New South Wales Court of Appeal CITATION : RYDE CITY COUNCIL v WENDY JOYCE SMITH [2003] NSWCA 57 HEARING DATE(S) : 6 March 2003 JUDGMENT DATE : 6 March 2003 JUDGMENT OF : Mason P at 1; Handley JA at 38; Beazley JA at 39 DECISION : Appeal dismissed with costs CATCHWORDS : Negligence - pedestrian trips in council plaza - drain covered by grates - grates allowed to become unsecured - particular grate not replaced flush - negligent system of maintenance and inspection (ND) PARTIES : RYDE CITY COUNCIL v WENDY JOYCE SMITH FILE NUMBER(S) : CA 40265/02 COUNSEL : Appellant: M T McCulloch Respondent: A S Morrison SC/ M J Claridge SOLICITORS : Appellant: Phillips Fox Respondent: Patrick Timbs & Co LOWER COURT District Court JURISDICTION : LOWER COURT DC 3996/01 FILE NUMBER(S) : LOWER COURT Robison DCJ JUDICIAL OFFICER : THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40265/02 MASON P HANDLEY JA BEAZLEY JA Thursday 6 March 2003 RYDE CITY COUNCIL v Wendy Joyce SMITH JUDGMENT 1 MASON P: The respondent tripped and fell in a busy shopping mall on 9 May 1998. She sued the appellant as the responsible council in negligence. Damages were reduced by fifteen per cent for contributory negligence, leaving a verdict of $110,194.95. The council appeals as to liability and contributory negligence. 2 The Rowe Street Eastwood Shopping Mall was built in 1973. It separates two rows of shops. Running for about 130 metres along the mall closer to its northern side is a drain. It is formed by 215 grates, uniform in shape colour and size. The grates consist of parallel steel bars, alternating with apparently equally sized voids. 3 The visual impact of the whole drain is that of an extended zebra pattern. Each grate is 0.6 metres long and 0.36 metres wide. It weighs between 25 and 30 kilos. The grates rest upon a longitudinal bar or frame and are designed to be held down by two bolts passing through the grate into the bar or frame. 4 The council built the mall and has the statutory right to maintain and control structures such as the drain (see s142 of the Roads Act 1993). 5 Mr Johnson who gave evidence had been the council maintenance co-ordinator since 1989. He was responsible for pedestrian safety in the mall (Black 68). He also supervised the evening and day cleaning crews that cleaned the mall twice daily. Their work included sweeping litter and debris and general tidying up of the mall. This work would, from time to time, involve the lifting of particular grates. 6 The respondent's evidence about the accident was accepted by the learned trial judge. She was crossing the mall diagonally. She tripped on the raised edge of a grate that protruded approximately 33 millimetres above the edge of its neighbour. The grate had not been put back flat onto the longitudinal frame. 7 The respondent was wearing flat shoes with an 18 millimetre sole. The front of one shoe caught on or under the grate. The respondent tried to pull it out but it stuck and forced the shoe so that the heel was under the instep causing her to fall forward. 8 The respondent was aged 60 at the time. She was walking carefully, looking straight ahead with her eyes on the ground. She did not notice anything untoward. It was a busy Saturday morning in a suburban shopping mall. 9 The drain had to be crossed to get to the shops on the north side of the mall. The respondent would not have tripped as she did had she crossed the drain at right angles but she was under no obligation to do so and it was not reasonable to expect that all pedestrians would traverse the drain in that way. 10 The learned trial judge found that the protruding surface of the grate was a hazard (Red 35). This finding either implicitly repeated or picked up a passage on the earlier page of the judgment where his Honour said, There was clearly, when one reflects upon all of the evidence, a danger which was in fact concealed to an unsuspecting member of the public, namely the plaintiff, being a pedestrian, having regard to the length of the grates, their colour, the uniformity of shape. I have taken all of those factors into account. 11 This finding was challenged somewhat belatedly and faintly in the following circumstances. The trial judge reduced damages by fifteen per cent for the following reasons (Red 36). However, as far as the issue of contributory negligence is concerned, whilst I do appreciate the evidence of the plaintiff, given the concessions under cross-examination, it would seem to me that she did indeed fail to keep a proper lookout as she should have, particularly having regard to the pre-accident physical condition that she had such as problems with her hips and the like. She should have taken more care for her own safety, there is no doubt about that. I am of the view that contributory negligence has been established to the extent of fifteen per cent and the damages which would otherwise be awarded to the plaintiff should be reduced by that extent. 12 The concessions of the plaintiff under cross-examination to which his Honour was referring were described in the following terms (Red 21). I note a number of concessions from the plaintiff under cross-examination when a number of propositions were put to her. She was asked about the first crossing of the grate on the day of the accident. She indicated that if she had seen the grate as per the photograph marked P4 in exhibit C, she would have attempted to have avoided stepping on it. She also indicated that she avoids surfaces upon which she feels unsafe. She said that she had no difficulty crossing the grate on the first two occasions before her injury. 13 The appellant relied upon the following passage in Brodie v Singleton Shire Council (2001) 206 CLR 512 at 581 [163] (citations omitted): 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 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, 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, as Jordan CJ put it, "of a kind calling for some protection or warning". In Romeo , Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises "is generally entitled to assume that most entrants will take reasonable care for their own safety". Each case will, of course, turn on its own facts. 14 It was submitted that the trial judge's later findings on contributory negligence meant that it had not been open to his Honour to conclude earlier that the council had been negligent at all. Alternatively, it was submitted that his Honour had erred in doing so. 15 In my view this submission misapplies the passage in Brodie. It is one thing to say that the relevant duty of care is framed in terms requiring that a road be safe for users exercising reasonable care for their own safety. It is another to say that the particular circumstances of a particular road may not amount to a hazard in the nature of a trap. The passage that has been quoted draws the very distinction to which I have adverted. 