Salamastrakis v Rockdale City Council

[2005] NSWCA 313

CITATION:	Salamastrakis v Rockdale City Council [2005] NSWCA 313
HEARING DATE(S):	27/06/05
JUDGMENT DATE:	19 September 2005
JUDGMENT OF:	Mason P at 1; Beazley JA at 2; Campbell AJA at 3
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	Negligence - Pedestrian fell and sustained injury on footpath - Sufficiency of evidence to establish breach of duty and causation - Relevance of expert evidence.
LEGISLATION CITED:	Civil Liability Act 2002 subs 5(c)
CASES CITED:	Brodie v Singleton Shire Council (2001) 206 CLR 512 Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Wyong Shire Council v Shirt (1980) 146 CLR 40 Newcastle City Council v Mason [2004] NSWCA 108 Shoeys Pty Ltd v Allan (1991) Aust Torts Rep 81-104 Mavaglia v Mavaglia [1999] NSWCA 188 Lake Macquarie City Council v Holt [2004] NSWCA 305 Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241
PARTIES:	Kalliopi Salamastrakis - Appellant Rockdale City Council - Respondent
FILE NUMBER(S):	CA 40435/04
COUNSEL:	A J McQuillen - Appellant D Ronzani - Respondent
SOLICITORS:	G H Healey & Co - Appellant McCabe Terrill - Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	1818/02
LOWER COURT JUDICIAL OFFICER:	Balla DCJ

CA 40435/04
DC 1818/02

MASON P
BEAZLEY JA
M W CAMPBELL AJA

Monday 19 September 2005

KALLIOPI SALAMASTRAKIS v ROCKDALE CITY COUNCIL

Judgment

1 MASON P: I agree with Campbell AJA.

2 BEAZLEY JA: I agree with Campbell AJA.

3 CAMPBELL AJA:

Introduction.

This is an appeal from a judgment of her Honour Judge Balla of the District Court for the respondent in an action brought by the appellant seeking damages in respect of injuries suffered when she fell after tripping on a defective footpath.

4 It is convenient to note at this stage that her Honour found that at the time of her fall the appellant was taking reasonable care for her own safety. Her claim did not fail because of the absence of a foreseeable risk of harm to a person taking reasonable care for her safety (Brodie v Singleton Shire Council (2001) 206 CLR 512).

5 The appellant failed because the Judge was not prepared to draw inferences as to a number of issues including breach of duty by the respondent.

The Circumstances

6 The appellant is a married woman who was 54 years of age on 17 February 2001. On that day she was walking home from the local shopping centre at about 9.30pm when the front of her shoe struck an irregularity in the footpath and she fell. She suffered significant injuries.

7 At the time of the injury the appellant was accompanied by her two daughters. The route they were following was not her usual route. The light was “minimum” and to some extent affected by the limb of a tree which was between the nearest street light and the place of the fall.

8 It is convenient to say that there was evidence as to the lighting and findings as to it. However, as the case was conducted the only issue it went to was whether the appellant was exercising reasonable care for her own safety and I need not go to the detail of it.

9 The appellant did not notice anything unusual about the footpath before her fall. The next day she saw damage to the front of her shoe where it had become caught causing her to fall forward.

10 The next day one of her daughters went to the scene with her father and some photographs were taken. They were tendered. The appellant returned to the scene about a week later. The Judge, in her judgment, said that the appellant:

“…..saw that, at the point at which she had fallen, one block of the concrete footpath was 2 to 3 inches higher than the adjoining block. She also saw evidence of an earlier repair to the concrete footpath, being a small piece of concrete acting as a ‘bridge’ between those two blocks. The photographs tendered in evidence show that most of the ‘bridge’ on the left side of the concrete footpath had broken away. Small pieces of concrete, which I infer came from that ‘bridge’, are shown next to the footpath.”

