Russell v City of Melbourne
[2022] VCC 746
•1 June 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-19-01463
| JOHN (JACK) RUSSELL | Plaintiff |
| v | |
| CITY OF MELBOURNE | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February, 1 and 2 March 2022; Closing submissions made by the Plaintiff on 30 March and by the Defendant in reply on 27 April 2022[1] | |
DATE OF JUDGMENT: | 1 June 2022 | |
CASE MAY BE CITED AS: | Russell v City of Melbourne | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 746 | |
REASONS FOR JUDGMENT
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Subject:PUBLIC LIABILITY
Catchwords: Plaintiff fell on the footpath where a Telstra phone booth was previously erected – Asphalt replaced with concrete – Alleged depression of concrete pad – “Lip” between concrete pad and asphalt – Insufficient evidence to establish how Plaintiff fell – Statutory duty – Road Management Plan – Common law duty – duty of care
Legislation Cited Road Management Act 2004 (Vic); Wrongs Act 1958 (Vic)
Cases CitedBrodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Greater Shepparton City Council v Clarke (2017) 56 VR 229
Judgment: Claim dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The Plaintiff appeared in person | |
| For the Defendant | M Latham | Hunt & Hunt Lawyers |
HIS HONOUR:
1Mr John Russell (also known as Jack Russell) fell on the footpath outside of Owen Dixon West Chambers on 26 September 2017. He has sued various parties alleging that it was their negligence that caused that fall and his consequent injuries. By the conclusion of the trial, the case turned on one issue: what caused Mr Russell to fall? As I cannot answer that question after a consideration of the whole of the evidence, Mr Russell’s claim must be dismissed.
Relevant facts
2Mr Russell was born in 1938. He left school at a young age and worked. His wife died at an early age and he raised their 3 children thereafter. Relevantly, his past medical history involved a motor vehicle accident in about 1998 which resulted in a whiplash-type injury. He had cervical pain in varying degrees from that time. He also has a compressed oesophagus.
3He has had bilateral knee problems since the early 2000s. It is worse in the right knee and a total knee reconstruction was recommended. Mr Russell declined.
4On Mr Russell’s evidence, he was reasonably fit and well as of September 2017. That was contested. He gave evidence that he was participating in a weight program of some intensity that had given him good functional strength. He lived alone, was independent in his personal care needs and had an active life. He walked normally and caught public transport without difficulty.
5It is not necessary to detail his medical history in any greater detail at this stage.
Location of the fall
6The fall occurred at about the point that the steps from Owen Dixon West Chambers meet the footpath on 525 Lonsdale Street. This location is on the southern side of Lonsdale Street between William and King Streets. Mr Russell’s movements prior to the fall helped to identify the location more clearly. His evidence was that he had caught the train from his home to Flagstaff Station where he alighted. He got off and was carrying in one hand a hard brief case and in the other pulling a bag on wheels. He left Flagstaff Station and made his way to counsel’s chambers, as he was involved in a legal matter. After this, he had to attend at the Office of Public Prosecutions (OPP) to serve certain documents. The OPP is located at 460 Lonsdale Street. His journey to the OPP can be picked up at the south-western corner of the intersection of William and Lonsdale Streets, in the heart of the legal precinct. This is the corner on which the William Cooper Justice Centre is located at 223 William Street. Lonsdale Street then slopes downward toward King Street. On that downward slope, after the William Cooper Justice Centre, is a small laneway named Guests Lane. Then next is Owen Dixon West Chambers. If one proceeds past there, the next building is the Monash University Law Chambers, then a laneway and then the OPP.
7Mr Russell left the corner of the William Cooper Justice Centre walking down the slope and intending to go to the OPP. He crossed Guests Lane. Between that laneway and the steps leading down from Owen Dixon West Chambers the fall occurred.[2]
[2] Exhibit P3 – Photograph of the incident scene dated 26.09.17 in colour.
8This photograph was taken shortly after Mr Russell’s fall. The black circles and lines must be disregarded. They do not identify the fall location. They are simply markings Mr Russell drew onto the photograph to mark certain things.
9More must be said about the footpath at that location. The footpath here was asphalt and black in colour. As the footpath led from the laneway down the slope, there was a concrete pad of about 1 metre x 1 metre across, which was installed into the footpath (“the pad”). It was a whitish concrete colour. It is uncontested that in around 2014 Telstra had been required to move its payphone from this location. It had done so and relocated the payphone to the edge where the footpath met the gutter.[3] After the removal there was a hole in the asphalt footpath. Rather than backfill the hole with asphalt, Telstra had used concrete to fill in the hole. It is this concrete pad which is the centre of the case. Mr Russell alleges that the pad had a depression in the order of 30 millimetres in it at about the centre of the pad.
