Rankilor v City of South Perth [No 2]
[2014] WADC 125
•15 SEPTEMBER 2014
RANKILOR -v- CITY OF SOUTH PERTH [No 2] [2014] WADC 125
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 125 | |
| Case No: | CIV:13/2013 | 1 SEPTEMBER 2014 | |
| Coram: | BOWDEN DCJ | 15/09/14 | |
| PERTH | |||
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim dismissed | ||
| PDF Version |
| Parties: | WENDY RANKILOR CITY OF SOUTH PERTH |
Catchwords: | Negligence Paver protruding 20 mm 25 mm above adjoining paver on pathway Duty of care Breach of duty of care Civil Liability Act 2002 Local Government Act 1995 Occupier's Liability Act 1985 Causation Contributory Negligence |
Legislation: | Civil Liability Act 2002 Local Government Act 1995 Occupier's Liability Act 1985 |
Case References: | Botany Bay City Council v Latham [2013] NSWCA 363 Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Department of Housing and Works v Smith [No 2] [2010] WASCA 25 Divjakoski v Boral Window Systems [2011] WASCA 134 Gondaline Pty Ltd v Handsford [2002] WASCA 214 Goodwin v Phillips (1908) 7 CLR 1 Hagger v City of Fremantle [2003] WADC 206 Hulme v City of Rockingham [2007] WADC 100 Joslyn v Berryman (2003) 214 CLR 552 Kuhl v Zurich Financial Services [2011] HCA 11; (2011) 243 CLR 361 Leichhardt Council v Serratore [2005] NSWCA 406 Lombardi v Holroyd City Council [2002] NSWCA 252 Markey v Scarboro Surf Life Saving Club Inc [2007] WADC 194 MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 Richmond Valley Council v Standing [2002] NSWCA 359 Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [No 2] [2010] WASC 45; [2012] WASCA 79 The Department of Housing and Works v Smith (No 2) [2010] WASCA 25; (2010) 41 WAR 217 The Town of Mosman Park v Tait [2005] WASC 124 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
CITY OF SOUTH PERTH
Defendant
Catchwords:
Negligence - Paver protruding 20 mm - 25 mm above adjoining paver on pathway - Duty of care - Breach of duty of care - Civil Liability Act 2002 - Local Government Act 1995 - Occupier's Liability Act 1985 - Causation - Contributory Negligence
Legislation:
Civil Liability Act 2002
Local Government Act 1995
Occupier's Liability Act 1985
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff : In person
Defendant : Mr J Eller
Solicitors:
Plaintiff : Not applicable
Defendant : John Eller
Case(s) referred to in judgment(s):
Botany Bay City Council v Latham [2013] NSWCA 363
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Divjakoski v Boral Window Systems [2011] WASCA 134
Gondaline Pty Ltd v Handsford [2002] WASCA 214
Goodwin v Phillips (1908) 7 CLR 1
Hagger v City of Fremantle [2003] WADC 206
Hulme v City of Rockingham [2007] WADC 100
Joslyn v Berryman (2003) 214 CLR 552
Kuhl v Zurich Financial Services [2011] HCA 11; (2011) 243 CLR 361
Leichhardt Council v Serratore [2005] NSWCA 406
Lombardi v Holroyd City Council [2002] NSWCA 252
Markey v Scarboro Surf Life Saving Club Inc [2007] WADC 194
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Richmond Valley Council v Standing [2002] NSWCA 359
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [No 2] [2010] WASC 45; [2012] WASCA 79
The Department of Housing and Works v Smith (No 2) [2010] WASCA 25; (2010) 41 WAR 217
The Town of Mosman Park v Tait [2005] WASC 124
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
1 BOWDEN DCJ: On 18 March 2012 Ms Rankilor tripped over a protruding paver and fell whilst walking on a pathway adjacent to 1 Angelo Street, South Perth.
2 Pursuant to her substituted statement of claim and written 10 page submissions of 25 August 2014 and oral closing submissions, Ms Rankilor alleges that the City of South Perth (the City) were negligent in that they failed to exercise reasonable care as the footpath was not in a satisfactory condition. Essentially, Ms Rankilor says the City failed to ensure that the path surface was even by failing to ensure that the particular paver she tripped over was not raised and by failing to follow their 'tree' and 'footpath' program.
3 The trial proceeded on the issue of liability only. Ms Rankilor was self-represented.
The evidence
4 Although five witnesses were called, Ms Rankilor, Mr Cannon, Ms Lovett, Mr Riley and Mr Dalton only the evidence of Ms Rankilor, Mr Cannon and Mr Dalton has substantial relevance to the issues to be determined.
5 The only two witnesses present at the time of the incident were Ms Rankilor and Mr Cannon.
6 Ms Rankilor said that on 18 March 2012 at about 10.15 am she and her friend, Mr Cannon, were walking along the footpath adjacent to 1 Angelo Street towards a coffee shop when she tripped over a protruding paver and fell face down onto the pathway causing amongst other things a split lip and perhaps a loss of consciousness.
