New South Wales Court of Appeal CITATION : Burwood Council v Byrnes [2002] NSWCA 343 FILE NUMBER(S) : CA 40944/01 HEARING DATE(S) : 5 August 2002 JUDGMENT DATE : 4 November 2002 PARTIES : Burwood Council v Lorraine Byrnes JUDGMENT OF : Handley JA at 1; Beazley JA at 41; Hodgson JA at 42 LOWER COURT JURISDICTION : District Court LOWER COURT DC 132/00 FILE NUMBER(S) : LOWER COURT Dent DCJ JUDICIAL OFFICER : COUNSEL : Appellant - M J Joseph QC/R Gambi Respondent - M Perry SOLICITORS : Appellant - Phillips Fox Sydney Respondent - Voros Lawyers Burwood CATCHWORDS : NEGLIGENCE - HIGHWAY RULE - DUTY OF CARE TO PEDESTRIAN Ghantous v Hawkesbury City Council (2001) 206 CLR 512 CASES CITED: Hawkesbury City Council v Ryan [2001] NSW CA 212 Parramatta City Council v Watkins [2001] NSW CA 364 Lombardi v Holroyd City Council [2002] NSW CA 252 DECISION : Leave to appeal granted on terms. Appeal allowed. Orders made IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40944/01 DC 132/00 HANDLEY JA BEAZLEY JA HODGSON JA 4 November 2002 BURWOOD COUNCIL v LORRAINE BYRNES NEGLIGENCE - HighWAY RULE - duty of care TO PEDESTRIAN The plaintiff tripped over a concrete paver on a Council footpath and fell heavily. One paver had sunk more than others, resulting in a height difference of 20 mm. The trial Judge found that the condition was discoverable on reasonable inspection and that the defendant Council had been negligent but also found contributory negligence and reduced the plaintiff's damages. HELD: The Judge misdirected himself as to the Council's duty of care. A Council's duty to pedestrians is to take reasonable care to prevent or eliminate dangers to pedestrians taking reasonable care for their own safety. See Ghantous v Hawkesbury City Council (2001) 206 CLR 512. The Council had not been negligent as the height differential of 20 mm was obvious and was not dangerous to a pedestrian taking reasonable care for his on her own safety. ORDERS (1) Leave to appeal granted on terms that the appellant pay the respondent's costs in this Court subject to the appellant filing and serving the notice of appeal within 14 days; (2) Appeal allowed; (3) Set aside the judgment in the District Court and in lieu thereof enter judgment for the defendant with costs; (4) The appellant to pay the respondent's costs of the proceedings in this Court. iN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40944/01 DC 132/00 HANDLEY JA BEAZLEY JA HODGSON JA 4 November 2002 BURWOOD COUNCIL v LORRAINE BYRNES Judgment 1 HANDLEY JA: On 28 May 1999 Mrs Lorraine Byrnes tripped on a concrete paver on the footpath of Burwood Road just north of the north western corner of the intersection with Milton Lane and fell heavily. She brought proceedings for negligence against the Council and on 12 November 2001 Dent DCJ awarded her damages of $43,699.47 after allowing for her contributory negligence which he assessed at 20%. 2 The Council has applied for leave to appeal on grounds limited to liability and contributory negligence. The parties were heard fully on the basis that, if leave were granted, the Court would determine the appeal without a further hearing. 3 Photographs of the footpath which were taken on behalf of the plaintiff within a few days of the accident show the area. The plaintiff was walking north towards Parramatta Road after crossing Milton Lane. A concrete kerb ramp links the carriageway of Milton Lane with the footpath proper. Then there is a section of about 20 metres where the footpath comprises concrete pavers and after that there is normal concrete. There was an uneven section a few feet north of the kerb where a number of pavers had subsided creating a shallow depression with sloping pavers which created height differentials with adjoining pavers. 4 One paver had sunk more than the others and the plaintiff said that she tripped on the exposed side of the adjoining paver to the north. Unsurprisingly she could not identify the particular spot. Measurements were not made when the photographs were taken but the footpath was inspected by a Council officer on 2 July 1999 who reported "that a section of pavers had settled at the corner of Milton Lane, creating a trip slab of approximately 20 mm deep, as can be seen in the attached photograph". That photograph was taken looking south and, when it is compared with the plaintiff's photographs which were taken looking north, it suggests that the height differential may have been greater on the southern side of the sunken paver. Sand had collected on the north western corner of the sunken paver which may have reduced the hazard at that corner. However precision is not possible and the case has been conducted on the basis that the height differential on which the plaintiff tripped was about 20 mm. 5 The paved section of the footpath had been constructed by a developer in 1988/9 pursuant to a condition imposed by the Council when approving a building application. This required the pavers "to be laid on a properly constructed concrete base with a sand levelling course, no more than 25 mm thick, in between". It is possible that the condition required a base for concrete and not a base of concrete but the proceedings were conducted on the latter basis. An inspection report dated 20 February 1989 recorded that the footpath works had been completed to the Engineer's satisfaction. A photograph of the area in the Council's records taken in 1990 shows an even undamaged footpath. 