Russell v City of Melbourne
[2023] VSCA 97
•1 May 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2022 0059 |
| JOHN (JACK) RUSSELL | Applicant |
| v | |
| CITY OF MELBOURNE | Respondent |
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| JUDGES: | KYROU, McLEISH and NIALL JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 March 2023 |
| DATE OF JUDGMENT: | 1 May 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 97 |
| JUDGMENT APPEALED FROM: | [2022] VCC 476 (Judge Pillay) |
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PUBLIC LIABILITY – Judge relied on transcript of applicant’s evidence in dismissing claim – Whether transcript erroneous – Evidence was applicant tripped ‘upon’ unseen depression whereas transcript erroneously recorded applicant saying he tripped ‘in front of’ unseen depression – Reliance on erroneous transcript a material error.
PUBLIC LIABILITY – Judge said applicant never raised issue about the joining edge between asphalt and concrete pad – Applicant’s frequent reference to ‘the lip’ and ‘the trip zone’ accommodated allegation that join between pad and asphalt was uneven and he tripped on join – Judge did not make necessary findings of fact as to whether there was an uneven join and whether depth of lip exceeded intervention standard – Leave to appeal granted – Appeal allowed.
Road Management Act 2004, s 102.
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| Counsel | |||
| Applicant: | Ms GA Costello KC and Dr A McBeth | ||
| Respondent: | Mr MJ Latham | ||
Solicitors | |||
| Applicant: | Not applicable (Victorian Bar Pro Bono Scheme) | ||
| Respondent: | Hunt & Hunt | ||
KYROU JA
MCLEISH JA
NIALL JA:
On 26 September 2017, the applicant was injured when he fell on the footpath on Lonsdale Street in the Melbourne Central Business District. Following the fall, he commenced a proceeding for damages in the Supreme Court alleging that the fall had been caused by negligence or breach of statutory duty on the part of the City of Melbourne (‘the respondent’). The proceeding was remitted to the County Court.
Following a trial, at which the applicant represented himself, a judge of the County Court dismissed the proceeding. Briefly put, the applicant claimed that the footpath at the point he fell was defective, the defect had caused him to fall and the failure to rectify the footpath constituted a breach of common law or statutory duty. The judge concluded that the applicant had failed to prove the cause of the fall and therefore could not make out either cause of action.
As will appear, the judge relied on the transcript of the applicant’s evidence which was, in an important respect, inaccurate. The transcript misstated the applicant’s evidence about where on the footpath he had fallen. The error is such that the verdict cannot stand. Because the judge decided the case on the basis of causation, he did not make findings about the state of the footpath and whether it was defective in the way alleged or the state of the respondent’s knowledge about the matter. This latter question was relevant to a pleaded defence under s 102 of the Road Management Act2004 (‘RMA’). Further, the judge did not make any findings about the extent of the injury nor decide what damages, if any, ought to be awarded in the event the applicant had succeeded in his claims. The findings of fact that would be required to resolve the proceeding will, in part, depend on an assessment of the applicant’s evidence which is properly a matter for trial. This Court is not well placed to resolve all of the outstanding factual matters.
In the result, for the reasons that follow, we will grant leave to appeal and allow the appeal. We will remit the matter to the County Court.
The facts
Some matters are not in dispute.
Lonsdale Street runs in an east west direction in the Central Business District of Melbourne. Lonsdale Street slopes downhill between William Street and King Street. The applicant was walking on the footpath on the southern side of Lonsdale Street heading downhill.
As he walked, he had a case in one hand and pulled a small wheeled suitcase with his other hand. The weather was fine.
On the footpath, embedded into the asphalt surface was a square concrete pad. The pad was surrounded on each side by asphalt. The condition of the pad was a significant issue in the trial; the applicant’s case was that it was worn, with the aggregate visible, and had an uneven concave surface creating a ‘depression’. He also referred to the presence of a ‘lip’. The pad had previously formed the concrete base of a Telstra telephone booth which had been bolted to the pad. At some time before the incident, Telstra had relocated the telephone booth a short distance away and replaced it with a three sided telephone kiosk. The new telephone installation was moved closer to the road side and rotated 90 degrees leaving the original concrete pad exposed within the footpath.
It was not in dispute that the applicant had fallen on the footpath and had suffered a serious injury as a result.[1]
[1]The injury sustained by the applicant was a serious injury for the purposes of the Wrongs Act 1958, entitling him to sue for damages.
The applicant was immediately assisted by three Protective Services Officers (‘PSOs’), one of whom took a photograph of the scene. As discussed below, one of the PSOs also completed a file note which was provided to the applicant under the Freedom of Information Act1982. Although that document was in the Court Book, it was not tendered in evidence.
Although not legally qualified, the applicant has had some experience in legal matters and drafted his statement of claim without legal assistance. As against the respondent,[2] the applicant alleged that it was liable for injuries sustained by him due to breaches of its Road Management Plan (‘the RMP’) ‘that stipulates intervention levels and the response times for defects in the Council’s roads and footpaths’, and ‘in common law duty of care’. We interpolate to note that the RMP was a policy or instrument prepared for the purposes of the RMA which governs aspects of the maintenance and repair of public roads, including footpaths, and regulates the legal liability of road authorities in relation to the use of such roads.
[2]Telstra was also sued but the applicant’s proceeding against Telstra resolved before trial.
