Hagger v City of Fremantle
[2003] WADC 206
•30 SEPTEMBER 2003
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HAGGER -v- CITY OF FREMANTLE [2003] WADC 206
CORAM: MULLER DCJ
HEARD: 16-17 SEPTEMBER 2003
DELIVERED : 30 SEPTEMBER 2003
FILE NO/S: CIV 2898 of 2002
BETWEEN: JUNE DAWN HAGGER
Plaintiff
AND
CITY OF FREMANTLE
Defendant
Catchwords:
Negligence - Injury to pedestrian using footpath - Whether Local Authority immune from liability for non-feasance - Application of Occupiers' Liability Act - Application of ordinary principles of negligence - Whether duty of care breached
Legislation:
Local Government Act 1995
Occupiers' Liability Act 1985
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff: Mr R V Lonnie
Defendant: Mr J Eller
Solicitors:
Plaintiff: Piu & Associates
Defendant: John Eller
Case(s) referred to in judgment(s):
Australia Safeway Stores Pty Ltd v Zaluzna (1986) 162 CLR 479
Brodie v Singleton Shire Council (2001) 206 CLR 512
Burwood Council v Byrnes [2002] NSWCA 343
City of Ballarat v Perovic [2001] VSCA 222
Hackshaw v Shaw (1984) 155 CLR 614
Hastings Council v Giese [2003] NSWCA 178
Richmond Valley Council v Standing [2002] NSWCA 359
RTA v McGuinness [2002] NSWCA 210
Wheat v E Lacon & Co Ltd [1966] AC 552
Case(s) also cited:
Clarkbarry v Mayor of South Melbourne (1895) 21 VLR 426
Kent v East Suffolk Rivers Catchment Board [1940] 1 KB 319
Nagle v Rottnest Island Authority (1993) 112 ALR 393
Pyrenees Shire Council v Day (1998) 72 ALJR 152
Romeo v Conservation Commission of the Northern Territory (1998) 72 ALJR 208
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Wyong Shire Council v Shirt (1980) 146 CLR 40
The Roman Catholic Bishop of Broome v Watson [2002] WASCA 7
MULLER DCJ: In this action the plaintiff, who is now aged 70, tripped and fell while walking on a footpath in Holdsworth Street in Fremantle and injured her right hand. She claimed damages for her injury from the City of Fremantle which denied liability. The measure of damages was agreed by the parties and the action went to trial on the issue of liability alone.
Nature of plaintiff's claim
In her statement of claim the plaintiff asserted the following:
"Particulars of claim
5.On or about 14 January 2001 at approximately 12.45 pm the Plaintiff was walking along the footpath when, due to the damaged condition of the footpath, she tripped on a broken paver and fell and as a result suffered injury as particularised in paragraph 9 below ("the accident").
6.The accident was caused solely by the negligence of the Defendant, its servants or agents ("hereinafter called the Defendant").
7.Particulars of negligence
7.1Failed to perform any or any adequate inspection and maintenance of the footpath to ensure that the pavers were not broken;
7.2Failed to seal the footpath surface with a material such as bitumen or concrete that was not prone to damage;
7.3Failed to place a warning sign in a prominent place warning the Plaintiff of the danger of the broken pavers;
7.4Failed to erect a safety barrier around the broken pavers;
7.5Failed to erect barriers to prevent vehicular access onto the footpath;
7.6Failed to erect kerbing for the footpath at a level which would prevent vehicular access;
7.7Exposed the Plaintiff to the risk of injuries by not taking steps reasonably open to it such as providing warning signs, barriers, more adequate kerbing or more adequate paving material.
8.Further, and in the alternative, the Plaintiff's injuries were caused by the Defendant's breach of Section 5 of the Occupiers' Liability Act in that it failed as an Occupier to take reasonable care to ensure that persons using the footpath, and in particular the Plaintiff, would not suffer injury or damage by reason of the broken pavers and subsequent unevenness of the footpath.
8.1Particulars of breach of statutory duty
8.1.1The Plaintiff repeats the particulars as set out in paragraphs 7.1 to 7.7 above.
9.As a result of the Defendant's negligence and/or breach of statutory duty arising out of the accident the Plaintiff has suffered injury resulting in pain, discomfort, stress and anxiety, permanent disability, loss and damage. The Plaintiff has further undergone treatment and will in the future require treatment and incur medical and other expenses.