7 Ms Rankilor told the court she had never been down the pathway, which was straight and long, previously and it was a bright sunny day with good visibility. Ms Rankilor said she was walking normally, by and large looking straight ahead but occasionally glancing down. Ms Rankilor said the distress caused by her injuries was such that she did not examine the pathway before she was taken by Mr Cannon for medical treatment.
8 Mr Cannon said he was about 1 1/2 m in front of Ms Rankilor when he heard a noise and immediately turned around. He said Ms Rankilor was lying on the footpath and he saw scratches on her face and that her lip was cut and he went to her assistance. Exhibit 18 is a photograph showing some of Ms Rankilor's injuries. Mr Cannon did not see the fall.
9 Based on his brief visual inspection, Mr Cannon noticed one of the paving slabs was raised about 1 inch above the adjoining slab.
10 Mr Cannon then went to his car and returned to collect Ms Rankilor and took her to Royal Perth Hospital where she was discharged later that afternoon.
11 Mr Cannon said the weather was fine and dry with good visibility along the pathway. Both witnesses say there was nothing obstructing the footpath although both say a nearby tree, a large peppermint willow tree according to Ms Rankilor, cast a shadow across the footpath as they walked along it. About a year after the incident Mr Cannon took a photograph (exhibit 19) showing the extent of the shadow 'at that sort of time' (ts 325).
12 Ms Rankilor said she and Mr Cannon returned to the footpath one week after the incident, and found that the paver over which she tripped had been ground down. In the meantime Ms Rankilor notified the City of the incident and lodged a claim against them (exhibits 1, 3 and 4). The City investigated and declined liability (exhibits 6, 8 and 9). In December 2012 Mr Cannon took photographs showing that the ground down paver was beginning to protrude from the adjoining paver (exhibits 20.1 - 20.4).
13 Mr Dalton, the works and supervisors coordinator for the City is responsible for the building and maintenance of roads, footpaths and drains. He has over 39 years' experience with the City. He said the Citywas a leafy suburb with trees on the frontage of virtually every property and had 230 km to 240 km of footpath under its control.
14 He said he inspected the scene on 22 March 2012 although he later accepted that it was more likely to have been 19 March 2012. Mr Dalton did not know the exact location of the incident so he checked the entire footpath on Angelo Street from Labouchere Road to Onslow Street being a distance of/about 50 m to 60 m. He said generally the pathway was not very old and was in reasonably good condition and was free of leaves and debris.
15 Mr Dalton said that there was a section of a paver which had been raised, by tree roots, above the adjoining paver. Exhibit 2 is a series of photographs taken at that inspection. Mr Dalton ensured that the area was made safe, by causing a sign and barricades to be placed around the site and instructing that the offending paver be ground down by a contractor. That work was subsequently performed (exhibits 5 and 7).
16 Surprisingly, Mr Dalton did not have any measuring device with him but visually inspected the paver and said it was raised by 20 mm at most. He said he was reasonably accurate with these sorts of heights because his experience in laying 50 mm concrete slabs meant he knew 'pretty much' distances such as half inch, 50 mm or 20 mm fairly accurately. He said the gap between the protruding and adjoining paver was not so big that the mobile phone used in the photographs would fall through the gap (exhibit 2).
17 He said that he had no prior knowledge of any problem in the area of the incident (ts 364, 384).
18 Mr Dalton said there had been problems with tree roots before and the council carried out inspections of footpaths via an independent contractor to look for problems caused by cracks, and see if the pathway has been dislodged by tree roots or vehicles. Mr Dalton explained that the contractor was required to submit reports to the council to note areas of heavy cracking or areas that needed fixing. He said the area where Ms Rankilor fell had been inspected about 12 months to 14 months before the incident and the independent contractor had not noted anything requiring attention.
19 Mr Dalton said that although the raised paver was ground down in March 2012 it was replaced some nine months later, in January 2013, when it was again protruding from the adjoining paver (exhibits 14, 15 and 16). He said that on that occasion they dug approximately 300 mm to 400 mm below the surface of the paver and saw some minor roots which they cut.
20 Ms Rankilor produced exhibit 11, the City's 'Street Tree Management Plan 2006'. Although no evidence was given that this management plan was current at the time of the incident, I will assume for the purposes of this judgment favourably to Ms Rankilor that it was.
21 Ms Rankilor also produced exhibit 17 a document headed 'Road Management System' which I shall treat as either issued by the City or used by them. The document states that displacements between sections of paths of greater than 15 mm are a high risk of public injury. Mr Dalton's evidence effectively was that if there was a 15 mm, 20 mm or 25 mm difference the City considers there is a risk and fixes it (ts 381).
22 The evidence also established that the City was responsible for maintaining 17,000 trees within its boundaries and issues pamphlets advising people to report any faults or damage to footpaths to the City.
23 Much of the evidence was not in dispute and except as otherwise specifically stated I found Ms Rankilor and Mr Cannon credible witnesses as to the circumstances of the incident and I find that on 18 March 2012 Ms Rankilor fell on the pathway, which was shaded by a nearby tree, adjacent to 1 Angelo Street, South Perth at about 10.15 am. At that time the weather was fine and dry with good visibility along the pathway which was free of any obstructions and any grass, leaves or debris. The cause of the fall was that Ms Rankilor tripped on a paver that was approximately 20 mm to 25 mm higher along the width of its leading edge than the adjoining paver as a result of pressure from an adjacent tree root pushing the paver upwards.
