Ricky Eddy v Goulburn Mulwaree Council and Golden Star Import and Export Pty Ltd

[2021] NSWDC 150

District Court

New South Wales

Medium Neutral Citation:

Ricky Eddy v Goulburn Mulwaree Council and Golden Star Import & Export Pty Ltd [2021] NSWDC 150

Hearing dates:

24 March 2021

Date of orders:

30 April 2021

Decision date:

30 April 2021

Jurisdiction:

Civil

Before:

Strathdee DCJ

Decision:

(1)   Judgment for the defendant.

(2)   Plaintiff to pay defendant’s costs as agreed or assessed.

(3)   Grant liberty to the parties to contact my associate within 14 days if an alternate costs order is sought.

Catchwords:

TORTS – Negligence – pedestrian fell when a temporary ramp he walked upon moved – proper construction of s 45 of the Civil Liability Act 2002 (NSW) – proper construction of the Roads Act 1993 (NSW) – nature of council’s duty of care

WORDS AND PHRASES – “particular risk” – Civil Liability Act 2002 (NSW) s 45

Legislation Cited:

Civil Liability Act 2002 (NSW)

Roads Act 1993 (NSW)

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Botany Bay City Council v Latham (2013) 197 LGERA 211

Collins v Clarence Valley Council (No 3) [2013]

NSWSC 1682

Collins v Clarence Valley Council (2015) 91 NSWLR 128

Category:

Procedural rulings

Parties:

Ricky Eddy (Plaintiff)
Goulburn Mulwaree Council (First Defendant)
Golden Star Import & Export Pty Ltd (Second Defendant)

Representation:

Counsel:
Mr J Wilson (Plaintiff)
Mr R Gambi (First Defendant)
Ms R Magee, Solicitor (Second Defendant)

Solicitors:
Mr Mark Howard, Stacks Law Firm (Plaintiff)
Mr Michael Down, Mills Oakley (First Defendant)
Mr Peter Ford, McCabe Curwood (Second Defendant)

File Number(s):

2020/95802

JUDGMENT

1. By way of Statement of Claim filed 27 March 2020, the plaintiff sought damages, interest and costs from the first defendant, Goulburn Mulwaree Council (‘the Council’), and the second defendant, Golden Star Import & Export Pty Ltd (‘Golden Star’), on the basis that the plaintiff sustained injuries when he fell on a ramp outside a shopping centre called ‘Centro Centre’ which was located in Auburn Street, Goulburn in the State of New South Wales.

2. The proceedings were listed for hearing commencing 24 March 2021 with an estimate of three days.

3. When the matter was called on, it became apparent that the plaintiff’s claim against the second defendant had resolved and I entered orders in accordance with the Consent Judgment filed in Court.

4. It was then suggested by counsel for the first defendant that an issue ought be determined prior to the hearing of the evidence in the trial. The issue related to a defence pleaded by the Council in their Defence filed 26 February 2021 which reads as follows:

‘[36]   Further, in answer to the whole of the allegations made against it in the Statement of Claim, the First Defendant says:

(a)   It did not have any actual knowledge of the particular risk the materialisation of which resulted in the alleged harm to the Plaintiff; and

(b) It is, accordingly, not liable to the Plaintiff, pursuant to section 45 of the Civil Liability Act 2002 (NSW).’

5. Counsel for the plaintiff opposed having the matter dealt with separately to the trial, however, I decided that the s 45 issue ought be determined as a preliminary issue before the commencement of the trial.

RELEVANT BACKGROUND

6. The plaintiff alleges that the Council had the care, control and management of certain roads, footpaths and associated works situated in the City of Goulburn. The Council’s defence does not admit that allegation.

7. The Council does however admit that it entered into a Formal Instrument of Agreement dated 15 July 2016 with the second defendant for the paving of Auburn Street, Goulburn. Part of the works were the repaving or paving outside the Centro Centre in Goulburn. This work involved some excavation and then concrete was poured to form a base over which the pavers would be laid. In the course of that work there were temporary yellow ramps to allow entry and egress from the Centro Centre.