9.1Particulars of plaintiff's injuries and/or permanent disability
9.1.1Comminuted fractures of the proximal phalanges of the ring and little fingers on her right hand;
9.1.2Carpal Tunnel Syndrome;
9.1.3Decreased range of motion of right hand and inability to make a fist;
9.1.4Stiffness and pins and needles in right hand;
9.1.5Right upper limb and wrist pain;
9.1.6Stress, anxiety and/or psychological injury."
In its defence the defendant denied that it was an occupier within the meaning of the Occupiers' Liability Act but admitted that it controlled and managed the footpath where the accident occurred pursuant to the provisions of the Local Government Act 1995. Apart from denying liability under the Occupiers' Liability Act 1985, which the defendant claimed had no application to these proceedings, it also denied that it was negligent as alleged by the plaintiff and asserted that any injury, loss or damage sustained by the plaintiff was caused solely by the plaintiff's own negligence.
Application of Occupiers' Liability Act
The defendant denied that the Occupiers' Liability Act had any application to these proceedings. In support of that submission counsel for the defendant relied on the provisions of the Local Government Act 1995 which vest in the City of Fremantle the responsibility for controlling and managing various public facilities including thoroughfares. Section 1.4 of the Act defines the expression "thoroughfare" as meaning a road or other thoroughfare. Section 3.53 vests in a local government the responsibility for controlling and managing every "otherwise unvested facility within its district". The expression "otherwise unvested facility" is defined to include a thoroughfare. Since the responsibility for controlling and managing the footpath where the accident occurred was clearly vested in the defendant pursuant to the provisions of the Local Government Act there is no reason why, as far as I can tell, the defendant should also be categorised as an occupier subject to the provisions of the Occupiers' Liability Act 1985.
It may be significant that in other decisions brought against local authorities for mishaps that occurred on thoroughfares under their control the law relied upon has been that governing the liability of highway authorities without, it seems, any reference to liability as an occupier. This approach appears to be consistent with a local authority's statutory obligation to maintain, control and manage public facilities including thoroughfares. Although some time was spent during the trial debating this issue I do not believe much turns on it. A review of the relevant authorities reveals that little turns on the distinction between statutory liability as an occupier and common law liability for negligence. In Wheat v E Lacon & Co Ltd [1966] AC 552 the word "occupier" in the Occupiers' Liability Act, 1957 (UK) was described as "simply a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully onto the premises". Since the decision in Australia Safeway Stores Pty Ltd v Zaluzna (1986) 162 CLR 479 the distinction, in the circumstances of a trial such as this, seems to be of little, if any, significance. In that decision the High Court confirmed that the duty of care owed by an occupier under the relevant legislation and the duty of care owed under the common law was the same. In reaching this conclusion the High Court adopted the statement of Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 622 as follows:
"It is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff."
The disappearance of any practical distinction between the legislation and the common law is summarised in The Law of Torts in Australia, 3rd ed (Trindade and Cane) at p 412:
"One result of Zaluzna is that much of the old law discussed in Chapter 14 of the first edition is now of doubtful relevance or importance. Indeed, even before 1987 this was the position in several Australian jurisdictions where legislation designed to achieve much the same effect as the decision in Zaluzna had already been enacted. In jurisdictions where wide‑ranging legislation on occupiers' liability exists, questions may arise as to the relationship between the statutory regime of liability and the common law: in all cases the legislation replaces the common law in the area of its operation, so that cases that fall within it are governed by it while cases that fall outside it are governed by the common law. Given that the basic effect of all the statutes is to extend the principles of the common law of negligence to occupiers' liability, it may not matter in most cases whether the statute or the common law applies. But, as we will see, there are uncertainties as to the scope of the various statutes, and so there will be room for various technical arguments about which set of rules should apply to certain cases. This unfortunate situation can only benefit lawyers' pockets."
Given the absence of any significant distinction between the statute and the common law I do not propose to make a finding in relation to the issue. I do not believe it is necessary. I believe I can decide the issue of liability according to the ordinary principles of negligence.
