Newcastle City Council v Lindsay - [2004] NSWCA 198

NEW SOUTH WALES COURT OF APPEAL

CITATION: Newcastle City Council v Lindsay [2004] NSWCA 198

FILE NUMBER(S):
40693/03

HEARING DATE(S): 3 June 2004

JUDGMENT DATE: 22/06/2004

PARTIES:
Newcastle City Council
Colleen Lindsay

JUDGMENT OF: Giles JA Tobias JA McClellan AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1190/01

LOWER COURT JUDICIAL OFFICER: Sidis DCJ

COUNSEL:
A: L King SC / A Ventura
R: D Nock SC / R Montgomery

SOLICITORS:
A: Phillips Fox
R: King Street Lawyers

CATCHWORDS:
TORTS - NEGLIGENCE - Reasonable foreseeability - Obvious danger - Warning - Uneven footpath - Dangerous situation - Creation of - Distraction
JUDGES - BIAS - Application to disqualify for bias - Reasonable apprehension bias - Prejudgment - Extra-judicial publications - Published article

LEGISLATION CITED:
N/A

DECISION:
(a) Appeal allowed
(b) Set aside the orders made by Sidis DCJ on 6 August 2003 and in lieu thereof enter a verdict and judgment for the appellant
(c) Order that the respondent repay to the appellant all moneys paid to her pursuant to the orders made by Sidis DCJ on 6 August 2003, together with interest thereon from the date of payment to the date of repayment at the rate prescribed pursuant to Pt 40 r 7(2) of Schedule J of the Supreme Court Rules 1970
(d) Order that the respondent pay the appellant's costs of the proceedings in the court below and of the appeal but in respect of the latter, to have a certificate under the Suitors Fund Act 1951, if otherwise qualified

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40693/03
DC 1190/01
GILES JA
TOBIAS JA
McCLELLAN AJA
Tuesday 22 June 2004