As to the cause of the injury, the applicant pleaded:
1.That the plaintiff suffered multiple injures due to a fall [at] 525 Lonsdale St Melbourne.
2.That the fall was due to a trip zone within the pavement of approx. 1 metre [square].
3.That the depression in the pavement was approximately 30mm below the surrounding pavement level.
4.That the plaintiff tripped & fell heavily forwards & was immediately attended by 3 PSOs directly in front of him.
It is convenient at this point to refer to answers given by the applicant to interrogatories served by the respondent. Although the answers were not sworn by the applicant, they were taken into account by the judge in his decision.
Asked to state the precise location of where he had placed his feet which led to the incident, the applicant answered: ‘too vague to answer!’
Asked to describe ‘the object upon which [he] tripped stating the material from which it was made and the size of any discontinuity or step in the pavement’, the applicant answered:
8. Proof of state of trip zone is:
(a) statement of PSO in evidence.
(b) Photograph taken by PSO and other in evidence.
(c)a later inspection by myself revealed that an approx. area of 1 meter square formed a 30mm depression in the pavement and with an irregular surface left after previous workers [removed] a known telephone booth - ?? of the pavement that formed a step was a known risk, as reported to myself by City of Melbourne Council, but after the injuries that I now suffer.
The variance of the trip zone was a ? payment of bitumen, to a poured concrete area of approx. 1 meter square with square sides.
The applicant’s evidence
In advance of trial, the applicant prepared a handwritten document which was tendered in evidence with the title ‘Plaintiffs Statement of Life’. The judge asked the applicant to read the statement into the transcript as his evidence in chief which the applicant then did, commencing at page 5 of the document.
In so far as is relevant for present purposes, the transcript records the following:
The incident, 7. That I was walking down Lonsdale Street outside 525 Owen Dixon Chambers carrying a briefcase in my left hand and trailing a wheely airport trolley in my right hand when I tripped in front of an unseen depression in the footpath; that three PSOs [which are not police, they’re whatever they are] attended to myself immediately and took photographs of the immediate site and provided statements [refer to p704 - and that’s of the court book]. 9. That subsequent to the incident I attempted to obtain CCTV footage located outside Isaac Chambers at Lonsdale Street [which is next door to where I fell] …
The emphasis is added. The words in square brackets appear in the transcript and reflect additions that the applicant made as he read his statement in Court. As already noted, the document itself was tendered in evidence.
Although the significance to this application will become apparent, it is convenient at this point to note the following. The words in bold do not accurately reflect either what was written in the applicant’s statement or what he said in Court. During the hearing of the application for leave to appeal, the Court listened to the recording of that part of the applicant’s evidence. We are satisfied that the applicant read the statement as he had written it as follows:
That I was walking down Lonsdale St outside 525 Owen Dixon Chambers carrying a briefcase in my left hand & trailing a wheeled airport trolley in my right hand when I tripped upon an unseen depression in the footpath.
To emphasise the point: the evidence was that the applicant tripped upon an unseen depression whereas the transcript erroneously recorded him as saying he had tripped in front of an unseen depression.
In his evidence, the applicant identified a photograph as having been taken shortly after the incident by a PSO looking west down Lonsdale Street. The applicant can be seen in the photograph, seated on some steps of an adjacent building, being attended by two PSOs.
In cross examination, the applicant said that he had not seen the depression in the footpath and was not aware of ‘a trip point’ because he did not see it.
He denied that the pad was obvious.
The cross examination included the following exchange:
And as you were walking just before your fall, in fact, I want you to think immediately before you fall, do you step on to the pad; is that the last thing that happened before you fall over, the concrete pad that’s on the road?---My friend, I’ve already given evidence that I never saw a concrete pad and where my feet were at the point of impact I have no idea other than my injuries showed, certainly it was my footwear, my left foot was ripped off my - my sleeve and I sustained injuries to my foot. I later on discovered there was further injuries to my entire left side. I never saw an impression. I never saw a concrete pad. If I had I would have avoided it but it looked like it was a metre square and the evidence shows that it had deteriorated and the photograph is clear that there is - - -
It’s all right, I am not asking you about the photograph at the moment, I'll get to that, don’t worry?---Yeah, but in any case I didn’t see a concrete pad.
In his evidence, the applicant volunteered that the pad may have been in shade. Asked in cross examination whether the pad was in shade the applicant answered:
No idea. I have no recollection. I absolutely cannot say other than speculate that why - the reason I didn’t see the depression in the road and the reason I fell and not aware of a trip point was because I didn’t see it. I didn’t deliberately fall but the injuries sustained are quite subjective. They show that I fell.
Asked about the colour of the pad, the applicant gave some unresponsive answers, seeking to head off what he perceived to be an argument based on contributory negligence. Pressed to describe the colour of the pad in various photographs, the applicant gave the following evidence:
I’m asking you what colour is it in the photographs you’ve seen - - -?---I’ve seen various photographs.
- - - where the pad is not covered in shadow?---Some are black, some are white, depending on the intensity of the sun and if it’s in shade all we see is - and there’s the photographs. So we’ll get to that when we have the evidence. But I’m saying I never saw the slab, I tripped over the slab but I never saw and I can’t give an account of whether it was - entry a site as it trips over or leaving a site as it trips over. But there was a 30 millimetre edge, square edge.