The issue of immunity
Counsel for the defendant submitted that the defendant was entitled to the limited immunity contained in s 9.57(1) and (2) of the Local Government Act 1995. This provision reads as follows:
"9.57Local government protected from certain liability
(1)A person cannot recover damages against a local government in respect of loss or injury sustained either to that person or to another person or to property by reason of a mishap upon or while using a portion of a thoroughfare, which portion has not been interfered with by the local government, merely because some other portion of that thoroughfare, whether distant laterally or longitudinally, has been taken over or improved by the local government.
(2)Subsection (1) does not relieve a local government from liability where the mishap is caused by the negligence of the local government in the execution of works then in progress, or which have been completed by the local government in a thoroughfare."
Counsel for the plaintiff submitted that this provision did not have the meaning attributed to it by the defence. It was suggested the provision simply limited the liability of a local authority in certain circumstances. Reference was made to the decision of the Court of Appeal in Victoria in City of Ballarat v Perovic [2001] VSCA 222 where an almost identical statutory provision was the subject of comment. I did not find the comments made by the Court of Appeal in Victoria helpful in interpreting the section. I do agree with counsel for the plaintiff, however, that two things can be said about the provision: first, the legislative provisions existed well before the decision of the High Court in Brodie v Singleton Shire Council (2001) 206 CLR 512 and cannot be read as being intended to supplant the common law as decided in that case; and second the provisions appear to have been enacted to prevent a plaintiff from bringing a claim "through the back door" by implying that a local government should be liable for any mishap on a thoroughfare under its control merely because it took action in relation to one specific part of that thoroughfare.
What is significant is that s 9.57(2) is silent on the question whether a local authority is liable for a mishap caused by its omission or non‑feasance. It differs, for example, from the Local Government Highways Act 1982 in Tasmania which expressly excludes liability for injury or loss arising from the condition of the highway unless that condition results from the improper carrying out of highway works by the local authority. Given the absence of any express statutory exclusion for liability in cases of non‑feasance I am not prepared to find that s 9.57 of the Local Government Act confers any immunity from liability on the defendant. If that had been the intention of Parliament it is reasonable to expect that it would have expressly said so.
Following the decision in Brodie (supra) the distinction between misfeasance and non‑feasance in relation to the liability of a highway authority no longer has any significance at common law. As far as I can tell this is the situation in Western Australia. Section 9.57 does not, in my view, confer an immunity for negligent omissions or non‑feasance.
Circumstances of the accident
At about 12.30 pm on 14 January 2001 the plaintiff left her home in Knutsford Street to walk to the Buffalo Club in High Street in Fremantle. She had been living in Knutsford Street for about eight years and was in the habit of walking from home to her Club approximately three to four times a week. In the week before the accident she had made the same journey on foot approximately four times.
On leaving home she walked the distance of Knutsford Street to its junction with Hampton Road. She crossed Hampton Road into Stirling Street and walked to the point where Stirling Street joins Holdsworth Street. At this point she crossed Stirling Street onto the footpath on the northern side of Holdsworth Street. At the time she was wearing slacks and low heeled shoes and carrying a bag. She said she looked ahead and was not looking down at her feet. The footpath in Holdsworth Street consisted of discrete concrete slabs running from the verge of the road to the adjoining walls of the properties adjacent to the footpath. Concrete kerb stones separated the footpath from the verge of the road. There was no evidence as to the width of the footpath but the concrete slabs were approximately two feet square and photographs introduced into evidence show there were approximately three and a half slabs between the concrete kerb stone and the wall of the building adjacent to the footpath.
There was a significant descent in the footpath from Stirling Street to Parry Street. The plaintiff would have been walking down this gradient almost as soon as she stepped onto the footpath in Holdsworth Street.
The evidence as to how far the plaintiff walked down the footpath before tripping and falling was by no means certain. When she initially testified the plaintiff's evidence was silent on this point. She was recalled to give evidence on this issue and said she had walked approximately four to five yards from the stop sign at the junction of Stirling Street and the footpath before tripping and falling. When cross‑examined on this issue she agreed she had simply been guessing and was unable to give anything approaching a reliable estimate as to how far she had walked before the accident occurred. What she was able to be precise on, however, was the spot where she fell. Photographs of the footpath were taken by members of her family on the day following the accident. The plaintiff was able to indicate the precise location of her fall. Apart from showing the location of her fall the photographs also reveal the state of the footpath at this point and the distance from the point where she fell to the stop sign at the junction of Holdsworth Street and Stirling Street.
