Mason v City of Darebin
[2020] VCC 2123
•3 March 2020
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-03233
| MARIA MASON | Plaintiff |
| v | |
| CITY OF DAREBIN | Defendant |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 14, 17, 18 February 2020 | |
DATE OF JUDGMENT: | 3 March 2020 | |
CASE MAY BE CITED AS: | Mason v City of Darebin | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2123 | |
REASONS FOR JUDGMENT
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Subject:TORT
Catchwords: Road Management Act 2004, ss 40, 101, 102, 103, 105, 115, 116 – Statutory duty to inspect, maintain and repair public roads, slipping hazard on footpath, footpath irregularities, road management plan – Statutory defences, actual knowledge of the particular risk of materialisation of which resulted in harm, negligence, foreseeable risk of harm, common law duty of care, damages for pain and suffering
Legislation Cited: Road Management Act 2004; Evidence Act 2005; Wrongs Act 1958.
Cases Cited:Kennedy v Shire of Campaspe [2015] VSCA 215, Botany Bay City Council v Latham [2013] NSWCA 363, Brodie v Singleton Shire Council (2001) 206 CLR 512
Judgment: Judgment for the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. P. Brett QC and Ms C. A. Kusiak | Arnold Thomas and Becker |
| For the Defendant | Ms J. Frederico | Gilchrist Connell Legal |
HIS HONOUR:
1 On Saturday, 19 July 2014, the plaintiff, Maria Giuseppa Mason, was shopping in Edwardes Street, Reservoir. At approximately 1.30pm, after leaving the IGA Supermarket, she was walking quickly along the footpath to the Il Pasticcino cakeshop located at 64 Edwardes Street. The plaintiff was wearing a pair of ankle high runners that were in good repair and she was very familiar with the area, as she regularly shopped there. The weather was cold and there is no evidence that it had been raining.
2 As she approached the cakeshop she suddenly felt herself slip and she fell to the ground, landing on her left side.[1] The location of her fall was between the cakeshop and an adjoining noodle shop and in the area of a group of tables that were outside the cakeshop.[2] After she fell over, she saw that there was cream or a similar white substance on her trousers.[3] She did not see anything on the footpath prior to falling over. There is no evidence that she was not walking with reasonable care.
[1]Transcript (“T”) 22
[2]T23
[3]T24
3 Sarah Consiglio was working in the cakeshop which was owned and operated by her family. She heard a noise and saw the plaintiff lying on the footpath.[4] Ms Consiglio went to the plaintiff’s aid and helped her up, and spontaneously said “I knew this was going to happen one day”.[5] In her evidence, the plaintiff also stated that Ms Consiglio said “Many times I rang the council and it’s happened. It’s happened again”.[6]
[4]T83
[5]T84
[6]T25
4 Following her fall, the plaintiff attended a nearby medical clinic and was referred by a medical practitioner there for an x-ray of her left shoulder, which was conducted at Capital Radiology.[7] That x-ray was conducted on the day of the incident and revealed:
“There is a minimally displaced fracture present through the inferior aspect of the glenoid fossa. The fracture fragment is estimated to measure approximately 10 millimetres in diameter. Given this finding, further evaluation with CT may be of benefit. Elsewhere, no fracture or malalignment is demonstrated. The subacromial space is not narrowed. No evidence of calcific tendinopathy.”[8]
[7]T26
[8]Exhibit M, Plaintiff’s Court Book (“PCB”) 117
5 On 21 July 2014, the plaintiff’s general practitioner referred her to Mr Jim Kiellerup, an orthopaedic surgeon, for further assessment of her shoulder injury. Mr Kiellerup saw the plaintiff on 25 July 2014 and noted she had dislocated her shoulder resulting in a glenoid fracture, but at the time of his examination the shoulder was enlocated and the fracture position satisfactory.[9] However, the plaintiff continued to experience pain and stiffness in her left shoulder.
[9]Exhibit M, PCB 82
6 Following a referral to Mr Audi Widjaja, an orthopaedic surgeon, he performed an arthroscopy and manipulation of her left shoulder on 31 October 2014 and a further arthroscopy, subacromial decompression and rotator cuff repair on 17 December 2014.[10] Despite the surgery performed by Mr Widjaja, the plaintiff continued to suffer from pain in her left shoulder and further surgery was performed by him on 10 November 2017.[11]
[10]Exhibit M, PCB 69-72
[11]Exhibit M, PCB 75
7 It is not in issue in the proceeding that the plaintiff suffered a dislocation and fracture to her left shoulder in the fall on 19 July 2014 requiring the three separate sets of surgical intervention that I have referred to.
