Greentree v Blacktown City Council [2021] NSWDC 318

District Court New South Wales

Medium Neutral Citation: Greentree v Blacktown City Council [2021] NSWDC 318 Hearing dates: 11 May 2021; 12 May 2021; 13 May 2021 Date of orders: 16 July 2021 Decision date: 16 July 2021 Jurisdiction: Civil Before: Wilson SC DCJ Decision: Verdict for the Defendant. Orders at [34]. Catchwords: CIVIL – trip and fall on footpath – absence of evidence as to where on footpath plaintiff fell – s5B CLA applied Legislation Cited: Civil Liability Act 2002 (NSW) s 5B Cases Cited: Botany Bay City Council v Latham [2013] NSWCA 363 Bunnings Group Ltd v Guidice [2018] NSWCA 114 Luxton v Vines [1952] HCA 19 Texts Cited: None Category: Principal judgment Parties: Pamela Greentree (Plaintiff) Blacktown City Council (Defendant) Representation: Counsel: Mr P Macarounas (Plaintiff) Mr S Glascott (Defendant)

Solicitors: Brydens Lawyers (Plaintiff) McCulloch & Buggy Lawyers (Defendant) File Number(s): 2020/108087 Publication restriction: None

Judgment 1. The plaintiff ('Mrs Greentree') suffered injury when she tripped and fell on a footpath which was under the control and management of the defendant ('the Council'). Leaving aside the content of the duty, there is no doubt that a duty of care was owed as the relevant road authority by the Council to Mrs Greentree. 2. The defect relied upon by Mrs Greentree in her action against the Council was a matter which came to the attention of the Council on 15 February 2019 through a system of inspection. The incident involving Mrs Greentree occurred on 24 September 2019. 3. These proceedings are to be determined in accordance with the Civil Liability Act 2002 (NSW) ('the CLA'). 4. The duty of care owed by the Council to Mrs Greentree may be characterised as one to inspect the footpath and carry out any repairs reasonably required to reduce any risk of harm that is not insignificant, taking into account the matters referred to in section 5B of the CLA. In considering the matters referred to in section 5B, I will put to one side the question of foreseeability. The Council was on notice of the need to repair the footpath at some future point. That may or may not satisfy the question of foreseeability. 5. The real issues are as to the significance of the risk and whether, in the circumstances, a reasonable person in the position of the Council would have taken precautions to reduce the risk of harm prior to Mrs Greentree's fall (section 5B(1)(b) and (c)). 6. At the time of the accident, Mrs Greentree was 74 years of age. She resided in the local area and would regularly walk along the footpath where the accident occurred, in an easterly direction, up to about 3 times per week. The footpath where she fell was constructed of concrete or pebblecrete slabs separated by pavers. It would appear that the pavers had sunk in some sections and were lower than the adjacent concrete panels. One such paver had sunk so as to expose a raised edge of up to 23 mm. The plaintiff was aware of the defect in the pavement. She was a very attentive and cautious pedestrian. Mrs Greentree stepped over the area of the pavers with her left foot, but caught the tip of her right shoe on the raised edge of the concrete panel on the eastern side, causing her to lose balance and fall. 7. There was a fundamental omission from the plaintiff's evidence. In the hearing the plaintiff did not identify the point on the footpath where she fell. This is of significance as it is apparent from the photographs of the footpath that the height variation differed at various points along the pavers which ran north to south across the footpath. The absence of evidence on this essential topic from Mrs Greentree created an evidentiary lacuna in the plaintiff's case. 8. Without knowing precisely where the plaintiff fell, an assessment cannot be made as to whether the defendant ought to have performed the work before Mrs Greentree was injured. In those circumstances it is not possible to determine whether the defendant breached its duty of care to Mrs Greentree. This must result in Mrs Greentree's case failing for want of proof. 9. Absent direct evidence, it is possible to draw inferences from the circumstances established by the evidence, but only where such inferences are "reasonable and definite" (Luxton v Vines [1952] HCA 19; 85 CLR 352 at [358]). The evidence in this matter does not permit an inference that Mrs Greentree fell at the point measured and assessed by her expert, being the basis upon which the case was advanced. Drawing such an inference would be mere conjecture, which is impermissible. 10. The only evidence which may, at least partially, inform this question is the evidence from Mrs Greentree that at the point where she fell the height differential between the paver and the eastern concrete slab was between 5mm and 10mm. This is at a point along the footpath where the risk of harm was close to being at its lowest and was minimal. 11. The manner in which the evidence was given was not precise in that it was not actually measured by her. She estimated the variation in the course of giving evidence (T27.1). She did this by placing one hand above the other. Counsel for the Council said that 5mm was being indicated (T27.13). Counsel for Mrs Greentree estimated one centimetre, or 10mm. The agreed range was 5mm to 10mm. No objection was taken to the evidence as to this significant matter being given in a manner which may lend itself to imprecision. Neither Mrs Greentree nor her counsel seemed troubled by this approach. 12. Out of a concern for fairness to Mrs Greentree, in the course of addresses the court raised with her counsel that that there was no evidence as to where on the footpath she fell (T188.45). That caused counsel to suggest that it may be necessary for Mrs Greentree to be recalled to give evidence. That raised a number of concerns. First, Mrs Greentree had been in court and had heard the discussion between the bench and counsel concerning this evidentiary lapse. Secondly, Mrs Greentree had already indicated that the point where she fell was where the variation in height was between 5mm and 10mm. If she were to be recalled and gave evidence that she fell at the point where the variation was up to 23 mm then that may have raised questions concerning her reliability as a witness, a matter not otherwise of concern to the court as she impressed as an honest witness. 