New South Wales District Court CITATION: Dawson v Bankstown City Council [2006] NSWDC 197 HEARING DATE(S): 20 August 2006 JUDGMENT DATE: 12 September 2006 JUDGMENT OF: Johnstone DCJ at 1 DECISION: Judgment for plaintiff against first defendant; Judgment for second defendant against the plaintiff and the first defendant; First defendant to pay costs of plaintiff and second defendant CATCHWORDS: Negligence - Council - Faulty installation of footpath around a Telstra pit - Defect in footpath obscured and risk not obvious - Failure to plead defence under s 45 Civil Liabilty Act - Preventability of risk - Damages - Domestic care and assistance - Costs - Sanderson order LEGISLATION CITED: Civil Liability Act 2002: s 5G, s 5H, s 42, and s 45 Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 256B-C Brodie v Singleton Shire Council [2001] HCA 29 at [166] Burwood Council v Byrnes [2002] NSWCA 343 Caledonian Collieries Ltd v Speirs [1957] HCA 14 at [12] Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512 at 581 [163] Griffiths v Kerkemeyer (1977) 139 CLR 161 Irvine v Bankstown City Council (Unreported, District Court of NSW, Hughes J, 28 October 2005) Leichhardt Council v Serratore [2005] NSWCA 406 at [15]. Lombardi v Holroyd City Council [2002] NSWCA 252 at [32]. CASES CITED: Makita v Sprowles [2001] NSWCA 305 Mortimer v Burgess (1997) 25 MVR 463 Port Stephens Council v Theodorakis [2006] NSWCA 70 Richmond Valley Council v Standing (2003) 127 LGERA 237 at 255. Romeo v Conservation Commission of the Northern Territory [1998] HCA 5 at [128] Rose v Abbey Orchard Property Investments Pty Ltd (1987) Aust Torts Reports 80-121 at 68,928 RTA v McGuinness [2002] NSWCA 210 at [38] Temora Shire Council v Stein [2004] NSWCA 236 at [39] Thomson v Bankstown Corporation (1953) 87 CLR 619 at 630 Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at 35] – [36] Van Gervan v Fenton (1992) 175 CLR 327 Valmai Dawson (Plaintiff) PARTIES: Bankstown City Council (First Defendant) Telstra Corporation Limited (Second Defendant) FILE NUMBER(S): 1927/05 Mr Lidden SC (Plaintiff) COUNSEL: Mr Tonner (First Defendant) Mr Polin (Second Defendant) JUDGMENT Introduction 1. While pushing her new baby granddaughter in a pram along a footpath, Mrs Dawson tripped and fell to the ground, breaking her left arm. 2. The accident occurred on 10 February 2002 in Sherwood Avenue, Panania, two houses up from the home of her daughter, who she was visiting. 3. The fall was caused by a height differential between the concrete surround of a Telstra pit and the Council's footpath. 4. Mrs Dawson claimed damages from the Council and Telstra. During addresses, however, her claim against Telstra was abandoned. 5. The issues for decision are, therefore: (a) Whether the Council was negligent. (b) If so, what amount of damages should she be awarded? (c) Whether Mrs Dawson was guilty of contributory negligence. (d) If so, to what extent should her damages be reduced? Factual background 6. At the time of her accident Mrs Dawson lived at Picnic Point, some 5 minutes by car from Lisa, her daughter's house at No 6 Sherwood Avenue, Panania. During one of her regular visits to her daughter she decided to take her baby granddaughter, aged 8 months, for a walk in her pram, at about 1.00pm. 7. Upon leaving No 6 she turned right and proceeded along the cement footpath, pushing the pram, until at a point outside No 2, she tripped and fell. At the point of her fall there was a Telstra grid set partly into the footpath, encased in a concrete surround, which was at an uneven level to the footpath (Exhibit C). The concrete surround to the grid was set some 25mm above the level of the footpath. 8. Mrs Dawson had not previously noticed this grid and at the time of her fall it was obscured by the pram she was pushing. There was grass growing in the gap between the concrete surround and the footpath, which camouflaged the height differential. 9. Following the accident Mrs Dawson was taken to a nearby medical centre where X-rays were taken which revealed fractures to her left wrist. That evening, at Bankstown Hospital she had surgery to correct the fractures. Unfortunately the bones were not correctly set and further surgery was required a week later. 10. In the meantime the incident was reported to the Council. The District Officer, Mr Barton, went out to inspect the site 3 days later, where he noted the height differential, measured it and took a photo (Exhibit 1D3). In his view this constituted a trip hazard. He made a report (Exhibit 1D2). He placed a request for an immediate "make-safe", by the placement of a tar patch at the edge of the pit surround. He also sent a request to the Civic Roads section of the Council for the footpath to be re-laid so as "to have the dropped concrete 25mm section around the pit replaced". 11. Within a short space of time, probably the day after Mr Barton's inspection, the Council temporarily remedied the trip hazard by placing tar at the edge of the pit, levelling out the height differential between the pit surround and the footpath (Exhibit D). 