Wright v Gold Coast City Council

DISTRICT COURT OF QUEENSLAND

CITATION: [WRIGHT v GOLD COAST CITY COUNCIL] [2000] QDC 193

PARTIES: MARGARET ELLEN WRIGHT Plaintiff

AND

GOLD COAST CITY COUNCIL Defendant

FILE NO/S: Plaint No 543 of 1999.

PROCEEDING: Claim for damages for personal injuries.

COURT: District Court at Southport.

DELIVERD ON: 23 June 2000.

HEARING DATES: 25 May 2000.

JUDGE: Newton D.C.J.

CATCHWORDS: Negligence – personal injuries – pedestrian falling on footpath.

Whether council liable for non-feasance as highway authority – distinction between council acting as highway authority and traffic authority – whether differences in height between surfaces on footpath were caused by posts channelling pedestrians and producing worn tracks on grass – whether duty of care established.

COUNSEL: Mr R Trotter for the plaintiff.
Mr K Howe for the defendant

SOLICITORS: Shane Ellis Lawyer for the plaintiff
O’Keefe Mahoney Bennett for the defendant

IN THE DISTRICT COURT

HELD AT SOUTHPORT

QUEENSLAND

Plaint No 543 of 1999

BETWEEN
MARGARET ELLEN WRIGHT

Applicant

AND
GOLD COAST CITY COUNCIL

Defendant

REASONS FOR JUDGMENT – NEWTON D.C.J.