The law
Civil Liability Act 2002 (CLA)
5B. General principles
(1) A person is not liable for harm caused by that person’s fault in failing to take precautions against a risk of harm unless —
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
5C. General principles
(1) A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements —
(a) that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
(2) In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) —
(a) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b) whether and why the harm should be left to lie where it fell.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault —
(a) subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and
(b) evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
5D. Onus of proof
In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
5E. Terms used
In this Division —
…
obvious risk has the meaning given by section 5F;
…
5F. Term used: obvious risk
(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
5K. Standard of contributory negligence
(1) The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose —
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
Division 6 — Assumption of risk
5M. Term used: obvious risk
In this Division —
obvious risk has the meaning given by section 5E.
5N. Injured person presumed to be aware of obvious risk
(1) In determining liability for damages for harm caused by the fault of a person, the person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2) For the purpose of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
5Z. Special protection for road authorities
(1) In this section —
carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road;
road has the meaning given to that term in the Main Roads Act 1930 section 6;
roads authority, in relation to a road, means a public body or officer whose functions include carrying out road work on that road.
(2) A roads authority is not liable in proceedings to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the failure the authority had actual knowledge of the particular risk that caused the harm.
(3) This section does not operate —
(a) to create a duty of care in respect of a risk merely because a road authority has actual knowledge of the risk; or
(b) to affect any standard of care that would otherwise be applicable in respect of the risk.
5. Duty of care of occupier
(1) …the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
(2) …
(3) …
(4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to —
(a) the gravity and likelihood of the probable injury;
(b) the circumstances of the entry onto the premises;
(c) the nature of the premises;
(d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger; and
(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
Division 4 — Protection from liability
9.56. Certain persons protected from liability for wrongdoing
(1) A person who is —
(a) a member of the council, or of a committee of the council, of a local government; or
(b) an employee of a local government; or
(c) a person appointed or engaged by a local government to perform functions of a prescribed office or functions of a prescribed class, is a protected person for the purposes of this section.
(2) An action in tort does not lie against a protected person for anything that the person has, in good faith, done in the performance or purported performance of a function under this Act or under any other written law.
(3) The protection given by this section applies even though the thing done in the performance or purported performance of a function under this Act or under any other written law may have been capable of being done whether or not this Act or that law had been enacted.
(4) This section does not relieve the local government of any liability that it might have for the doing of anything by a protected person.
(5) In this section —
(a) a reference to the doing of anything includes a reference to the omission to do anything;
(b) a reference to the doing of anything by a protected person in the performance or purported performance of a function under any written law other than this Act is limited to a reference to the doing of anything by that person in a capacity described in subsection (1)(a), (b) or (c), as the case may be.
(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.
24 In Department of Housing and Works v Smith [No 2] [2010] WASCA 25, Buss JA said that s 5B of the CLA relates to a breach of a duty of care and does not modify or supplant the common law principles which determine whether a duty of care exists or not. See also Murphy JA Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [No 2] [2010] WASC 45 [456] - [458]; [2012] WASCA 79 Mclure P [71].
25 Cases whereby pedestrians fall as a result of irregularities of the walking surface often come before the court.
26 In Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Gleeson CJ stated:
[6] …when general principles of negligence …were applied, the courts insisted that an injured plaintiff had to show that the road or footpath was dangerous… The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level .Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land.
[7] In Littler v Liverpool Corporation, Cumming- Bruce J said:
Uneven surfaces and differences in levels between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green.
..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...
28 Kirby J said:
[246] …something more than the fact that she fell would be necessary to convert the powers which the respondent council enjoyed into a duty to safeguard a pedestrian such as Mrs Ghantous, rendering the council liable to her because she momentary took a false step. That 'something' might be evidence of poor original design, a history of previous accidents or complaints or deterioration that was judged manifestly dangerous.
29 Callinan J found the footpath was not unsafe, despite a difference in height between the concreted section and the earthen part, saying:
[355] There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this.
30 In Gondaline Pty LtdvHandsford [2002] WASCA 214, Murray J said, in a case involving a paver protruding from the surrounding pavers by between half an inch to an inch:
[25] If there was a relatively insignificant difference in the level of a particular paver in the path from those surrounding it, it was of a kind that was visible and which the ordinary user of the path, obliged to anticipate that there might be such an imperfection in it would reasonably be expected to cope with it. The failure to inspect with such thoroughness as to detect and rectify this imperfection did not, in my opinion, constitute a breach of the appellant's duty of care.
31 Miller J, with whom Wheeler J agreed, found there was no foreseeable risk of harm to persons using the pathway taking reasonable care for their own safety. He said that a risk of a person falling on an uneven paver or different levels on pathways was not a hazard or a trap but an ordinary and accepted everyday risk (if indeed it was a risk) which members of the public avoided by taking care for their own safety and where required themselves to guard against. Miller J, said a pedestrian could have been expected to have exercised sufficient care in looking where they was going on the pathway to have observed any uneven paving stone [59] – [64].
