Rosina Grierson v Australian Capital Territory
[2011] ACTSC 113
•15 July 2011
ROSINA GRIERSON v AUSTRALIAN CAPITAL TERRITORY
[2011] ACTSC 113 (15 July 2011)
NEGLIGENCE – duty of care – breach – contributory negligence – roads authority – footpath – tripping hazard
Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43, 44, 102, 110, 113.
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
No. SC 277 of 2009
Judge: Master Harper
Supreme Court of the ACT
Date: 15 July 2011
The plaintiff claims damages for injuries which she suffered when she tripped and fell on a footpath outside her house at Ngunnawal in January 2008. Her damages are agreed at $55,000.00 in addition to the amount she would be required to repay to Medicare if she is successful, up to a limit of $1,500.00. The defendant, the Australian Capital Territory, denies liability and pleads contributory negligence.
The evidence
At the time of her fall the plaintiff was in her late seventies. She and her husband had moved from Adelaide to Canberra to be closer to their grandchildren. Their daughter found them a house to rent while they looked for a permanent residence. The plaintiff’s husband was elderly and in poor health, and required his wife’s care. They had a car which the plaintiff drove, her husband no longer being able to do so. They had moved into the house about three months before the plaintiff’s fall. On the day of the fall they were in the process of moving out into their new home. The removalists had arrived at the house, and asked the plaintiff to move the car out of the double garage to allow them access to the house. It was about 8:00 am. The plaintiff was dressed in casual clothes with rubber-soled backless open-toed slippers.
The plaintiff drove the car out of the garage, down the driveway onto the street. She then drove along the street until she was level with the other side of the house, and drove up over the nature strip and concrete footpath, to park the car beside the house. She got out of the car and walked back to the footpath, intending to walk along the footpath and back into the house.
Ngunnawal is a reasonably new suburb. The houses were about eight years old at the time. It is apparent from photographs in evidence that there was not much of a garden at the front of the house. The nature-strip area between the front of the house and the street was of gravel. The concrete footpath ran along the street, some little distance from the road surface and, I infer, reasonably close to the front boundary of the property. The footpath was constructed of square concrete pavers 1800 mm wide. Where two of the pavers met, the edge of one was 40 to 50 mm higher than the edge of the other, causing a trip hazard. An engineer who provided an expert report for the plaintiff’s solicitors thought that this had probably been caused by intermittent vehicle loading over time. The footpath in the vicinity seemed otherwise free of such hazards. The engineer, Mr Dohrmann, expressed the opinion that the difference in height constituted a trip hazard, taking account of the fact that pedestrians keeping a proper lookout on a concrete footpath reasonably expect a level walking surface, and again reasonably, may tend to focus less on what is immediately at their feet and more on their surroundings and where they are going.
The plaintiff was not wearing glasses, although she was carrying reading glasses in her right hand. There is no suggestion that she suffered from any deficit in eyesight which might have played a part in her fall. She was not looking at her feet when her foot caught. She tripped and her body flew forward through the air. She landed on the footpath, suffering facial injuries and injuries to the right side of her body, including the right arm, and right shoulder. She was taken by ambulance to hospital. Fortunately she seems to have made a generally good recovery from what must have been a highly unpleasant experience for a woman of her years.
The plaintiff’s evidence is that she was not particularly familiar with the footpath. Because of her husband’s condition, she had spent most of her time inside the house, except when she went out in the car. She was not much in the habit of walking and had done very little walking outside the house prior to the morning of her fall.
There had been a previous complaint to the administrative unit within the ACT Government responsible for footpath maintenance, then called ACT Roads and Stormwater, and now called Roads ACT. In March 2005, there was a complaint of a trip hazard which I accept related to the same pavers. This was inspected the day after the complaint was received, and within a week temporary repairs had been carried out, by sealing the join with bitumen cold mix. There is no record of any other complaint prior to the plaintiff’s fall.