8 On 22 July 2014, the plaintiff reported her fall to the City of Darebin (the defendant). A record of the conversation kept by the defendant notes that the plaintiff stated that she “tripped and fell on the raised footpath between the noodle shop and the Pasticcino shop on Edwardes Street”.[12]
[12]Exhibit 10, page 10
9 Following the plaintiff’s report to the defendant, it despatched William Parr, an inspections officer, on 23 July 2014 to inspect the footpath where the plaintiff had fallen over. Mr Parr checked the footpath and found no raised concrete and noted that he needed further information[13] and he took photos of the footpath.[14] These photos do not depict precisely the location of the plaintiff’s fall or the particular concrete tile that she fell over on.
[13]T118
[14]Exhibit 10, pages 2-3
10 On the day of her fall, the plaintiff took photographs of the location of the fall and of the concrete tile.[15] She subsequently marked the location where she lost her footing on these photographs.[16] The photos taken by the plaintiff are of significantly higher evidentiary value than those taken by Mr Parr.
[15]T51
[16]Exhibit A, T51
11 I accept that the photographs taken by the plaintiff depict the location on the footpath of the plaintiff’s fall and generally the condition of it. The photographs marked by her at the location of her fall depict a clear change in the surface of the concrete footpath. The concrete tile that she fell on appears to be one of a group of concrete tiles that have been replaced in the footpath. There is a diagonal crack in the surface of the tile marked by the plaintiff running along the length of it, and the presence of what appears to be aggregate in the concrete appears to differ in the surface of the tile itself. These features which are depicted in the photographs[17] are not referred to in the evidence of William Parr or in his report to the defendant.
[17]Exhibit A
12 In her evidence, Ms Consiglio described the condition of the footpath in the area of her shop as “There is more rough surface and a more smoother surface”.[18] She said there was a change in it.[19] She further said that the surface was uneven and that there was a “massive” crack in it. She gave extensive evidence in relation to the condition of the footpath and reporting her concerns in relation to it to the defendant. She stated that the footpath was unsafe “especially in this – where this – actually this cross is marked here, yes.”[20] This was a reference to the mark placed on the photo by the plaintiff.
[18]T80
[19]T80
[20]T 80
13 The Transcript of her evidence at pages 81, 82 and 83 (lines 1-9) reads as follows:
“Prior to that, had you had any concerns about the state of the footpath?---I did have concerns but I never made it such a big deal.
Had you contacted anyone about those concerns?---I did but really through phone calls, not too many but several I did make, yes.
Who did you ring?---I contacted Darebin Council.
Why?---I contacted them because I've got them on my phone and they're the first person that came to my mind so - - -
But what did you want to contact them about?---In regards to the fixing of the footpath, they're going to have to get to speak to if there's someone in authority that I can speak to, someone that sorts of owns this section, some type of department.
You said you rang them a few times, can you estimate how many times you'd rung them?---Less than six times at least.
What was the nature of what you wanted to discuss with them?---I wanted to discuss with them in the fact that they should come and inspect and see for themselves what they think of it because for myself I thought it was not very safe area.
Had you seen any people fall there?---I witnessed my grandfather have a fall there.
Yes?---At one stage he had walking stick because he had a hip operation, he actually got his walking stick stuck into that area there but just had a fall where he grazed his knee, it wasn't anything urgent or major and he didn't want to say anything about it. There was another elderly customer that had a same incident but they're no longer with us anymore so - - -
When you say an elderly customer who had a same incident, what do you mean by the same incident?---Again, a walking stick, slowly walking to come in and buy some bread and sort of had a bit of a, not completely fall, but a bit of a trip, that could've been worse if they fell to the ground with their knees.
There's an incident report which talks about a mother and her daughter tripping on the footpath outside your shop, are you aware of that?---Mother and daughter? No, I'm not aware of that, no.
No? All right. It seems from my reading of the documents that there's a suggestion that there was – well, that there was a complaint that they had tripped and fallen outside your shop where it adjoins the noodle shop and that afterwards some asphalt was put down to repair the footpath there. Do you have any recollection of any asphalt being put down outside your shop prior to 2016?---No, I don't recall that at all, no.