A number of observations can be made from the photographs themselves. The spot where the plaintiff claimed to have tripped and fallen was in the outer lane of paving stones nearest to the sections of concrete kerb bordering the roadway. At this point the concrete slabs were not necessarily of the same size or laid symmetrically. There were substantial gaps between many of the slabs with dry vegetation protruding through those gaps. The two slabs immediately in front of the point where the plaintiff claimed to have tripped and fallen had cracks running across their face at different angles. Most significantly of all, however, the slab immediately before the one on which the plaintiff tripped appears in the photograph to be at a slight descending angle before joining the slab upon which the plaintiff claimed to have fallen. This last slab appears to have been at a lower level than the preceding slab. Although it is difficult to judge from the photographs there appears to be a gap of several centimetres between the lip of the slab immediately preceding the one the plaintiff fell on and the surface of the slab that she stood on when she fell. Apart from this difference in height there also appears to have been a gap between the edge of the slab on which she stood and fell and the adjoining slab. Once again the photograph reveals what appears to be a difference in height between the surface of the slab on which she stood and fell and the top of the adjoining slab. It is quite clear from the photographs that there was a significant gap between these two slabs and a difference in height as well. The slab on which the plaintiff allegedly stood and fell appears to have been compressed at a downwards angle leaving a significant gap between it and the surrounding slabs both at the front, to the side and at the back. There is also a significant difference in levels between the lips of the surrounding slabs and the surface of the slab on which the plaintiff stepped and fell.
Apart from the photographs the plaintiff also relied on the evidence of an expert witness who examined the site on 1 August 2003. Dr Armand Zurharr, who has professional qualifications in chemistry and is a senior scientific consultant with the Curtin University of Technology, described the footpath as having been constructed in the old method of discrete concrete slabs which, with the passage of time, had tended to settle, shift and break. His examination both of the accident site and the photographs relied on by the plaintiff led him to conclude that the footpath had been laid some 20‑30 years earlier and that various slabs had been replaced at random without any methodical relaying or resurfacing of the footpath as a whole. He contrasted this method of construction with the more modern method of a monolithic concrete slab. This type of footpath, for example, is to be found in Stirling Street and, according to Dr Zurharr, had certainly been installed more than two years ago. In his view the replacement of the old slabs with a new monolithic concrete pad finished in a course antislip profile would have minimised any accidents by tripping. He also expressed the opinion that the damage to the footpath where the plaintiff tripped and fell was consistent with heavy vehicular loading. He conceded that the cracks and the slabs did not appear to be very old and could have occurred within a week to several months before the photos were taken.
In my view the evidence of Dr Zurharr added little to what was self‑evident from the photographs taken the day after the plaintiff tripped and fell. I am satisfied on the evidence as a whole that the footpath at the point where the plaintiff tripped and fell was in a state of obvious disrepair. I have already described the nature of the footpath at the point where she fell and there is no need for me to repeat it. What I must emphasise is that the breaks in the footpath, the unevenness of the concrete paving stones and the gaps between them were obvious and, in my judgment, clearly visible to any pedestrian using that footpath in daylight hours.
The only witness called by the defendant was Kenneth James Tingle, the risk management co‑ordinator for the City of Fremantle. He was notified of the plaintiff's fall on 15 January 2001 and immediately inspected the area of the footpath where she had fallen. He agreed that the photographs correctly depicted the state of disrepair. He said he made arrangements for the defective concrete slabs to be replaced on 16 and 17 January 2001. He confirmed that the defendant had an inspection procedure in place and that a review of all local authority facilities within the Fremantle area was undertaken over a two year period and the order of remedial work prioritised. He also confirmed that street cleaners and Council workers were required to report areas that needed repairs.
The maintenance of Council facilities was, as might be expected, specifically budgeted for. The City of Fremantle had two budgetary programmes in place. The first was described as a "Streets Ahead" programme which was a long term programme for improving facilities with an annual budget of approximately $1.1‑$1.3 million. The other budget formed part of the maintenance programme which focused upon areas which needed immediate repairs. The annual budget for this programme was in the region of $140,000.
The witness described how various slabs had been replaced on a random basis in Holdsworth Street on 15 February 2000, 25 February 2000, 28 February 2000 and 6 September 2000 He also confirmed that the concrete slabs were due to be replaced with a concrete strip pavement in 2004.