In cross examination, the applicant explained that he had measured the depression in the pad when compared to the surrounding asphalt. He said that he had placed a square metal pole that was 1.5 metres long across the pad, with each end sitting on the surrounding asphalt and measured the difference between the surface of the pad and the metal bar using a calliper and vernier. He said he measured the gap between the surface of the pad and the metal bar at nine points along three parallel lines. Three points were measured near the western edge, three in the middle and three at the eastern edge. He said he recorded a depth of between 30 and 34 millimetres ‘on the edges’ and ‘over 40 in the middle’. We interpolate to note that the main purpose of this evidence was to show that the depression or concave surface of the pad met the level required for intervention under the RMP.
In re-examination, the applicant said:
Now, in numerous ways people have accidents. In my case here I am, I’m fit, able and well and walking well, striding, and this is what occurred. And I am directly in front of three PSO, and when I fell over I felt as though I was flying through the air.
The judge then asked directly: ‘Tell me what caused the fall?’ to which the applicant responded:
To the best of my knowledge all I can say is that I either went - I was trapped in the - more likely as I was coming out, because the lip would present itself as a trip point, whereas it may have been that I actually fell into the thing, and that unbalanced me, and then it shot me forward, I think more likely the downhill side because if there’s a slope – as I say to you, there is a cross slope and there’s a down slope. The down slope is between 4 and 5 degrees. So it was free motion, if you like. You know, you're travelling downhill and then you get to something like this.
Now, we all know it was a depression because their own evidence will show that when he speaks of a depression and questions whether it exceeded 10 millimetres, 10 millimetres is not the gauge, and yet one of the witnesses describes 10 millimetres as being the gauge. It’s not. It’s 25.
Asked by the judge to describe the position of his feet at the time of the fall, the applicant responded:
I could only once again surmise, because I would have been just trying to avoid the box that was there. And most of the people were streaming up the hill against the wall of the buildings, in this case it was the solicitors’ chambers. Now, all I can say is that controlled, if you like, my space.
…
Can I just ask you again?---So I don’t know exactly where my feet were. I couldn’t tell you, other than my left shoe was ripped off from me, which is probably why I had that injury to my foot, which means to me it was coming out of a depression, not going in. So I was walking, I would say, down the centre of the depression. I was observing - I don’t normally have any trouble with vision, and if in some way that was obscured by being in the shadow - there are numerous photographs of shadows on that place. So I wouldn’t have any idea why it was that I didn’t acknowledge there was a depression there. No idea.
PSO file note
The applicant obtained under the Freedom of Information Act 1982 a copy of what appears to be a file note prepared by one of the PSOs who attended upon him when he fell. The file note was included in the Court Book but was not tendered into evidence.
The applicant referred to the file note in his answers to interrogatories, which were referred to by the judge in his reasons.
Further, during the applicant’s re-examination there was the following exchange between the judge and the applicant:
Once again, you’re in evidence and it’s your evidence about what you saw at the time; not what, you know, various other people might think. Is there anything you wanted to put into evidence to clarify any answer you had given during cross-examination?---Well, short of anybody being there at the time, there were only three witnesses who could answer that question; what they saw. Now, the statement given by the person that provided his witness statement on the day, quite clear what it says, and I will refer to that in my - - -
In due course. All right. Moving on to the next topic that [counsel for the respondent] asked you about?---Yes.
It can be reasonably inferred that the reference to the ‘witness statement’ is to the PSO file note. Neither the parties nor the judge returned to it.
The file note includes the following entry:
26/9/2017 1509
obs M 79 y.o John RUSSELL …
obs M on Southern side Lonsdale St. O/S 525 Lonsdale St. next to Telstra phone box walking West direction. Tripped & fell heavily on uneven pavement
Contacted ambo for M. M complaining of L foot L + R knee & shoulder L pain as a result of the fall
Photographs taken by me on mobile phone re uneven pavement.
Further to above entry M’s L shoe came off during the fall however remained laced up. 1534 ambos attended Preston 71033. John RUSSELL
MNI: 936601910 N/W
The judge did not have regard to the file note. We shall return to the relevance of this.
The statutory context
The RMA provides for a range of defences that depend upon a road authority making road management plans and policies and complying with them. It precludes certain defences based upon the existence of a policy if the policy is legally unreasonable. The RMA also allows for a specific challenge to be brought for the failure of a road authority to remove a hazard, repair a defect, or give a warning, if the road authority had actual knowledge of the particular risk involved.[3]
[3]See generally Kennedy v Shire of Campaspe [2015] VSCA 215.
The respondent is a ‘road authority’ under the RMA. At the relevant time, it had in place the RMP with respect to the footpath.
By s 40 of the RMA, the respondent is under a statutory duty to inspect, maintain and repair the footpath to the standard specified in the RMP.
Part 6 of the RMA applies to any claim for damages resulting from negligence in relation to the performance or non-performance of a road management function, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.
Section 101 of the RMA sets out some matters that must be taken into account in determining whether a road authority, infrastructure manager or works manager has a duty of care or has breached a duty of care in respect of the performance of a road management function.
Section 102 of the RMA limits the liability of a road authority. It provides:
(1)Subject to this section, a road authority is not liable in any proceeding for damages, whether for breach of the statutory duty imposed by section 40 or for negligence, in respect of any alleged failure by the road authority—
(a) to remove a hazard or to repair a defect or deterioration in a road; or
(b) to give warning of a hazard, defect or deterioration in a road.
