Reported Decision : (2001) 117 LGERA 145 New South Wales Court of Appeal CITATION : Hornsby Shire Council v Catling & 2 Ors [2001] NSWCA 325 FILE NUMBER(S) : CA 40794/00 HEARING DATE(S) : 6 September 2001 JUDGMENT DATE : 18 September 2001 Hornsby Shire Council - Appellant PARTIES : Darin Catling - 1st Respondent Glen Anthony Johnson - 2nd Respondent Dirkje Hendrika Carr - 3rd Respondent JUDGMENT OF : Meagher JA at 1; Stein JA at 2; Heydon JA at 47 LOWER COURT JURISDICTION : District Court LOWER COURT DC 9273/98 FILE NUMBER(S) : LOWER COURT Hogan ADCJ JUDICIAL OFFICER : C Bridge SC/R Gamberi - Appellant COUNSEL : M Joseph SC/G Gemmell - 1st Respondent R Stitt QC/R C Tonner - 2nd/3rd Respondents Phillips Fox - Appellant SOLICITORS : White Barnes - 1st Respondent Moray & Agnew - 2nd/3rd Respondents CATCHWORDS : TORTS - negligence - duty of care - breach of duty - causation - contributory negligence - apportionment - discount for contingencies - TORTS - negligence - whether duty of care owed by approval authority - reasonable forseeability - whether pedestrian access as well as vehicular access required to be considered - s 333 Local Government Act 1919 - D LEGISLATION CITED : Local Government Act 1919 CASES CITED: D.E.K. Investments Pty Ltd v Sutherland Shire Council (1955) LGR (NSW) 283 DECISION : 1. Appeal allowed in part. 2. Verdict and Judgment for the first respondent set aside and, in lieu thereof, enter Verdict and Judgment for the first respondent against the appellant and second and third respondents in the sum of $526,298.40 to be paid in the proportion of 80% by the appellant and 20% by the second and third respondents. His Honour's costs order of the trial is confirmed. 3. The appellant to pay the costs of the respondents of the appeal. 4. Cross-Appeal allowed in part. No order as to costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40794/00 DC 9273/98 MEAGHER JA STEIN JA HEYDON JA Tuesday, 18 September 2001 HORNSBY SHIRE COUNCIL v Darin CATLING and 2 ORS The appellant appeals from a judgment for damages awarded in favour of the first respondent by Hogan ADCJ on 13 September 2000. The first respondent slipped and fell whilst walking down an extremely steep driveway of the property owned by the second and third respondents. The appellant was the approval authority for the driveway. Although the appellant had requirements concerning the gradient of a slope for vehicular access, it made no provision nor did it consider pedestrian access. The damages award was apportioned between the appellant and the second and third respondents. Held Per Stein JA, Meagher and Heydon JJA agreeing: 1. The appellant Council, as the approval authority for the access driveway, was required at the time the driveway was approved to take account of s 333(1) of the Local Government Act 1919 and consider pedestrian as well as vehicular access. D.E.K. Investments Pty Ltd v Sutherland Shire Council (1955) LGR (NSW) 283 applied 2. The appellant owed a duty of care to a class of persons, being pedestrians, who came onto the property, to take reasonable care to protect them from foreseeable risks of injury. It was reasonably foreseeable that an access driveway with a gradient in excess of 12.5% would represent an unsafe means of access for pedestrians. 3. The requisite relationship between the appellant and members of the public was established to give rise to a positive duty on the appellant to take steps to avoid a foreseeable risk of harm. 4. The trial judge was entitled to find that the slope of the approved driveway far exceeded a reasonably safe maximum for pedestrians and that provision should have been made for some safe means of pedestrian access. 5. The trial judge was correct to find that the plaintiff did not fail to exercise reasonable care for his own safety. 6. The trial judge's discretion did not miscarry in apportioning the damages between the Council and the occupiers, the second and third respondents. 7. The trial judge did not make any deduction for vicissitudes from the damages award for loss of future earning capacity. There is no reason why the normal 15% discount should not have been applied. 8. The trial judge's conclusions on the care needs of the first respondent were well open to him. Orders: 1. Appeal allowed in part. 2. Verdict and Judgment for the first respondent set aside and, in lieu thereof, enter Verdict and Judgment for the first respondent against the appellant and second and third respondents in the sum of $526,298.40 to be paid in the proportion of 80% by the appellant and 20% by the second and third respondents. His Honour's costs order of the trial is confirmed. 3. The appellant to pay the costs of the respondents of the appeal. 4. Cross-Appeal allowed in part. No order as to costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40794/00 DC 9273/98 MEAGHER JA STEIN JA HEYDON JA Tuesday, 18 September 2001 HORNSBY SHIRE COUNCIL v Darin CATLING and 2 ORS Judgment 1 MEAGHER JA: I agree with Stein JA. 2 STEIN JA: The Hornsby Shire Council appeals from a judgment for damages awarded in the District Court on 13 September 2000 in favour of the first respondent (plaintiff) Darin Catling. 3 The second and third named respondents were the owners and occupiers of a property at 3 Pinera Close, Hornsby wherein the plaintiff slipped and fell, suffering personal injury. Hogan ADCJ found a verdict in the sum of $547,916 and apportioned it as to 80% against the Council and 20% with respect to the occupiers. At issue is the existence of a duty of care, breach of duty, causation, contributory negligence, apportionment and two items of damage. The occupiers have not cross-appealed on liability but have joined the appellant in its appeal on damages. 