6 A copy of the Council's 1999/2000 Footpath Rolling Programme became ex 4. This stated: "Council's footpath maintenance programme is compiled using the asset management principles contained in the Asset Accounting Manual prepared by the Department of Local Government and Co-operatives June 1993. … The condition of footpaths are rated on a scale, from 1 to 5, as follows: condition 1 near perfect condition condition 2 some superficial deterioration condition 3 serious deterioration, requiring substantial maintenance condition 4 level of deterioration affects the fabric of the asset, requiring major reconstruction or replacement condition 5 level of deterioration is such as to render the asset unserviceable". 7 A survey of the Council's footpaths, with an area of 275,461 square metres, during June 1998 was said to have revealed that there were no footpaths in condition 5, there were 13,061 square metres in condition 4 and 21,491 square metres in condition 3. The Council strategy was stated to be to first replace or repair the footpaths in condition 4. Table 3 to that document showed that the cost of rectifying condition 4 footpaths was estimated at $1,099,730. 8 The Council's Annual Report for the Year Ended 30 June 1999 (ex 5) stated: "It is estimated that it will take well in excess of 5 years at current maintenance funding levels to deal with all condition 4 paths, assuming no condition 3 paths deteriorate beyond that rating, and allowing for replacement of only the sections of path in condition 4 (not the whole street block as occurs with Capital Works). The cost to bring footpaths up to standard is approximately $1,040,000. In 1988/89 Capital Works' funding for footpaths was $111,000. In addition the paths in Burwood Road through the town centre were replaced as part of the Town Centre Revitalisation Project". 9 It seems evident that the $1,040,000 for bringing "footpaths up to standard" related only to footpaths in condition 4. 10 Exhibit 4 contained a table setting out the condition of the Council's footpaths as assessed by inspection in June 1998. The body of the document stated: "Council's strategy for its Footpath Rolling Programme is to progressively reconstruct and/or repair the footpaths that are in the worst condition. This strategy requires the continual review of the programme and the re-assessment of the condition of the footpath[s]. Annual inspections are carried out to record the condition of the footpaths and maintain a current register of the asset's condition". 11 The attached table showed that the footpath on the western side of Burwood Road between Milton Street and Parramatta Road had been assessed as condition 2 in June 1998. 12 The plaintiff's accident occurred some 11 months later. There is no evidence which would enable the Court to determine whether the condition of the footpath shown in the photographs existed in June 1998 or only developed later. However it is entirely possible that the footpath was already in the condition shown in the photographs because that could properly be described as showing "some superficial deterioration" within condition 2 rather than "serious deterioration, requiring substantial maintenance". 13 The plaintiff had lived nearby for about 8 years before her accident (T 27) and she would walk along the western footpath of Burwood Road to or from the shopping centre on an average about once a month (T26-7). At other times she caught a bus or walked on the eastern footpath. She was familiar with this footpath (T3-4). 14 On the day in question the weather was fine and the accident occurred about 11 am (T 4). The plaintiff agreed that photographs 4 and 5 showed what the area looked like on the day of the accident and then she gave this evidence: "Q: … and that's what you could observe as you were approaching the footpath from the other side of Milton Lane? A: See they were uneven, yes". (T 29) 15 She said her left foot tripped when her shoe jarred up against the lip of the paver (T 9). She had not fallen "on the footpath" before and when asked whether she had noticed the problem "with it" before she said: "The footpaths have been very bad in Burwood" (T 27). 