(2) Subsection (1) does not apply if, at the time of the alleged failure, the road authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.
(3) For the purposes of subsection (2), the road authority is to be taken to have had actual knowledge of the particular risk if it is proven in the proceedings that the deterioration in the road had been reported in writing to the road authority under section 115.
(4) This section does not affect any liability of a road authority arising out of a breach of the duty to inspect a public road imposed by section 40.
The RMP
The RMP adopted by the respondent prescribed the frequency in which roads were to be inspected and time limits for the resolution of defects.
The RMP also set ‘intervention levels’ for roads and footpaths. This prescription took the form of a table which set a standard for which intervention was required and the area of footpath that needed to be repaired. Table 3 was in the following form:
Defect Type
Intervention Standard
Repair Size Limit
Level discontinuity (edge steeper than 1:1)
Over 10mm level difference
3m2 within a 20m2 area of the same pavement
Level discontinuity (edge slope 1:4 to 1:1)
Over 20mm level difference.
3m2 within a 20m2 area of the same pavement
Mounding caused by uplifted area of pavement.
Over 40mm gap under 1.2m straightedge
5m2 within a 20m2 area of the same pavement
Uneven surface grade caused by sunken area of pavement.
Over 25mm gap under 1.2m straightedge
5m2 within a 20m2 area of the same pavement
Cracked paver units that are otherwise sound
Paver unit has two or more cracks
Up to 8 cracked paver units within a 20m2 area of paver units.
Loose paver unit
Any discernible movement
Up to 8 loose paver units within a 20m2 area of paver units.
Missing paver unit
Missing
No limit
Gaps between pitchers caused by loss of grout.
Over 20mm depth
30m per 50m of road length
Gaps between paver units caused by loss of grout.
Over 20mm depth
30m per 50m of road length
Gaps between paver units and adjacent assets (including service covers and walls) caused by loss of grout or other jointing material or loss of infill render.
Over 20mm depth when width is less than 5mm. Over 15mm depth when width is 5mm to 10mm. Over 8mm depth when width is over 10mm
30m per 50m of road length
Depression caused by sunken area of pavement results in puddle after rain.
Puddle deeper than 10mm
No limit
The two entries that may have applied to the pad were the first and fourth entries. Applying the first entry, if the depth of the depression in the pad was greater than 10 millimetres, intervention was required up to the prescribed size limit. Applying the fourth entry, if a 1.2 metre straightedge was placed on top of the pad and the gap underneath exceeded 25 millimetres, intervention was required up to the prescribed size limit.
As is discussed further in ground 3 below, the applicant’s case was that his injuries were caused by falling into the depression in the pad, or alternatively that he tripped at the join or ‘lip’ between the pad and the asphalt surface. Although it does not emerge clearly either from the trial record or the argument in this Court, the first alternative would appear to be based on the fourth entry of the above table, while the second alternative enlivens the first entry.
The common law duty
It is convenient to briefly mention the nature of the duty imposed on the respondent under the common law. In short, the respondent owed a duty to pedestrians to take care to eliminate or reduce hazards which a pedestrian, having reasonable care for his or her own safety, would not see and avoid.[4]
[4]Boroondara City Council v Cattanach (2004) 10 VR 109; [2004] VSCA 139; Gosling v Lorne Foreshore Committee of Management Inc (2009) 25 VR 302, 310 [39]–[40] (Ashley and Redlich JJA and Kyrou AJA); [2009] VSCA 228.
The judge’s reasons
The judge concluded that the proceeding must fail because the applicant had not established that the depression in the pad had caused the fall. The judge reasoned that because the applicant had not established what caused the fall, he could not show that it was caused by any breach of duty or negligence of the respondent and therefore could not establish an element of his causes of action.
In coming to that conclusion, the judge set out some passages of the applicant’s evidence which the judge described as critical. The passages set out by the judge included part of the applicant’s answer to the judge’s question in re-examination as to what had caused the fall. The extracts of that part of the evidence set out by the judge included the following.
(a)First the erroneous part of the transcript where the applicant is wrongly recorded as saying that he tripped ‘in front of an unseen depression’.
(b)Second, the extract of cross examination set out above at [24].
(c)Third, part of the answer given by the applicant to the judge’s question in re-examination. At the risk of repetition, it is convenient to set out the parts reproduced by the judge:
Tell me what caused the fall?---To the best of my knowledge all I can say is that I either went - I was trapped in the - more likely as I was coming out, because the lip…
Can I just ask you again?---So I don’t know exactly where my feet were. I couldn’t tell you, other than my left shoe was ripped off from me, which is probably why I had that injury to my foot, which means to me it was coming out of a depression, not going in. So I was walking, I would say, down the centre of the depression. I was observing - I don’t normally have any trouble with vision, and if in some way that was obscured by being in the shadow - there are numerous photographs of shadows on that place. So I wouldn’t have any idea why it was that I didn’t acknowledge there was a depression there. No idea.
Having set out extracts of the applicant’s evidence the judge then explained why he considered the applicant had failed to establish the cause of the fall. The judge said that he had not confined his analysis to the applicant’s oral evidence but also had regard to his answers to interrogatories, the tendered photographs, and documents tendered from the Court Book.