8. The plaintiff, who was born on 17 March 1984, was walking across a ramp in front of the Centro Centre on Auburn Street, Goulburn at approximately 5:45pm when he alleges that the ramp slipped out from under him, causing him to fall heavily to the ground.

9. The plaintiff alleges that he sustained injury to his left knee, injury to his back, grazing to his left elbow, grazing to his left wrist and a psychological injury.

10. The plaintiff tendered pages 300–312 of the Plaintiff’s Court Book (‘PCB’), and those pages became Exhibit A on the application. The plaintiff then gave oral evidence before me. The plaintiff struck me as a witness of truth and I accept the he gave his evidence openly and honestly. He was not rattled by cross-examination.

11. The plaintiff’s evidence was that when he was walking across the ramp at the northern entrance to Centro, he noticed that there was work being carried out and that the old walkway had been pulled up. This was at about 5:45pm on 27 April 2017. He assumed that there would be new pavers put down. He stated that he walked across the ramp, which went up and then down, and as he walked on to it, the ramp slipped to the right and the plaintiff fell down to the left.

12. The plaintiff gave evidence that he had been to the centre on previous occasions and had noticed that the work had been going on for some time. He agreed that he had seen the pavers ripped up in different stages along Auburn Street and accepted that the works were being done in stages.

13. There is no dispute that the responsibility for securing the ramps, in accordance with the contract, rested with the Council. The Council had a system whereby a representative of the Council would check the works twice daily. The shift was from 6:00am to 6:00pm, and at the end of each shift, someone from the Council would go along wherever the ramps were placed and check that they were secure. If they were not so, the Council representative would secure the ramps.

RELAVANT LEGISLATION

14. Section 45 of the Civil Liability Act 2002 (NSW) (‘CLA’) provides as follows:

‘Special non-feasance protection for roads authorities

(1)   A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure of the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.

(2)   This section does not operate—

(a)   to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or

(b)   to affect any standard of care that would otherwise be applicable in respect of a risk.

(3)    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 roadwork within the meaning of the Roads Act 1993.

“roads authority” has the same meaning as in the Roads Act 1993.’

15. The Roads Act 1993 provides as follows:

‘7   ROADS AUTHORITIES

(1)   RMS if the roads authority for all freeways.

(2) The Minister administering the Crown Land Management Act 2016 is the authority for all Crown Roads.

(3)   The regulations may declare that a specified public authority is the roads authority for a specified public road, or for all public roads within a specified area, other than any freeway or Crown road.

(4)   The Council of a local government area is the roads authority for all public roads within the area, other than—

(a)   any freeway or Crown road, and

(b)   any public road for which some other public authority is declared by the regulations to be the roads authority.

(5)   A roads authority has such functions as are conferred on it by or under this or any other Act or law.

71   POWERS OF THE ROADS AUTHORITY WITH RESPECT TO ROAD WORK

A roads authority may carry out road work on any public road for which it is the roads authority and on any other land under its control.

145   ROADS AUTHORITIES OWN PUBLIC ROADS

(1)   All freeways are vested in fee simple in RMS.

(2)   All Crown roads are vested in fee simple in the Crown as Crown land.

(3)   All public roads within a local government area (other than freeways and Crown Roads) are vested in fee simple in the appropriate roads authority.

(4)   All public roads outside a local government area (other than freeways and Crown roads) are vested in fee simple in the Crown as Crown land.