Two significant factors emerge from the evidence of Kenneth Tingle. The first was that nothing the defendant had done caused the damage to the footpath. Tingle, like Dr Zurharr, concluded that the damage had been caused by vehicular traffic. The second factor to give effect to the then common law rule by seeking is that the defendant did not know of the imperfections in the footpath before the plaintiff's accident. If it had known of these imperfections, or ought reasonably to have been aware of them, such knowledge, whether actual or constructive, might have imposed an obligation upon the defendant to carry out the necessary remedial work. I have already referred to the system which the defendant had in place to inspect facilities under its control. In my view that system cannot be described as unreasonable. It was argued, however, that the defendant ought reasonably to have been aware of the state of disrepair of the footpath. There was, however, no evidence as to when the damage to the footpath occurred. While the photographic evidence seems to suggest it had been in a state of disrepair for some time, Dr Zurharr, the expert witness called by the plaintiff, conceded that some of the cracks in the slabs might have occurred within a week to three months of the photographs being taken. Without knowing approximately when the damage, or parts of it, occurred I am not prepared to find that the defendant ought reasonably to have known of the state of the disrepair to the footpath or taken steps before the accident to inspect the area.
The law to be applied
In recent years there has been a series of decisions, principally in the High Court and in the Court of Appeal in New South Wales, dealing with the issue of liability of local authorities for pedestrian accidents on footpaths. The starting point is the decision of the High Court in Brodie v Singleton Shire Council (supra). In that case a pedestrian tripped and fell when walking along a concrete footpath in which erosion had resulted in the subsidence of the earth in some places so that the verge was approximately 50 millimetres below the concrete. In allowing others to pass the plaintiff had placed her foot partly on the concrete and partly on the lower verge and had fallen. The decision of the High Court focussed principally on the issue of the rule of immunity concerning the tortious liability of a public authority for acts of misfeasance as opposed to non‑feasance. In dealing with the other issue of a local authority's duty of care to pedestrians using roads or thoroughfares under the management and control of a local authority the majority (Gauldron, McHugh and Gummow JJ) said at p 581:
"(iii) Pedestrians
The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. 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 (as in Webb v South Australia (1982) 56 ALJR 912; 43 ALR 465), or the surrounding area (as in Buckle (1936) 57 CLR 259 at 266 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 called for some protection of warning' (Searle v Metropolitan Water, Sewerage and Drainage Board (1936) 13 LGR 115 at 117). In Romeo (1998) 192 CLR 431 at 455 [52], 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' Romeo (1998) 192 CLR 431 at 478 [123]. Each case will, of course, turn on its own facts Perre v Apand Pty Ltd (1999) 198 CLR 180 at 253; Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 at 8; Stapleton, 'Duty of Care Factors; a Selection from the Judicial menus', in Cane and Stapleton (eds), The Law of Obligations (1998) 59, at pp 60‑63."
Applying these principles the High Court concluded that there had been no breach of its duty of care by the Council either in the construction of the footpath or in the failure to keep the concrete strip and verges level because the footpath was not unsafe for a person taking ordinary care.
A series of decisions in the Court of Appeal in New South Wales have followed and applied the decision of the High Court. In Richmond Valley Council v Standing [2002] NSWCA 359 the plaintiff was injured when she tripped and fell on an irregular paved concrete surface at a junction between a footpath and a driveway. The concrete surface had cracks and holes of various sizes and differences in height between its various portions. The plaintiff claimed her foot caught in a hole or crack between portions of the concrete surface and that she fell to the ground and injured herself. During the course of their judgment Handley, Sheller and Heydon JA said:
"29 The first question is whether the defendant owed a duty of care to the plaintiff. That turns on whether the failure of the defendant to repair the footpath created a 'foreseeable risk of harm to pedestrians'. That expression appears to be a reference to a reasonably foreseeable risk. Since at [161] in Brodie v Singleton Shire Council Gaudron, McHugh and Gummow JJ said 'Not all failures to repair will create risks to the users of a road, or at least not risks which would as a matter of the reasonably foreseeable, pose a risk of injury'. The existence of a duty must be assessed in part by reference not to any requirement that the footpath 'be safe' in all circumstances' but by reference to the position of 'users exercising reasonable care for her own safety' (at 163). This was said to be particularly important in relation to pedestrians. The question is whether there was a reasonably foreseeable risk of harm to a pedestrian exercising reasonable care for her own safety, bearing in mind the particular advantages of pedestrians. The issue of the capacity of the defendant to deal with particular risks and the competition between claims on scarce resources is not specifically relevant to the question of the scope of duty, but to the question of its breach."