The judge started his analysis by referring to the applicant’s evidence in chief that he had ‘tripped in front of an unseen depression in the footpath’. The judge noted that, in his statement of claim and answers to interrogatories, the applicant had referred to a ‘trip zone’ which the judge understood was to the depression in the concrete pad but, the judge noted, the applicant did not give evidence in support of that claim but said that he had tripped ‘in front of’ an unseen depression.[5]
[5]Russell v City of Melbourne [2022] VCC 746, [19] (‘Reasons’).
The judge said that the position was made even more unclear given the applicant’s evidence that ‘where my feet were at the point of impact I have no idea’.
The judge said that, in the applicant’s answer to the judge’s direct question in re-examination, the applicant identified two possible scenarios. The first was that, as he had come out of the depression, ‘the lip would present itself as a trip point’. The second was that the applicant ‘actually fell into… the depression’. The judge noted that the applicant could only ‘surmise’ where his feet were.[6]
[6]Ibid [22].
The judge accepted that the fall itself provided some circumstantial evidence that the depression was somehow implicated in the fall but said that it was entirely unclear how that was so. The judge continued:
Was it as Mr Russell said, a trip on the exit over a ‘lip’? Or a fall into the depression beginning at a point in front of the depression? It must be made clear that at no point did Mr Russell ever raise an issue about the joining edge between the asphalt and the concrete pad – the ‘lip’.
Taking the evidence from cross-examination [sic],[7] that is the fall occurred prior to the depression, it is unclear what caused that fall. In fact, as no allegation is made that the asphalt edge which joined to the concrete pad was uneven and caused the fall, it is entirely unclear why the depression was implicated other than as a transit point or an ending point for the fall. The claim would fail on that basis.
Alternatively, if it was that Mr Russell placed his foot on the downslope of the depression; then this alternative version is inconsistent with his description of tripping as in his Statement of Claim, cross-examination and response to Interrogatories.
Alternatively, again, if it was a trip as he left the concrete pad on a ‘lip’ as he has circled in Exhibit P3, this was not the depression he had made the focus of his Statement of Claim. These differences significantly affect the analysis of duty, breach, causation and damage.
On any one of the alternatives the Plaintiff’s claim must fail. This is because the Plaintiff’s evidence fails to detail how the depression caused the fall.[8]
[7]The judge’s reference to cross examination appears to be an error. The relevant evidence was given in chief. The judge does not identify any cross examination in which the applicant said he fell ‘prior’ to the depression and we were not taken to any part of the cross examination to that effect. It does however reflect the evidence in chief of the applicant.
[8]Reasons, [23]–[27].
Having rejected the claim because the cause of the fall had not been established, the judge then went on to address aspects of the statutory duty and common law duty.
In relation to the ‘statutory duty claim’, the judge noted that the respondent had argued that the depth of the depression did not meet the intervention standard in the RMP. The judge did not determine that factual question but said the statutory duty claim would still fail ‘because the Plaintiff, on his version of tripping in front of the depression, cannot implicate the depression as a cause of his fall’.[9]
[9]Ibid [30].
In relation to the common law duty claim, the judge concluded that the applicant was not taking reasonable care by watching where he was going and therefore ‘a duty of the scope necessary to extend to the circumstances of his fall does not arise’.[10] That conclusion was based on a number of matters, including that the pad was obvious, it was starkly different in colour to the asphalt footpath, the day was bright, and the applicant could not say how the fall occurred or whether he tripped before or on the pad.
[10]Ibid [31].
In assessing the alleged breach of the duty of care, the judge applied ss 48(1) and (2) of the Wrongs Act1958 and concluded that given the low probability of injury it was not a breach of the duty for the respondent not to repair the depression.[11]
[11]Citing Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29.
Grounds of appeal
If granted leave, the applicant seeks to advance the following grounds of appeal:
1.The Court below erred in fact by finding that the Applicant could not establish the cause and mechanism of his fall on the balance of probabilities and that the Applicant’s evidence failed to deal with how the depression in the pavement caused the fall.
2.The Court below erred in misconstruing the Applicant’s evidence about how he tripped over the depression as being that he tripped in front of the depression.
3.The Court below erred by finding that the Applicant never raised an issue about the lip between the asphalt and the pad.
Ground 2
It is convenient to start with ground 2.
The applicant submits that the judge made a factual error by relying on the erroneous transcript and therefore misunderstood a critical aspect of the evidence.
The respondent submits that there was no error and that, indeed, the applicant had given evidence that he tripped in front of the pad. Alternatively, the respondent submits that if there was an error it was not material to the result. That was said to be because the judge considered all of the scenarios raised by the applicant including one that ‘implicated’ the pad in the fall. The respondent says that the judge assessed whether the ‘trip zone’, being the depression in the pad, caused the fall but concluded that the evidence did not establish this fact because the applicant had not explained how the trip zone caused his fall; had no idea where his feet were at the point of impact; could only surmise as to the cause; and did not know whether he tripped on the lip or while walking on the pad. The respondent submits that the judge was correct to conclude that, even if the pad was involved in the fall, the applicant had failed to show how that was so.
In order to describe the respondent’s argument as to why, in any event, this alleged error did not matter, it is also necessary to refer to its argument under ground 1. In response to ground 1, the respondent says that the cause of the fall never went beyond speculation. The respondent refers to the applicant’s evidence that he never saw the pad, had no idea where his feet were and that, without knowing which part of the pad may have been involved, it was not possible to know whether it was part of the pad that was concave at a depth that was greater than the intervention standard under the RMP.