32 In Richmond Valley Council v Standing [2002] NSWCA 359 Heydon JA delivered the judgment of the court when dealing with an appellant who fell when her left foot went into a 'crack, gap or hole' in the concrete of a pathway. Heydon JA stated:
[54] … 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 hazard or a trap …
[56] The reasoning of Hodgson JA (Foster AJA and Brownie AJA concurring) in Lombardi v Holroyd City Council [2002] NSWCA 252 at [32] applies here:
'I do not accept that a plainly visible step of 25 millimetres in a footpath is correctly regarded as high risk or unacceptable risk. It is desirable that even obvious steps of 25 millimetres in footpaths be avoided and eliminated if possible; but that is not to say that the failure of a Council to detect and eliminate all such risk is negligent. As a general rule, in my opinion it is not.'
[59] The conditions of the site were so obvious and so typical of those commonly to be encountered in daily life that the defendant was not under any duty to undertake inspections to identify them. Even if the defendant had become aware of the particular conditions of the site, it had no duty to alter them in view of their obviousness.
[60] In short the defendant did not owe the plaintiff a relevant duty of care either to identify the feature of the site or to remove them.
33 In Botany Bay City Council v Latham [2013] NSWCA 363 Ms Latham was walking on a shaded mossy brick paved footpath, tripped and fell. The court found that she could not establish there was any apparent irregularity beyond which might be expected on an unexceptional footpath in a suburban street and that even if the council inspected the area prior to the fall with a view to identifying irregularities in the surface that could give rise to the risk of a pedestrian tripping and falling, nothing would have been done in the relevant area because nothing was reasonably required to be done and therefore the council was not negligent for failing to inspect the area or eliminate unevenness in the pavers.
34 Although some of the cases establish a duty of care does not arise as pedestrians have a responsibility to use reasonable care for their own safety and as a matter of common ordinary day experience pavements are not always even (Lombardi v Holroyd City Council [2002] NSWCA 252) other case find there was a duty of care but find it was not breached because a reasonable defendant is not required to warn or inspect or take any action in respect of an uneven pavement of which they have had no prior notice Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council; Gondoline Pty Ltd v Handsford; Botany Bay City Council.
35 I find that the City was under a duty to take reasonable care to keep the path reasonably safe for ordinary use and therefore avoid foreseeable risk of injury to Ms Rankilor and other pedestrians, although it was not a duty to ensure the safety of users of the path in all circumstance: Brodie; Gondoline Pty Ltd v Handsford.
36 I find that there was no duty on the defendant to maintain the pathway so that its surface was even.
Has the City breached its duty of care?
37 Having found that duty of care the question is, considering all the circumstances, what precautions a reasonable person in the defendant's position would have taken against that risk of injury : CLA s 5B(1).
38 In determining that question the court is to consider:
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm; and
(e) other relevant things. CLA s 5B(2).
39 The determination involves, in part, weighing s 5B(2)(a) and s 5B(2)(b)
40 against s 5B(2)(c) and s 5B(2)(d). The greater the probability that serious harm would occur the more likely that a reasonable person would take precautions Southern Properties (WA) Pty Ltd [237] (Pullin JA).
41 The question of a breach of duty must be considered by reference to the relevant provisions of the CLA against the background of the common law decisions before the commencement of the Act: Botany Bay City Council v Latham [2013] NSWCA 363.
42 The CLA has largely left intact Mason J approach in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 that:
In deciding whether there has been a breach of the duty of care the Tribunal of Fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the Tribunal of Fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the Tribunal of Fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of risk and its degree of probability remain to be considered with other relevant factors.
43 Determining what has to be done in order to discharge the duty of care involves looking forward to identify what a reasonable person would have done, not looking backwards to identify what would have avoided the injury: New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486; Divjakoski v Boral Window Systems [2011] WASCA 134 [70] - [72].
44 The failure to take action before an accident which may have prevented an injury is not a basis for reasoning towards a finding of negligence. It is erroneous to look at an accident in hindsight rather than determine what action a defendant was reasonably required to take before the accident happened: Kuhl v Zurich Financial Services [2011] HCA 11; (2011) 243 CLR 361 [94], [96]; Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 [93], [96] - [97]; New South Wales v Fahy [57]; MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt[No 2] [2012] WASCA 110.
45 Reasonableness depends on the circumstances of the case and may require no response to a foreseeable risk that is not insignificant and the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness: Neindorf v Junkovic; MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] Buss JA [87].
46 The risk of injury to Ms Rankilor was foreseeable: s 5B(1)(a). It is foreseeable that a pathway in close proximity to trees may become uneven as a result of tree roots causing a paver to protrude above the surrounding pavers. The City assesses that displacements between sections of a pathway create a risk of injury (exhibit 17). It is foreseeable that a person navigating that pathway may fall as a result of tripping on that protruding paver and suffer personal injury (harm). The risk was not insignificant, it was more than far-fetched or fanciful: s 5B(1)(b).