Mr Mercieca is a public servant who for twenty years has been responsible for recording and processing, among other things, complaints about footpaths. Roads ACT had in place at the time of the plaintiff’s fall an asset management plan which included standards for levels of service in relation to the various assets under management, including roads, bridges and carparks. In the plan, footpaths were called community paths. A concrete or paver surface trip equal to or greater than 15 mm was recognised as a hazard requiring intervention. The street in which the plaintiff was living is within a category regarded as a low risk area, being a low to medium density residential area. The plan did not require routine inspection of footpaths in such an area, although there was a target that such footpaths should be inspected once every four years. It was not practical, having regard to staff and budgetary constraints, to inspect every footpath in suburban Canberra. There were about four inspectors to deal with such issues, and I accept that they probably gave priority to high and medium risk areas including city and town centres, shopping centres, high-density housing, tourist attractions and bus stops. They were, I accept reasonably, able to deal with hazards in low risk areas only by responding once a complaint was made.
Mr Mercieca explained that bitumen cold mix was used for temporary repairs, I infer to eliminate the hazard in the short to medium term. This would generally be followed by a permanent repair, perhaps involving the replacement of paving slabs, or pouring of concrete, usually within twelve months of the temporary repair. I infer that the reason for this is that such temporary repairs are not expected to last indefinitely.
The temporary repair having been carried out within a few days of the complaint in March 2005, nothing more was done by way of permanent repair or even inspection to ascertain whether the temporary repair remained satisfactory. It was almost three years later that the plaintiff suffered her fall. It is apparent from photographs in evidence that whilst there was still some bitumen visible, it was no longer of adequate quantity to eliminate the tripping hazard, which by then was probably back to its risk level prior to the temporary repair three years earlier.
A neighbour who has lived next door to the house occupied by the plaintiff for about ten years gave evidence that the footpath was and is used frequently by local residents. It leads to a small shopping centre on the other side of a small park equipped with swings and a see-saw. She said that the footpath paving was in very good condition generally, apart from the hazard in question. She recalled the temporary repair three years earlier. She said that it had not been successful because the workmen had not put enough filling in. They had “only half-fixed it”. The neighbour knew that the hazard was still there but notwithstanding this, at least once, she had tripped on it and taken some skin off her toe. On another occasion she saw a boy thrown from his scooter when he struck the hazard, and she recalled an incident involving her own daughter riding a bicycle into it. She said that the filling was dark and hard to see, masking a gap above it. She said that after the plaintiff’s fall, a further temporary repair was carried out using more cold mix bitumen, and that some weeks later three pavers were replaced.
Mr Dohrmann conducted his inspection in December 2009. He noted that the pavers which had constituted the hazard still did not meet flush with each other, suggesting further subsidence since the permanent repair almost two years earlier.
The plaintiff conceded that it was a fine dry day and that there was nothing to obscure her vision of the footpath as she walked along it. She agreed that footpaths were not always even, having regard to cracking and tree roots. She said that she did not normally look at the footpath when she was walking along it, and that she did not watch her feet while she was walking.
Counsel for the defendant submitted that the plaintiff on her own evidence had not been looking where she was going, and had failed to keep a proper lookout, disentitling her to recover. I am not sure on the evidence that the plaintiff was not keeping a proper lookout. It is easy to be wise after the event. I accept that the plaintiff was quite unaware of the hazard at the time of her fall and had not previously noticed it during the three months she had been living at the house. I am not satisfied on the evidence that the hazard was as obvious to a pedestrian behaving in a reasonable and prudent fashion as counsel for the defendant submits it was. The next-door neighbour had at least once tripped on it even though she was generally aware it was there, and her daughter and the boy on the scooter had not noticed it in time to avoid it. The fact that the plaintiff did not see it is insufficient of itself to satisfy me that she was not keeping a proper lookout and was not taking adequate care for her own safety in all of the circumstances.