Independently, the respondent says that the errors do not matter because the judge held that a duty of care did not arise at common law, and the applicant could not succeed on the statutory breach claim because it was not shown that the respondent knew about the depression and there was no reliable evidence that the pad required intervention under the RMP.
Analysis and conclusion
We are satisfied that the applicant read his statement in the form in which it was written and that his evidence was that he tripped ‘upon’ the pad. Accordingly, the judge unwittingly misstated the evidence and determined the matter on a wrong factual basis. It is also notable that the respondent did not put its case at trial on the basis that the applicant had given evidence that he had tripped before the pad. Nor did the judge seek to reconcile what he understood to be the oral evidence based on the transcript with the written statement which was also in evidence.
It might be thought surprising that the erroneous transcription of two or three words of the applicant’s evidence in a trial covering a number of days could be significant. We are persuaded that it was an important and material error.
The judge understood the evidence as being that the applicant had affirmatively said that he had tripped ‘in front of’ the pad. This was directly inconsistent with the applicant’s case that he had fallen on the pad. The judge set out the portion of the transcript which records the applicant saying he had fallen in front of the pad and, together with other quoted passages, described it as ‘critical’ to his findings.
In that part of his reasons which deals with the applicant’s version of events, the judge started with, and repeated, the erroneous transcript. The judge regarded that evidence was inconsistent with the plaintiff’s pleaded case and inconsistent with his answers to interrogatories. In assessing the two alternative hypotheses volunteered by the applicant in re-examination, the judge said that the picture was ‘entirely unclear’. To a significant extent, that lack of clarity arose because of what the judge, innocently but wrongly, attributed to the applicant in his evidence in chief.
In a brief judgment comprising 33 paragraphs and 10 pages, the judge referred to the erroneous evidence six times.[12] The evidence related to the central issue on which the applicant lost, namely the mechanism of the fall. Attributing an additional, inconsistent version of events is also likely to have reflected poorly on the judge’s assessment of the overall reliability of the applicant’s evidence.
[12]Reasons, [10], [17], [19], [23], [25], [30].
Subject to addressing the potential operation of s 102 of the RMA, we reject the respondent’s submission that the error was immaterial because the judge had found the applicant would have failed on his statutory and common law duty claims in any event. As to the first, we note that the judge said that the statutory claim under the RMA would fail because of his version of tripping in front of the depression. Plainly this conclusion depended on the erroneous evidence and does not provide an independent alternative route to the ultimate conclusion.
It may be accepted that the judge found that the common law duty of care did not arise and that it was not a breach of duty on the part of the respondent not to repair the depression. However, in our view that does not have the effect that the error we have found to have occurred was not material. The judge concluded that the applicant was not paying adequate attention to his path of travel as would be expected of a reasonable pedestrian in his position. That is, the duty of care owed by the respondent to the applicant entailed a duty to pedestrians to take care to eliminate or reduce hazards which a pedestrian, having reasonable care for his or her own safety, would not see and avoid.
In part, that conclusion depended on the lack of clarity in the evidence as to how the accident occurred, which ties back to the erroneous understanding of the evidence. Further, in assessing whether there had been a breach of the respondent’s common law duty, the judge did not have the benefit of considering the mechanism of the fall without the error and did not make findings as to the nature and extent of the depression in the pad.
Subject to the potential application of s 102 of the RMA, we are persuaded that ground 2 is made out and that the error was material.
Ground 3
By ground 3, the applicant contends that the judge erred in saying that ‘at no point did [the applicant] ever raise an issue about the joining edge between the asphalt and the concrete pad — the “lip”.’[13]
[13]Ibid [23].
The respondent accepts that the applicant ‘made mention of the lip’. The respondent says that what the judge meant when he said that the applicant had not raised an issue concerning the lip was that the applicant had failed to give clear and direct evidence that the lip caused his fall.
The respondent says that, even if the judge was wrong, it was an immaterial error because the applicant had not measured the depth of the edge or lip and therefore could not establish that the lip required an intervention under the RMP.
Analysis and conclusion
Although the judge went to great efforts to have the applicant explain his case, and commendably assisted the applicant as an unrepresented person navigating the court process, there remained a degree of uncertainty as to the precise allegation of negligence and breach of duty. To some extent, the vagueness of the applicant’s case may have been motivated by the applicant’s desire to keep his case as general as possible and to avoid forensic challenges to his case. On more than one occasion in cross examination the applicant sought to deflect questions that he perceived might be problematic for him.
Nevertheless, on a fair reading of the material, the applicant’s case was that he fell as a result of the defective footpath. The alleged defects comprised both a depression or concave surface and an uneven join between the pad and the surrounding asphalt on the western downhill side. His case was that both aspects rendered the footpath unsafe and one or the other of them caused his fall.
In our opinion, the applicant’s frequent reference to ‘the lip’ and ‘the trip zone’ accommodated an allegation that the join between the pad and the surrounding asphalt was uneven and that he had tripped on the western downhill join. Thus in answer to the judge’s direct question as to the cause of the fall, the applicant said the ‘more likely’ cause arose when he was ‘coming out, because the lip would present itself as a trip point’.