12. About a month later, the Council effected a permanent repair, by relaying the section of the concrete footpath around the Telstra pit, level with the pit and its surround (Exhibits E and 2D1). Was the Council negligent? 13. It was not disputed that the Council was the authority responsible for the footpath. The evidence clearly established that the footpath was constructed at a later date than the Telstra pit, and that at the time of Mrs Dawson's accident the level of the footpath was uneven to the concrete surround of the pit, the differential being some 25mm at its worst point. 14. There was an issue as to the precise point at which Mrs Dawson tripped. During her evidence she marked the point of her fall on Exhibit C1, at a point where the metal lid of the Telstra pit met the concrete surround. However, it was clear from her evidence that she did not really know precisely where she tripped. 15. There being no other potential cause, I am satisfied that more probably than not she tripped at the point where the concrete surround abutted the footpath, the location of the height differential, and that she tripped as a result of that height differential. 16. Mrs Dawson sought to make a case in the alternative. First, that there was faulty construction, being either that the footpath was negligently installed at a height below the pre-existing Telstra pit surround, or, that it subsequently subsided due to poor backfill at the time of construction. Secondly, it was alleged that the Council had failed to adequately inspect and maintain the footpath. 17. The Council contended that Mrs Dawson had not particularised a case based on negligent installation, and was therefore precluded from making such a case. 18. The particulars of negligence under paragraph 6 of the Statement of Claim are wide enough to encompass a case based on negligent construction. Further and better particulars were requested and provided, in correspondence (Exhibit 2D2). The first request dated 7 June, did not seek particulars of paragraph 6. The particulars in the letter of 30 August 2005 relate to the case based on a failure to inspect and repair, but it cannot be said that the allegations in particulars 6 (a) or (b) of the Statement of Claim were abandoned in that correspondence. 19. But even if a different view were to be taken as to the scope of the particulars, Mrs Dawson is not to be shut out on that basis in any event. The cases alleged in the alternative were not inconsistent. The course of the trial and the way in which the evidence emerged, without objection, was such that in my view Mrs Dawson is not precluded from attempting to make out a case based on negligent installation: Queensland v J L holdings Pty Limited 189 CLR 146. This was not a case where the defendant was taken by surprise. The Council knew from the outset that subsidence was an issue, as it arose from its own documentation, confirmed by the evidence of its own witness, Mr Barton. Had the Council raised this as an issue during the course of the trial, I would have allowed the evidence in any event, and had there been an application to do so, I would have allowed an amendment to the pleadings and the particulars. 20. The Council denied negligence and relied upon various sections of the Civil Liability Act 2002: s 5G, s 5H, s 42 and s 45. Counsel referred to the following authorities: Makita v Sprowles [2001] NSWCA 305; Brodie v Singleton Shire Council [2001] HCA 29 at [166]; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512 at 581 [163]; RTA v McGuinness [2002] NSWCA 210; Irvine v Bankstown City Council (Unreported, District Court of NSW, Hughes J, 28 October 2005); Temora Shire Council v Stein [2004] NSWCA 236; Burwood Council v Byrnes [2002] NSWCA 343; and Lombardi v Holroyd City Council [2002] NSWCA 252 at [32]. Was Mrs Dawson aware of the risk? 21. The Council contended that Mrs Dawson must fail in her claim because the risk of harm was obvious, and she did not prove on the balance of probabilities that she was not aware of the risk. Mrs Dawson is therefore presumed to have been aware of the risk, and the Council owed no duty to warn her of it: s 5G and s 5H of the Civil Liability Act 2002. It was submitted that if Mrs Dawson had been keeping a proper lookout she would have seen the trip hazard. 22. In my view the risk was not obvious, and I am satisfied that Mrs Dawson was not aware of the risk. Nor do I consider that she ought to have been aware of the risk. 23. Mrs Dawson was not intimately familiar with the area, and her line of vision was affected by the fact that she was pushing a pram. Furthermore, the defect was obscured by grass growing between the footpath and the pit surround, which disguised the height differential. It was an otherwise normal, even surfaced footpath, relatively new, similar in colour to the adjacent pit surround, not attended by trees or tree roots or other cracks or defects sometimes apparent in footpaths. 