NEWCASTLE CITY COUNCIL v COLLEEN LINDSAY

Judgment

GILES JA: I agree with Tobias JA.
TOBIAS JA: The respondent, Mrs Colleen Lindsay, claimed damages in the District Court of New South Wales from the appellant, Newcastle City Council, with respect to injuries sustained by her when she tripped on an uneven section of the footpath in Darby Street, Newcastle on 26 May 1999.
On 6 August 2003, the primary judge, Sidis DCJ, found that the appellant had breached its duty of care to the respondent entitling her to a verdict. Her Honour considered that the respondent was guilty of contributory negligence and that the damages awarded to her should be reduced by 15%. She then assessed damages in the sum of $109,508.11 and entered judgment for the respondent against the appellant accordingly. The appellant now appeals to this Court from her Honour's decision.
The facts
At approximately 1pm on 26 May 1999, the respondent, then aged 71, was walking in a southerly direction along the eastern footpath of Darby Street in the vicinity of No. 47 Darby Street. It was a bright and sunny autumn day. The respondent had just enjoyed lunch with her daughter and at the time of her fall she was proceeding to her daughter's workplace with a surprise gift to mark the latter's wedding anniversary.
The incident occurred on a section of Darby Street where the footpath was approximately 3.6m wide. Approximately 1m back from the kerb there was a line of liquid amber trees planted within the footpath at intervals of approximately 10m. On other side of the footpath was a garden bed retained by a concrete kerb. On the other side of the garden bed was a disabled persons ramp leading to the entrance of No. 47. The accident occurred on a stretch of the footpath between one of the trees and the garden bed. The footpath comprised concrete slabs laid in line, each having a width of approximately 1.2m. The width of the footpath was, therefore, comprised of three slabs.
The respondent's evidence as accepted by the primary judge was that she was walking on the left-hand side of the footpath when she tripped over the inside slab which had been displaced due to the roots of the adjacent tree. She said that one foot collided with the edge of the slab and she then fell forward, sustaining her injuries. Photographs of the offending slab taken immediately after the accident reveal that the outside edge of the slab had been pushed upwards so that it was approximately 75mm above its immediate neighbours. The inside edge of the slab where it met the concrete kerb retaining the garden bed appears to be level with its neighbours. Accordingly, the slab appears to have been displaced and raised above its neighbours from 0mm to approximately 75mm.
The respondent's evidence was that she was watching where she was going although she was not walking along looking at the ground. However, immediately prior to falling, she had noticed two plastic red and white water-filled pedestrian barriers, which had been placed by the appellant's workers in the garden bed adjacent to the location where the respondent fell. It would appear that the presence of these barriers distracted the respondent: although she did not expressly say she was distracted, her evidence was that she was wondering to herself what these objects were doing in the garden bed. Accordingly, she did not see the displaced slab for, as she said,
"otherwise I wouldn't have fallen if I had noticed it".
The presence of the barriers in the garden bed has its genesis in a report of a Mr O'Rourke, a ganger employed by the respondent who, on 24 May 1999, when working in Civic Park on the other side of Darby Street, noticed the defect in the footpath on the other side of the road and, after investigating it, filed a report with his superiors which stated:
"Street tree lifting footpath up to 75mm in places. Pedestrian hazard – approx 15m2 . "
The appellant's then practice was that once such a report had been made, a more senior officer was required to undertake an inspection of the location to determine what, if any, action was required. In the present case, a former employee of the appellant, Ms Lawler, undertook such an inspection and instructed Mr O'Rourke to immediately effect repairs to the footpath by replacing approximately 15m2.thereof.
On the morning of 26 May 1999, it would appear that Mr O'Rourke and his fellow employees performed some preliminary investigations, some 3-4 hours before the respondent's accident. After having their lunch at their depot, they returned to Darby Street with two red and white barriers which they placed in the garden bed adjacent to the footpath in anticipation of utilising them to block the footpath when the remedial work was undertaken.
It would appear that there was then some difficulty in proceeding further with the work due to the possibility of there being utility services within the area of the footpath to be replaced. Accordingly, no further work was carried out prior to the respondent's accident. However, the men returned the following day and the work was duly completed. Neither Mr O'Rourke nor Ms Lawler gave evidence. However, the appellant did call evidence from Mr Graham Matthews, the appellant's Parks and Recreation Manager and from Mr John Johnston, its then Roads and Drainage Co-ordinator, who at the relevant time was the appellant's Pavement Engineer.
In a memo dated 6 September 1999, Mr Matthews reported upon the respondent's claim. That memo is in the following terms:
"The hazard was noticed by Road Maintenance Ganger, Mr Michael O'Rourke, on 26 May 1999 whilst carrying out works opposite at Civic Park.
The gang commenced works the same day and saw cut the concrete path in order to excavate and replace the raised slab(s) the following day. They then returned to the Works Depot to collect water-filled pedestrian barriers so that pedestrians could be safely diverted onto the road shoulder while the slabs were being replaced.
Concrete slabs were removed and replaced on 27 May 1999. Tree roots were found under the slabs …"
In 1997 the appellant had received a copy of a document published by an organisation known as the Statewide Mutual Liability Scheme entitled "Footpaths, Nature Strips and Medians" and which was presented as a "Best Practice Manual" (the manual). The introduction to the manual indicated that it was intended as a reference document in the production by councils of their own standards for the maintenance and repair of footpaths.
The manual contained a section entitled "Control". It related to the control of risk exposure. It noted that the type and style of control technique adopted by an individual council would depend on its resources, facilities and expertise. It then stated:
"There are three basis control measures that are generally implemented by Councils:

Make the area safe by the erection of temporary barriers or barricades;
Effect temporary repairs of the damaged area; and
Effect replacement of the damaged area."
I mention the foregoing as the primary judge's adverse finding with respect to the appellant seems to have been based, at least in part, upon the first of the above points, namely, that it had failed to make the area safe by erecting temporary barriers or barricades to divert pedestrians, including the respondent, around the defective slab.