Can you see any asphalt in those photographs?---No, I only see concrete, the old concrete that we had with our old table and chairs.
Now, as well as telephoning the council had you tried to contact them in any other way?---I remember sending one email but I did more phone calls than email to be honest.
What was the subject of the email? What did you – what was that about?---Again, in just making a complaint to come and just inspect, not complaining about anything in particular but trying to inspect it and seeing what their view was because for me it was serious matter, it was.
Have you tried to track down that email to produce it?---I did try, I contracted with my old email as well as the new one but I haven't found anything.
And you're confident that you sent that?---Yes, I am confident, yes.
Did anything happen in response to these complaints?---Prior to the accident or after?
Yes, prior to the accident?---Not really, I didn't have anyone come out to check on anything, I was just busy working, always sort of being a barista at the coffee machine which I sort of have a view outside to where that particular place is, no, not really, more afterwards.”
14 The unchallenged evidence of Ms Consiglio and of the plaintiff, that Ms Consiglio immediately stated that “I knew this was going to happen one day”, is circumstantial evidence[21] that supports the evidence that Ms Consiglio gave in relation to her concerns about the hazardous nature of the footpath adjacent to the cakeshop prior to the plaintiff falling over.
[21]See also Section 64 (3) Evidence Act 1995
15 Furthermore, the evidence that Ms Consiglio gave in relation to reporting her concerns to the defendant by telephone and by email were not challenged in cross-examination. The defendant has no records of the complaints.
16 In my opinion, Ms Consiglio was a credible and reliable witness, and I accept that prior to the plaintiff falling over, there had been previous incidents involving persons falling over on the footpath outside the cakeshop, and that Ms Consiglio had reported the hazardous condition of the footpath in that area to the defendant.
17 The fact that the footpath at the Edwardes Street Shopping Centre was hazardous is further supported by the evidence contained in the Darebin City Council Streetscape Master Plan.[22] That specifically records that in the Broadway and Edwardes Street Shopping Centres “Footpaths look tired and are hazardous to pedestrians. The broken footpaths make it difficult for seniors and people with limited mobility to move around the streets.”[23]
[22]Exhibit E
[23]Exhibit E, page 9
18 This fact was both observed and reported to Jennifer Loulie, an urban designer employed by the defendant in early 2014 and prior to the plaintiff’s fall.[24] The information was recorded in the Master Plan, which was unanimously adopted by the defendant.[25]
[24]T138
[25]T142
19 The evidence of Abdullahi Ahmed, an inspections officer employed by the defendant in 2014, establishes that the footpath in Edwardes Street was inspected on 13 August 2013, 24 May 2014, 4 July 2014 and 30 July 2014. Mr Ahmed stated in his evidence that these inspections were proactive and not reactive in response to complaints by residents or footpath users.[26]
[26]T147
20 Pursuant to the Road Management Plan,[27] implemented by the defendant, proactive inspections of footpaths were to be undertaken at 12 month intervals.[28]
[27]Exhibit D
[28]Exhibit D, page 19
21 Mr Ahmed stated that the explanation for the frequency of the inspections in Edwardes Street which were not in conformity with the Road Management Plan was a computer “glitch”,[29] and not as a result of complaints by residents or footpath users.[30]
[29]T157
[30]T157
22 In my opinion, it is more likely that the inspections of the footpath carried out on 23 May 2014 and 4 July 2014 were in response to complaints made to the defendant about the condition of the footpath. Two inspections were carried out within six weeks of one another, and a further inspection was carried out 11 days after the plaintiff fell over outside 64 Edwardes Street, together with the inspection carried out by Mr Parr.
23 Whilst the evidence of Mr Ahmed does not establish that the specific site of the plaintiff’s fall was inspected by him or by other officers engaged in inspections, this evidence provides further support for the conclusion that the defendant was aware that the footpath in Edwardes Street identified by the defendant as asset 445.9.1, which is the section of footpath where number 64 Edwardes Street is located, was, at the relevant time, hazardous.
24 Despite this body of evidence, Mr Ahmed stated that the inspections that he referred to revealed that there were no defects in the footpath. This evidence is contradicted by the evidence of Ms Consiglio, Ms Loulie and the contents of the photographs taken by the plaintiff.