24. I am also satisfied that the risk did not become obvious when the wheels of the pram passed over the height differential. That inference is not available. To draw such an inference, one would need to be satisfied that Mrs Dawson's feet and the wheels of the pram crossed the gap between the footpath and the concrete surround at the same point. It is more probable that the right pram wheel remained on the footpath, or that the left pram wheel crossed the gap at a point where the height differential was less than 25mm. It would also need to be shown that wheels operate in a similar way to feet, when self-evidently they don't. Faulty installation of the footpath 25. I am satisfied that the installation of the footpath was faulty. There are only two possibilities: that at the time of construction the footpath was installed at a level lower than the pre-existing surround of the Telstra pit; or that the footpath subsequently subsided. The District Officer, Mr Barton, agreed in cross-examination that it was the latter, due to inadequate fill and compaction under the cement. 26. I am satisfied that on the balance of probabilities that the footpath subsided as a result of inadequate fill and compaction at the time of installation. 27. The risk of injury from such a height differential was clearly foreseeable and I am satisfied that Mrs Dawson's injury resulted from it. 28. Mrs Dawson has in my view, therefore, made out a case that the Council was negligent. That negligence caused her injuries and she is entitled to damages. Did the Council fail to adequately inspect and maintain the footpath? 29. I turn to deal with the alternative basis on which Mrs Dawson's case was put in case I have erred in allowing her to make out a case based on negligent installation. 30. Mrs Dawson also alleged that the Council was negligent in failing to adequately inspect and maintain its footpath. 31. By way of defence, the Council submitted: · The Council did not have actual knowledge of the risk. · The risk of injury from the trip hazard was not foreseeable. No previous complaint about this risk was ever made to the Council, not even from the daughter who lived adjacent to the site. · The streets of Sydney are littered with such trip hazards. 32. The Council submitted that it is not liable for its failure to carry out any such repair work because it did not have actual knowledge of the particular risk: s 45 of the Civil Liability Act 2002. 33. Counsel for Mrs Dawson submitted that the Council is precluded from relying on a defence under s 45 because it was not pleaded: Port Stephens Council v Theodorakis [2006] NSWCA 70. The Council disagreed. 34. In any event, in my view a defence under s 45 does not arise because the evidence establishes that the Council had inspected this footpath only 8 months earlier. The inspectors were not called to give evidence, nor was any other evidence called as to the nature of the inspection and what was or was not observed. I infer that if an adequate inspection had been carried out the trip hazard would have been detected, and I find, therefore, that the Council had actual knowledge of the particular risk: Leichhardt Council v Serratore [2005] NSWCA 406 at [15]. 35. This case falls to be decided, therefore on the general common law principles. These principles have been much discussed in recent years by the appellate courts. My task is to apply the principles to the facts of this case as I find them. 36. One must, however, be mindful of such cautionary comments as these: " The unevenness in the paving slabs, the cracks and the holes at the place where the plaintiff was moving were as obvious as similar features all over the country, and as obvious as other common features like raised tree roots and manhole covers.": Richmond Valley Council v Standing (2003) 127 LGERA 237 at 255. " …pedestrians are able to see and avoid imperfections and 'will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards'...": Temora Shire Council v Stein[2004] NSWCA 236 at [39]. " It is the nature of walking outdoors that the ground may not be as even, flat or smooth as other surfaces": Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512 at [163]. " Judges may be permitted to know that there are large numbers of height differences of this order (25mm) or more in footpaths in built-up areas, and there was nothing to make this one any worse than others": RTA v McGuinness [2002] NSWCA 210 at [38]. " I do not accept that a plainly visible step of 25 millimetres in a footpath is correctly regarded as high risk or unacceptable risk. It is desirable that even obvious steps of 25 millimetres in footpaths be avoided and eliminated if possible; but that is not to say that the failure of a Council to detect and eliminate all such risk is negligent. As a general rule, in my opinion it is not.": Lombardi v Holroyd City Council [2002] NSWCA 252 at [32]. 