New South Wales Court of Appeal CITATION : Harridge v. University of Western Sydney [2002] NSWCA 70 FILE NUMBER(S) : CA 40291/01 HEARING DATE(S) : 12 March 2002 JUDGMENT DATE : 15 March 2002 PARTIES : Carol Ann Harridge - appellant University of Western Sydney - respondent JUDGMENT OF : Stein JA at 1; Hodgson JA at 2; Santow JA at 26 LOWER COURT JURISDICTION : District Court LOWER COURT DC8696/01 FILE NUMBER(S) : LOWER COURT Boyd-Boland, ADCJ JUDICIAL OFFICER : COUNSEL : Mr. J. Garnsey QC with Ms. E. Beilby for appellant Mr. M.T. McCulloch for respondent SOLICITORS : The Hargreaves Practice, Sydney for appellant Herbert Geer & Rundle, Sydney for respondent CATCHWORDS : PRACTICE AND PROCEDURE - Amendment - Application to rely on matter not raised at first instance - TORTS - Negligence - Whether risk of sufficient magnitude to require alleviating action - Causation - Whether suggested action would have avoided accident. ND CASES CITED: Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47-8 DECISION : Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40291/01 DC 8696/01 STEIN JA HODGSON JA SANTOW JA Friday 15th March 2002 HARRIDGE V. UNIVERSITY OF WESTERN SYDNEY Judgment 1 STEIN JA: I agree with the reasons of Hodgson JA as set out below. 2 HODGSON JA: On 2nd April 2001, Boyd-Boland ADCJ found a verdict for the respondent University of Western Sydney in proceedings for damages for personal injury brought against it by the appellant Carol Ann Harridge. The appellant appeals to this Court from that decision. CIRCUMSTANCES AND EVIDENCE BELOW 3 The appellant's evidence concerning the circumstances of the accident was accepted by the primary judge, and was as follows. 4 On 22nd November 1996, the appellant was a primary school teacher at Kingswood Primary School, which is adjacent to the Nepean Campus of the respondent. At the invitation of the respondent, at around 11.20am on that day, she and two other teachers left the school with about ninety children aged between 10 and 12, to take them to the university campus to see an end-of-year art display. It was raining heavily. The appellant had an umbrella in her right hand. Some of the children had umbrellas, while others did not. The appellant was keen to have the group move hurriedly so that the children would not get too wet. 5 To reach the auditorium where the exhibition was being held, the appellant and the children walked along a street within the campus, identified as Carney Avenue, to a point where they crossed some grass to reach a brick pathway. The children were in lines of two or three abreast, and the appellant was at the front walking quickly. The children engaged in some "chitter-chatter" as they walked, and the rain made it more difficult for the appellant to marshall and control them; and the appellant was turning around frequently to see what they were doing. 6 While walking along the brick pathway, the appellant came into collision with a pole near the centre of the path, and suffered injuries for which she claimed damages. The appellant hit this pole with the left side of her chest. She had not seen it prior to the impact. The dimensions of the pole were not given in evidence, but from photographs that were in evidence, the path appears to be about 2 metres wide, and the pole appears to be a galvanised iron pole about 1.2 metres high and 75 millimetres in diameter. 7 The Statement of Claim gave the following particulars of negligence: (i) Placing a pole in the middle of the footpath (ii) Failure to warn of the presence of a pole in the middle of the footpath. (iii) Failure to remove the pole from the middle of the footpath. (iv) Failure by means of padding or other device to reduce the risk of injury to people who collided with the pole. 8 The appellant called evidence from a landscape architect Stuart Pittendrigh. He provided a report dated 2nd February 2001, which answered a number of questions. Those questions did not deal with the fourth particular above, nor was any argument addressed to it at trial or on appeal. 9 The first question was "Whether or not the placement of the post in the middle of the pathway complied with any applicable Australian Standards applicable in 1996 and if not, details". In the answer to this question, Mr. Pittendrigh commented that a post or bollard placed in the centre of a path is a traditional method of preventing vehicular traffic encroaching onto pedestrian areas, and also said that the placement of bollards in the centre or near centre of a pathway is not unusual. He noted that there were no Australian Standards with regard to the size and placement of bollards, but also stated that the diameter used in pedestrian situations generally range from 75 millimetres to 300 millimetres, with 100-150 millimetres being the most preferred diameter. 10 The other most relevant question was question 5 "Any other relevant matters". The first paragraph in answer to this question was: "The height and diameter of the post/bollard appears not to conform to the generally accepted design standards for this type of control device installed within a pedestrian path". This paragraph was objected to, and rejected. The next paragraph was: "The colour ie weathered galvanised steel pipe could have painted in a light colour so that the object was more clearly seen. This comment most certainly would apply during the early morning, evening and nighttime hours of the day". That paragraph was admitted into evidence. The next paragraph was: "A post or bollard of a large diameter may have resulted in a less concentrated area of impact on the chest of the claimant". That paragraph was objected to and not pressed. 