[3]Exhibit P2 – Photograph of the incident scene dated 26.09.17 in black and white
The fall
10The fall occurred as Mr Russell walked down Lonsdale Street. As recounted, he crossed Guests Lane at the rear of the William Cooper Justice Centre. His evidence is critical as to what then occurred because no other witnesses were called, there are no contemporaneous documents which identify the mechanism of the fall and there was no CCTV video recording of the event. In evidence-in-chief he said:
“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].”[4]
[4]Transcript (“T”) 29, Line (“L”) 8-16
11Then in cross-examination, he said:
“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.”[5]
[5]T41, L31 – T42, L16
12Then in answer to a question I posed, he said:
“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… “[6]
“Can I just ask you again can you - - -?---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.[7]
[6]T112, L18-20
[7]T114, L4-15
13I have set these passages out because they are critical to the remaining findings Mr Russell asks me to make. In sequence, he asks me to find that the City of Melbourne (COM) owed him a duty of care; that it breached that duty by permitting the footpath to remain with a concrete pad which had a depression of 30 millimetres in it, and that such a depression was a breach of the Defendant’s duty which was causative of damage to him. It follows on his case that the depression was a cause of his injuries.
14However, each of those findings come back to the mechanism of the fall and this focuses attention on the issue of determining the cause of the fall.
15Putting aside all the defences for one moment and considering Mr Russell’s case at its highest, it is my view that Mr Russell cannot establish the constituent elements of his cause of action. This is because he cannot establish the cause and mechanism of his fall on the balance of probabilities. I will explain my findings in this regard first, then I will set out why such a finding is dispositive of the entire case. That is, why no other aspects of the case need to be considered.
Mr Russell’s version
16I make it plain at the outset that it is not just the Plaintiff’s testimony that I use in making findings as to the mechanism and cause of the fall. I have considered all of the evidence. That includes the answers to interrogatories,[8] the tendered photographs, the evidence tendered from the Court Book and his viva voce evidence. I have considered also whether the facts allow me to draw inferences as to the cause and mechanism of the fall.
[8]17I start with the Plaintiff’s evidence-in-chief. That is, “… I tripped in front of an unseen depression in the footpath”.[9] As this trial was being conducted by Mr Russell as a self-represented litigant, he had been asked and ordered to prepare a witness statement to read into the Court record so that he could clearly relay the circumstances of the fall to the Court. In his Statement of Claim, he had set out the circumstances of his fall as:
“2.That the fall was due to a trip zone within the pavement of approx. one metre square.
3. That the depression in the pavement was approximately 30mm below the surrounding pavement level.
4. That the Plaintiff tripped and fell heavily forwards and was immediately attended by three PSOs directly in front of him.”[10]
[9] T29, L11-12
[10]JCB 22, at paragraph [2]-[4]
18In his Statement of Claim, he had identified the fall as being due to a “trip zone” being an area on the concrete pad which had a depression of 30 millimetres approximately.
19His response to interrogatories served by COM, though not sworn, continued to refer to a “trip zone”.[11] I set these matters out to give context to the evidence-in-chief, and to make the point that I consider Mr Russell squarely knew the importance of proving the matters alleged and had ample opportunity to prepare his evidence to support that case. Coming to Court then, it could be expected he would give evidence of how the “trip zone” – being the depression in the concrete pad – was implicated in his fall. However, as set out above, his evidence was of tripping “in front of” an unseen depression.
[11]JCB 68, at paragraph [3(c)]
20Then in cross-examination, he stated:
“… where my feet were at the point of impact I have no idea …”[12]
[12]T42, L4-5
21This made it even more unclear what he had meant in evidence-in-chief.
22After cross-examination, Mr Russell was advised that he may want some time to consider the issues raised in cross-examination before he re-examined himself. This offer was made twice and twice it was declined. Mr Russell proceeded immediately with his own re-examination. He began his re-examination by commenting that he was unable to answer some questions because he simply did not know.[13] He gave an example of why he might not have observed things on the footpath perhaps because of shadows. I then asked him directly what caused the fall.[14] His answer is set out above. He provided two possible scenarios to explain what had happened. The first was that as he came out of the depression because the “… lip would present itself as a trip point”.[15] The second possibility he raised was that “I actually fell into …”[16] the depression; I assume he meant that it then unbalanced him and he fell. When asked specifically about the position of his feet, he said he could only “surmise” and then that “… I don’t know exactly where my feet were.”[17]
[13]T111, L25-26
[14] T112, L18
[15] T112, L20-21
[16] T112, L22
[17]T113, L7; T114, L4-5
23The fact that the fall occurred at all is consistent with, and provides some circumstantial evidence of the depression in the pad being in some way implicated in the fall, but in what way is entirely unclear. 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”.