37. Nevertheless, each case falls to be determined on its own facts: Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512 at [163]. 38. This case does not involve an obvious risk. This case does not involve issues as to resourcing or budgetary restraints. This case does not involve an insignificant imperfection. This case involves a disguised trip hazard that was sufficiently dangerous to warrant an immediate make-safe and an urgent major remediation. 39. It is not necessary to show that the precise event that resulted in the injury was foreseeable: Caledonian Collieries Ltd v Speirs [1957] HCA 14 at [12]. It is only necessary to consider whether it was reasonable to foresee in a general way the kind of thing that occurred: Thomson v Bankstown Corporation (1953) 87 CLR 619 at 630. 40. The absence of past mishaps does not entitle a defendant to ignore safeguards against dangers: Romeo v Conservation Commission of the Northern Territory [1998] HCA 5 at [128]. 41. I am satisfied that the evidence establishes that a reasonable person in the position of the Council would have foreseen there was a risk of injury, of the general kind as that which in fact occurred, to Mrs Dawson or to those persons like her who used the footpath. 42. A reasonable response to that risk would have been to have a proper system of inspection. Preventability 43. The critical issue, it seems to me, is whether such a proper system of inspection would have detected the trip hazard that caused the accident. 44. This was the issue confronting the court in Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241, when McHugh JA (as he then was), said at 256B-C: " 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…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." 45. Although a plaintiff is not relieved of the necessity of offering some evidence to establish causation, in appropriate circumstances "slight evidence" may be enough, unless explained away by the defendant: Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at 35] – [36]. I consider that principle has appropriate application to the present facts. 46. In my view it can be inferred that a proper system of inspection would probably have detected the trip hazard. 47. More difficult to determine is the temporal issue, namely when it was that the trip hazard emerged. I am, however, satisfied that on the balance of probabilities the trip hazard was not of recent origin but was occasioned over time, such that it would have been discovered by a proper system of inspection: Rose v Abbey Orchard Property Investments Pty Ltd (1987) Aust Torts Reports 80-121 at 68,928. The Council led no evidence to "explain away" the trip hazard and when it emerged. 48. I am satisfied that there was inadequate inspection and maintenance. Mr Barton conceded that if he had previously been aware of the trip hazard he would have done something about it sooner. 49. I find, therefore, that the Council was negligent and in breach of its duty of care to Mrs Dawson in that it failed to take reasonable steps to protect her from foreseeable injury by not instituting a system of regular inspection by which the trip hazard that caused her fall would have been discovered and remedied, thus preventing her injuries. Was Mrs Dawson guilty of contributory negligence? 50. I have already found that Mrs Dawson was not aware of the trip hazard. Nor do I consider that she ought to have been aware of the risk of injury from the trip hazard, particularly when it was not an obvious risk, obscured as it was by grass. 51. I am not satisfied that Mrs Dawson failed to take reasonable care for her own safety. I find, therefore that she was not guilty of any contributory negligence. 52. I turn, therefore to assess the damages to which Mrs Dawson is entitled. Non-economic loss 53. Mrs Dawson is 66. She has a life expectancy of 20 more years. As a result of her fall she suffered a nasty fracture of her left wrist. Despite closed reductions, on two occasions, she has been left with dorsal angulation of the distal radius, some wrist stiffness and an un-united ulnar styloid. She is left with a weakened grip, pain and loss of full movement. The dorsal angulation gives rise to an unsightly wrist deformity. 54. She also complains of continuing pain and discomfort in her left shoulder. These symptoms started some 9 months after the accident and are continuing. This was subsequently diagnosed as being due to a full thickness tear of the supraspinatus tendon, caused by the fall. This will, however, respond to physiotherapy treatment and is likely to improve. 55. It was submitted on behalf of Mrs Dawson that an appropriate assessment of her non-economic loss is 29% of a most extreme case: s 16 of the Civil Liability Act 2002. 