11 Evidence was given for the respondent by Mr. Horst Filla, Works Manager of the respondent, that the post had been installed as a bollard to prevent motor traffic from using the pathway as it had done in the past. Initially, there had been a similar post placed where the path began from a car park; but this had not prevented motor vehicles from using the path, so that the subject post was subsequently installed about 40 metres along the path. The post had been in place for some years. It had not been painted at the time of the accident, but was subsequently painted white. Mr. Filla was not aware of any other occasion when a person was injured by the post. DECISION OF PRIMARY JUDGE 12 The primary judge found that the post should have been readily visible to the appellant, in the weather conditions prevailing at the time. He found that the appellant failed to see it because her attention was diverted by the children. He found that the risk of an event such as had occurred in this case was minimal, and he considered that this was confirmed by the absence of other like incidents. He held that the post was put where it was for the legitimate purpose of excluding motor vehicles from the path. He considered that, by reason of the smallness of the risk, there was no occasion to consider the expense of alleviating the risk. He held that there was nothing to suggest that the painting of the post in any other colour would have made any difference to the circumstances in which the appellant came into contact with it. GROUNDS OF APPEAL 13 The Notice of Appeal set out the following grounds: 1. His Honour erred in finding that the presence and position of the bollard did not create any additional risk to persons in the position of the plaintiff. 2. His Honour erred in concluding that the risk of injury was not serious and the positioning of the bollard was "desirable". 3. In concluding that the risk of a person lawfully walking along a brick pathway on a rainy day in company with others failing to see and colliding with a grey metal pole, set in the middle of the pathway and protruding to chest height was "at best minimal" his Honour erred. 4. His Honour misdirected himself in concluding that the bollard was "clearly visible to all who approached it paying any form of attention" and therefore in concluding that there was no breach of duty by the defendant. 5. His Honour erred in failing to consider whether there was a foreseeable risk of injury arising from the presence and position of the bollard to a person who was failing to exercise reasonable care for her own safety. 6. His Honour erred in concluding that the fact that the path had been regularly used by substantial numbers of students "must be evidence that the event which occurred was improbably and ought not to have been in the reasonable contemplation of the defendant". 7. His Honour erred in drawing the inference from evidence of no reports of previous like incidents, that the presence and position of the bollard did not create any additional risk to persons in the position of the plaintiff. 8. His Honour erred in failing to find that the defendant's failure to make the bollard more obvious, such as by painting it in a brighter colour, constituted a breach of its duty to the plaintiff. 9. His Honour erred in concluding that the photographs of the bollard painted white were ambiguous as to whether it was then better able to be identified as one walked along the path towards it. 10. His Honour erred in ignoring the question of the minimal cost of alleviating the risk in determining that the plaintiff was not negligent. 11. His Honour erred in attaching significance to the fact that no other person (sic) who were with the plaintiff testified to a difficulty in observing the bollard. 12. His Honour erred in failing to find that the defendant had breached its acknowledged duty of care to the plaintiff. APPLICATION TO ADD ADDITIONAL GROUND 14 At the outset of the hearing of the appeal, Mr. Garnsey QC for the appellant submitted that the description of a chest-high length of unpainted and otherwise unmarked galvanised pipe of small diameter as a "bollard" was an attempt to dignify by this name something manifestly unsuited for use as a bollard. He submitted there was no evidence suggesting that the respondent gave any thought to the suitability or appropriateness of the pipe, or its height, diameter or appearance, as an obstruction on a footpath or pedestrian thoroughfare. The Court raised the question whether that submission was open on appeal, having regard to the way negligence had been particularised in the Statement of Claim, and having regard to the rejection of the two paragraphs referred to above included in Mr. Pittendrigh's reply to question 5 in his report. The Court suggested to Mr. Garnsey that the matter could be tested by an application to include, as a ground of appeal, a ground to the effect that the primary judge was in error in rejecting these paragraphs. Mr. Garnsey made such application, and he submitted that the issue of the appropriateness of a pipe of the dimension of this pipe to be used as a bollard was fairly in issue below. 15 Mr. Garnsey submitted that particular (i), "placing a pole in the middle of the footpath" was apt to raise the issue that it was inappropriate to place this pole, with the dimensions of this pole, in that position. He submitted that particular (ii), dealing with failure to warn, appropriately included failure to warn by having a pole of appropriate dimensions and thus visibility. He submitted that particular (iv), "failure by means of padding or other device to reduce the risk of injury to people who collide with the pole", was apt to make the claim that a pole of larger diameter would have reduced the risk of injury. Mr. Garnsey submitted that the two paragraphs rejected from Mr. Pittendrigh's report further conveyed to the respondent that this claim was being made. Mr. Garnsey submitted that the appellant led evidence supporting the lack of visibility of the subject post, and submitted that the respondent did raise with Mr. Pittendrigh in cross-examination the suitability of a galvanised iron post for this kind of purpose: see Black 44W-45C. Mr. Garnsey submitted that in re-examination, Mr. Pittendrigh gave evidence to the effect that galvanised pipe was normally used for other purposes, not as an obstruction to traffic on a footpath. 