16 Dr Cooke, an expert called for the plaintiff, said that the subsidence had occurred as a result of storm and other water eroding the sand under the pavers. He said it was common or standard practice to lay pavers on a thickness of sand over compacted road base (T 31, 49) and it was quite common for such pavers to subside over time (T 38, 39) and this was well known (T 39). 17 He was surprised to learn that there was a concrete base under these pavers and said that this would increase the likelihood of erosion (T 48). He could not recall any other instance where a concrete base had been specified or used and did not think this was normal practice (T 49). However he agreed that the reconstruction of the streets of Sydney for the Olympics involved laying paving bricks on a concrete base but without sand (T 50). 18 Dr Cooke said in his report that he considered a height discrepancy of more than 10 mm in surfaces used by pedestrians posed a tripping hazard (3). From the photographs taken on behalf of the plaintiff he estimated the vertical discrepancy in this case was more than 15 mm (3) and said that "the sunken and irregular pavement surface shown" in the photographs "was unsafe and posed a reasonably foreseeable danger to pedestrians using the footpath in the normal way". He concluded that the injury to the plaintiff could have been avoided by the exercise of reasonable care on the part of the Council which should have been aware of the propensity of pavers laid on sand to move as the result of erosion of the bed material and instituted a procedure to inspect the footpath periodically and carry out repair work promptly (4-5). 19 These opinions incorporated the expert's unstated assumptions as to the duty of care owed by a council to pedestrians and are not binding on the Court, nor are they particularly helpful in that form. As Callinan J said of a similar report in Ghantous v Hawkesbury City Council (2001) 206 CLR 512 (para 355): "A court is not obliged to accept an expert, especially when his or her evidence is evidence purportedly resolving and concluding an issue of the kind which arose here. A court is not bound to accept that a matter of ordinary observation such as the readily apparent state of the footpath is a matter calling for expert opinion". 20 There was some suggestion that the method of constructing this section of the footpath, which the Council imposed on the developer, was itself negligent but the trial Judge did not base his judgment on that or make a finding of negligence in that respect. He found that a trip hazard existed (J 4), and that this state of affairs had been evident for months, as a condition of obvious danger (J 8). He found that the condition was discoverable on reasonable inspection and "that either such inspection was wanting or, if conducted, not acted on, thus continuing the danger arising from the pavers until well after the subject accident. In my view that inactivity on the part of the defendant council amounts to negligence. A mere temporary barricading and warning could well have prevented this accident" (J 9). 21 Dr Cooke acknowledged that he had no direct experience with the actual maintenance and inspection procedures of Council officers in relation to footpaths (T 40). He considered this section of footpath and its defects in isolation without reference to the condition of other footpaths in the municipality, the Council's budgetary constraints, and the need for the Council to establish and maintain priorities in allocating the resources available for the repair and reconstruction of its footpaths. 22 The trial Judge appears to have overlooked (par 20) the evidence that the Council inspected all its footpaths in June 1998 and had a practice of conducting annual inspections (par 10). There is no evidence which would enable this Court to find that the Council was negligent in failing to inspect its footpaths at more regular intervals. Assuming that this section of footpath was already in the condition shown in the photographs when it was last inspected, there is no evidence and no finding that it was negligently or incorrectly classified as condition 2. But even if it should then have been classified as condition 3 it still would not have been repaired prior to the accident. Council did not call oral evidence and the Court does not have a clear picture of typical footpaths in condition 3 and condition 4. However there is no reason for thinking that this section of footpath could possibly be in condition 4 (par 6). 