It follows that the judge was wrong to say that the applicant had never raised an issue about the joining edge between the asphalt and the pad. As a result, the judge did not make the necessary findings of fact as to whether or not there was an uneven join and whether the depth of the lip exceeded the intervention standard.
We do not accept the respondent’s submission that the applicant’s case on the lip was bound to fail because he had not measured the lip but had rather measured ‘close to the known lips’. The applicant’s evidence was that he measured nine points, three of which were close to the western edge. The judge made no findings about the measurements and it is inappropriate for this Court to undertake that exercise without the benefit of seeing and hearing the evidence of the applicant.
We would uphold ground 3.
Ground 1
Given that we would uphold grounds 2 and 3, it is unnecessary to deal separately with ground 1. We would add the following.
The judge decided the case on the basis of causation. He did so, as we have explained, on an erroneous understanding of part of the evidence given by the applicant. Significantly, the judge turned to causation without determining whether or not the footpath was defective and if so to what extent. That is, the judge did not determine whether the footpath met the intervention standard in the RMP that would have required the respondent to remediate. The state of the footpath would have informed both the nature of the duty, both at common law and under the RMA, whether there was a breach and the cause of the fall. In hindsight, it was unwise to proceed immediately to questions of causation.
It must be accepted that the course of the decision was influenced by the fluid and uncertain state of the applicant’s evidence. The judge was placed in a difficult position by the fact that the applicant was unrepresented and the judge was denied the assistance that would come from legal representation. The transcript reveals that the judge did his best to get the applicant to crystallise his case and was assiduous in ensuring that the applicant was able to present his case.
Returning finally to the PSO file note, although not the subject of a separate ground of appeal, the applicant submitted that the judge should have had regard to it on the basis that, although it was not formally tendered, it was referred to in the answers to interrogatories. The applicant also submitted that the judge should have returned to the topic when it had been raised by the applicant in the course of his re-examination.
Given that we would uphold grounds 2 and 3, it is not necessary to determine whether it was an error on the part of the judge to fail to refer to the PSO file note. In fairness to the judge, he made it clear to the parties that he would have regard to the documents that were tendered out of the voluminous court book. However, in our view the PSO file note was a significant matter. The applicant expressly adopted the statement in his answers to interrogatories — to which the judge had regard — and his statement in re-examination that there was a statement given by a person on the day required further investigation. It was a contemporaneous account which corroborated the applicant’s case of falling on an uneven pavement. It is not clear whether the abbreviation ‘obs’ records what the PSO observed in the sense of being an eyewitness to the fall or what he had surmised had happened. Certainly it provides evidence that the PSO observed an uneven pavement. Accordingly, while it is appropriate for this Court to consider the file note, for the reasons stated it is not necessary to determine whether the judge’s failure to have regard to the file note vitiates his decision.
The application of s 102 of the RMA
The respondent submits that s 102 of the RMA provided a complete defence to the action. The judge did not decide the case on that basis and the respondent has not filed a notice of contention. The respondent did, however, include in its written case on the application for leave to appeal its argument regarding s 102.
Section 102(1) provides that, subject to the other provisions of the section, a road authority is not liable in any proceeding for damages, whether for breach of the statutory duty imposed by s 40 or for negligence, in respect of any alleged failure by the road authority to remove a hazard or to repair a defect or deterioration in a road.
If s 102(1) applies, it provides a complete defence to the claim. Section 102(2) provides that s 102(1) does not apply if, at the time of the alleged failure, the respondent had actual knowledge of the particular risk the materialisation of which resulted in the harm.
The evidence as to the respondent’s knowledge
A witness statement of Allyce White, an employee of Citywide Services Pty Ltd (‘Citywide’) was tendered in evidence. Ms White was not cross-examined. In her statement, Ms White said:
(a)In July 2008, Citywide and the respondent entered into a contract by which Citywide had the duty of ensuring that roads were compliant with the RMP.
(b)The discharge of this duty entailed routine inspections of roads within the municipality, logging defects on a database and repairing or making safe any defects that had been detected.
(c)As part of its obligations under its contract with the respondent, Citywide employees regularly inspected the roads and footpaths within the municipality. We note that the applicant did not allege, as a breach of s 40 of the RMA, a failure to insect the footpath.
(d)If, upon inspection of a road segment, an inspector determined that there was a defect which met the RMP intervention standard, the inspector was required to log the defect on Citywide’s system called ‘Trax’. Once the defect was logged, a Work Order was automatically created. Citywide was then required to repair or make safe the defect within the resolution time limits prescribed by the contract. The entry in the log would include details of the defect and the proposed resolution.
Ms White said that a Work Order had been logged in January 2015 in relation to a defect in the footpath on Lonsdale Street. Under the item ‘Description’ the following appears:
Repair reinstatement — Logged Comment: re inspection 10/7/17 — Completion Comment: closed on inspection
The ‘Work type’ is described as ‘ESG — Reinstatement’, the defect is described as ‘Uneven asphalt surface’ and the ‘Resolution’ is described as ‘Repaired Surface’.
Attached to the work order is a photograph. The photograph depicts in the left hand top corner what appears to be a section of gutter, next to which is a rectangle of darker coloured asphalt (which occupies most of the photo). The foot of the newly installed telephone box can be seen at the top of the photo. The bottom section of the darker asphalt joins with the footpath. On the right hand side of the photograph, running along the darker asphalt appears to be one side of the concrete pad.