The evidence established that although the appellant had been working towards the production of its own manual, at the time of the respondent's accident it had not yet reached the stage where it was in a position to adopt either the manual or any variation thereof. Mr Johnston stated that the guidelines contained in the manual had not been implemented as at May 1999 as the appellant did not have the resources to do so and its staff did not have the time to do the necessary work with the resources then available to them. He further said that it was not until March 2002 that the appellant adopted what was referred to as a "complete policy" covering the best practice guidelines.
The findings of the primary judge
The primary judge summarised the relevant evidence of Mr Matthews in the following terms:
"He agreed that the hazard was obvious and that it was recognised as a problem that required repair, although he did not concede that it was one that required immediate repair. He said he had seen no evidence that anything had been done to warn pedestrians of the danger. If a barrier was to be placed, he said, it would need to be placed across the full width of the footpath and, as a result, pedestrians would have been directed on to Darby Street itself which may well have been a more significant danger."
Her Honour then proceeded to summarise the relevant part of Mr Johnston's evidence in these terms:
"Mr Johnston was asked why the repair gang had not placed warning signs or barriers at the site of the uneven footpath when they had attended there on 26 May to effect repairs. He said he assumed that was because they had none. He agreed that the barriers that were in place in the garden beds could have been placed to block off the pavement but, he said, it was not part of the defendant's policy to place barriers because the hazard was not regarded as significantly severe.
Having been directed to the material indicating that the height differential was as much as 75mm in places, he agreed that a barrier or some form of warning should have been placed at the site. He agreed that part of the footpath could have been blocked off leaving an area where pedestrians could have walked around the hazard in question."
The primary judge then referred to well-known passages from the judgment of the High Court in Ghantous v Hawkesbury City Council (2001) 206 CLR 512 and to the decisions of this Court in Roads & Traffic Authority v McGuinness [2002] NSWCA 210; Burwood Council v Byrnes [2002] NSWCA 343; Richmond Valley Council v Standing (2002) 127 LGERA 237; and Lombardi v Holroyd City Council [2002] NSWCA 252. She then set out six principles that, so she said, could be distilled from the authorities referred to.
Her Honour then returned to the facts of the case and said:
"In this case, the facts establish that the defect in the footpath involved was of a significant height differential. The report from Mr O'Rourke indicated that the height differential was up to 75mm in places. The defect was not latent, it was obvious. Mr Bradshaw agreed to that fact. The defendant knew of the hazard at the time of the plaintiff's fall. According to the guidelines then in place, the hazard was classified as extreme or very high. It was also classified as one which required immediate attention. Quite properly, this was recognised by the defendant and very prompt attention was given in having the footpath repaired."
The above statement is unexceptional apart from her Honour's finding that the guidelines were "in place". If by this she intended to convey that the appellant had adopted the guidelines as standard practice or policy, she was in error. Nevertheless, it is the fact that the defect in the footpath was ascertained and was regarded as sufficiently hazardous to warrant its repair within days of its discovery.
The primary judge concluded the issue of the appellant's liability to the respondent in the following terms:
"I am left with the factual situation where the Council, having been informed of the defect, having taken action to effect immediate repairs, left the hazard unmarked and unprotected and the question then is whether, in so doing, the defendant's conduct showed a lack of reasonable care for the plaintiff. In my view it did.
It is apparent that chalk was available. The adjoining edging of the garden bed had been marked. The water-filled barriers had been obtained. I accept the evidence of the plaintiff that the water-filled barriers were in place at the site at the time of her fall.
Her evidence was that she was distracted by those barriers and although she had been taking care for her safety at the time of her fall, her attention was directed to the barriers whilst she questioned the purpose of having them placed in a garden bed.
In those circumstances, it seems to me that on the facts of this case, a finding of liability must be made against the defendant. As far as contributory negligence is concerned, whilst the plaintiff stated that she had been taking care for her safety, it is clear that she was distracted. It is clear that the defect was an obvious one and that had she been looking ahead, this incident may well not have occurred."
The appellant requests the primary judge to disqualify herself
At the commencement of the hearing, an application was made on behalf of the appellant for her Honour to disqualify herself upon the basis of apprehended bias. The foundation for this application was the publication by Butterworths in the December 2002 edition of its "Direct LInk" of an article written by her Honour entitled "Trilogy of Tragedy". In this article the primary judge referred to a "firming of approach by the Court of Appeal to claims against highway authorities".
The primary judge then set out to discuss the decisions of this Court in McGuinness, Byrnes, and Standing. She recited what Heydon JA in Standing and Foster A-JA in McGuinness had asserted were the principles to be extracted from the joint judgment of Gaudron, McHugh and Gummow JJ in Ghantous. She then proceeded to discuss these cases under a number of headings. The first was "What constitutes a foreseeable risk of harm?" and the second, "Obligations of inspection and repair".