11 Four or five months later the appellant noticed that the block had been repaired and the tree branch removed.

12 Some photographs taken in December 2002 which showed that repair were tendered and there were also photographs taken in February 2003 by an ergonomist Mr Neil Adams.

13 Mr Adams estimated the height between the two slabs, as appearing from the earlier photographs, to be “at least 30mm high” to “quite possibly in excess of 40mm high”.

The Primary Judge’s Reasons.

14 After dealing with some factual matters Judge Balla dealt with the issue, as she put it, “whether the plaintiff was keeping a proper lookout.” She referred to Ghantous v Hawkesbury City Council and Brodie v Singleton Shire Council (2001) 206 CLR 512 and concluded that the appellant had not failed to keep a proper lookout.

15 Her Honour then turned to the submission of the appellant that the respondent “having the relevant care and control of the footpath, breached its duty of care to the appellant. She noted that it was common ground that this issue called for the application of the principles set out by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47, 48.

16 The Judge then said:

“Counsel for the plaintiff invited me to infer that:

· the defendant was the relevant road authority;

· before the plaintiff fell, the difference in level between the two concrete sections of the footpath had been repaired;

· the repair work had been undertaken by the defendant;

· the repair work had been done negligently;

· the repair ‘is of long standing and has deteriorated over time’;

· the defendant had either not instituted a proper system of inspection of footpaths or had negligently failed to discover the state of the footpath on inspection.”

17 Her Honour observed, in my view quite correctly that “there is very little evidence in relation to these issues.”

18 She concluded from a report obtained by the respondent and tendered that the respondent was the relevant road authority of the area where the plaintiff fell.

19 The Judge said:

“The plaintiff did rely on the evidence of an expert, Mr Adams, an ergonomist. By the time he went to the scene, a new bridge had been placed over the difference in level between the two slabs of concrete. He estimated, by looking at a photograph, that the difference would have been 30 to 40 mm or more. In his opinion the fact that the area had been repaired twice ‘may perhaps be regarded as a tacit acknowledgement by the authority that authorised those repairs (presumably the defendant) that the change in level was of sufficient magnitude to create a hazard to pedestrians’. He added on page 11 ‘It is relevant to note that the initial attempt to repair the fault (a repair that was undertaken some time prior to Mrs Salamastrakis’ fall) was clearly ineffectual, as the change in level remained in the path, and was re-exposed when that repair failed.”

20 She noted that the defendant did not call any evidence in relation to these issues and the submission of counsel for the appellant that “these matters could be inferred as they were facts peculiarly within the knowledge of the defendant and the defendant had elected not to call any evidence.”

21 Counsel for the appellant referred to Newcastle City Council v Mason [2004] NSWCA 108. I shall refer to that case later, however for the moment, note my agreement with the comment of her Honour:

“I am not satisfied that that case is authority for the proposition that the plaintiff is relieved of the necessity of adducing evidence simply because the material circumstances are within the knowledge of the defendant which does not call evidence.”

22 The Judge was not persuaded that all the material facts she was asked to infer would necessarily be peculiarly within the knowledge of the respondent and instanced the time over which the initial repair had deteriorated.

23 Her Honour said:

“In relation to the negligent initial repair, counsel for the plaintiff also invited me to draw this inference from the photographs which he said show that the concrete used for the ‘bridge’ was thin which that meant it was more likely to fail. However I am not persuaded that this is shown in the photographs or, even if it is, that there is any basis on which I could find that it is negligent to use ‘thin’ concrete as it is more likely to fail.”

24 She then said:

“I decline to infer that the initial repair had been undertaken by the defendant, that the initial repair work had been done negligently, that, at the time of the plaintiff’s fall, the early repair had been effected a considerable time beforehand, or that the defendant had either not instituted a proper system of inspection of footpaths or had negligently failed to discover the state of the footpath on inspection.”

25 Finally, Judge Balla recorded that she was not satisfied that the appellant had shown that the respondent had breached its duty of care to her.

