Rothonis v South Sydney Council

[2004] NSWCA 290

CITATION:	Rothonis v South Sydney Council & Anor [2004] NSWCA 290 revised - 25/08/2004
HEARING DATE(S):	23 August 2004
JUDGMENT DATE:	23 August 2004
JUDGMENT OF:	Handley JA at 1; Beazley JA at 11; Ipp JA at 12
DECISION:	Appeal dismissed with costs
CATCHWORDS:	HIGHWAYS - pedestrian falls on footpath -no question of principle - ND
PARTIES :	Panagiota Rothonis (Appellant) South Sydney Council (First Respondent) Energy Australia (Second Respondent)
FILE NUMBER(S):	CA 40991/03
COUNSEL:	D Andrews (Appellant) D Campbell SC/M Fordham (First Respondent) G watson SC/N Chen (Second Respondent)
SOLICITORS:	T D Kelly & Co (Appellant) Leitch Hasson Dent (First Respondent) Tress Cocks & Maddox (Second Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2175/02
LOWER COURT JUDICIAL OFFICER :	Nield DCJ

CA 40991/03
DC 2175/02

HANDLEY JA
BEAZLEY JA
IPP JA

23 AUGUST 2004

PANAGIOTA ROTHONIS v SOUTH SYDNEY COUNCIL & ANOR

CATCHWORDS

HIGHWAYS – pedestrian falls on footpath – no question of principle

FACTS

The appellant fell on a public footpath in Redfern close to a manhole cover installed many years before by an electricity undertaker. One of the covers was not sitting flush in its housing but protruded 19 millimetres at one end and 8 millimetres at the other above the level of the footpath. There was no evidence that the council or the undertaker had interfered with the manhole cover and left it protruding but there was evidence that a third party had probably done so. The appellant sued the council and the electricity undertaker but the trial Judge entered judgments for the defendants. On appeal HELD: The appellant had failed to establish error.

ORDERS

Appeal dismissed with costs.

CA 40991/03
DC 2175/02

HANDLEY JA
BEAZLEY JA
IPP JA

23 AUGUST 2004

PANAGIOTA ROTHONIS v SOUTH SYDNEY COUNCIL & ANOR

Judgment

1 HANDLEY JA: This is an appeal by a plaintiff from judgments entered by Nield DCJ for the defendants in a slipping case where the accident occurred on a public footpath. This was at the corner of Regent and Marion Streets, Redfern. The accident occurred in daylight on the morning of 5 March 2002.

2 The plaintiff, who was on her way to see her doctor, had walked south along Regent Street from Redfern Railway Station. She was generally familiar with the area, having visited the same doctor many times over the years and she always followed the same route. There is some uncertainty as to the weather conditions that morning, but there is no suggestion that the light was poor.

3 The plaintiff gave evidence about her fall at this corner. Her husband and daughter-in-law visited the area within a few days and took photographs. These became exhibits A1 to A4 in evidence. These reveal the presence in the footpath of a two-part metal manhole cover which, on the evidence, was installed by a predecessor of Energy Australia. The judge found that employees of Energy Australia or its predecessors had last worked on the pit in 1979. However, the photos taken shortly after the accident show that the plate on the western side was not sitting flush in its housing. There was expert evidence based on the photographs that the northern corner of the western plate was 19 millimetres above the pavement, the height differential falling away to 8 millimetres at the southern end closest to the gutter. The plaintiff, who gave most of her evidence through an interpreter, was far from clear about the mechanism of her fall or where it occurred. The judge said:

“I think that the differences reveal the plaintiff’s faulty memory of what happened and her reconstruction of what happened.”

4 He said later in his reasons:

“I doubt that she was on the lids of the … pit, and that even if she was, she had placed her foot on the join between the lids of the pit at the place that she marked with a cross in blue ink on the photographs numbered two and four of exhibit A. I doubt that, because of her evidence as to what she was doing before she fell.”

5 He found that the plaintiff was about to step onto the street and was looking to her left to check for any oncoming car. Thus he considered that she was closer to the corner at the intersection than the lids of the third defendant’s pit. He continued:

“... and that even if she was on the lids, she was closer to the southern edge of the pit than to the northern edge.”

6 In concluding on this issue, his Honour said he was not satisfied that the plaintiff had placed her foot on the uneven edges of the lids of the pit somewhere along the join but, even if she had, he thought that she had placed her right foot on the join at or close to the southern end of the pit.

7 His Honour reviewed the evidence as to the cause of the displacement of the cover. At the time, employees of a company called Vision Stream were engaged in laying cables in the footpath of Regent Street and evidence of their activities can be seen in exhibit A1. The judge concluded that it was very likely that an employee or employees of Vision Stream had lifted the metal plates of the manhole cover to ascertain the position of cables leaving the pit and that this had been done a day or two before the plaintiff fell.

8 He then found that there was nothing in the evidence to suggest that either the Council or Energy Australia knew of the unevenness in the metal manhole covers at this site or that any employee of either defendant should have inspected the pit during the period after it became displaced. He said that the pit had been in existence for at least fifty years and had not been the subject of any earlier complaint to Energy Australia.

9 His final finding was that a height differential, even of 19 millimetres, was an expected hazard and not in the nature of a trap or danger to pedestrians taking reasonable care for their own safety. It can thus be seen that his Honour entered the judgments for the defendants on a number of distinct grounds.

10 Mr Andrews, who appeared for the appellant, has said everything that could possibly be said on behalf of the appellant but, in my judgment, has failed to displace any of the grounds on which the trial judge found for the defendants. I would propose that the appeal be dismissed with costs.

11 BEAZLEY JA: In my opinion the appeal should be dismissed with costs. The trial judge doubted that the appellant was on the lids or, if she was, he considered she was closer to the southern end than the northern end. It was clearly open to his Honour on the evidence not to be satisfied that the appellant fell because she twisted her foot on the uneven surface at the northern end of the lid. If he could not be satisfied of that, then the appellant could not succeed. The other bases upon which his Honour held that the appellant could not succeed, as has been referred to by the presiding judge, were all open to him, save for one reservation. I would not necessarily agree that a gap of 19 millimetres, which may not have been obvious to someone as it was approached, as was the expert evidence in this case, was not a trap or danger to pedestrians. But there were so many other bases upon which his Honour could find and did find that the appellant had failed to establish negligence that it is clear that the appeal should be refused with costs.

12 IPP JA: I agree with Handley JA.

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Last Modified: 08/26/2004