The third heading was "What must the Plaintiff prove?". Her Honour then wrote this:
"These cases suggest that in claims involving trips on roads or footpaths plaintiffs should consider whether evidence of the following would be required:
1. the time or date when the hazard came into existence;
2. the history of prior incidents or complaints to the defendant;
3. the defendant's obligations to inspect;
4. that a system of inspection which would have been effective in preventing injury to pedestrian was available that was not prohibitively expensive;
5. the extent to which the condition of the footpath warranted repair;
6. that the amounts allowed for in budgets for repair or maintenance were so insufficient as to amount to a breach of duty on the part of a defendant, regardless of the defendant's other responsibilities and commitments."
Her Honour then commenced the last part of her article entitled "Commentary" with the following observation:
"I do not take issue with the sentiments of the Court of Appeal in requiring all plaintiffs to take some responsibility for their own welfare, but I have difficulty reconciling these decisions with those of the High Court in cases such as March v E & M H Stramare Pty Limited … and Webb v State of South Australia …".
She then proceeded to discuss aspects of those two cases concluding with a passage from the joint judgment of Mason, Brennan and Deane JJ in Webb where, according to her Honour, their Honours rejected the proposition that a false kerb was not dangerous because it was obvious and that seven years had passed without record of an accident since it had been constructed. She concluded the article with the following plea:
"This humble District Court judge will go on contemplating."
The primary judge rejected the appellant's application. In an ex tempore judgment delivered on 19 June 2003, after summarising various aspects of the article including what appeared to her to be the inconsistency between the approach of this Court and the two High Court decisions to which she had referred, she said:
"I concluded the article by suggesting, somewhat facetiously I agree, that at some stage the inconsistency which now appears to be present between the decisions of the Court of Appeal and those of the High Court will need to be clarified."
However, she considered that the article did not suggest a leaning one way or the other on her part.
After referring to the test for apprehended bias stated by of Mason P in Barbosa v Di Meglio [1999] NSWCA 307 at [7] and [8] and the reference by his Honour in [9] to "an open mind not being an empty one, she concluded that she had
"…prepared an article which analyses decisions of the Court of Appeal indicating that I do not have an empty mind. I do not think that it indicates that I do not have an open mind. … Again, the fact that I have analysed those three cases and that thus I am not indifferent to the determinations of the Court of Appeal, I do not accept as suggesting to a fair-minded observer that I am not impartial in respect of the decisions that were handed down."
The appellant's challenge to the failure of the primary judge to disqualify herself
The thrust of the appellant's submission was that the primary judge's article would convey to the reasonable reader that she was in disagreement with the three decisions of the Court of Appeal to which she had referred and that she was particularly sympathetic to plaintiffs especially as she had set out in the article what was referred to in submissions as an "advice on evidence" to assist plaintiffs in overcoming the effect of those decisions. Her sympathy to plaintiffs, so it was submitted, was revealed in the heading to the article, "Trilogy of Tragedy". This would convey to reasonable readers that the three decisions of this Court the subject of the article, constituted a tragedy for plaintiffs.
The relationship between apprehended bias on the one hand and extra-judicial publications of judges on the other was recently the subject of an application by a defendant to set aside the judgment of a recorder who was a well-known member of the English Bar, a specialist practitioner in personal injury cases who had, by regular contributions to specialist literature, shown consistent support for claimants in obtaining damages from defendants and their insurers. In Timmins v Gormley [2000] QB 451, the English Court of Appeal (Lord Bingham of Cornhill C.J., Lord Woolf M.R. and Sir Richard Scott V.-C.), in a joint judgment, said this (at 495 [85]):
"It is not inappropriate for a judge to write in publications of the class to which the recorder contributed. The publications are of value to the profession and for a lawyer of the recorder's experience to contribute to those publications can further rather than hinder the administration of justice. There is a long established tradition that the writing of books and articles or the editing of legal textbooks is not incompatible with holding judicial office and the discharge of judicial functions. There is nothing improper in the recorder being engaged in his writing activities. It is the tone of the recorder's opinions and the trenchancy with which they were expressed which is challenged here. Anyone writing in an area in which he sits judicially has to exercise considerable care not to express himself in terms which indicated that he has preconceived views which are so firmly held that it may not be possible for him to try a case with an 'open mind'. This is the position notwithstanding the fact that …there can be very real advantages in having a judge adjudicate in the area of law in which he specialises. But if this is to happen it must be recognised that his opinions as to particular features of the subject will become known. The specialist judge must therefore be circumspect in the language he uses and the tone in which he expresses himself. It is always inappropriate for a judge to use intemperate language about subjects on which he has adjudicated or will have to adjudicate."