Grounds of Appeal

26 The grounds of appeal as filed are as follows:

“1. Her Honour erred in not finding that the Defendant breached its duty of care to the Plaintiff where her Honour had already found:
a. That the Defendant is the relevant road authority of the area where the Plaintiff fell.
b. She was not persuaded that the Plaintiff failed to keep a proper lookout.
c. The Plaintiff did not fall in broad daylight.
d. The area was dark.
e. The photographs do not suggest that there was any obvious visual clue which would have been apparent at night and which would have alerted the Plaintiff to the potential danger.
f. The light was minimum.
g. …that the lights from the street lights were blocked by the branch of a nearby tree.
h. The Plaintiff and Anna (the Plaintiff’s daughter) thought it was even darker in the area where the Plaintiff fell.
2. Her Honour misconceived the import of:
(i) Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 75 ALJR 992;
(ii) Brodie v Singleton Shire Council (2001) 206 CLR 512 at 581;
(iii) Newcastle Shire Council v Mason [2004] NSWCA 108.”

Consideration

Ground 1

27 If this ground asserts, as it appears to do, that the findings (a) to (h) compel a finding of breach of duty then it is clearly untenable. Those findings say little or nothing as to breach or, for that matter, causation.

28 It may be that the ground is intended to do no more than assert that the Judge erred in not finding a breach of duty. I deal with this question in what follows.

Ground 2

29 I can see no indication that Judge Balla misconceived any of the three authorities referred to in the ground.

30 From the submissions it would appear that the appellant’s assertion is that Ghantous and Brodie establish that if, after the application of the relevant principles laid down in these two cases, there remains a reasonably foreseeable risk of injury to the plaintiff and the plaintiff is injured then liability follows. These cases do not and do not purport to absolve a plaintiff in such circumstances from the necessity to prove a lack of reasonable care on the part of the alleged tortfeasor and relevant causation.

31 It was put at trial and on appeal that Mason [2004] established that the appellant’s failure to call evidence on the alleged “absence of a reasonable system of footpath repair inspection and/or failure of such system as may have been in place by failure to detect and repair the failed bridge pre-injury” supported the drawing of the inferences the appellant had put to the Judge on these matters.

32 Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104 was a case concerning vegetable matter on a shop floor rather than a defect in a pavement, however the relevant principle was stated by Mahoney JA at 68,939 as follows:

“It is current doctrine that, where the onus of proving a fact is upon the plaintiff, the fact alone that the defendant gives no evidence on the matter does not in principle supply the omission and that the only inference which can be drawn from the defendant’s reticence is ‘that his evidence would not have helped him’: Jones v Dunkel (1959) 101 CLR 298.”

33 Handley JA at 68,942 said:

“The failure of the defendant to call such evidence does not, without more, suffice to establish that it had failed to take reasonable care to maintain its shop premises in a clean and safe condition. The plaintiff must first establish a prima facie case of negligence before the defendant can be called upon for an explanation as to how the accident occurred or might have occurred consistently with the absence of negligence on its part. The legal onus of proof is on the plaintiff throughout, and the mere presence of material on the floor, which caused an accident, does not establish a prima facie case. As Clarke JA said in Sleiman v Franklin Food Stores Pty Limited (1989) Aust Torts Reports 80-266 at 68,835:
‘It is not possible, in accordance with the legal principles applied in this country, to apply the English approach under which the onus is reversed. In New South Wales the onus remains on the plaintiff at all times to prove the elements of her cause of action.’”

34 In Mason, as in Shoeys, there was evidence which supported the inference other than the mere failure of the defendant to call evidence. The relevant accident had occurred in October 1997. The evidence showed that a substantial defect in an area of footpath made of pavers had been present since 1995 and that the Council had a street sweeper in the area about once a week sweeping the pavement.