It does not appear to be in dispute that the main part of the photograph depicts the area in which the telephone box was moved and to the right of the image is a small section of the concrete pad.
In her statement Ms White says:
I don’t believe the Defect Report and/or [the Work Order] concern the surface on which the [the applicant] fell for the following reasons:
(a)the photograph attached to [the Work Order] shows that the defect referred to in that work order is the asphalt beneath the telephone booth, not the concrete pad adjacent to in [sic] on which [the applicant] fell (‘the Pad’); and
(b)the defect on [the Work Order] is described as ‘uneven asphalt surface’. The Pad was concrete.
Citywide also maintained another system called ‘Intra Maps’ which enabled searching and viewing of entries for defects that had been logged for any particular location. Ms White exhibited a screenshot from Intra Maps in respect of the work covered by the work order. That entry recorded a repair reinstatement of ‘2 sq m’.
Yavuz Akdeniz, an infrastructure manager employed by the respondent provided a witness statement in which he described the steps taken in response to the applicant’s fall. He said that on 29 November 2017, that is after the respondent was notified about the incident, he emailed the payphone area manager of Telstra in relation to the incident to advise as follows:
Council was made aware the concrete pad constructed for the temporary relocation of the payphone was not removed when relocated back to its original location. Apart from the fact this concrete pad should have been removed and the area reinstated when the relocation occurred, it is now posing a safety and tripping hazard for pedestrians. Furthermore, Council has received information relating to a tripping incident and a member of the public has fallen over this concrete pad causing injury to themselves.
On 29 November 2017, the Telstra area manager responded by email saying:
I acknowledge your below email and advise that our contractor will attend asap to remove the concrete pad. It appears the site has deteriorated over time and wasn’t picked up earlier from checks.
In his statement, Mr Akdeniz says that ‘While the concrete pad at the Incident Location was not consistent with footpath aesthetics, I had not seen anything to indicate that the pad met the RMP’s intervention levels’.
Zois Soldatos was employed by Citywide as a works coordinator. As part of his duties he inspected road and footpath sections within the municipality in accordance with the Citywide contract with the respondent. For that purpose, he used a 10 millimetre tool to measure any discontinuity in a road or footpath. He said that he had inspected the photograph taken by the PSO at the time of the applicant’s incident and that, based on that photograph:
(a)the level discontinuity at the spot where the applicant fell does not appear to be at or over 10 millimetre; and
(b)the spot where the applicant fell is not something for which he would have logged or raised a work order.
The respondent submits that the applicant did not prove that the respondent had actual knowledge of the defect which the applicant had identified. That is, it submitted that the defect that was the subject of the Work Order (and of which it had actual knowledge) was different to the defect that, on the applicant’s case, caused the injury. Further, the respondent submits that it was necessary for the applicant to show that an employee of the respondent at a decision making level had actual knowledge of the defect and that it was not enough to show that someone within Citywide had that knowledge.
The applicant submits that no notice of contention was filed and that the respondent ought not be permitted to raise the s 102 point on the appeal.
Analysis and conclusion on s 102
The respondent seeks to uphold the order of the judge on the basis of s 102 of the RMA, which was not a basis on which the judge decided the case. For that reason, a notice of contention is required. That said, the respondent put its argument on s 102 in its written case and the applicant did not identify any prejudice in the Court entertaining the argument. For that reason, we would permit the respondent to rely on s 102 of the RMA.
The combination of the work order and attached photograph and the Intra Map entry shows that Citywide had knowledge of a defect in the footpath arising from the relocation of the telephone booth and, it may be inferred, an area of two square metres was reinstated.
Section 102 directs attention to whether the road authority had actual knowledge of ‘the particular risk the materialisation of which resulted in the harm’. In our opinion, it is not appropriate for this Court to resolve the s 102 issue. Logically, s 102 arises once the cause of the harm has been identified and the ‘particular risk’ involved has been assessed. In any given case, the matter that constitutes the ‘particular risk’ will call for an evaluative judgment having regard to the purpose of the provision. At one level, a particular risk might fairly be described as an uneven surface and at a different level of abstraction it might be an uneven surface of a specified dimension. In this case, it will be necessary to determine whether the particular risk may be described as an uneven surface arising from the relocation of the telephone booth, or the precise depth of the depression or height of the lip. This Court was not favoured with sufficiently detailed submissions by either party on the ambit of the particular risks involved and, as already noted, the analysis depends on a factual inquiry as to the state of the footpath and the cause of the fall.
As a result of the errors identified under grounds 2 and 3, the judge did not make the necessary findings, to the extent that they were available on the evidence, about the state of the footpath or the cause of the fall. As a result, the factual basis for the potential application of s 102 has not yet been established.
Theoretically, it might be possible to apply s 102 on the assumption that the relevant risk which materialised was a fall on the uneven surface of the pad which the applicant had claimed to exist, that is, either the depression in the pad or the discontinuity at the point where the pad and the asphalt joined. In our opinion, it is not appropriate to apply s 102 on that assumed basis. The extent of knowledge of the respondent will be a matter for inference from the work order, photograph, Intra Maps entry and the particular state of the footpath at the time of the incident. That factual inquiry should proceed in the usual way having regard to all of the relevant evidence at trial.
Conclusion
We will grant leave to appeal and allow the appeal. We will remit the matter to the County Court for rehearing before a different judge.
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