25 By operation of s115 of the Road Management Act 2004 (the Act), the plaintiff was required to give written notice of her fall to the defendant within 30 days of it taking place. By operation of s115(3) of the Act, the notice must include prescribed particulars to enable the defendant to prepare a condition report pursuant to s116 of the Act.
26 It was accepted by the parties that Exhibit C, although unsigned and undated, was otherwise in accordance with the requirements of the Road Management(General) Regulations 2005, in that it provided particulars to the defendant of the incident.[31] In that notice, the plaintiff clearly stated that she slipped and that “I believe your footpath was slippery in the area that I fell between two concrete footpath.”[32]
[31]T216-217
[32]Exhibit C, page 2
27 Following the lodgement of this notice, in accordance with the Act, the defendant, through Echelon Australia, prepared a report that referred to the inspection carried out by William Parr on 23 July 2014 in relation to “raised footpath”.[33] The report does not address the evidence of Ms Consiglio or the contents of the photographs taken by the plaintiff. It also does not address the statement by the plaintiff that she had slipped over on the footpath or that the footpath was slippery.
[33]Exhibit 10
28 As I have already noted, in accordance with the relevant provisions of the Act, at the time that the plaintiff fell over, the defendant had in place a Road Management Plan.[34] The Road Management Plan provided that footpaths were classified as “high” in the inspection frequency hierarchy,[35] and that trip hazards were defined as a greater than 25 millimetre displacement.[36] It is accepted by the parties that the Road Management Plan makes no provision for the inspection of footpaths for slipping hazards or other like defects.[37]
[34]Exhibit D
[35]Exhibit 10, page 19
[36]Exhibit 10, page 22
[37]T203; 220
29 I accept, as was submitted on behalf of the defendant, that the plaintiff has described the state of the footpath in the area that she slipped over in the following different ways:
(i) broken and uneven;[38]
[38]Exhibit 3
(ii) uneven;[39]
[39]Exhibit 7
(iii) as pleaded in the Amended Statement of Claim;[40]
[40]Exhibit 3
(iv) variable;[41]
(v) cracked;[42]
(vi) raised.[43]
[41]Exhibit 3
[42]Exhibit 4
[43]Amended Statement of Claim
30 I also accept that the plaintiff has stated that the presence of cream or other like substance also contributed to her slipping over. Nevertheless, it is clear that the plaintiff from the outset identified the surface of the concrete tile that she slipped over on as a cause of her fall, and the Amended Statement of Claim dated 20 September 2019 states:
“7. On or about 19 July 2014 the plaintiff suffered injury, loss and damage when she was walking along the footpath and slipped on a slippery substance on the uneven and slippery surface and fell.”
31 On 14 July 2017, the plaintiff commenced proceedings against the defendant (then the first defendant) and Consiglio Nominees Pty Ltd (the cake operator and second defendant). I was informed that the proceeding against the second defendant resolved without any admission of liability, and I was not otherwise informed of the terms of that resolution. In the proceeding against the second defendant, the plaintiff alleged that it had failed to adequately clean the surface of the footpath adjacent to the cakeshop or otherwise ensure that spillage did not pose a risk of injury to users of the footpath.
32 In a Statutory Declaration sworn 30 May 2015,[44] the plaintiff stated that the footpath was wet and creamy. In her Answers to Interrogatories dated 2 July 2019,[45] the plaintiff stated:
“I believe I lost my footing by reason of the presence of a slippery substance on a broken and uneven and in places slippery and variable surface of the footpath.”
[44]Exhibit 2
[45]Exhibit 3
33 She described the slippery substance as a white creamy substance and was unable to say what size it was. In her evidence, the plaintiff stated that she did not see the substance before she fell over,[46] but it was on her pants when she got up. She described it as “some cream substance”.[47]
[46]T24
[47]T25
34 It was put to the plaintiff in cross-examination that she had slipped on the substance and that it was the most likely reason that she had fallen over.[48] The plaintiff stated that she did not know how she had slipped over,[49] but that she had fallen on a slippery and smooth surface.[50]
[48]T52
[49]T53; 58
[50]T62
35 In her evidence, Ms Consiglio stated that she did not see any cream in the area on the day that the plaintiff fell over.[51]
[51]T88
36 I accept that the plaintiff slipped over on the concrete tile at the position marked by her on the photograph of it,[52] and that the plaintiff has consistently described the mechanism of her fall as slipping. I also accept that she has consistently attributed to the concrete tile a smooth or slippery surface, and that this was also a cause of her slipping.