35 There is no such evidence in this case. Reliance was placed upon evidence in Mr Adam’s report that the respondent should have a system of inspection. That is, however, not evidence going to the issue of whether it had one and whether it was efficient.

Other Grounds

36 Subject to the comment I made at [28] the grounds relied upon in the Notice of Appeal are not made out. However, in submissions the appellant relied also upon an assertion that the Judge had failed to properly consider and apply the report of Mr Adams. It was further put that her reasons were inadequate particularly in not explaining why Mr Adam’s opinion was not accepted. No objection was raised by Mr Ronzani of Counsel, who appeared for the respondent, to these matters being relied upon and I should deal with them.

Mr Adam’s Report

37 I have set out at [19] the reference to Mr Adam’s report. At first blush it would seem that relevant parts of the report may have been overlooked. However, upon examination of the report I do not think that to be so. The submissions helpfully collect the passages relied upon and I deal with them seriatim:

38 “- the hazard was in (sic) daylight would have been ‘entirely obvious’ to the Respondent’s inspection under an effective system of inspection.”

39 There is nothing to indicate that this proposition was contested or was an issue at the trial.

40 “- the initial repair was clearly ineffective”.

The sentence in which this passage occurs reads as follows:

“It is relevant to note that the initial attempt to repair the fault, a repair that was undertaken some time prior to Mrs Salamastrakis’ fall, was clearly ineffectual, as the change in level remained in the path, and was re-exposed when that repair failed.”

41 That the change of level remained did not establish negligence in the original work particularly where Mr Adams was making the observation which I set out when dealing with the next item [43]. Similarly, the failure of the “bridge” an indeterminate time after it was installed does not support an inference of negligence in its original construction or as to who constructed it.

42 Judge Balla did consider an argument put by Counsel in relation to the alleged negligent initial repair as set out at [23]. The use of “also” probably reflects the consideration of Mr Adam’s views and then the additional contention of Counsel. It was open to her Honour to take the view she did.

43 “ – the hazard could have been quite readily and cheaply repaired with the application of a small amount of bitumen or concrete, providing that the underlying surface was properly cleaned and abraded (to ensure adequate bonding) and a suitably strong repair agent was used ….”. The submission also points out that this operation was undertaken subsequently.

44 There was no denial as to this at the trial. It was never an issue which required decision or comment.

45 “ – a largely effective repair was done subsequently demonstrating the reasonableness of expecting it to have been done properly initially.”

46 It simply does not follow that because a repair seen in December 2002 appears largely effective a repair done years before which failed was done negligently at the time it was carried out. On the view I take of the matter it is unnecessary to consider submissions relating to subs 5(c) of the Civil Liability Act 2002 which were raised on appeal.

47 “ – the hazard could have been barricaded or - - - illuminated, painted, signposted or otherwise highlighted pending repair, both cheap and non-onerous measures”.

48 Again not denied and not an issue.

49 “ - the hazard and risk were notorious and very prevalent”.

50 Again not denied and not an issue.

51 Mr Adams’ report contained very limited material relating to the matters at issue between the parties. To my mind it is tolerably clear that her Honour took that material into account in reaching findings which were open to her.

Reasons

52 It was submitted that the Judge did not give adequate reasons for her decision in particular her rejection, so it was put, of Mr Adams’ report.

53 In my view examination of the report and the issues between the parties shows that her Honour rejected little relevant material and that it is reasonably clear why she did so.

54 It was put that the judgment failed to reveal the basis on which the Judge was “not satisfied that the Plaintiff has shown that the Defendant breached its duty of care to the Plaintiff”.

55 I do not agree with this submission. Apart from other matters, it emerged very clearly from the judgment that her Honour was not prepared to draw the inferences for which the appellant contended from the “very little evidence” placed before her. It followed that the appellant must fail.