16 In my opinion, the issue of the suitability of a pipe having the dimensions of this pipe for use in such a position was not squarely raised and contested at the hearing below. The particulars do not allege that the pipe was of inappropriate dimensions for the position and purpose of its installation, and in my opinion this allegation is not impliedly conveyed by the particulars to which Mr. Garnsey referred. The two paragraphs in Mr. Pittendrigh's report could have put the respondent upon such notice that such a case was sought to be made out, and might have helped with an application to expand the particulars at the trial. However, no such application was made, and the two paragraphs were not admitted into evidence. Mr. Filla was asked no questions about the appropriateness of the use of galvanised pipe of the dimensions in question for the purpose of excluding traffic from the path. The questions directed to Mr. Pitendrigh in cross-examination were material to the question of painting galvanised pipe, an issue that was squarely raised below. 17 Mr. McCulloch for the respondent submitted that, had this claim been made, the respondent would have at least given serious consideration to obtaining expert evidence on the matter. 18 In these circumstances, in my opinion the issue of the suitability of galvanised piping of the dimensions of this pipe for use in a pathway to exclude motor vehicles was not squarely raised below, and any chance of success that this point might now have would involve unfair prejudice to the respondent, in circumstances where the case could well have been conducted differently below by the respondent if this matter had been squarely raised. 19 The Court advised the parties during the hearing of the appeal that the application to amend was refused, and the above are my reasons for this decision. SUBMISSIONS ON APPEAL 20 Mr. Garnsey submitted that the primary judge did not consider evidence concerning the magnitude of the risk in its totality, inter alia because he relied excessively on Mr. Filla's evidence that he was not aware of any prior injury occurring over some indefinite period. The risk was substantial: the post was a weathered galvanised post, on its own, in the middle of a footpath and at chest height. Thus it could make contact with a normal adult torso, or with the head of a child. Persons could be on the path legitimately, walking or running. Such persons could include an invited party of primary school children, with teachers supervising them, in all kinds of weather. 21 Mr. Garnsey submitted that the primary judge proceeded as if the only duty of the respondent was to persons taking reasonable care for their own safety. There was in fact a not insignificant class of persons, such as persons in the position of the plaintiff, to whom the post was an unreasonable risk and who should have been considered by the respondent. The risk was significant and required little to alleviate it, for example painting the post in bright colours. 22 Mr. Garnsey submitted that, in so far as the primary judge held that painting the post white or some other bright colour would not have prevented this accident, the primary judge was in error. The evidence showed that the plaintiff was looking out as well as being concerned with the children, and that she was looking forward where she was going as well as, from time to time, looking back at the children. She had some 40 metres to do so. It was an appealable error for the primary judge not to have been satisfied that the appellant would have seen the post and avoided it if it had been appropriately painted. DECISION 23 The question of the magnitude of the risk posed by the post in this case was essentially a question of fact for the primary judge, and I can see no appealable error in the primary judge's conclusion that the risk posed by this post was insignificant, and not such as to require steps such as painting the post in bright colours to further reduce that risk. His finding that the post had been put there for a legitimate purpose was also a finding of fact well open to the primary judge. In accordance with the test stated in Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47-8, it was incumbent upon the primary judge to consider the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the respondent may have had. The primary judge in effect found that the placing of a post, in the position where it was, was a reasonable discharge of the respondent's responsibilities in relation to keeping motor traffic from the path, and in that way protecting the safety of pedestrians; and held that the magnitude of the risk of such injury as occurred in this case, and the degree of probability of its occurrence, were not sufficient to require any further alleviating action. In my opinion, there was no appealable error in either the reasoning or the conclusion of the primary judge on this matter. 24 In addition, on the question of causation, the primary judge was not satisfied that the painting of the bollard white or any other colour would have prevented the accident. In my opinion, having regard to the plaintiff's evidence as to how the accident occurred, this also was not an appealable error. The evidence led below and recounted by the judge was not such as to compel the conclusion that, had the bollard been more brightly painted, the appellant would have seen it and avoided the accident. Again, I see no deficiency or error in the reasoning of the primary judge on this matter. He considered that the photographs, showing the post after a coat of white paint, were ambiguous as to whether it was then better able to be identified; and it seems to me that that too was a conclusion open to him. 25 For those reasons, in my opinion, the appeal should be dismissed with costs. 26 SANTOW JA: I agree with Hodgson 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. 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