[52]Exhibit A
37 Whilst I accept that the plaintiff attributed the presence of cream or like substance as also a cause of her slipping over, the evidence does not permit me to conclude that it is more likely than not that she stepped into the substance at the moment of slipping over or that it was the sole cause of her slipping over. It is simply not open to me to conclude what role, if any, the cream or white substance played in the plaintiff’s fall.
38 The evidence does, however, establish that the footpath in Edwardes Street directly outside the cakeshop was hazardous and that persons had fallen over on it. I accept that it is more likely than not that the surface of the concrete tile that the plaintiff slipped over on was a cause of her fall on 19 July 2014.
39 In the current proceeding, the plaintiff’s cause of action is in negligence and also for breach of statutory duty owed to her by operation of the Act. It is convenient for the purposes of these reasons to firstly set out the relevant provisions of the Act and how they are engaged in relation to the facts in this case.
40 The scheme of the legislation provided for in the Act was considered by the Court of Appeal in Kennedy v Shire of Campaspe [2015] VSCA 215, and I have also had the benefit of written submissions from the parties in relation to the applicability of the relevant provisions in this proceeding.
41 Section 40(1) of the Act states:
“40 Statutory duty to inspect, maintain and repair public roads
(1)Subject to Part 6, a road authority has a statutory duty to inspect, maintain and repair a public road—
(a)to the standard specified in the road management plan for that public road or a specified class of public roads which includes that public road; or
(b)if paragraph (a) does not apply, to the standard specified in a policy in respect of that public road; or
(c)if no standard is specified for that public road or in relation to a particular matter, to a reasonable level having regard to the matters specified in paragraphs (a) to (e) of section 101(1).”
42 Section 101 of the Act states:
“101 Principles concerning performance of road management functions
(1)In determining whether a road authority, infrastructure manager or works manager has a duty of care or has breached a duty of care in respect of the performance of a road management function, a court is to consider the following principles (amongst other relevant things including the principles specified in section 83 of the Wrongs Act 1958)—
(a)the character of the road and the type of traffic that could reasonably be expected to use the road;
(b)the standard of maintenance and repair appropriate for a road of that character used by traffic of that type;
(c)the state of repair in which a reasonable person would have expected to find a road or infrastructure of that character;
(d)whether the road authority, infrastructure manager or works manager knew, or could reasonably be expected to have known, the condition of the road or infrastructure at the time of the relevant incident;
(e)in the case where the road authority, infrastructure manager or works manager could not have reasonably been expected to repair the road or infrastructure or take other preventative measures before the relevant incident, whether the road authority, infrastructure manager or works manager did display, or could be reasonably expected to have displayed, appropriate warnings.
(2)Subsection (1) applies to the EastLink Corporation as if the reference to the principles specified in section 83 of the Wrongs Act 1958 were excluded.
(3)Subsection (1) applies to the Peninsula Link Freeway Corporation as if the reference to the principles specified in section 83 of the Wrongs Act 1958 were excluded.”
43 Section 102 of the Act states:
“102 Limitations on liability of road authority
(1)Subject to this section, a road authority is not liable in any proceeding for damages, whether for breach of the statutory duty imposed by section 40 or for negligence, in respect of any alleged failure by the road authority
(a)to remove a hazard or to repair a defect or deterioration in a road; or
(b)to give warning of a hazard, defect or deterioration in a road.
(2)Subsection (1) does not apply if, at the time of the alleged failure, the road authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.
(3)For the purposes of subsection (2), the road authority is to be taken to have had actual knowledge of the particular risk if it is proven in the proceedings that the deterioration in the road had been reported in writing to the road authority under section 115.
(4)This section does not affect any liability of a road authority arising out of a breach of the duty to inspect a public road imposed by section 40.”
44 Section 103 of the Act states:
“103 Policy defence
For the purposes of any proceeding to which this Division applies, an act or omission which is in accordance with a policy—
(a)determined by the relevant Minister under section 22 does not constitute a wrongful exercise or failure unless the policy is so unreasonable that no Minister in that Minister's position acting reasonably could have made that policy;
(b)determined by the relevant road authority under section 39 does not constitute a wrongful exercise or failure unless the policy is so unreasonable that no road authority in that road authority's position acting reasonably could have made that policy.”