At the same time, I accept that if she had been looking at the footpath with greater care she probably would have noticed it and been able to avoid it. Her behaviour was not so devoid of reasonable care for her own safety as to place her outside the category of pedestrians to whom the defendant owed a duty of care, but was sufficiently careless to amount to contributory negligence of modest degree.
The statutory framework
Actions for damages for negligence are governed by Chapter 4 of the Civil Law (Wrongs) Act 2002 (ACT). Such actions against public authorities, including the Territory, are affected by Chapter 8 of the Act.
Section 42 of the Act provides that the standard of care required of a defendant is that of a reasonable person in the defendant’s position who was in position of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the injury arose.
Section 43 provides that a defendant is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable and was not insignificant, and unless in the circumstances a reasonable person in the defendant’s position would have taken the precautions. The court is required in such a case to consider, among other factors, the probability that the harm would happen if precautions were not taken, the likely seriousness of the harm, and the burden of taking the precautions. By section 44, the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done, and the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
Chapter 8 includes section 110 which is in the following terms:
110 Principles about resources, responsibilities etc of public or other authorities
The following principles apply in deciding in a proceeding whether a public or other authority has a duty of care or has breached a duty of care.
(a) The functions required to be exercised by the authority are limited by the financial and other resources reasonably available to the authority for exercising the functions;
(b) The general allocation of the resources by the authority is not open to challenge;
(c) The functions required to be exercised by the authority are to be decided by reference to the broad range of its activities (and not only by reference to the matter to which the proceeding relates);
(d) The authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates.
Section 113 is also apposite:
113 Special nonfeasance protection in relation to roads etc
(1) A public or other authority is not liable in a proceeding for harm arising from a failure of the authority to maintain, repair or renew a road, or to consider maintaining, repairing or renewing a road, unless at the time of the claimed failure the authority knew, or ought reasonably to have known, 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 relation to a risk only because the authority has actual knowledge of the risk; or
(b) to affect any standard of care that would otherwise apply in relation to a risk.
(3) In this section:
Road means a street, road, lane, cyclepath, footpath or paved area that is open to, or used by, the public.
The applicable principles
The traditional rule at common law was that a public authority, whilst it might be liable for damage caused by misfeasance, was not liable for damage arising from nonfeasance in relation to its responsibility for the maintenance of public roads. This is no longer part of the law of Australia, following the decision of the High Court in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512. The plaintiff in Ghantous was injured when she tripped and fell while stepping from a concrete footpath on to an earthen verge. The unsealed strips on either side of the footpath had sunk due to erosion and were about 50 mm below the level of the path. The plaintiff failed at first instance and on intermediate appeal because of the nonfeasance rule. She was unsuccessful in the High Court, but on the basis that the facts disclosed no negligence by the defendant authority, the footpath not being unsafe for a person taking ordinary care. Callinan J said at paragraph 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. The applicant herself admitted in cross-examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the earthen verges. There was no negligence on the part of the respondent either in the construction of the footpath or in not keeping the concrete strip and the verges level.
The majority (Gaudron, McHugh and Gummow JJ) said at paragraph 150-151:
Authorities having statutory powers . . . to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users ). . . Where the state of a roadway, whether from design, construction works or non-repair, poses a risk . . . then, to discharge its duty of care an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be expected to exist.
The perception of the response by the authority calls for . . . a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case.
At paragraph 162 their Honours went on to say:
The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authority. In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations. The resources available to a road authority, including the availability of material and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made. It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are addressed. Even so, it may well be reasonable of the authority to exercise other powers including, for example, by erecting warning signs, by restricting road usage, or, in extreme cases, by closing the road in question.
At paragraph 163 their Honours said:
The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence . . . There may be a foreseeable risk of harm even to persons taking reasonable care for their own safety . . . Each case will, of course, turn on its own facts.