4 The plaintiff was a meter reader and on 17 January 1996 was going about his duties in a hilly part of Hornsby. Pinera Close is a cul de sac and at its end is a long driveway to the house erected at No. 3, the residence of the occupiers. 5 The driveway also services No. 5 Pinera Close and 164 Pretoria Parade. The houses at the end of the Close are built on a steep hillside and the occupiers' block is an irregular battle-axe shape with a frontage of around 3m, mostly taken up by the driveway. 6 The plaintiff saw a meter down the driveway and began to walk towards it. As the driveway was obviously steep, he proceeded by taking small steps. The plaintiff proceeded down the left hand side which was the steeper side. He was wearing rubber soled boots, supplied by his employer and carried only a small meter reading device. Both his feet went from under him and he fell heavily onto his buttocks. It had been raining earlier and the driveway surface was wet. 7 Drawing on an expert report of Dr Cooke, his Honour described the driveway. It commenced at the roadway with a gentle slope over the nature strip but, from about the letter box to No. 5, the gradient increased sharply over the next 2 to 3m before continuing at a reduced gradient for a considerable distance to a double garage. The top of the driveway, when viewed by a pedestrian descending from the road, had a gradient on the left hand side of 20 to 25. On the right hand side at the top of the driveway the gradient was around 15. The plaintiff fell on the top left hand side. 8 The 35 lot subdivision was approved by the Council in the early 1970's. In 1977 the Council approved engineering plans for the subject shared access driveway. The plans complied with the Council's requirement of a maximum grade of 25%. Indeed, at the top of the driveway the slope was approximately that percentage. 9 The occupiers bought their lot in 1981 when it was vacant. The access driveway had already been constructed. By the time of purchase someone had apparently increased the slope on the side where the plaintiff fell to 47%. There was no evidence as to who did this or when. 10 The occupiers built their home in 1983 and although it is accepted that they obtained building approval, the Council has been unable to locate any relevant papers. The occupiers lived in the house from 1983 and were so doing at the time of the accident in 1996. The driveway formed the only and the obvious way by which pedestrians would enter the occupiers' land. The occupiers had not themselves ever had an accident on the driveway or known of anyone else who did. Nonetheless, they agreed that it was obviously steep and needed to be negotiated with care. 11 Two expert witnesses gave evidence. A Dr Cooke (engaged by the occupiers) and Dr Adams (retained by the plaintiff). They agreed that the steeply sloping surface at the accident site did not have an adequate coefficient of friction. There was nothing defective about the surface but it was not safe because of the excessive slope. Dr Cooke said that it was dangerous for pedestrians. This could be relieved by the construction of small steps, or at least a handrail. Such measures were not uneconomic. His Honour recorded Dr Cooke's conclusion that the top of the driveway was unsuitable for pedestrian use. Dr Cooke continued: Its gradient of 27-47% grossly exceeds the reasonably safe maximum for a surface without cleats of 12.5% (1 in 8) for pedestrians and also exceeds the recommended maximum slope of 20% for vehicles. 12 Dr Adams said that the driveway was so steep and offered such low frictional resistence to pedestrian movement that it failed to meet the relevant Australian Standard for pedestrian access. 13 The drive was, in short, 'dangerously steep for pedestrian access and the surface material does not provide adequate friction for a surface having so steep a gradient'. 14 His Honour observed: Even as approved and without alteration the slope was at the top of the range of any recommended maximum slope of 25% for vehicles, and far exceeded any reasonably safe maximum for pedestrians, which would be of the order of 12.5%. Even had the driveway not been altered it would clearly have been dangerous to pedestrians, especially when wet, and I do not think it is mere speculation to say that the plaintiff could well have fallen even if the slope had not been altered. Indeed, I think it is more than probable. 15 His Honour continued: When considering approval of the subdivision and of the means of access to the lots in it, a reasonably prudent Council should have considered pedestrian access as well as vehicular access. This requirement was the greater when the whole area was so hilly, and so obviously likely to involve dangerously sloping paths unless care was taken and control was exercised over development. Even if it would have been uneconomic to limit all rights of way, whether vehicular or pedestrian, to 12.5%, where vehicular access was allowed up to 25%, provision should have been enforced for some safe means of pedestrian access, by steps, railings, cleats or some other suitable method. In any event the imposition of conditions to achieve safe access would impose costs on developers, not on the Council, and there is no reason to suspect that those conditions would have made subdivision uneconomic or unprofitable. This is not a question of criticising a policy decision by Council. A policy of allowing a maximum of 25% for vehicular access was quite within its rights, and is not what is relied upon to impose liability on the Council in this case. It is obvious that Council simply did not consider the question of pedestrian access, and had no policy about standards in relation to it. In my opinion the Council owed a duty of care to persons such as the plaintiff who might be expected to gain access to lots in the subdivision on foot to ensure that reasonably safe means of pedestrian access were provided for them by developers, and that it failed in that duty in this instance. Duty of Care 16 The appellant submits that the Council bears no relevant duty of care. This submission must be rejected. 