13. The court asked counsel for the plaintiff whether his client was capable of pinpointing where the footpath she fell. Counsel replied "I'm going to ask her but I believe she is, your Honour" (T190.47). Although it is unconventional to recall the plaintiff in the course of addresses, I considered that it should be allowed if it was in the interests of justice to do so. A short adjournment followed in order for counsel for the plaintiff to obtain instructions (T193.34). When the matter resumed counsel indicated that he would "just proceed with the submissions" (T190.40). The matter then proceeded on the basis that the case would be determined on Mrs Greentree's evidence that she fell at the point where there was a differential of between 5mm and 10 mm "at the point that she crossed" (T193.48). Counsel accepted that Mrs Greentree did not "traverse the larger defect" (T194.5). 14. Although it may seem artificial to divide the footpath up into sections determined by the extent of variation in height between the pavers and the concrete slab it would, in my opinion, be impermissible to determine whether the Council breached its duty of care by having regard to a section of the footpath irrelevant to Mrs Greentree's fall. An examination of the photographs of the footpath showed that at a point closest to the road the footpath was virtually flat. The variation in the differential in height across the footpath makes it necessary to ascertain with precision the point where Mrs Greentree fell. 15. To be clear, I reject the submission that the pavement "as a whole should be considered and applied in determining the risk of harm". To do so would offend the fundamental principles of relevance and causation. 16. I find, based on the evidence of the plaintiff and consistently with what was submitted, that Mrs Greentree fell at a point on the footpath where the variation in height between the pavers and the eastern slab was between 5mm and 10 mm. It is that defect by which the risk of harm is to be assessed and the liability of the Council determined under section 5B of the CLA. 17. I find that the risk of harm presented by such a slight discrepancy in the pavement is insignificant. Discrepancies of much greater proportions are commonly encountered and traversed by pedestrians on a daily basis. Further, I find that in the circumstances, a reasonable person in the position of the Council would not have taken precautions against the insignificant risk of harm which confronted Mrs Greentree. In making that finding I have had regard to the matters referred to in section 5B(2) of the CLA. I consider that the probability that the harm suffered would occur if harm precautionary care was not taken by the Council was minimal, given the insignificance of the risk which the discrepancy in the footpath presented. 18. Plainly, there were precautions available to the defendant. That is not the question. The question is whether a reasonable person in the position of the Council would have taken those precautions in the circumstances (see Bunnings Group Ltd v Guidice [2018] NSWCA 114 at [34]). 19. As to other matters arising in the course of the hearing generally, I do not consider it necessary to have regard to the expert opinion of Neil Adams, as the foundation of his opinion was an assumption that the plaintiff fell at the point of greatest discrepancy between the pavers and the footpath. The fact that this is not the case renders the expert's opinion irrelevant. Further, I see no utility in considering whether the Council was negligent in failing to rectify the footpath by reason of the fact that there was a greater discrepancy in relatively close proximity to the point where the plaintiff fell. Again, this turns on questions of relevance. By way of example to illustrate that point, had there been a missing paver at a point adjacent to where the plaintiff fell, but not causative of the plaintiff's fall, then the Council's failure to replace that missing paver would have no relevant bearing upon the question of its breach of duty of care in respect of a plaintiff who fell elsewhere. 20. I adopt respectfully the comments made by Adamson J in Botany Bay City Council v Latham [2013] NSWCA 363 at [43] in finding that the evidence in this case "could not establish that there was any apparent irregularity beyond that which might be expected on an unexceptional footpath in a suburban street". 21. Accordingly, the plaintiff's case must fail. 22. In the circumstances, I do not propose to provide extensive reasons in relation to damages. 23. In relation to non-economic loss, the plaintiff fractured her left wrist and two fingers. I accept the opinion of Dr Giblin that her condition is stable and reasonable. Dr Barnett considered that there was little or no risk of osteoarthritis. Dr Giblin said the risk was small, in the order of 5%. This impacts the assessment of non-economic loss and the need for future treatment. 24. Having regard to the injuries suffered and the remaining disability (including the scarring), I consider that the plaintiff's claim attracts an award of damages equivalent to 25% of a most extreme case, or $44,500.00. 25. Past treatment expenses are agreed in the sum of $9,349.54. 26. The plaintiff said that she takes Panamax when the pain is severe, at least once per week. On other days when the pain is dull she takes Panadol Rapid, about twice per week. There was no evidence as to the cost of medication. 27. The plaintiff seeks a buffer for future treatment expenses of $10,000.00, said to be supported by the opinion of Dr Giblin. His opinion was that "her medical management will remain conservative … utilising a combination of prescription and non-prescription medications". I accept Dr Giblin's opinion and find that the need for anything more than conservative treatment is remote and unlikely. 28. I allow an amount of $2,000.00 for future treatment expenses. 29. For past domestic assistance, I accept the amount claimed, being $315.00. 30. The plaintiff claims $45,000.00 for future commercial domestic assistance based on 2 hours per week at $45.00 per hour for the remainder of her life expectancy. She currently receives 1.5 hours per fortnight of subsidised commercial care, but believed that she required 2 hours per week. Her husband has supplemented the commercial care. 31. The experts' opinions vary from between 30 minutes to 3 hours per week. 32. I allow 2 hours per week at $45.00 per hour, for 5 years, rounded to $20,000.00. The period is limited to 5 years to reflect the likelihood that some assistance would most probably have been required in any event, given Mrs Greentree's age and other medical conditions. 33. I would assess damages as follows: (a) non-economic loss (25% of the most extreme case) $44,500.00 (b) past treatment expenses (agreed) $9,349.54 (c) future treatment expense (buffer) $2,000.00 (d) past domestic assistance (as submitted) $315.00 (e) future domestic assistance $20,000.00 TOTAL $76,164.54