47 In considering what precautions a reasonable person in the defendant's position would have taken against that risk of injury, s 5B(1)(c) the probability that the harm would occur if care was not taken must be considered.
48 Clearly it is probable that harm would occur if care was not taken s 5B(2)(a), in the sense that it could well happen that if a person tripped and fell on a protruding paver that they would suffer harm. People do on occasions fall on footpaths due to uneven surfaces and sustain injury and that is more than a possibility, it is an occurrence that could well happen and is therefore probable however I do not consider it to be highly probable. People do navigate uneven paving surfaces without falling or if they do fall without sustaining harm. The likely seriousness of the harm is minimal considering that pedestrians travel at relatively low speeds: s 5B(2)(b).
49 I accept that the burden of eliminating the risk of harm, once the risk was reported to the City, was relatively modest being at a minimum approximately $116.47 to grind the paver (exhibit 5) and $290 to replace it (exhibit 16) however the evidence relating to the burden of taking precautions to avoid the risk of injury shows there is 230 km to 240 km of pathways within the City, and approximately 17,000 trees. The City inspected the pathways, the last inspection of this pathway being about 12 months to 14 months before the incident. There was no evidence as to how quickly tree roots grow under paving, nor of the cost of inspecting pathways and trees, or maintaining tree roots, or of the council's budget or number of employees. It is not possible to reach a conclusion, on the evidence before me, of the financial burden on the council to inspect and maintain their pathways and trees in such a manner that a paver does not protrude due to upwards pressure from a tree root however as a matter of common sense it would impose some additional burden on the council: s 5B(2)(c).
50 The activity that created the risk of harm was laying a pathway along a public area in close proximity to trees. The usefulness to the community of providing a paved pathway for pedestrians to walk upon is high. It provides a place for recreation which is well defined, accessible and safer than having pedestrian walk on the road or across the grass. A paved surface is also as a matter of common experience more likely to be even than some other surfaces: s 5B(2)(d).
51 The ordinary use of a pathway involves its use by pedestrians with the knowledge that the path surface may be uneven. Ms Rankilor alleges that the paver's protrusion was a hidden trap or snare which she could not see due, inter alia, to the path being covered by shade. The path was clearly visible and it is a common everyday occurrence that the path upon which people walk may be partly or fully covered by shade. It would have been obvious to anyone walking on the path that it was partly covered by shade .The protrusion was approximately 20 mm to 25 mm and visible, I find, to a person navigating the pathway with reasonable care. Ms Rankilor's and Mr Cannons evidence to the contrary is rejected.
52 A reasonable person in the defendant's position would be aware that members of the public take upon themselves the everyday risk that there might be some irregularities in the surface of a pathway upon which they walk. A reasonable defendant is entitled to expect that pedestrians will use reasonable care by looking where they are going and observe unevenness in the surfaces upon which they walk: s 5B(2) (other relevant things). This is clearly the common law position.
53 That position has been enshrined and expanded by the CLA which provides that a person who suffers injury is presumed to be aware of a risk of injury if it was an obvious risk unless that person proves on the balance of probabilities that he or she is not aware of the risk: s 5N CLA.
54 An obvious risk is a risk that would be obvious to a reasonable person in the position of the plaintiff and includes risks that are patent or a matter of common knowledge. Further a risk can be an obvious risk if it has a low probability of occurring and even if the risk, or a condition or circumstance that gives rise to the risk, is not prominent, conspicuous or physically observable: s 5F CLA.
55 Ms Rankilor submits that the footpath was smooth, covered by shade and the 20mm to 25 mm difference in height across the whole width of the paver was a snare or trap that she was not expecting. She submitted that she was expecting a smooth footpath. Ms Rankilor did not give any evidence of her expectations or awareness, her evidence being that she was on a smooth footpath which she had not been on before which was shaded by a tree.
56 To rebut the presumption in s 5N either direct or inferential evidence of Ms Rankilor's lack of awareness is required. There is no direct evidence and there is no evidence that would permit the drawing of an inference of lack of awareness of that risk. There is simply no evidence to rebut the presumption.
57 I find therefore that it was an obvious risk to Ms Rankilor that the surface upon which she walked may be uneven and could cause her to fall and be injured. The pathway was not a trap or hazard. Ms Rankilor relied, in part, on the pathway being a smooth finish and, as I understood her submissions, therefore creating the expectation that the whole pathway would be smooth and even. I find it would be obvious to a reasonable person in her position that a smooth even surface could become uneven as a result of a tree root or other imperfections.
58 That being so Ms Rankilor is presumed to be aware of that risk as she has not satisfied me on the balance of probabilities that she was not aware of that risk.
59 An inquiry at the breach stage of negligence involves identifying with some precision what a reasonable person would do by way of response to a reasonably foreseeable risk and the plaintiff must demonstrate there was system of inspection which was an alternate to that which the defendant was using at the time of the accident which was free of or reduce the risk complained of and which was available in a practical sense and is required to identify with precision what a reasonable person would do, either by reference to industry standards or practice and the financial or other impacts of the proposed system: The Town of Mosman Park v Tait [2005] WASC 124 [49] (McLure JA) [48] - [51] citations excluded.