146   NATURE OF OWNERSHIP OF PUBLIC ROADS

(1)   Except as otherwise provided by this Act, the dedication of land as a public road—

(a)   does not impose any liability on the owner of the road that the owner would not have if the owner were merely a person having the care, control and management of the road, and

(b)   does not affect the rights or liabilities of any person under any easement or under any Act or law, and

(c)   does not affect any rights of any person with respect to minerals below the surface of the road, and

(d)   does not constitute the owner of the land as an occupier of the land, and

(e)   does not authorise the owner of the road to dispose of any interest (other than an easement or covenant) in the land, and

(f)   does not prevent any lands that were previously considered to be adjoining lands for the purposes of the Land Acquisition (JustTerms Compensation) Act 1991 from continuing to be so considered.

(2)   This section does not restrict the power of a roads authority to regulate the digging up of public roads pursuant to the provisions of any other Act.’

EVIDENCE

16. The plaintiff tendered pages 300–312 inclusive of the PCB (Exhibit A).

17. Page 300 of the PCB is a copy of a document entitled ‘Goulburn Mulwaree Council Request’. The document records a request being received on 3 April 2017 and it includes the details of the request to maintenance to inspect the site and the author of that document’s desire for a matter to be looked into or fixed. It appears that on 3 April 2017, an unnamed person had attended the Centro Centre and expressed concern about the yellow ramps that were being temporarily used whilst the work is going on in Auburn Street. It appears that this person was in a wheelchair, used the ramp near Coles in the Centro Centre and almost fell out of his wheelchair. The person believes that the ramp is unsafe for people in wheelchairs.

18. Also recorded in that document as part of the request, is that the author is requesting that this be investigated and looked into to prevent this happening again.

19. Page 302 of the PCB is a document headed ‘Request Instructions’ and repeats the complaint made as recorded on page 300. At the bottom of that page, the following is handwritten :

‘Inspected couldn’t identify which yellow ramp was the problem but has been inspected. T Beecham Date 3.4.17 Time 2.30 pm’

20. Page 303 of the PCB is a document that is again headed ‘Goulburn Mulwaree Council Request’ dated as received on 20 April 2017, and under the heading ‘Request Details’, the following is recorded:

‘Changed priority to HIGH – Margaret [Phone number omitted] – called to advise of the ramps out the front of Centro are unstable, and too steep, yesterday she went to use the ramp but because she is in a wheel chair she nearly fell out. Can someone please investigate this and look at securing the ramps.’

21. Page 304 of the PCB is a document that is again headed “Request Instructions” and is dated as having been received on 20 April 2017 and repeats the request made on page 303. Under the heading ‘Comments’, the following is handwritten:

‘This has been inspected 20.04.17 by Stefan Gerakins. Additional ramps need to be placed. He will liaise with Andy Cartwright. Memo dated 20.4.2017’

22. Page 306 of the PCB is another document headed ‘Goulburn Mulwaree Council Request’ and notes that the date the request was received was 28 April 2017 11.00.31 am. The request details contain the following:

‘Maintenance I HAVE ESCALATED TO HIGH –

Last night at 5.45 pm Ricky was entering Centro Mall at the entrance near Bryant’s Pies and the Chemist, he walked over the ramp from the gutter to the footpath. He put his foot on the roadside end of the ramp and it spat out from underneath him and he fell to the ground, ripping his pants, his knee is bruised and cut and his back is stiff and sore this morning. He is heading to the Doctor’s today to have it checked out.

Can this please be investigated ASAP to avoid further injury and protect public safety.’

23. Page 308 of the PCB is another document headed ‘Request Instructions’ and details the same entry with regards to the plaintiff’s fall on the previous evening. At the bottom of that page, the following is handwritten:

‘A ramp was placed at this location last night by persons unknown Stefan G removed it early this morning when it was discovered. He is inspecting the site again today. Andy Cartwright is speaking with the contractors to see if they know who placed the ramp at …’

The rest of the writing on that page, if there is any, is illegible.

24. Page 305 of the PCB is a document which I accept is a copy of a report made by either Andy Cartwright or Stefan Gerakins on 27 April 2017, and is a checklist of the inspection that was made on that day at 7.20pm. It makes no reference to any ramps.