Delivered the Twenty-third day of June 2000

This proceeding involves a claim for damages for personal injuries arising out of a fall at or near the intersection of Hillstar Street and Christine Avenue, Burleigh Heads. Liability remains in issue; quantum of damages having been agreed in the total sum of $23,750.00.
The plaintiff who was aged fifty-four years at the time of the accident, was walking with her daughter-in-law in an easterly direction along Christine Avenue. The plaintiff’s daughter-in-law was pushing a pram in which was the plaintiff’s grand-daughter. The relevant date was 26 January, 1998 and the relevant time was around twilight, the sun having set. The plaintiff was wearing “runners” which were in good condition. There was no evidence before me in relation to lighting or weather conditions.
The plaintiff was reasonably familiar with the intersection because, although she lived in Sydney, she would visit her son and daughter-in-law on two or three occasions each year. Her son and daughter-in-law lived locally. Her visits would usually be of some two weeks’ duration and she had been staying with her son and daughter-in-law on this visit for almost a week.
As the plaintiff crossed Hillstar Street her daughter-in-law was walking on her left. The plaintiff was watching for traffic turning from Christine Avenue into Hillstar Street. When she had proceeded safely across Hillstar Street the plaintiff negotiated the kerbing satisfactorily and began to traverse the grassed area leading to the concrete footpath. She took one step onto the grassed area but when she took the next step she caught her foot on the edge of the concrete, fell and struck the far edge of the concrete footpath with her face.
At the time of the incident there was no concrete ramp in existence to facilitate progress from the road surface to the footpath. Such a ramp was installed by the defendant in December, 1998. There is no evidence before me to establish the reason for such a ramp being installed at that time. It probably had nothing to do with this accident.
Another feature of the area where the plaintiff fell was however of particular importance. The approach to the footpath of Christine Avenue and east side of Hillstar Street was constructed so as to include nine wooden posts, or bollards, to prevent motor vehicles parking on the footpath in the vicinity of a post box situated in Hillstar Street some 15-20 meters south of the intersection with Christine Avenue.
The plaintiff was aware of the presence of the bollards which were a couple of meters apart from each other and set close to the edge of the concrete gutter. As she approached them, the plaintiff became aware of some other pedestrians travelling west, that is in the opposite direction, who were about to cross Hillstar Street. In her evidence in chief the following occurred:-
Q.“What happened when you got to the bollards? What did the other pedestrians do?
A.Well, my daughter-in-law had to push the stroller up over the grassy bit to get onto the footpath, and they just sort of went around. One went – two of them – three of them went one side and one came my side. I had to step across the other bollard.
Q.Did you look at that person?
A.Yes. He came through the opening …
Q.And what did you do?
A.I just took one step onto the grassed area and the next step I caught my foot on the edge of the concrete.
Q.What happened to you then?
A.I fell onto the concrete and caught my face on the edge.”
The plaintiff indicated by reference to the photographs contained in Exhibit 9 that she proceeded between the third and fourth bollards from the intersection immediately prior to falling. On the other occasions before the accident when the plaintiff walked in the area, she walked between the second and third bollards on a more direct line with the alignment of the footpath in Christine Avenue.
Two tracks had been worn across the grass between the second and third bollards and the third and fourth bollards. This wearing effect between the third and fourth bollards had, at the time of the accident, created a distinct division in levels between the worn track and the concrete path. The difference in levels, I find, was some 45mm in average depth, with some 80mm at maximum. I further find that there was very little contrast in color between the two surfaces and that the worn condition of the track had developed over a considerable period of time extending over several years.
What must be determined is whether, on the balance of probabilities, it has been established that the construction of the bollards has been responsible for the wearing effect on the grassed area as it meets the concrete footpath.
Mr Smolakovs, an ergonomic and design consultant, stated in his report of 2 June, 1998 that:-
“Considering that the shops are located on the eastern side of Hillstar Street, it could be reasonable to presume that the amount of traffic, be it pedestrian and/or cyclists, crossing the eastern side of Hillstar Street, would also cross the western side of Hillstar Street. However, it is noted that the western side of Hillstar Street, …….., does not have any worn pathway of any resemblance to that on the eastern side. Such a worn pathway on the eastern side is, very likely, a result of the posts acting as traffic regulators, wherein the natural tendency, be it a pedestrian or cyclist, is to travel in the centre between such posts, consequently resulting in repeated passage over the same area, whereas on the western side, where there were no posts, the resultant traffic could well tend not to move over the same path. Consequently, if the posts on the eastern side had not been installed, it could be reasonable to expect that the eastern side could well be in the same condition as the western side of Hillstar Street.”
It is not in dispute that on the western side of Hillstar Street there were no worn tracks across the grass leading to the edge of the footpath. It was suggested by counsel for the defendant, in the absence of any evidence on the point, that householders on the western side of Hillstar Street may have kept the grassed area in good condition. This is pure speculation, however, and therefore must remain a mere suggestion.
A view contrary to that expressed by Mr Smolakovs was advanced by Dr Olsen on behalf of the defendant. In his report of 23 May, 2000 he stated:-
“I do not agree with the analysis of the effect of the posts in determining the path that a person might take. It may equally well be stated that on the side of the footpath where there is no posts restricting cars from parking, one may reasonably expect that a pedestrian would follow a more or less straight line from the footpath when wishing to proceed along Christine Avenue and therefore it may well be more likely that a person would take a straight path which may therefore have caused some wear of the nature strip on that side. It is not possible to account for the differences in wear in the nature strip in my opinion.”
Of the two views expressed by the expert witnesses, I prefer that of Mr Smolakovs. He has, in my opinion, drawn a reasonable inference from the facts to conclude that the difference in the condition of the nature strips on the eastern and western sides of Hillstar Street was probably caused by the installation of the bollards which effectively channeled traffic and caused well-worn pathways to form on the grassed section on the eastern side. Mr Smolakovs also had the advantage of conducting an inspection of the area in question whereas Dr Olsen was obliged to rely upon photographs of the scene.