60 In this regard Ms Rankilor argues that the defendant had a tree maintenance 'program', and a footpath 'program' and says the defendant bought 'nothing in to show that they followed their maintenance procedures for their trees or their footpath procedures for the trees'(ts 421).
61 The burden of prove rest on Ms Rankilor not the defendant: s 5D CLA.
62 The evidence of a tree maintenance 'program' is exhibit 11 'The Street Tree Management Plan 2006'. That management plan specifies maintenance work as including root pruning. The only other evidence of a tree maintenance program came from Mr Dalton who said that there had been tree root problems in the past and the City continually maintained their paths to keep them to high standards. He also said he was aware of a booklet from the City which stated that the City was responsible for the maintenance of all street trees. There is no evidence establishing any other details of the programme or showing the City was not complying with its program nor showing that the program was inadequate.
63 Insofar as the footpath program is concerned, the evidence is found in exhibit 17 which refers to a path having a displacement between sections of greater than 15 mm providing a high risk of public injury and Mr Dalton's evidence establishing that the footpaths were examined about 12 months to 14 months before the incident after which a contractor submitted a report but nothing was noted that required attention. Mr Dalton also agreed that he was aware of a booklet put out by the City which said any faults or damage to footpaths should be reported to the City. There is absolutely no evidence to show the council's footpath inspection program was defective or should have been carried out more regularly.
64 Ms Rankilor is relying on the fact of the accident occurring to establish that there was negligence in failing to inspect the path or discover the imperfection and correct it. This is impermissible reasoning in the law of negligence and was the very reasoning rejected by the court in Gondoline Pty Ltd [20] (Murray J).
65 Further Ms Rankilor relies on the City erecting a barricade around the site and grounding down the paver after they received notice of her fall as prove that the protruding paver was a danger. The City was acting prudently upon receiving advice of the accident and Ms Rankilor's reasoning involves looking backwards after the event not considering the position at the time of the risk materializing.
66 Evidence of post-incident action is not an implied admission of liability by the defendant's, nor is it evidence that their system’s in place at the date of the incident were inadequate, it is simply evidence as to steps taken after the accident: MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt[No 2] [176] (Murphy JA). It is also evidence relevant to assessing how burdensome and expensive it would have been to remove the harm.
67 Evidence that the offending paver protruded after it was ground down and was eventually replaced may have had relevance if a person was harmed by that paver after Ms Rankilor reported her incident to the City but in the absence of the City having received notice of difficulties with this pathway before the incident such evidence does not materially assist her. Evidence (exhibit 10) shows that in July 2011 a footpath hazard on Angelo Street was reported to the City, however no further details of what type of hazard were given and that evidence cannot impute to the City actual or constructive knowledge of the protruding paver that Ms Rankilor complains about or more general issues with the pathway.
68 Ms Rankilor did not call any evidence showing there was a system of inspection of pathways or maintenance of tree roots that was available to the defendant in a practical sense to implement in additional to the systems they used and which would reduce the risk of which she now complains.
69 Ms Rankilor refers extensively to Hulme v City of Rockingham [2007] WADC 100 in her written submissions (par 13, 14, 20, 32 - 40, 42 - 47). That case related to an incident occurring on 23 July 2003 (before s 5Z was inserted in the CLA) arising when Mr Hulme come off his bike after he hit a raised grass verge on the side of a cycle way on the Waikiki foreshore as a result of swerving to avoid raised and cracked pavements.
70 Significantly, Mr Hulme called expert evidence of procedures followed by other councils in relation to the care and maintenance of cycle paths and how often those councils examine their footpaths and how long the cracks had been in the path before the incident. The trial judge was able to base her findings, in part, on that expert evidence. Ms Rankilor called no such evidence.
71 The combination of factors including:
1. The ordinary use of a path involves its use by pedestrians with the knowledge that the pathway surface may be uneven.
2. The defendant is entitled to take into account that Ms Rankilor was aware of the risk that the surface of the path may be uneven and aware of the need to use reasonable care for her own safety in navigating that pathway
3. The low probability that a person will fall on an uneven surface of a path.
4. The likely seriousness of harm occurring as a result of a fall being minimal.
5. The additional burden on the City to examine and maintain 230 km to 240 km of pathways and the roots of trees in proximity to those pathways so as to ensure that the tree roots do not cause a paver to protrude.
6. The high social utility of footpaths within the community.
7. The lack of any evidence showing a system of inspection and maintenance of pathways and tree roots that was available for the defendant to implement, over and above the systems it used, that would reduce the risk of a tree root causing a paver to protrude;
means that Ms Rankilor has not persuaded me that the City has failed in its duty to take reasonable care to keep the path reasonably safe for ordinary use and therefore avoid foreseeable risk of injury to Ms Rankilor and other pedestrians. There is no duty on the defendant to maintain the pathway so that its surface was even and I find the pathway was reasonably safe for ordinary use and there is therefore no breach of duty of care.
