might be thought to be closer to $60 than $70 per week in the latter stages, it was greater in other periods. This part of the award cannot reasonably be regarded as excessive.
So far as the future is concerned, there is some difficulty in assessing the value of her residual earning capacity. It is reasonable to assume that it lies somewhere near the level of her earnings during the months preceding trial, and that a figure approaching $220 net per week would be appropriate.
The respondent's pre-accident earning capacity might be regarded as approximately $270 per week or as $284 if one regarded the 1996 tax year as the appropriate criterion. The above figures are mere approximations in a case where precision is impossible. Overall the difference between the value of her pre-trial earning capacity and that of her residual earning capacity could reasonably be assessed as around $60 or $70 per week. The amount awarded ($30,000) represents approximately an award of $60 per week for a period of 13 years; or of $70 for ten and a half years. Having regard to the respondent's age the amount awarded seems well within range.
It cannot be said that the assessment of damages was manifestly excessive.
The appeal should be dismissed with costs to be assessed.
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