The role of the bollards in causing the significant difference in levels between the grass and concrete pathway is of considerable importance in this case. The defendant is the relevant highway authority and as such is liable only for acts of misfeasance, such as negligently designing and constructing repair work, and not for non-feasance in allowing the highway to fall into disrepair (See Buckle v Bayswater Road Board (1936) 57 CLR 259). I should interpolate at this point that Counsel accepted that the footpath where the plaintiff fell formed part of the highway.
The fact that the defendant was the occupier of the footpath (including the nature strip) and that it may have been negligent in allowing it to fall into disrepair would not of itself make the council legally liable for the plaintiff’s loss. The legal liability of an occupier for the static condition of premises is a liability for non-feasance from which the defendant as highway authority is exempt at common law (Gold Coast City Council v Hall (2000) QCA92).
This exemption of a highway authority for liability for non-feasance in relation to the surface of the highway does not apply in cases where the council has exercised its powers as a traffic authority, as, for example in this case, by installing a series of posts to prevent vehicles parking in the vicinity of a post box (Turner v Ku Ring-Gai Municipal Council (1990) 12 MVR 321). The installation of the bollards had nothing whatever to do with the maintenance of the highway. The powers or obligations of the defendant under some statute or local law with respect to restricting parking have not been identified by counsel for the plaintiff. Nevertheless, at no stage was it suggested by counsel for the defendant that in installing the bollards the council was acting in its capacity as highway authority responsible for maintenance of the road.
In Skilton v Epsom and Ewell Urban District Council (1937) 1KB 112 the plaintiff whilst cycling along a road in the defendant’s area reached a line of traffic studs at the same time as a motor vehicle. As the vehicle passed her one of the studs which had become loose shot out and struck her bicycle with such force as to overturn it, and the plaintiff was thrown to the ground and injured. The studs had been inserted in the road by the defendants as the highway authority under the powers conferred on them by statute for the purpose of regulating the traffic, and there was evidence that the particular stud had been defective for some time. In an action brought by the plaintiff for damages for personal injury the defendants contended that the stud formed part of the highway, and that the plaintiff had not proved misfeasance, for which alone a highway authority could be held liable. In rejecting this submission, Romer LJ (at p.125-6) stated:-
“Like Slesser LJ I refrain from expressing any concluded view whether the stud which flew from its position on the roadway and injured the plaintiff was or was not part of the highway. For the purposes of my decision, I am willing to assume that it was. Nevertheless, I think that the defendants have been rightly made liable for the damage caused to the plaintiff, and for this reason they have done something on the highway not for the purpose of maintaining it as a highway but for some totally different purpose, and the act which they did had become at the time the injury was caused to the plaintiff a nuisance to the highway for which they were, in my opinion, properly made liable, notwithstanding the fact that they are also the highway authority.”
In my opinion, these comments are apposite to the instant case. The defendant (the Gold Coast City Council) installed a series of posts or bollards on the footpath (or nature strip) not for the purpose of maintaining the highway at all but for the purpose of regulating parking. The posts channeled pedestrian traffic between them so as to cause over a lengthy period well worn tracks with a significant height difference from the level of the abutting concrete footpath. The defendant did not take steps to see that the wearing effect resulting from the positioning of the posts did not create an unusually dangerous situation for pedestrians.
I have already indicated that visual identification of the difference in levels was difficult to make because of the similarity in color between the two surfaces (see Exhibit 9, Plate VIII, views A and B). I accept that in the absence of such visual identification, the foot of a pedestrian in the course of gait moves within 4 to 6 mm of the ground surface and that a rise of at least 45 mm, and possibly 80mm, may well be expected to fully impede the motion of a foot, causing a pedestrian to pitch and fall forward.
The modification to the footpath at the intersection of Hillstar Street into Christine Avenue was modified in December, 1998 by installing a sloping surface to the level of the guttering and road surface. Had such a modification been in place at 26 January, 1998 it is highly likely that the injury as incurred by the plaintiff would not have happened. I note that in the course of the modification one of the posts or bollards was removed.
I accept that the estimated cost of installing such a concrete transition from the footpath to the guttering and thence to the roadway is some $250.00 to $300.00. Such transitions of footpaths at road crossings are quite common throughout the Gold Coast, and have been so for many years.
It is of course not every unfortunate incident resulting in injury which gives rise to actionable negligence. Nor is a highway to be criticized by the standards of a bowling green (Littler v Liverpool Corporation (1968) 2 AllER 343 per Cumming-Bruce J). The relevant duty of care on the defendant as the occupier of the land was to take reasonable care to avoid foreseeable risk of injury to the respondent (Australian Safeway Stores Pty Ltd v Zaluzna (1978) 162 CLR 479 at 488). I am satisfied, that the potential risk to the plaintiff by the presence of the height difference between the surface of the nature strip and that of the concrete footpath did give rise in the circumstances to a duty of care to protect the plaintiff from it. Further, in my opinion, there was a foreseeable risk of injury to the plaintiff from the difference in surface levels. It would have been a relatively easy and inexpensive matter to have installed an appropriate concrete transition from the footpath to the road surface in order to avoid the wearing of tracks and resulting height differences in levels between the grass and concrete surfaces. (Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 per Mason J.). In my opinion the defendant has breached the duty of care it owed to the plaintiff by failing to take reasonable steps to ensure that the installation of the bollards did not create worn tracks between them resulting in the creation of significant height differences between the nature strip and concrete pathway. The defendant, has in my view, been guilty of negligence in allowing the unsafe condition to develop and remain over a period of some years without any steps being taken to inspect the area or to remedy the dangerous situation that was created by installing the posts.
I can find no evidence of contributory negligence. The shoes worn by the plaintiff were appropriate for her to walk in and were in good condition. The oncoming pedestrians not only caused her to take an unfamiliar route through the bollards, but also attracted her attention from the surface of the highway. She had also been obliged to keep a lookout for traffic turning into Hillstar Street from Christine Avenue.
It follows that the plaintiff’s action should succeed. I give judgment for the plaintiff in the sum of $23,750.00. I will hear submissions with respect to costs in due course.

[2000] QDC 193

23/06/2000