Having examined the circumstances of the accident the Court of Appeal concluded that, while the state of disrepair of the concrete surface carried with it a foreseeable risk of injury, such risk was not a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety. In coming to this conclusion the Court of Appeal commented as follows on the circumstances of the accident:
"53 What were the circumstances of the accident? The light was good since the 'accident occurred in the middle of the day (at about 1.20 pm) in broad daylight'. The crack was of sufficient dimensions, in depth and across the top, for the plaintiff to see it, and she did see it. The hole in which the plaintiff's foot was caught appears quite clearly in the photographs in evidence. Though the plaintiff's evidence that she did not see the hole was accepted, the size of the hole was large enough to permit the plaintiff to see it if she had been looking. The whole area was so covered by cracks and was so uneven that a pedestrian taking reasonable care for his or her own safety would have to keep a lookout as to ground conditions in the area just in front of the feet. The hole was of a depth which was only 60% of the inch referred to by Cumming‑Bruce J and Gleeson CJ as something which pedestrians had to accept. A pedestrian exercising reasonable care for his or her own safety ought to have seen the hole. If the hole had been seen, a pedestrian of that kind would not have placed his or her foot in it.
54 Almost any injury that happens is an injury in respect of which there can be said to have been a foreseeable risk. In that sense, there was a foreseeable risk of injury here. But it was not a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety. The plaintiff, like pedestrians generally, was in an excellent position to see and avoid imperfections in the surface. There could have been no expectation on her part that the surface would be smooth. The unevenness in the paving slabs, the cracks and the holes at the place where the plaintiff was moving were as obvious as similar features all over the country and as obvious as other common features like raised tree roots and manhole covers. There was no concealment of any of the features of the site which the trial judge criticised. There was no inadequacy in the lighting, or obscuring of the hazard by grass or otherwise. It was reasonable to expect the plaintiff to have seen what lay ahead of her as she walked along in broad daylight: what was there was obvious and called for no special vigilance.
55 So far as there was any hazard it was both not only obvious but insignificant and common. The condition of the pavement was typical of innumerable kilometres of pavements in the cities, suburbs and towns of this country. The imperfection was of a kind which users of footpaths have from childhood habituated themselves to look out for and avoid, in view of the fact that surfaces which pedestrians use may be uneven, not flat and not smooth. The imperfection was not a danger, a hard or a trap. Neither Mr Moir nor the trial judge demonstrate how Mr Moir's figure of 10 mm depth in the hole as the criterion of liability was crucial, and, if it was, how that view could be reconciled with the reasoning in Brodie's and Ghantous's cases. Though Mr Moir referred to other experts, he did not explain their thought processes."
In RTA v McGuinness [2001] NSWCA 210 the plaintiff had been awarded damages for negligence on the part of a local authority in circumstances where she caught her foot on the upstanding corner of a manhole on a footpath and fell to the ground. Once again the Court of Criminal Appeal, in considering whether the Authority owed the injured party a duty of care, emphasised the need to have regard to the nature of the danger and concluded that the protruding manhole cover was obvious and did not make the footpath unsafe for a person taking ordinary care.
In Burwood Council v Byrnes [2002] NSWCA 343 the plaintiff had tripped over a concrete paving slab which had sunk more than others resulting in a height difference of 20 millimetres. It is significant that in this case the plaintiff was familiar with the footpath and had used it frequently. The accident had occurred in broad daylight in fine weather. In concluding that the local authority had not breached its duty of care towards the plaintiff the Court of Appeal commented as follows:
"25 The accident occurred in broad daylight in fine weather. The plaintiff had a good view of this part of the footpath and there was nothing to prevent her seeing the uneven surface. She was familiar with the area and had walked over or around this damaged section a number of times before. Indeed she must have walked across the sunken area to reach the point where she fell. If the plaintiff had been keeping a proper lookout she could have passed in safety either by avoiding the sunken area or by taking additional care as she walked across it.
. . .
28 Pedestrians on the other hand are in a position of relative advantage because they can generally protect themselves from uneven surfaces on footpaths and other public areas by keeping a lookout and taking care for their own safety. The position will be otherwise if the surface contains something unusual or unexpected which creates a real danger for ordinary pedestrians."