25. Pages 310–312 of the PCB are copies of emails between Andrew Cartwright, Maintenance Superintendent of the Council to Maria Timothy, Business Manager Governance for the Council in June 2017 which relate to the plaintiff’s accident and inspections of the site the alleged accident occurred. The email of 13 June 2017 is of the most relevance and states as follows:

‘I do not have much more to add other than the attached inspection Report carried out the night before which gives an indication of the location of the works that night/following morning. There is no mention of the ramp being un secure in the inspection report in the location this person is claiming. The ramp which Stefan found unsecure was off the end of the pavers that were completed that night which would have been somewhere between the Mall doors and Goulburn Soap World.

Below is the response from the Service Request RR0809\1617

. ramp was placed by persons unknown at this location last night. Stefan Gerakios removed it early this morning when it was discovered. He is inspecting the site again today and Andrew Cartwright is speaking to the Contractors to see if they know who placed the ramp at this location.

Golden Star denied placing the ramp on the kerb when asked, the ramp was not in place the evening of the 27^th of April. According to the inspection report works were concentrated to the northern end of Auburn St east side that night (this inspection took place at 7:20pm). There would have been no reason for the ramp to be placed in that position due to the disabled ramp being easily accessible right next to it.

Sorry I have no further details to add or photos.’

DISCUSSION

26. It is apparent that prior to the plaintiff’s fall on 27 April 2017, there had been two previous complaints made to the Council (on 3 April and 20 April 2017) with regard to temporary ramps at the subject premises. Both reports were made by people who were concerned about the safety of the ramps for users in wheelchairs, as both of those people were in wheelchairs at the time they accessed the ramps.

27. On 28 April 2017 the plaintiff contacted the Council and informed them of his accident. The documents tendered which contain emails between Council workers reveal that the Council made a request that the incident be investigated and remediated.

28. As discussed previously, the Council had a policy of inspection of the site every morning at 6:00am and every evening at 6:00pm, which was performed by a representative of the Council and a representative of the contractor Golden Star. The relevant report is found at page 305 of the PCB. There is no mention of anything to do with any ramps recorded on that document.

29. From the email correspondence referred to above, I accept that on 27 April 2017, inspection of the works area was conducted at about 7:20pm and nothing untoward was found with any of the ramps. This was approximately 95 minutes after the plaintiff alleges that he fell.

30. When the area was inspected the following morning by Stefan Gerakios, he noted that a new ramp was placed at the relevant location by persons unknown and was removed by Stefan, who noted that this ramp was unsecure. Stefan indicated that he was going to speak to the contractors about who placed the ramp at the location.

31. The contractors denied placing the ramp on the kerb as it would be unnecessary to do so as there was a disabled ramp easily accessible adjacent to it.

32. The plaintiff gave evidence at T10.38–50 and T11.1–10 that there were in fact two ramps at the point at which he fell, one being a ramp over the gutters which was about a metre away from what he describes as a ‘little standing area’ (T11.5) and also as ‘a bridge with handrails’ (T10.40).

33. It seems that the plaintiff fell on the ‘first’ of these two ramps, but it seems that the first ramp was not a ramp into the Centro Centre, but a ramp over the gutter, and then after that was the second ramp into the Centro Centre.

34. It seems that there were two ramps at the point where the plaintiff alleges that he fell. His evidence is that he fell on the ramp over the gutter.

35. The difficulty with this situation is that the previous complaints made by the two people in wheelchairs deals with the yellow ramps or the ramps outside the Centro Centre. I am not satisfied that the ramp that the plaintiff fell on is the same ramp that the previous complaints pertained to. This is also consistent with the additional ramp that was discovered by Mr Gerakios on the day after the plaintiff’s fall.

36. On this preliminary point, the plaintiff must prove, on the balance of probabilities, that the Council was aware of the particular risk. This requires identification of the particular risk of which the Council must have had actual knowledge, which materialised and resulted in the alleged harm to the plaintiff.