Their Lordships referred to a number of the recorder's articles in which he made clear that he was very sympathetic to the position of claimants who were pursuing claims for personal injuries. However, it was not considered that those articles posed any difficulty. The problem arose because it was considered that the recorder had crossed the "ill-defined" line referred to by Brennan, Deane and Gaudron JJ in Vakauta v Kelly (1989) 167 CLR 568 at 571, beyond which the expression by a trial judge with predefined views about a particular issue could threaten the appearance of impartial justice. In the case at hand, the complaint was that the recorder had made it clear that he was a committed advocate of the cause of injured plaintiffs and that as a consequence, he was particularly critical of the tactics and conduct of insurers in resisting those claims.
Their Lordships concluded in these terms (at 496 [89]):
"We have found this a difficult and anxious application to resolve. There is no suggestion of actual bias on the part of the recorder …The views he expressed in the articles he relied on are no doubt shared by other experienced commentators. We have, however, to ask, taking a broad commonsense approach, whether a person holding the pronounced pro-claimant anti-insurer views expressed by the recorder in the articles might not unconsciously have leaned in favour of the claimant and against the defendant in resolving the factual issues between them. Not without misgiving, we conclude that there was on the facts here a real danger of such a result. We do not think a lay observer with knowledge of the facts could have excluded that possibility, and nor can we."
See also Mason P, "Unconscious Judicial Prejudice", 75 ALJ 676 at 683-684.
The principles concerning what has been referred to as the reasonable apprehension of bias are well established. As Hayne J said in Helljay Investments Pty Limited v Deputy Commissioner of Taxation (1999) 166 ALR 302 at 306 [11]:
"What must be demonstrated to the requisite degree is the appearance of prejudgment, not simply that a particular outcome of the litigation is likely or unlikely."
After citing the well-known passage from the judgment of Mason J in Re JRL; Ex Parte CJL (1986) 161 CLR 342 at 352, his Honour continued (at 307 [12]):
"The principles about apprehension of bias must be understood in the context of a judicial system founded in precedent and directed to establishing, and maintaining, consistency of judicial decision so that like cases are treated alike and principles of law are applied uniformly. The bare fact that a judicial officer has earlier expressed an opinion on questions of law therefore seldom, if ever, warrant a conclusion of appearance of bias, no matter how important that opinion may have been to the disposition of the past case or how important it may be to the outcome of the instant case. Fidelity to precedent and consistency may make it very likely that the same opinion about a question of law will be expressed in both cases. But that stops well short of saying that the judicial officer will not listen to and properly consider arguments against the earlier holding …The 'fair and unprejudiced mind' which must be brought to bear upon the determination of litigation is, as the court said in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group, 'not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it' "
Hayne J in Helljay had been asked to disqualify himself upon the basis of findings his Honour had made in a previous case in which the same historical facts were relied upon as in the instant case. He refused to accede to that request. During the course of argument in the present case, counsel for the appellant was asked whether he would be making the same submission if the primary judge had included the remarks that she made in her article in a previous judgment. The answer was that to seek her disqualification on the basis that she had made observations in a previous judgment to similar effect to those in the article would be, to say the least, difficult.
The question in the present case is whether her Honour's article contains preconceived views that crossed the ill-defined line to which their Lordships referred in Timmens such as to threaten the appearance of impartial justice.
In my opinion, the subject article falls well short of that line. Although her Honour expresses in the article some mild criticism of this Court's decisions in the cases to which she refers and suggests that they are inconsistent with other decisions of the High Court, nonetheless one could hardly suggest that her criticism, such as it is, of those Court's decisions was vehemently or trenchantly expressed. Quite the contrary. The language she employed was circumspect and the tone in which she expressed herself was mild.
Furthermore, what her Honour had written under the heading "What must the Plaintiff prove?" does no more than list various factors which previous authorities have said are relevant to the issue of liability and which she does no more than suggest a " plaintiff should consider". Certainly, it cannot be said that the article is so pro-pedestrian and anti-council as to give rise to the possibility that in deciding the current case, she was likely to lean in favour of the respondent and against the appellant.