In the later case of Hastings Council v Giese [2003] NSWCA 178 the plaintiff had claimed damages for injuries she sustained when she fell when crossing a marked pedestrian crossing which, it was claimed, contained undulations and depressions. In dismissing her claim and ruling that the local authority had not breached its duty of care towards her the Court of Appeal said:
"21 The foregoing authorities have, it is suggested, clearly recognised that a foreseeable risk of injury to a pedestrian from some imperfection in the surface of a footpath or, in my opinion, a pedestrian crossing within a roadway which, like a footpath, is used for pedestrian access, is insufficient to give rise to a relevant duty of care on the part of the road authority. Furthermore, they have placed fairly and squarely upon the pedestrian the responsibility of recognising and avoiding such imperfections upon the basis that, firstly, a pedestrian has no expectation that the surface of a pedestrian way (be it footpath of pedestrian crossing) will be smooth and lack imperfections and, secondly, because a pedestrian is in a position of advantage because he or she is able to protect himself or herself from the uneven surfaces of footpaths and crossings by keeping a proper lookout for the purpose of taking care for his or her own safety. In other words, the courts have generally shifted the responsibility for his or her safety back to the pedestrian.
22 That responsibility will, however, shift to the road authority where the relevant defect, subject to that authority's knowledge of it, constitutes not only a hazard but also one which is concealed or obscured and thus not obvious to the user so that it constitutes a form of trap. The reason for shifting the responsibility back on to the road authority in these circumstances is because a pedestrian, using reasonable care for his or her own safety, is not in a position to see and avoid such a defect. It is in light of the foregoing considerations that, in my opinion, the issues in the present appear are to be resolved."
Conclusions as to liability of local authority
I am unable to find that the defendant was in breach of the duty of care which it clearly owed the plaintiff.
The imperfections in the surface of the pathway were striking and obvious to anyone using the thoroughfare. The accident occurred in broad daylight. The plaintiff was familiar with this footpath and had used it as often as three to four times a week over many years. She had walked on the same stretch of footpath as early as Friday of the preceding week. I am satisfied she must have seen and been aware of the marked irregularities in the pathway particularly at the point where she tripped and fell.
There was a suggestion that, since she was walking down hill, her peripheral vision would have focused at a point further ahead than would have been the case had she been walking on a level surface. That may well be correct. But the irregularities in the surface of the footpath were, judging by the photographs, so distinctive that they would have been readily visible to a pedestrian from a distance of several metres. What is more the plaintiff had, as I have already remarked, walked along this section of the pathway on numerous occasions in the past and could not have failed to have seen the marked state of disrepair it was in.
It is true that the plaintiff was aged nearly 70 at the time of her accident. I do not believe much can be made of this point. In the Hastings Council case (supra), where the injured party was aged 62, the Court commented that being more vulnerable to the consequences of falls than younger persons, and less likely to be able to regain her balance if she slipped or stumbled than younger persons, she should have been seeking to observe closely the area in front of her feet as she moved along. That observation would seem to apply with equal force in this case.
While I have already found that the defendant clearly owed the plaintiff a duty of care I do not believe it breached that duty by failing to adequately inspect and maintain the footpath or replace the broken concrete slabs. According to the decision in the Hastings Council case (supra) that responsibility would only have shifted to the local authority where the defect not only constituted a hazard but was also one that was concealed or obscured and thus not obvious to the user so as to constitute a form of trap. Given the obvious imperfections in the surface of the footpath I am also satisfied the local authority was not negligent in failing to place a warning sign at that point or in omitting to erect a safety barrier around the broken paving stones. While the sealing of the footpath with a material such as bitumen or concrete would undoubtedly have minimised the danger to pedestrians I do not believe such measures have been shown to have been reasonably necessary to protect pedestrians from what was, as I have constantly emphasised, such an obvious hazard. In short I am not satisfied that the particulars of negligence relied upon by the plaintiff have been proved. This is a case where, in my view, a pedestrian exercising reasonable care for his or her own safety ought to have seen the marked irregularities in the surface of the footpath and avoided that section by moving away from the kerbside and closer to the wall of the adjoining building where there was a relatively even and what appears from the photographs to be a safe section of the footpath to walk on.
I would dismiss the plaintiff's claim.
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