37. This question was examined by the Court of Appeal in Botany Bay City Council v Latham (2013) 197 LGERA 211 (‘Latham’). At [45]–[49] Adamson J (Ward and Leeming JJA agreeing) stated as follows:

‘Ground 3 raises the application of s 45 of the Act. The “harm’” referred to in the last works of s 45(1) is a reference to the “particular harm” which has resulted from the materialisation of the “particular risk”, being the “particular harm” to which the determination of causation in s 5D is addressed.

It follows that “the particular risk” is s 45(1) is at the same level of generality. In this case, given the way Ms Latham put her case that a particular paver that was uneven or irregular caused her to trip, the actual knowledge required is actual knowledge of the particular risk posed by the unevenness or irregularity of the very paver that caused her to trip and fall. It would not be sufficient for the Council to know of the more general risk that she might trip and fall on an area of irregular pavers between the tree and the adjacent building, as was contended on her behalf on the appeal.

The primary judge identified three distinct levels of generality in respect of which her Honour found there was “particular risk” for the purposes of s 45. In [76] the “particular risk” identified was the general risk of large street trees causing disruption to pavements. In [77] the risk of raised pavers in Coward Street was identified and a finding of either actual or constructive knowledge was made. This finding was refined in [78] where her Honour inferred from the presence of the yellow paint around the tree nearest to where Ms Latham fell that the Council had actual knowledge of the risk.

At no point did the primary judge descend to the requisite level of detail required by the words “particular risk” in s 45: namely, the need for there to be actual knowledge of the unevenness or irregularity of the paver that created the risk which later ensued when Ms Latham walked along the footpath and tripped on it.

There was no evidence that the Council had actual knowledge of the particular paver which caused Ms Latham to trip. Such evidence as there was (the email sent by Mr Burthenshaw referred to above), was to the contrary. Accordingly, in my view, the evidence was insufficient to establish that the Council had “actual knowledge of the particular risk, the materialisation of which resulted in the harm” within the meaning of s 45.’

38. I accept that the first step that I must take is to determine what is the particular risk. The Statement of Claim that the plaintiff relies upon pleads at [16] as follows:

‘The risk of harm to the Plaintiff was not insignificant in accordance with Section 5B(1)(b) of the Civil Liability Act 2002 in that the ramp was not properly installed or connected and was susceptible to movement which created the risk of the Plaintiff sustaining a physical injury.’

39. At T18.4 onwards, Counsel for the plaintiff stated as follows:

‘In other words, that ramp that the plaintiff fell was not properly installed or connected and was susceptible to movement, which is what created the risk of injury to the plaintiff, so it is not the ramp itself, but the movement of the ramp or a ramp outside Centro.’

40. I note the distinction that is being made by the plaintiff is that these circumstances are different to the situation in Latham, as in that case the particular paver had to be identified, not the pavers in general. It was further submitted by Counsel for the plaintiff that case ought be distinguished from Collins v Clarence Valley Council (No 3) [2013] NSWSC 1682 where Beech-Jones J at [144] stated as follows:

‘On its face this passage suggests that the “particular risk” that the Council must have had knowledge of was that posed by the particular gap that Dr Collins’ bike became stuck in prior to her falling over the side of the bridge. However, the emphasis put in this extract on the way the respondent put her case in Latham is significant. In Latham, the respondent “put her case” on the basis that the area of the pavers in question was generally suitable but there was one “rogue” paver. Hence the Council was required to have knowledge of the “particular risk” posed by that paver. In this case, Dr Collins’ case was that the Bluff Bridge was riddled with dangers, one of which ensnared her, even though she cannot point to the particular hole she fell in. In these circumstances the “particular risk” corresponds with the risk of harm I have already identified in [117].’