23 As of June 1999 the Council estimated that it would take more than 5 years at current funding levels to deal with all footpaths that were then in condition 4 (par 8). On the face of things it was appropriate for the Council to give priority to the improvement of condition 4 footpaths over those in categories 2 and 3. The footpaths in Burwood Road presumably carried a substantial volume of pedestrian traffic which might have justified a higher priority, but the Court is in no position to form a judgment on those matters. 24 The plaintiff had no knowledge of the relative urgency of the other demands on this part of the Council's budget. Those facts were peculiarly within the Council's knowledge. However there is nothing on the face of exs 4 and 5 (pars 6-11) which suggests that the Council was negligent in the way it allocated priorities in this part of its budget. It was suggested that greater resources should have been allocated to the repair of footpaths, and our attention was drawn to some other expenditures in the Council's budget. However even if all these monies had been wholly allocated to the repair of footpaths the additional resources would have been fully absorbed by condition 4 footpaths without any surplus becoming available for condition 3 footpaths. In my judgment therefore the decision in this case must turn on the degree and extent of the hazard presented by the height differential. 25 The accident occurred in broad daylight in fine weather. The plaintiff had a good view of this part of the footpath and there was nothing to prevent her seeing the uneven surface. She was familiar with the area and had walked over or around this damaged section a number of times before. Indeed she must have walked across the sunken area to reach the point where she fell. If the plaintiff had been keeping a proper lookout she could have passed in safety either by avoiding the sunken area or by taking additional care as she walked across it. 26 A height differential of 20 mm is not an unexpected or unusual danger to a pedestrian in the Sydney metropolitan area who is taking reasonable care and keeping a proper lookout. 27 The contrast between the Brodie and the Ghantous cases is significant. There was nothing that Mr Brodie could reasonably have done to protect himself against the risk that the wooden bridge would collapse. The Council on the other hand knew how long the bridge had been there, knew that its timbers would not last forever and it alone had the means of testing its load-bearing capacity. If the bridge was found to be weak or dangerous, and the Council did not have the resources to repair or rebuild it, it could have barred heavy traffic, imposed weight limits, warned drivers of the risk, or in the last resort closed the bridge. 28 Pedestrians on the other hand are in a position of relative advantage because they can generally protect themselves from uneven surfaces on footpaths and other public areas by keeping a lookout and taking care for their own safety. The position will be otherwise if the surface contains something unusual or unexpected which creates a real danger for ordinary pedestrians. 29 All this is made clear by the judgments in Ghantous (2001) 206 CLR 512. In that case the drop from the concrete footpath to the surrounding dirt surface was about 50 mm, approximately 2". The plaintiff lost her balance when she moved to step onto the dirt surface but caught her heel on the edge of the concrete. Gleeson CJ referred to the abolition of the non-feasance rule in England by statute and continued [paras 6-7]: "… when general principles of negligence, unqualified by any rule of immunity, were applied, the courts insisted that an injured plaintiff had to show that the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land. In Littler v Liverpool Corporation [1968] 2 All ER 343, 345 Cumming-Bruce J said: 'Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted . A highway is not to be criticised by the standards of a bowling green'." (emphasis supplied) 30 Gaudron, McHugh and Gummow JJ said [para 163]: "The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general such persons are more able to see and avoid imperfections in a road surface. It is in the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards such as uneven paving stones, tree roots or holes. Of course some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia (1982) 56 ALJR 912) or the surrounding area (as in Buckle where the hole was concealed by grass). In such circumstances there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a 'trap' or … 'of a kind calling for some protection or warning'." 31 At para [166] they agreed with the finding by Callinan J that Mrs Ghantous failed "because the footpath was not unsafe for a person taking ordinary care". 