24Taking the evidence from cross-examination, 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.
25Alternatively, 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.
26Alternatively, 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.
27On 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.
28These reasons are sufficient to dispose of the matter. However, it is also useful to set out some of the bases on which the COM defended the action as they also show why the Plaintiff’s claim must fail.
The statutory duty
29The COM owed a statutory duty of care to inspect, maintain and repair the footpath at the site of the fall in accordance with the Road Management Act 2004 (Vic). That Act permits the COM to have in place a Road Management Plan (RMP) that sets the inspection and maintenance schedule, and which can mandate the circumstances under which repair must occur. Where the COM has such an RMP, a number of statutory defences are available to it.
30The COM argued it had inspected the footpath in accordance with its RMP which required 6 monthly inspections.[18] The RMP required intervention if there was a depression in the pad of a certain magnitude. The COM argued any depression in the pad was not sufficient to meet the intervention standard. Leaving aside the issue of whether there was inspection within the time required by the RMP and assuming that the depression in the pad had a depth of 30mm – 42mm (which is above the intervention standard in the RMP), I make it plain that the Plaintiff’s claim would still fail. This is because the Plaintiff, on his version of tripping in front of the depression, cannot implicate the depression as a cause of his fall.
[18]T299, L11-13; See also JCB 944, Witness Statement of Ms Allyce Louise White dated 2 February 2022, at paragraph [11]
Duty at common law
31By virtue of s99 of the Road Management Act, it might be argued that a common law duty arose on the COM. This was not clearly articulated by Mr Russell but for completeness I will deal with it briefly. Any such duty the COM owed was to take care to eliminate or reduce hazards which a pedestrian, having reasonable care for his or her own safety, would see and avoid.[19] Here, the evidence cannot support a finding that Mr Russell was taking reasonable care by watching where he was going. I come to this finding because the pad was obvious, it was starkly different in colour to the asphalt footpath, the conditions that day were bright, there was no shadow over the pad and nothing was obstructing the view of the pad or the depression. Further, Mr Russell , in his evidence, made it clear he did not see the pad at all.[20] He could not specify in detail how his fall occurred but could only “surmise”.[21] He also could not state with any precision where his feet were at the time of the fall or even whether he tripped before or on the pad. These matters lead me to find that he was not paying adequate attention to his path of travel as would be expected of a reasonable pedestrian in his position. Therefore, a duty of the scope necessary to extend to the circumstances of his fall does not arise.
[19] Greater Shepparton City Council v Clarke (2017) 56 VR 229 at 85
[20] T42, L3-4; T42, L9-10; T42, L15-16”
[21] T113, L7
32Furthermore, the Wrongs Act 1958 (Vic), ss48(1) and (2) require me to assess a number of matters in an analysis of the duty of care owed by the COM to the Plaintiff. I have conducted that analysis, noting that it is not to be done in any formulaic manner. I identify the risk of injury as being the risk of a pedestrian falling as a result of the depression. I have focused my attention most relevantly on the probability of the risk of injury posed by the depression being of a magnitude of 42 mm (at worst). Having made that assessment, I find the probability of the risk of injury to be very small, when looking at the situation prior to the happening of the incident, and trying to eliminate the distortion imposed by hindsight. The critical question, then, is whether the COM had breached its duty of care to Mr Russell by failing to take steps to alleviate the risk of injury constituted by the size, location and shape of the depression.[22] Given the very low probability of the risk of injury posed by a depression of that magnitude, I find it was not a breach of its duty for the COM not to repair the depression. The courts have repeatedly made the point that pedestrians cannot expect a “bowling green” surface to walk on and depressions of this magnitude are a regular feature of the footpaths they walk on.[23]
[22] Greater Shepparton City Council v Clarke (2017) 56 VR 229 at 118
[23]33For the reasons set out above, I would dismiss the Plaintiff’s claim and find for the Defendant in this matter.
- - -
Submissions in writing were ordered after the end of the hearing. The Plaintiff sought an extension of
time to file submissions. Such an extension was granted and the Plaintiff then filed submissions. The
Defendant complied with the orders to file submissions in reply. The Plaintiff then sought to file further
submissions dated 3 May 2022. The Defendant objected to those submissions being received. As no
order was made providing for the Plaintiff’s submissions on the abovementioned date, these
submissions were not considered by the Court in its analysis of the matter.
Joint Court Book (“JCB”) 68 - 69 – the document does not appear to be sworn and is titled “Plaintiff’s
Response to Interrogatories of the First Defendant”
Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512 at
[5] and [7], where the height differential was 50 mm and was held to be of such a magnitude as to not
warrant intervention by the Council.
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