45 Section 105 of the Act states:
“105 Defence to prove that reasonable care was taken
(1)In any proceeding against a road authority for damages resulting from the performance or non‑performance of a road management function in respect of a public road it is a defence to prove that the road authority had taken such care as in all the circumstances was reasonably required to ensure that the relevant part of the public road was not dangerous for traffic.
(2)In any proceeding against an infrastructure manager or works manager for damages resulting from the performance or non-performance of a road management function in respect of non-road infrastructure it is a defence to prove that the infrastructure manager or works manager had taken such care as in all the circumstances was reasonably required to ensure that the relevant non-road infrastructure was not dangerous for traffic.
(3)For the purposes of the defence referred to in subsection (1), a road authority is to be taken to have established the defence if the road authority proves to the satisfaction of the court that—
(a)the road authority had a policy which addressed the matter which was a cause of the incident giving rise to the action; and
(b)the road authority complied with the relevant part of the policy.
(4)The defence referred to in subsection (1) or (2) does not prejudice any other defence or the application of the law relating to contributory negligence.”
46 Section 40 of the Act imposes a statutory duty on the defendant to inspect, maintain and repair a public road, in this case Edwardes Street, Reservoir, to the standard specified in the Road Management Plan or Policy. In the event that no standard is specified in the Road Management Plan or Policy, this standard is to a reasonable level, having regard to the matters specified in paragraphs (a) – (e) of s101(1) of the Act.
47 It is accepted by the parties that the Road Management Plan[53] does not contain a relevant standard other than the inspection frequencies contained in Annexure B, namely on a 12 monthly basis, and the trip hazards specified in the compulsory intervention level table.[54]
[53]Exhibit D
[54]Exhibit B, page 22
48 I am satisfied, by reference to the criteria specified in s101(1)(a)-(e) of the Act, that the defendant was required to maintain the footpath in the Edwardes Street Shopping Centre to a reasonable standard, ensuring that it was not hazardous to users of the footpath. In practical terms, this required the defendant to repair or replace the broken or worn concrete tiles adjacent to the cakeshop following the complaints made to the defendant by Ms Consiglio, and the statements made by users of the footpath to Mr Loulie during the course of her preparation of the Streetscape Master Plan.
49 I am satisfied that had the defendant repaired the concrete tile, it is probable that the plaintiff would not have slipped and fallen over on it. In other words, I am satisfied that the plaintiff has established factual causation by reason of the defendant’s failure to repair or replace the concrete tile in question[55].
[55]See : Section 51 Wrongs Act 1958
50 Section 102 of the Act provides, however, that the defendant is not liable for damages for breach of the statutory duty imposed on it by s40 of the Act or for negligence in respect of its failure to repair the defect in the footpath. Section 102(2) provides that sub-s(1) does not apply if, at the time of the alleged failure, had actual knowledge of the particular risk the materialisation of which resulted in the harm.
51 It is the case for the defendant that the complaints made to it by Ms Consiglio regarding the footpath outside the cakeshop, and the evidence gathered by Ms Loulie, do not amount to actual knowledge of the particular risk the materialisation of which resulted in the harm, because the evidence does not disclose that the surface of the particular concrete tile was the subject of Ms Consiglio’s complaints or referred to in the evidence gathered by Ms Loulie. I do not accept this submission.
52 The evidence of Ms Consiglio is that she reported specific incidents that had occurred on the footpath outside her shop and that there were changes in the surface on the footpath.[56] In cross-examination, she stated that there was a major crack in the concrete,that she was concerned about the unevenness of it, and that is why she spoke to the defendant.[57]
[56]T80
[57]T87
53 Ms Consiglio reported to the council irregularities in relation to the particular paver in question, and those irregularities, namely a diagonal crack, a further deep crack, and two different types of concrete surface are plainly depicted in the photographs taken by the plaintiff on the day of the incident in question.
54 I accept, as was pointed out by the New South Wales Court of Appeal in Botany Bay City Council v Latham[58] that it is not sufficient for the plaintiff to prove that the defendant had actual knowledge of a general nature. It is necessary for the plaintiff to establish the requisite level of detail referred to by the court. I am satisfied on the basis of the evidence I have referred to that the reports to the defendant prior to the plaintiff’s fall were of sufficient particularity in the circumstances of this case as to amount to what is required by s.102 (2) of the Act. In this case I accept that prior to the plaintiff’s fall the defendant knew that the concrete tiles outside the cakeshop were hazardous and this had caused people to fall over on them.