The scope of the duty of care owed by a road authority was clarified by Gummow J in Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at paragraph 47. Dederer was claim for injury resulting from a dive from a bridge. Gummow J said:
The RTA’s duty of care was owed to all users of the bridge, whether or not they took ordinary care for their own safety; the RTA did not cease to owe Mr Dederer a duty of care merely because of his own voluntary and obviously dangerous conduct in diving from the bridge. However, the extent of the obligation owed by the RTA was that of a roads authority exercising reasonable care to see that the road is safe “for users exercising reasonable care for their own safety”. The essential point is that the RTA did not owe a more stringent obligation towards careless road users as compared with careful ones. In each case, the same obligation of reasonable care was owed, and the extent of that obligation was to be measured against a duty whose scope took into account the exercise of reasonable care by road users themselves.
His Honour made it clear that the obligation on the authority is to exercise reasonable care, not to prevent harm occurring to others (at 51). His Honour also emphasised that in each case, the question of whether reasonable care was exercised must be judged prospectively, and not by retrospectively asking whether action by the authority could have prevented the plaintiff’s injury (at paragraph 65).
Consideration of the issues
This is a case where the defendant, as the authority responsible for maintenance of the footpath, was aware of the existence of a hazard, having inspected it and carried out temporary repairs three years earlier. Having regard to the evidence as to the defendant’s usual practice of following a temporary repair to a footpath with a permanent repair within twelve months, the defendant must be taken to have known of the hazard; or at least, in the circumstances the defendant ought reasonably to have known of the likelihood that the earlier hazard of which it had actual knowledge might not have been adequately dealt with. Hence section 113 of the Civil Law (Wrongs) Act cannot assist the defendant.
It cannot be seriously suggested that the omission to carry out a permanent repair of the hazard within a year of the temporary repairs could be excused by any limitation of financial or other resources, or consideration as to the allocation of those resources. It seems to me more likely than not that for some unexplained reason, the defendant’s usual procedure in relation to this hazard, admittedly rather minor in the scheme of things, of carrying out a permanent repair within twelve months, was overlooked.
There is no question that the hazard was a cause of the plaintiff’s fall. It seems to me that there has been something of a shift in the common law between Brodie and Ghantous in 2001 and Dederer in 2007, as to the range of persons to whom a roads authority owes a duty of care. The better view now appears to be that a duty is owed to all users of the road (or footpath) but that the level of the duty is directed at persons taking reasonable care for their own safety. As I said at paragraph 15 of these reasons, I am satisfied that the plaintiff was owed a duty of care by the defendant and that the defendant committed a breach of that duty (in failing to carry out a permanent repair of the known hazard). That breach was the major cause of the plaintiff’s injuries. The plaintiff, I am satisfied, would have noticed the hazard if she had been keeping a better lookout. Her failure in that regard amounts to contributory negligence. Section 102 of the Civil Law (Wrongs) Act requires me to reduce the plaintiff’s damages to the extent I consider just and equitable having regard to her share in the responsibility for the damage which she suffered. I consider that it would be just and equitable on the facts of this case to reduce the plaintiff’s damages by 20%.
Conclusion
The plaintiff’s damages have been agreed at $55,000.00 in addition to the Medicare payback, capped at $1,500.00. The former figure will be reduced to $44,000.00. It will probably be appropriate for me to direct the entry of judgment for that amount, but the plaintiff may seek judgment for a higher amount incorporating all or part of the Medicare payback. Counsel did not address me on the effect of a finding of negligence against the defendant and contributory negligence against the plaintiff on their agreement as to the Medicare payback. I shall provide counsel with an opportunity to be heard about that, and about costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 15 July 2011
Counsel for the plaintiff: Mr I D Bradfield
Solicitors for the plaintiff: Ken Cush & Associates
Counsel for the defendant: Mr S H Pilkinton
Solicitors for the defendant: Australian Government Solicitors
Date of hearing: 7 July 2011
Date of judgment: 15 July 2011
0
2
1