41. The risk of harm that his Honour identified at [117] is as follows:

‘Viewed prospectively from the position of the Council the relevant “risk of harm” that materialised was the injury that might be suffered from a cyclist falling after their wheel becomes stuck in the holes or gaps in the planks on the bridge. I will return to address this when considering breach, but at this point I note that such falls might of course give rise to no injury other than bruising. Viewed prospectively it could have also given rise to puncture wounds from falling on exposed bolts. One realistic possibility is that averted to by Dr Collins of a fall leading to a collision with an oncoming truck. A more remote possibility was that which eventuated.’

42. His Honour’s decision was subject to an appeal to the Court of Appeal in the case of Collins v Clarence Valley Council (2015) 91 NSWLR 128, the relevant part of the Judgment is found at [157]–[158] (McColl JA):

‘The appellant bore the burden of establishing that CLA, s45 did not apply. There was no controversy that Mr Madden was the Council officer with relevant authority to carry out the necessary roadwork to eliminate the relevant risk or to consider carrying out such roadwork. However, as the primary judge held, the appellant also had to establish that Mr Madden had “actual knowledge of the particular risk the materialisation of which resulted in [her injuries].”

Because “actual knowledge” is required, reliance on imputed or constructive knowledge is precluded. However, as the primary judge held, a finding of actual knowledge can be made by inference and, if the inference is fairly available and the roads authority calls no evidence to rebut it, the Court can more comfortably find actual knowledge.’

43. Further at [164] McColl JA found;

‘… The primary judge recognised that Botany Bay Council v Latham identified the s 45 “particular risk” of which the relevant public authority must have “actual knowledge” by reference to the way the plaintiff put her case, being one relating to her tripping on a ‘particular paver that was uneven or irregular’. In the present case, his Honour identified the way the appellant put her case as relating to the condition of the bridge generally, being that Bluff Bridge was riddled with dangers, one of which ensnared her, even though she cannot point to the particular hole she fell in”, such that the “particular risk” corresponded with his s 5B(1) risk of harm.’ (emphasis in original)

44. His Honour’s examination of the s 45 issue was not overturned by the Court of Appeal. Similarly, there was no appeal in Latham.

45. The pleading in this matter does not allege that the ramp from which the plaintiff fell was defective, but specifically alleges that the ramp was susceptible to movement. I accept that is the particular risk that the plaintiff relies upon is the risk of the ramp moving.

46. The documents tendered by the plaintiff in respect of notification to the Council contain two notifications with regard to the risk of people accessing the ramp in a wheelchair may come to harm.

47. The plaintiff bears the onus of proving, on the balance of probabilities, that the Council was aware of the risk. As such, the ‘particular risk’ of which the Council had actual knowledge must be identified.

48. I find that the particular risk was the risk of the ramp being susceptible to movement because it was not properly installed or connected.

49. The two notifications to the Council on 3 April 2017 and 20 April 2017 detailed that the ramps were unsafe for use by people in wheelchairs. I accept that those notifications could be construed as giving the Council actual knowledge of the risk posed to people in wheelchairs using the ramps, could be in danger, but I am not satisfied on the balance of probabilities that these are the same ramps that the plaintiff fell on.

50. Furthermore, even if it is the same ramp, I cannot accept that those two notifications are sufficient to import to the Council actual knowledge of the risk particularised by the plaintiff in his pleadings—that is the risk of a person using the ramps, sustaining a physical injury because the ramps were not properly installed or connected and were therefore susceptible to movement. Counsel for the plaintiff conceded that it was not alleged that the ramp itself was defective, but that the movement of the ramp simplicita was the risk to which the plaintiff was exposed. I am not satisfied that the plaintiff has proven that the Council were aware of that specific risk.

51. Accordingly, s 45 is enlivened and the defendant is entitled to the immunity provided by the section. Thus, the plaintiff must fail.

52. I therefore make the following orders:

1. Judgment for the defendant.

2. Plaintiff to pay defendant’s costs as agreed or assessed.

3. Grant liberty to the parties to contact my associate within 14 days if an alternate costs order is sought.

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Decision last updated: 30 April 2021