In my opinion, her Honour's article does not come close to demonstrating to the requisite degree any appearance of pre-judgment. Accordingly, the primary judge was correct not to disqualify herself and, for that reason, the challenge to her decision should be rejected.
Was her Honour correct in holding the appellant liable in negligence?
It was common ground, and the primary judge so found, that the defect in the pavement slab was obvious. On the issue of contributory negligence, her Honour had therefore found that had the respondent "been looking ahead, this incident may well not have occurred".
The respondent seeks to support the primary judge's decision in her favour on two grounds. The first was that the appellant had created a dangerous situation by depositing in the garden bed the barriers that they had brought from the works depot for the purpose of blocking off pedestrian access to the section of pavement they intended to repair. It was submitted that the appellant made the situation worse by placing the barriers in a position where they might distract members of the public walking along the pavement from observing the defective slab which, the argument assumes, would have been obvious to them had they not been so distracted. This argument was also advanced before the primary judge (although in my opinion, neither pleaded nor particularised) but there is nothing in her Honour's judgment to indicate that she made any findings with respect to it. Nevertheless, the argument was repeated before this Court upon the basis that the conduct of the appellant in placing the barriers in the garden bed created or increased the risk presented by the raised slab by manufacturing a distraction for pedestrians approaching its location to the point that the appellant had, in effect, created a trap.
Any person walking along a footpath will, in the ordinary course, experience many potentially distracting events or circumstances that could result in a trip or a fall on an uneven section of pavement. I accept that the presence of the barriers in the garden bed in the present case could have been a distraction to a person such as the respondent. However the duty that is owed by a public authority is to a person exercising reasonable care for his or her own safety. Such a person is required to remain observant for any defects in the pavement even if there are distractions such as unusual objects in a garden.
In Ghantous Gaudron, McHugh and Gummow JJ (at 581 [163]) observed that some allowance must be made for inadvertence but that inadvertence is only relevant if otherwise the pedestrian is exercising
"sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes."
In the present case, albeit whilst dealing with the issue of contributory negligence, the primary judge found that the respondent was not taking reasonable care for her own safety, for had she been looking where she was going the incident may well not have occurred. In fact, as I have already observed, the respondent herself said in evidence that she was not looking at the ground as she was walking and that had she had seen the pavement slab she would not have fallen. In these circumstances, to suggest that the appellant, by depositing the barriers in the garden bed, breached its duty of care to the respondent is untenable.
The respondent then sought to support the finding of the primary judge that there was a want of reasonable care on the part of the appellant where she said that
"…having been informed of the defect, having taken action to effect immediate repairs, [the appellant] left the hazard unmarked and unprotected and the question then is whether, in so doing, the defendant's conduct showed a lack of reasonable care for the plaintiff. In my view it did."
The problem with this finding is that it is apparent that the omission relied upon by her Honour to found liability on the part of the appellant did not increase the risk of the respondent tripping over what was accepted as an obvious danger. It was conceded by the respondent that had the appellant been unaware of the defect, then the decision of the High Court in Ghantous and in the cases in this Court that have followed and applied it would have properly resulted in a verdict for the appellant. The distinguishing factor of the present case, so it was said, was that the appellant became aware of the defect, regarded it as sufficiently hazardous to require prompt repair and commenced preliminary work with respect to those repairs but failed, before completing the repairs, to provide a barrier around the defective slab to prevent pedestrians from tripping over the obvious hazard which it presented.
In Byrnes, Handley JA contrasted the position of pedestrians to other road users in the following terms (at [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."
After citing passages from [6], [163] and [355] of Ghantous, Handley JA continued (at [33]):
"A council's duty to pedestrians is therefore to take reasonable care to prevent or eliminate the existence of dangers in the road or footpath. The duty is not to prevent or eliminate 'obvious hazards' which could possibly be an occasion of harm …The standard of care is that which is reasonably required to protect pedestrians who are taking reasonable care for their own safety. The care which pedestrians must themselves take enters into the definition of the duty and is not relevant only to contributory negligence."