[58][2013] NSWCA 363 at [47]-[49]
55 Accordingly, I am satisfied that the defence provided for in s102 of the Act cannot be relied upon by the defendant in the circumstances of this case. Furthermore, as I have already stated, I am satisfied that the breach of the statutory duty imposed on the defendant by s40 of the Act, in not repairing the concrete tiles, was a cause of the plaintiff slipping on it on 19 July 2014 and suffering injury, loss and damage.
56 Section 103 of the Act also provides a defence to the defendant in circumstances where its failure to repair the footpath is in accordance with a policy determined by it as provided for in the Road Management Plan.
57 It was accepted by the parties that the Road Management Plan does not deal with the hazard posed by the concrete tile in question and that the failure by the defendant to repair it was not due to the provisions of the plan. Accordingly, in my opinion, the defence provided for in s 103 of the Act does not arise in this case.
58 Section 105 of the Act also provides a defence to the defendant where it can demonstrate that reasonable care was taken by it to ensure that the relevant part of the footpath was not dangerous.
59 It was further submitted on behalf of the defendant that s105(3) of the Act provided a further defence to it if it proved to the satisfaction of the court that it had a policy which addressed the matter which was a cause of the incident giving rise to the action, and it had complied with that part of the policy.
60 It is not necessary for me to determine whether s105 of the Act provides one or two defences to the defendant. The evidence establishes that the defendant was aware that the footpath in the Edwardes Street Shopping Centre was hazardous as a result of the evidence gathered by Ms Loulie. The evidence also establishes that the defendant was aware that the footpath and, in particular, the concrete tiles adjacent to the cakeshop, were hazardous and dangerous, and that it took no steps to address the hazard.
61 In such circumstances, I am not satisfied that the defendant took such care as was reasonably required to ensure that the footpath was not dangerous to the public. Further, it is accepted by the parties that the Road Management Plan, and therefore any policy relied upon by the defendant, did not address the matter which was a cause of the incident giving rise to the actions. In such circumstances, s105 of the Act is not engaged.
62 It was the case for the defendant that the cause of the plaintiff’s fall was slipping on the cream or like substance on the footpath and whilst the defendant relied on contributory negligence in it’s Defence, it was not put to the plaintiff during the course of cross-examination that she failed to keep a proper lookout as she was traversing the footpath or that she was not taking reasonable care for her own safety. The evidence discloses that she was going about normal shopping activities and, whilst she was in a hurry, she was not running or walking in an otherwise unsafe way. She was wearing appropriate footwear and clothing. I am not satisfied that the plaintiff contributed herself to falling over on the concrete tile.
Negligence
63 Whilst it is not strictly necessary for me to decide whether the defendant is liable for damages in negligence, for the following reasons I am satisfied that the plaintiff is also entitled to judgment on that basis. In Brodie v Singleton Shire Council (2001) 206 CLR 512, the High Court of Australia set out the principles applicable to an action in negligence against a responsible authority in relation to a defect in a footpath. At paragraph 150, the court stated:
“Where the state of a roadway, whether from design, construction, works or non‑repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist.”[59]
[59]Per Gaudron, McHugh and Gummow JJ
64 As I have already stated, I am satisfied that prior to the plaintiff falling over the defendant had been informed by Ms Consiglio that the relevant area of the footpath was hazardous and, more generally, the defendant was aware that the footpath in Edwardes Street was hazardous by reason of the evidence gathered by Ms Loulie during the preparation of the Streetscape Master Plan.
65 Despite this, the defendant did not repair the footpath or the concrete tile that the plaintiff fell over on, or otherwise take steps to render it safe.
66 Even if the slippery nature of the surface of the concrete tile and other tiles nearby may properly be described as a latent defect, by reason of the decision in Brodie, the defendant was obliged to take reasonable steps in the nature of a careful examination of the concrete tiles which had been reported to it as hazardous by Ms Consiglio, and take reasonable steps to ensure that the tiles did not pose a risk to users of the footpath. This failure created a foreseeable risk of harm to the plaintiff and, for the reasons I have set out, I am satisfied that she was taking reasonable care for her own safety as she walked along the footpath and approached the cakeshop.
67 For the reasons that I have already set out, I am also satisfied that the breach by the defendant of the common law duty of care it owed to the plaintiff was a cause of her slipping and falling on the concrete tile, resulting in the injury to her left shoulder.