72 Ms Rankilor has failed to satisfy me that a reasonable person in the defendant's position was required to do anything in circumstances where they have had no notice of a particular paver protruding from the pathway.
73 Although Ms Rankilor's case was presented on the base of negligence I have also considered the position under the Occupiers Liability Act (1985) WA.
74 Under the OLA s 5 replaces the common law rules for the purpose of determining the standard of care applicable to occupiers. However s 5(1) and s 5(4) of the OLA must be read with s 5B of the CLA and there is no inconsistency between the criteria in s 5(1) and s 5(4) of the OLA and s 5B of the CLA: The Department of Housing and Works v Smith (No 2) [2010] WASCA 25; (2010) 41 WAR 217 [84] – [85] (Buss JA).
75 Considering the criteria in s 5(4) of the OLA the gravity and likelihood of the probable injury was minimal as the probability of a fall was not high and the gravity of the injury is minimal (s 5(4)(a)). Ms Rankilor was a member of the public using the public pathway on a public thoroughfare in a public area: (s 5(4)(b), s 5(4)(c)). The City clearly knew members of the public frequently used the pathway (s 5(4)(d)).
76 Ms Rankilor was 58 at the time of the incident (s 5(4)(e)) and I have found the raised paver was not a trap or a snare and was not a hazard or danger that any reasonable person, taking reasonable care for their own safety by watching where they were walking, would not have observed and there is nothing about Ms Rankilor's age that prevented her from exercising that reasonable care. There is nothing about her ability which prevents this (s 5(4)(f)). The burden on the City maintaining and even pathway or ensuring that tree roots do not cause a paver to protrude would not be insignificant (s 5(4)(g).
77 If the OLA applies I find that there has not been any breach of duty.
Causation
78 In the event that I am wrong in my conclusions over duty and breach I turn to consider the question of causation.
79 Causation is established if the negligent act caused or materially contributed to the harm. That act does not have to be the sole cause of the harm. March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, Medlin v State Government Insurance Commission (1995) 182 CLR 1. Material in this sense means a not negligible contribution: State of South Australia v Ellis [2008] WASCA 200.
80 Section 5C of the CLA involves a consideration of both factual causations and scope of liability.
81 Insofar as the factual causation is concerned, if the breach of duty of care was the failure to provide an even surface that failure material contributed to the harm suffered by Ms Rankilor and she has discharged the burden of proving factual causation. In accordance with s 5C(1)(b) and s 5C(4) there would be no reason why responsibility for the harm should not be imposed on the defendant as they were responsible for the path.
82 If the breach of duty was the City's failure to follow its tree or footpath program Ms Rankilor has failed to prove that materially contributed to the incident and has not established those failures caused harm to her.
83 Ms Rankilor says that if the City 'implemented their tree program to look after the trees, look after the tree roots which they say they will do, if they look after the pavement by way of footpath inspections which they say they will do, that footpath slab would never have raised to that degree' (ts 426).
84 There was no evidence to show that if the tree program or pavement inspections occurred the paver would not have protruded. There is no expert evidence establishing how long tree roots take to grow and cause a pavement to protrude. Ms Rankilor relies, as I understand it, on the evidence that about nine months after her fall the pavement which had been ground down subsequent to her fall was replaced when it was protruding to a height equivalent to the thickness of two 20 cent coins laid one on top of the other. The argument being that if it took nine months for the ground down paver to protrude to that thickness it would have taken longer than the 12 months to 14 months for that unground down paver to protrude to 20 mm to 25 mm therefore I can infer the inspection 12 months to 14 months before her fall was either not carried out or not properly carried out. This is nothing more than speculation.
85 There is simply no evidence as to a tree roots growth rate or, how much was ground off the pavement, or how that affected the paver's strength, or whether a ground down paver protrudes with less root force than before it was ground down. Without expert evidence relating to the growth rates of tree roots or the forces that cause a paver to protrude, the inference that Ms Rankilor asks me to draw cannot be drawn from the proven facts.
86 Even if the City is found to have breached its duty of care under the CLA or OLA and to have caused the harm they claim immunity for the consequences of that breach pursuant to s 5Z of the CLA.
Is the City Liable?
87 Section 5Z of the CLA provides, as far as is relevant, that a road authority is not liable in proceedings for the harm arising from the failure of the authority to carry out road work or to consider carrying out road work unless at the time of the failure the authority had actual knowledge of the particular risk that caused the harm.
88 The defendant is a roads authority within the definition of s 5Z(1) and the footpath is a road as s 6 of the Main Roads Act 1930 defines 'road' to mean, inter alia, 'any thoroughfare … that the public is entitled to use and any part thereof'. The pathway is clearly a thoroughfare that the public is entitled to use.
89 In Markey v Scarboro Surf Life Saving Club Inc [2007] WADC 194, Yeats DCJ found that s 5Z could have been relied upon by the City of Stirling in a case in which the plaintiff sought damages for injuries when he came off his pushbike on dual use pedestrian/bike path adjacent the Scarborough Surf Lifesaving Club however the City had not pleaded their reliance on that section therefore their liability was considered without reference to that section [110] - [115].