56. In my view an assessment of 29% is too high, having regard to all the circumstances. Given the high probability of improvement in respect of the shoulder, and having regard to the plaintiff's age, the absence of any need for further treatment and the presence of constitutional osteoporosis, I consider a lower assessment is called for. 57. It was submitted on behalf of the Council that an appropriate assessment for non-economic loss is 25% of a most extreme case. 58. I assess the severity of the non-economic loss (as a proportion of a most extreme case) at 27%. That equates to $41,500.00: s 16(3) of the Civil Liability Act 2002. Domestic care and assistance 59. Mrs Dawson claimed substantial damages for domestic care and assistance for the past and for the future. 60. Damages are recoverable for services provided gratuitously by others such as family members where it is reasonably necessary for those services to be provided: Griffiths v Kerkemeyer (1977) 139 CLR 161. It is for a plaintiff to satisfy the court of the need for the services: Van Gervan v Fenton (1992) 175 CLR 327. 61. Mrs Dawson gave considerable detailed evidence on the care and assistance she has needed and which her husband and daughter have provided. 62. Her claim was based on a sample taken over a period of two weeks by reference to a diary kept by her husband, Mr Dawson (Exhibit F). On the basis of the details recorded in the diary, damages for past care and assistance were claimed for 10.5 hours a week at $20.00 per hour, for 3.5 years. In my view this past gratuitous care and assistance was reasonably necessary and I allow an amount of $38,220.00. 63. It was claimed that this need will continue for the rest of the plaintiff's life, and a claim is made, after discounting for vicissitudes at the rate of 5% -10%, of $125,949.00. 64. I am not satisfied that the need for future gratuitous care and assistance will continue at that level for the rest of the plaintiff's life, nor that a discount of only 5% -10% is appropriate. 65. In my view, account needs to be taken of factors such as the likely improvement in the plaintiff's shoulder pain, the existence of constitutional osteoporosis and a general diminishing need as the plaintiff ages. For example, one can reasonably expect that the Dawsons might move to smaller premises. The sort of help Mr Dawson was providing, such as shopping, are the sort of activities he would increasingly have involved himself in over time in any event. Regard must be had to the mutual give-and-take of marriage, in particular in the context of a retired couple with time on their hands: Mortimer v Burgess (1997) 25 MVR 463. Reference also needs to be made to the opinion of Dr Schutz, to the effect that much of the gratuitous help has been provided not so much because Mrs Dawson was not able to perform the tasks, rather she chose not to: Van Gervan v Fenton (1992) 175 CLR 327. 66. Nevertheless, I consider there should be some award for the future, to reflect the inability of Mrs Dawson to attend to the heavier aspects of daily life. In making this assessment, I have made reference to the diary, but have reduced the time for various items, in particular time referable to shopping. The shopping time is not likely to be reasonably necessary in the future as separately independent gratuitous care, as it is an activity that would have been performed in any event. 67. On this basis I allow one hour a day of future domestic care and assistance, at $20.00 an hour for 15 years, discounted at the rate of 10%. 68. I therefore assess Mrs Dawson's need for future domestic care and assistance in the sum of $58,268.00. Other heads of damage 69. Past out of pocket expenses are claimed and agreed at $609.00. 70. Mrs Dawson is entitled to damages for future medical and related expenses. She claims $1,000.00 for future physiotherapy and in my view that is reasonable. 71. There is no claim for loss of earnings or loss of earning capacity. Total damages 72. I therefore award total damages to Mrs Dawson of $139,597.00. Summary 73. The Council was negligent. 74. Mrs Dawson was not guilty of contributory negligence. 75. Total damages are assessed at $139,597.00, made up as follows: Past out of pocket expenses $ 609.00 Future physiotherapy $ 1,000.00 Past domestic care and assistance $ 38,220.00 Future domestic care and assistance $ 58,268.00 Non-economic loss $ 41,500.00 $139,597.00 Disposition 76. For these reasons I find for the plaintiff against the first defendant. 77. I enter a verdict for the plaintiff against the first defendant in the sum of $139,597.00. 78. I enter a verdict for the second defendant against the plaintiff. 79. I enter a verdict for the second defendant against the first defendant in the cross-claim. 80. I direct the entry of judgment in accordance with the verdicts. 81. The exhibits are to remain in Court for 28 days after which they may be released. 82. I reserve costs pending argument. Costs (Determined on 12 September 2006) 83. First defendant to pay the plaintiff's costs 84. First defendant to pay the second defendant's costs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.