68 I now turn to the question of damages.
Damages
69 The plaintiff was born in Italy in May 1963 and is now aged 56. She migrated with her family to Australia in 1972 at the age of 9. She married in 1986 and has 2 adult children. A third child died of leukaemia at the age of 12. At the time of her fall she was physically and psychologically well and living an active, fulfilled life.
70 As I have already stated, the plaintiff required surgery on 31 October 2014, 17 December 2014 and 10 December 2017 for the injury to her left shoulder. On each occasion, her hospitalisation was also necessary. The plaintiff experienced extreme pain immediately following her fall,[60] and prior to her first round of surgery she cancelled an overseas holiday with her family due to her injury.[61]
[60]T26-27
[61]T31
71 Following the second round of surgery, the plaintiff’s pain improved and the mobility of her shoulder also improved aided by physiotherapy.[62] The plaintiff undertook physiotherapy for approximately 18 months following the second round of surgery,[63] but she then continued to experience pain and restricted mobility leading to the third round of surgery in 2017.[64]
[62]T33
[63]T39
[64]T40
72 The plaintiff impressed me as a truthful historian and I accept that her injury has significantly restricted her capacity to carry out her domestic and personal activities, including personal care, cooking, cleaning and engaging in activities with her family.[65] This in turn has had a significantly adverse impact on her enjoyment of life, and her relationship with her husband was, for a time, also adverse affected by her injury.[66]
[65]T33-35
[66]T42
73 The plaintiff was prescribed OxyContin for a period of approximately three years, and also Tramadol.[67] She continues to use Panadeine Forte and Nurofen for pain relief.[68]
[67]T41
[68]T41
74 The evidence of the plaintiff in relation to the continuing impact of her injury on her personal and domestic life was supported by the evidence of her husband, who also impressed me as a credible and reliable witness. He attested to the plaintiff’s inability to assist him in the day to day running of his tiling business,[69] and the adverse impact her injury has had on her recreational activities.[70]
[69]T92
[70]T93
75 The plaintiff is also unable to continue her work as a trained Chinese masseuse.
76 On 27 August 2019, the plaintiff was examined by Mr Ash Chehata, an orthopaedic surgeon, who concluded:
“Ms Mason continued to suffer ongoing pins and needles and neuropathic symptoms down the left forearm into the left hand and has been unable to lie on that side. She has ongoing pain which has been continual and she is unable to load through the left shoulder due to the severity of her pain. She has stopped all of her recreational activities.”[71]
[71]Exhibit M, PCB 111
77 Mr Chehata also noted that an ultrasound conducted on 15 June 2018 of the plaintiff’s left shoulder confirmed the presence of chronic trochanteric bursitis. Mr Chehata concluded:
“Her long term prognosis after such a chronic injury with ongoing pain is poor. She has had multiple surgical interventions on the left shoulder which bodes poorly for her subsequent rehabilitation. Although she is diligent in her attendance there has been no significant improvement.”[72]
[72]Exhibit M, PCB 115
78 I also accept that the plaintiff’s injury and chronic pain has led to ongoing mood difficulties and lowered self-esteem.
79 Following an examination of the plaintiff on 29 August 2019, Dr Justin Lewis, a consultant psychiatrist, concluded:
“Ms Mason was pre-morbidly a physically active individual who enjoyed a full range of social and recreational interests. As a consequence of pain and persistent left shoulder dysfunction she has become socially more reticent and withdrawn. She has given up previously enjoyable recreational interests including tennis. She has become reliant on her husband and daughter for assistance with heavier domestic tasks. The marital relationship has been impacted secondary to lower libido.”[73]
[73]Exhibit M, PCB 106
80 It is plain from the evidence that I have referred to that the plaintiff’s injury has resulted in a wide range of significant adverse impacts upon the plaintiff’s quality and enjoyment of life.
81 It was submitted on behalf of the defendant that an appropriate award of damages for pain and suffering was in the order of $150,000. The plaintiff submitted that the appropriate figure was between $230,000 and $250,000.
82 I have assessed the damages to be awarded to the plaintiff for pain and suffering, in the circumstances of this case, in the sum of $195,000.
83 It is agreed between the parties that the following award of special damages is to be made:
(i) gratuitous attendant care - $40,000;
(ii) past and future medical expenses - $45,000.
84 There will be judgment for the plaintiff.
85 I will hear the parties as to the appropriate form of Orders to be made.
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