17 The Council was the sole approving authority for the subdivision and the access driveway. In considering whether to approve the engineering plans in 1977 it was required to take into account the considerations arising under s 333(1) of the Local Government Act 1919. Relevantly these included: (c) the situation and planning of the separate parcels in relation to public convenience, present and prospective. (d) the existing and proposed means of access to each separate parcel, and (e) whether the district is or probably will be a residential district. 18 This was a residential subdivision and the Council was required to consider pedestrian as well as vehicular access to each allotment. 19 So much was made plain in D. E. K. Investments Pty Ltd v Sutherland Shire Council (1955) LGR (NSW) 283 at 286. Hardie J, sitting in the Land and Valuation Court, said: Although the section [333(d)] does not indicate the type or nature of access required, it refers, in my view, to the sort of access which owners of land require, in the normal way of living, to have available to them and to their properties. In my view, it envisages access to each allotment of land by foot and by vehicle. 20 The obligation is evident in this case, bearing in mind the hilly nature of the area and the steepness of the slope down from the end of the cul-de-sac in Pinera Close. Moreover, the driveway was to be the only access to the occupiers' land for pedestrians as well as vehicles. 21 In my view, the particular circumstances and the legislative regime involving the exercise of statutory power by the Council were such that the appellant owed a duty to a class of persons (pedestrians) who came onto the property to take reasonable care to protect them from foreseeable risks of injury arising from the condition of the premises. It was reasonably foreseeable that if the Council approved an access driveway to the property with a gradient in excess of 12.5%, such driveway would represent an unsafe means of access and a hazard to pedestrians using it. 22 His Honour correctly concluded that a reasonably prudent Council should have considered pedestrian access as well as vehicular access. He was entitled to conclude on the evidence that it was obvious that the Council did not consider pedestrian access and had no policy or standard in relation to it. 23 The requisite relationship between the Council and members of the public was established to give rise to a positive duty on the Council to take steps to avoid a foreseeable risk of harm to such persons. Breach of duty and causation 24 The appellant contends that there was no evidence that in 1977 councils were imposing conditions such as those envisaged by his Honour. Further, it submits that the Council was merely asked to approve vehicular access to the new lots in the subdivision. It says that it had no duty to consider the question of pedestrian access. Accordingly, it was argued that it was reasonable for it not to have imposed any conditions relating to pedestrian access. 25 I have already recorded that in the present circumstances the Council had an obligation under s 333 to consider both vehicular and pedestrian access. It simply failed to consider pedestrian access. His Honour was entitled to find that the approved driveway, with its slope of 25%, far exceeded what was a reasonably safe maximum for pedestrians. It was the unanimous view of the expert witnesses that it was dangerous and unsafe for pedestrians. They indicated that a safe maximum would be in the order of 12.5%. 26 His Honour found that even if the slope of the driveway had all been at or about 25% for vehicular access, provision should have been made for some safe means of access for pedestrians by imposing conditions on the approval. These could have required the building of steps, railings or cleats to afford a safe means of access. The power to impose such conditions was available to the Council under s 331(2). 27 His Honour's conclusion on this aspect was one which was open to him and supported by the evidence of Dr Cooke. 28 The Council further submits that the plaintiff fell on the area at the top of the driveway which had been constructed or added to without the approval of the Council to a grade of 47%. It also relies on the evidence of the occupiers that they never experienced any problems with use of the driveway on foot. In particular, a portion of Dr Cooke's report is emphasised by the appellant. In the final paragraph Dr Cooke said that if the plaintiff had walked on the right hand side of the driveway, where the slope was less (15), it is probable that he would not have slipped. 29 However, this statement has to be understood in the context of Dr Cooke's evidence. In his report, he said that the top of the driveway was unsuitable for pedestrian use. The gradient of between 27% and 47% 'grossly exceeds the reasonably safe maximum … for pedestrians', while the safe maximum was, he said, 12.5% for pedestrians. 30 In oral evidence Dr Cooke was even more forthcoming. He made it plain that any slope in excess of one in eight (12.5%) was likely to be dangerous. 31 He repeated later in the evidence that he considered the slope at 25% dangerous for pedestrians, and that the steeper it was the more dangerous it became. 