32 Hayne J also agreed with Callinan J [para 339] who said [para 355]: "Even if I were to assume that an action in negligence lay against the respondent for any failure to maintain or improve the footpath to keep or make it safe … there was no failure in that regard because the footpath was not, despite what the expert witness was allowed to say, unsafe. The case of the applicant in negligence was that a differential in height between the concreted path of the footpath and the earthen part of it created a dangerous situation. … there was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this". 33 A Council's duty to pedestrians is therefore to take reasonable care to prevent or eliminate the existence of dangers in the road or footpath. The duty is not to prevent or eliminate "obvious hazards" which "could possibly be an occasion of harm" [para 29 above]. The standard of care is that which is reasonably required to protect pedestrians who are taking reasonable care for their own safety. The care which pedestrians must themselves take enters into the definition of the duty and is not relevant only to contributory negligence. 34 This Court has considered Ghantous in at least three cases involving pedestrians injured on a highway. In Hawkesbury City Council v Ryan [2001] NSW CA 212 the plaintiff was returning to her car parked in Richmond shopping centre next to the kerb. At this point the gutter was deep and the top of the stone kerb was 22mm higher than the brick paved footpath. The plaintiff tripped over the kerb while stepping down into the gutter. Williams DCJ held that the height differential at the edge of the kerb was a trip hazard. It had been created either when the footpath was laid or as a result of subsidence due to poor compaction of the foundation material. His judgment in favour of the plaintiff was upheld by this Court. 35 In Parramatta City Council v Watkins [2001] NSW CA 364 the plaintiff again succeeded. She had parked her car next to the kerb in a designated parking area in Granville shopping centre. She walked around the front to get to the footpath and fell onto a manhole cover. This was flush with the road surface at the kerb but 50 mm or 2" below with a steep drop from the surface on the side furthest from the kerb. The manhole was partly obscured by her car and the space in front of her car was probably limited by another parked vehicle. 36 There was a similar manhole cover 40 metres away which did not present the same hazard because of the gradual slope from the surface to the cover. The judgment of Robison DCJ was upheld because the change in level would not have been expected and its existence was likely to be and was partially obscured by the car. The change in level was found to be an unreasonable hazard created during resurfacing work a few years earlier. 37 In the third case, Lombardi v Holroyd City Council [2002] NSW CA 252, the pedestrian failed. The plaintiff tripped over a concrete slab in the footpath which was 25 mm higher than the adjoining slab on one corner and substantially level with it at the other. This Court upheld the decision of Patten DCJ who found that the difference in height was plainly visible and could not be categorised as a concealed hazard. Hodgson JA, who delivered the principal judgment in this Court, said (para 32): "that a plainly visible step of 25 mm in a footpath is [not] correctly regarded as high risk or unacceptable risk". 38 In the first two of these cases the Court found that the state of the road or footpath created a hazard which was dangerous to pedestrians but not obvious. In the last of the cases the Court found, in effect, that the footpath "could possibly be an occasion of harm" but it was "an obvious hazard". The facts of the present case are, in essentials, indistinguishable from those in Lombardi v Holroyd City Council. Indeed the height difference in this case was less. 39 It follows in my judgment that the judgment under review was vitiated by legal error because the Judge misdirected himself as to the Council's duty of care. This is a matter of some public importance and the size of the judgment should not, by itself, protect it from appellate review. I would therefore grant leave to appeal and allow the appeal. 40 Mr Joseph SC informed the Court that the Council would, as a condition of obtaining leave to appeal, submit to an order that it pay the respondent's costs in any event. I would therefore make the following orders: (1) Leave to appeal granted on terms that the appellant pay the respondent's costs in this Court subject to the appellant filing and serving the notice of appeal within 14 days; (2) Appeal allowed; (3) Set aside the judgment in the District Court and in lieu thereof enter judgment for the defendant with costs; (4) The appellant to pay the respondent's costs of the proceedings in this Court. 41 BEAZLEY JA: I agree with Handley JA. 42 HODGSON JA: I agree with Handley 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. 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