56 It might have informed the parties more fully had the Judge dealt with Mr Adams’ report in more detail. However, the case was presented on minimal evidence with very apparent difficulties in the way of success. Whilst this was not an ex tempore judgment, the observation of Mason P in Mavaglia v Mavaglia [1999] NSWCA 188 at [1]:

“ ….and appropriate allowance should be given for the pressures under which Judges of the District Court are placed by the volume of cases coming before them.”

is apt.

57 Judge Balla dealt with the issues raised in the case and gave, in my view, adequate reasons particularly when regard is had to the actual substance of Mr Adams’ report and its limited relevance to the matters in issue.

Breach of Duty

58 Under this heading the submissions put arguments which I have dealt with at [30] above. It is unnecessary to add more.

Conclusion

59 I do not consider the appellant to have established that Judge Balla had fallen into error of law or that any of her findings of fact are wrong.

Other Matters

60 Had Judge Balla fallen into error it would have been for this Court to reach its own conclusion as to the appropriate outcome of the case. My view is that the conclusion reached by the Judge was the correct one.

61 Apart from other issues the appellant failed to establish a breach of the duty of care on the part of the respondent.

62 I agree with her Honour that the appellant has not established any failure by the respondent in relation to the original repair.

63 The strongest aspect of the appellant’s case is the allegation of failure to detect the breakdown of the original repair or, if it were detected, to repair it or erect suitable warnings.

64 However, for this contention to succeed it is necessary to establish that the breakdown occurred a sufficient time before the fall for a reasonable regime of inspection to have detected it. An alternative, that it had been detected and not repaired or guarded by barriers or otherwise can be set aside as there is no evidence of such an event.

65 No evidence was called to found a finding as to when the failure occurred or even that it may not have occurred at the time of the fall.

66 It may be that a suitably qualified engineer could have expressed an opinion on the point after inspection of the photographs tendered but no such evidence was called.

67 It is not a matter upon which the primary judge, or a judge of this Court, would be entitled to reach a conclusion without the aid of expert evidence.

68 Without such evidence it is unnecessary to consider what period of time should be regarded as long enough to support an inference of an inadequate inspection regime or the failure of an otherwise adequate regime. Mr Adams considered that the risk level of the defective footpath would call for response within 3 days according to the recommendations of the Best Practice Manual produced by the self insurance mutual of New South Wales Local Government Authorities. If it were necessary to consider that issue, one relevant question would be the relationship of the best practice recommendation to what would suffice for the display of reasonable care. (See Lake Macquarie City Council v Holt [2004] NSWCA 305 per Sheller JA at [18]).

69 The absence of evidence as to when the breakdown occurred is also relevant to the issue of causation. Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 was a case of injury following a fall on jelly on the floor in a large and busy shopping mall. The time scales involved were obviously very different, however, the principle referred to by McHugh JA, as he then was, has application to the present matter. McHugh JA said at 256:

“The critical question, however, is whether the evidence raises an inference that the plaintiff’s injuries were the result of the defective system. This in turn reduces itself to the question as to whether the evidence gives rise to an inference that the appropriate inspection and cleaning system would have avoided the plaintiff’s injury. For it is no comfort to the plaintiff to show that the defendant did not have a proper system unless she can show that the existence of a proper system would have avoided her injury. That is to say, the critical issue is causation.
If a proper system had operated, inspection of particular places would have taken place at regular and short intervals. In the ordinary course of events a spilt substance would have been removed within a few minutes. If the spilt jelly was there more than a few minutes before the plaintiff’s accident, a proper system for these premises would have ensured its removal. For the plaintiff to succeed she must demonstrate that on the probabilities a proper system would have observed and removed the jelly before it caused her injury.”

70 In this case the appellant has not shown that the breakdown occurred a sufficient time before her accident for it to be established that, more probably than not, a proper system would have observed the defect and repaired or guarded it.

71 As I have said I am of the view that the ultimate decision of Judge Balla was the correct one.

Orders

72 I propose that the appeal be dismissed with costs.

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