32 Dr Cooke also said that a pedestrian less familiar with the site than, for example, the occupiers, would be at greater risk of slipping. A person with knowledge of the slope would be in a better position to make a judgment than a casual user. Even someone familiar with the driveway would however have to take care because the slope was obviously dangerous. 33 In the light of the oral evidence of Dr Cooke, as well as the contents of his report, I do not see that his Honour was required to accept the conclusion in his report that if the plaintiff had used the right hand side, he would not have slipped. Indeed, the conclusion was inconsistent with his oral evidence. Contributory negligence 34 His Honour found that the plaintiff was not guilty of contributory negligence. The Council says that his Honour was in error in finding that the plaintiff did not consciously advert to the extent of the danger. His Honour noted that the plaintiff was obviously aware of some danger, and deliberately took short steps down the slope. The appellant submits that the plaintiff chose to descent on the left hand side, where the gradient was at its steepest and that he should have descended at the right hand side where it was less steep (25%). It is submitted that the slope was obviously less steep on the right hand side and if the plaintiff was properly looking out, he would have seen this. 35 There are at least three responses to this submission. 36 First, the plaintiff was never asked if he noticed the different grades between the right and left hand side of the top of the driveway. Second, Dr Adams said that on a wet day (as this was) it would have been natural for the plaintiff to use the apparently shortest possible route which was steeper. Dr Adams added that it may not have appeared to be appreciably steeper by a visual inspection in wet weather. 37 Lastly, his Honour was entitled to find that if the plaintiff had used the less steep side of the driveway, it was more probable than not that he still would have fallen. 38 His Honour was correct to find that the plaintiff did not fail to exercise reasonable care for his own safety. Apportionment 39 Having found both the Council and the occupiers guilty of negligence, his Honour apportioned the damages as to 80% to the Council and 20% to the occupiers. The Council challenges this apportionment and suggest that the greater blame lay with the occupiers. 40 His Honour said: The occupiers did not advert to the danger. They had no particular expertise that would or should have brought it to their notice. The danger already existed when they purchased the land. They played no part in creating it. The Council, on the other hand, had the responsibility of supervising the details of the subdivision in the public interest. It had qualified engineers in its employment. It did not cause the danger to be created. It permitted it when it should have prevented it. It also had no actual knowledge of the danger, but only because it did not advert to it when it should have. In all the circumstances I would apportion responsibility as to 80% to the Council. 41 These findings were open on the evidence and available to his Honour. In having regard to what is just and equitable, a court must make a comparison of the culpability and the relevant blameworthiness of the parties. It is a discretionary decision. I am unable to see how it can be said that his Honour did not carry out the exercise otherwise than in accordance with authority. It cannot be seen that his exercise of discretion miscarried. Damages Future earning capacity 42 His Honour allowed $185,000 for future loss of earning capacity. The simple point raised is that his Honour made no deduction for vicissitudes. His Honour explained how he arrived at the figure. He said that it was conservative to assume that the plaintiff lost about one half of his pre-accident capacity and this would produce a loss of about $175.00 per week. The present value of that loss at 3% for 31 years was $185,302. He concluded: Overall, after making allowance for contingencies, I assess the future loss of income earning capacity at $185,000. 43 Notwithstanding, it is not apparent that any allowance for contingencies was in fact made. There is no reason why the normal 15% discount should not have been applied. This amounts to $27,750. The verdict should be so adjusted. However, the appellant should not derive any costs advantage from this small success given the totality of the issues involved in the appeal. His Honour could have been asked to make the adjustment after judgment on the basis of the error being within the slip rule. Care 44 His Honour assessed past care assistance at $20,000 and the value of future care needs at $75,000. The challenge to the latter is principally on the basis that his Honour should not have used a figure of 5 hours per week but rather 3 to 4 as estimated by Dr Wolfenden. 45 Bearing in mind the findings of the Court as to the capabilities of the plaintiff up until the hearing and likely needs into the future, as well as the medical evidence, I cannot see how his Honour's conclusions were not well open to him. Proposed Orders 46 1. Appeal allowed in part. 2. Verdict and Judgment for the first respondent set aside and, in lieu thereof, enter Verdict and Judgment for the first respondent against the appellant and second and third respondents in the sum of $526,298.40 to be paid in the proportion of 80% by the appellant and 20% by the second and third respondents. His Honour's costs order of the trial is confirmed. 3. The appellant to pay the costs of the respondents of the appeal. 4. Cross-appeal allowed in part. No order as to costs. 47 HEYDON JA: I agree with Stein JA. ********** 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.