Again, in Standing, Heydon JA with whom Handley and Sheller JA agreed, observed (at 255 [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."
It is clear from the authorities referred to that any duty to take reasonable care for the safety of pedestrians by warning them of, or protecting them from, a defect in a footpath only arises if the defect is not obvious. The defective pavement slab in question was not in shadow or otherwise obscured or concealed. It was not in a location where it would not be looked for or expected but was in full view of any pedestrian keeping a reasonable lookout as they went about their business. In these circumstances, the respondent did not demonstrate that the relevant part of footpath was dangerous so as to require, by way of reasonable response thereto, the placing of barriers by the appellant around it. This was so notwithstanding that the appellant was aware of the defect and considered it sufficiently hazardous as to justify its prompt repair.
The respondent also relied upon the reference in the manual to the first of what was there referred to as the three basic control measures generally implemented by councils, namely, to make the area safe by the erection of temporary barriers or barricades. As I have already noted, the appellant had not adopted these guidelines at the time of the accident. In my opinion, notwithstanding that the relevant council officers were aware of this document, its existence did not of itself require the appellant to comply with the relevant guideline if the law did not otherwise require it to do so.
Reliance was also placed upon the primary judge's finding that Mr Johnston had agreed that part of the footpath could have been blocked off leaving an area where pedestrians could have walked around the hazard in question. Although there does not appear to be a great deal of evidence on the subject, Mr O'Rourke's assessment in his report of 24 May 1999, that the pedestrian hazard extended over approximately 15m2, was not in contest. It is clear from the photographs of the work completed on 27 May 1999 that it extended across the full width of the footpath and was not confined to the replacement of the defective slab on which the respondent tripped. In these circumstances, as Mr Johnston indicated in his evidence, it would have been necessary to block off the whole width of the footpath thereby requiring pedestrians to step out onto the roadway in order to pass, thus creating its own dangers.
Mr Johnston did accept that the barriers could have been used to block off the pavement, but he did not consider the hazard severe enough to warrant that action although he conceded that the hazard was high enough to require prompt repair. He was asked in re-examination to assume that the differences in height in the concrete sections of the pavement covered an area of approximately 15m2 and extended over the full width of the pavement from the kerb to the garden bed. The following exchange then took place:
"Q.What could be done with two water-filled barrier boards, if anything, to prevent persons walking through that area?
A. You could block off part of the walkway but that's all."
The context in which that answer was given and upon which her Honour relied (see [17] above), was one where Mr Johnston was asked to assume that the differences in height of the slabs extended across the full width of the pavement. He was then asked what could be done with the barriers to prevent persons walking through the defective area. In a sense, the answer is not responsive to the question which was directed to what could be done with the barriers to prevent persons walking through the assumed defective area which, in turn, was assumed to extend across the full width of the pavement. However, even if it be the case that in one form or another a barrier could have been erected on two sides of the defective slab, for the reasons I have given, the appellant's duty to take reasonable care did not require that response to the foreseeable risk of pedestrians tripping over what was a patently obvious hazard.
Accordingly, in my opinion the primary judge erred in finding that the appellant had breached its duty of care to the respondent. In these circumstances, it is unnecessary for me to deal with the submissions of the appellant challenging her Honour's assessment of a 15% reduction in the respondent's damages due to her contributory negligence or its challenge to her assessment of those damages.
Conclusion
For the foregoing reasons, I would propose the following orders:
(a) Appeal allowed.
(b)Set aside the orders made by Sidis DCJ on 6 August 2003 and in lieu thereof enter a verdict and judgment for the appellant.
(c)Order that the respondent repay to the appellant all moneys paid to her pursuant to the orders made by Sidis DCJ on 6 August 2003, together with interest thereon from the date of payment to the date of repayment at the rate prescribed pursuant to Pt 40 r 7(2) of Schedule J of the Supreme Court Rules 1970.
(d)Order that the respondent pay the appellant's costs of the proceedings in the court below and of the appeal but in respect of the latter, to have a certificate under the Suitors Fund Act 1951, if otherwise qualified.
McCLELLAN A-JA: I agree with Tobias JA.

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LAST UPDATED: 29/06/2004