90 In this case s 5Z has been pleaded and is relied upon. The City is only liable for harm (personal injury, damage to property and economic loss) suffered by Ms Rankilor as a result of their failure to carry out, or consider carrying out, any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of the pathway if at the time of the failure, the City had actual knowledge of the particular risk that caused the harm.
91 A finding of actual knowledge can be based on inferences or direct evidence: Leichhardt Council v Serratore [2005] NSWCA 406 at [12] - [15].
92 What is required is actual knowledge of the particular risk posed by the unevenness or irregularity of the very paver that caused the trip and fall and it is not sufficient for the City to know of the more general risk that the plaintiff might trip and fall on an area of irregular pavers in the area where she fell. This is because the 'harm' referred to in s 5Z(2) is a reference to the 'particular harm' which has resulted from the 'particular risk', being the 'particular harm' the subject of the action : Botany Bay City Council v Latham [2013] NSWCA 363 (dealing with the equivalent NSW section).
93 There is no basis upon which any inference of actual knowledge of the particular protruding paver causing Ms Rankilor fall can be drawn.
94 On the contrary Mr Dalton's evidence was that there had been no complaints, known to him, about the footpath in the area Ms Rankilor fell.
95 I find that the defendant had no actual knowledge of the particular risk, that is, the protruding paver that caused the harm to Ms Rankilor. Evidence (exhibit 10) showing that in July 2011 a footpath hazard on Angelo Street was reported to the City does not constitute actual or constructive knowledge by the City of the protruding paver about which Ms Rankilor complains. Ms Rankilor’s complaint that complaints become customer requests (ts 422) does not advance her case. Ms Lovett and Mr Dawson, the only two City employees to give evidence, were not aware of any previous complaints relating to the protruding paver which caused the harm and there is no evidence showing actual knowledge by the City.
96 Therefore even if there was a breach of duty, the defendant would not be liable by virtue of s 5Z of the CLA.
97 Whilst I accept that Ms Rankilor fell as a result of the protruding paver and sustained some injury, the reality is that even if the City breached their duty of care she is not able to recover damages for that injury because s 5Z specifically provides protection for the defendant in these circumstances.
98 Ms Rankilor, relies on s 9.56 and s 9.57 of the LGA.
99 Section 9.56 of the LGA does not apply; Ms Rankilor's action is not brought against any 'protected person' within s 9.56 but against the City.
100 The reliance on s 9.57 is also misplaced. Section 9.57(1) limits a plaintiff's ability to recover damages against a local government body in certain factual circumstances. Section 9.57 (1) has no application in this case: Hagger v City of Fremantle [2003] WADC 206 (Muller DCJ).
101 Section 9.57(2) does not create liability for the City; it provides that sub-section (1) does not relieve a local government from liability in certain circumstances. The City is not seeking to be relieved of liability via s 9.57(1) or s 9.57(2) but via s 5Z of the CLA. Ms Rankilor is correct to state that the LGA does not make the defendant immune, however the CLA does.
102 In any event the CLA being an act specifically relating to civil liability passed after the LGA impliedly repeals any section within the LGA dealing with the City's liability which is inconsistent with the provisions of the CLA: Goodwin v Phillips (1908) 7 CLR 1 [7] so that the CLA provisions would apply.
103 The clear purpose and wording of the CLA provision was to limit liability to the council in the specific circumstances specified in s 5Z. There is nothing in s 9.56 or s 9.57 LGA which limits the clear wide reaching effect of effect of s 5Z CLA.
Contributory Negligence
104 If I be in error in my conclusion on duty of care, breach, causation and s 5Z, I consider the question of contributory negligence.
105 The defendant's position was that the plaintiff was contributory negligent in that she failed to exercise proper care for her own safety and failed to pay proper attention to where she was walking.
106 The defendant relies on the fact that it was a clear dry day and Ms Rankilor was walking in daylight hours, and says if she was keeping a proper lookout she would have observed the protruding paver.
107 Section 5K(1) of the CLA applies the same standard of care to the liability of a defendant in negligence and to a defence that the plaintiff has been contributory negligent. The standard of 'a reasonable person in the position of that person repeats a common law formulation': Town of Port Hedland v Hodder (No 2) [2012] WASCA 212, 43 WAR (2011-2013) 383 [293] - [303] (Mc Lure P).
108 Joslyn v Berryman (2003) 214 CLR 552 lays down the common law test as follows.
At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed. McHugh J [16].
- The test has also been stated as follows:
The standard of care in contributory negligence … depends on foreseeability and is that of the reasonable and prudent man, so that a defendant is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury: Commissioner of Railways v Ruprecht (1979) 142 CLR 363.
110 It was foreseeable that if Ms Rankilor did not pay sufficient attention as she walked that she could fall over an uneven paver and thereby harm herself. Ms Rankilor should have been watching where she was going.
111 In those circumstances if the City owed a duty which it breached I would assess Ms Rankilor's contributory negligence as 50%.
112 For the reasons outlined I dismiss Ms Rankilor's claim.
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