16 If, through want of reasonable care, it is a situation of a hazard in the nature of a trap, then the council will be liable subject to a reduction of damages for contributory negligence in a proper case. The judgment below was, therefore, not internally inconsistent. 17 What is more, the finding that the position of the grate represented a hazard cannot be disturbed. It is adequately supported by the facts already recounted about the zebra-like appearance of the drain. Photos in evidence illustrate how the protruding face of the improperly laid grate would have appeared like the void portion of the striped grate and thus mislead a pedestrian into thinking that she was stepping onto a flat surface. 18 Before returning to the main issues fought in the appeal it is convenient to deal with the challenge to the finding on contributory negligence. That challenge depended in a large part upon the logically anterior challenge based upon the passage from Brodie I have quoted. When one realises that this was a busy Saturday morning, I think that the council was fortunate to get any reduction in the damages for contributory negligence. His Honour's conclusion was certainly well open, in light of the principles of appellate review stated in Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 525. 19 The major issue fought at trial and on the appeal related to the council's responsibility for the state of the offending grate. There was no direct evidence as to who had placed the particular grate in its position at the particular time. 20 It was common ground that it was physically capable of being laid sufficiently flush with its neighbour had greater care been taken either to clear out debris on the longitudinal frame where it rested, or otherwise simply to lay it flush on that frame. 21 The particulars of negligence relied upon at trial addressed the council's system of maintaining and inspecting the grates as well as the casual act of negligence of council cleaners who may have removed the grate for cleaning purposes and not put it back properly. The council was found negligent on both counts. 22 The finding on the latter basis depended upon an inference that it had been cleaners rather than a third party who had been responsible for not putting the grate properly back into place after removing it temporally for some purpose. 23 In the appeal, the council submitted that this was speculative rather than inferential reasoning. The council also submitted that the trial judge erred in using an expert opinion in this inferential process. The last-mentioned submission does not however do justice to his Honour's reasons at Red 30-32. 24 The question whether speculation replaced inference is not an easy one in the present case. All the more so since it picks up submissions turning upon the application of the principles in Jones v Dunkel (1959) 101 CLR 289 to the failure of the council to lead evidence as to the regularity of council cleaning work involving the temporary removal of grates. 25 In my view the judgment below can be sustained upon its first basis, namely negligence in a system of maintaining and inspecting the grates. 26 The trial judge compendiously described the council's standard of care as that enunciated in Brodie. His evaluative conclusions as to breach were expressed in the following terms (Red 35-6). The system of inspection, such as it was, in my view fell well short of what is required. This was a busy mall with shops and other premises on each side of the drain. It could certainly be expected that pedestrians would traverse that drain regularly, virtually every minute of the day, particularly Saturday mornings. …. Further I am of the view that there was an unsafe system of inspection and maintenance. Given the high degree of traffic on this mall, it is reasonable to expect that there should have been further and more decisive efforts taken by Mr Johnson to ensure that the mall was indeed safe. I am satisfied that the plaintiff has established negligence against the council for those reasons. 27 Earlier in the judgment his Honour made some specific findings based upon what Mr Johnson said and did not say in evidence (See Red 27-29). Mr Johnson gave no evidence about himself or anyone else checking the grates regularly or at all. All of the 172 grates had initially been bolted in accordance with their design. This, I infer, was a process that rendered them reasonably flush. A large number of the bolts rusted away over the years and they were not replaced. This left the grates capable of being lifted off by stranger and cleaner alike, thereby contributing to the possibility that they would not be put back flush. Shortly after the accident, it was found that 172 of the 215 grates were no longer bolted down. 28 In Mr Johnson's evidence there was a suggestion that there could have been a reason other than neglect for grates being left unbolted. Indeed, at Black 74S, he asserted that he did not believe there was a need to secure the grates since 1973. The following evidence was given (Black 70): Q. Do you know whether the grates should be kept bolted down or not? A. There's reason for the majority of those grates to be bolted down, there is a reason for some of those grates to be left unsecured. The flooding problems in the mall you need to have access to that drainage grate. If for some reason there was flooding, it was causing property damage to the mall.… Q. In times of flooding it is necessary to access the drains, is that right, after there has been flooding? A. That is correct. Q. How many grates do you need to be able to lift in order to access the drains? A. You need to have access through into that drain I believe every five to ten metres. 29 This evidence does not really assist the council. For one thing it shows that council cleaners were involved in lifting and replacing grates from time to time. 30 At its best for the council, it shows a possible justification for leaving some grates unbolted. But this fact would only heighten the need for an inspection system designed to check that unbolted grates were properly replaced if lifted, especially by strangers. 31 This observation does not mean that the council was an insurer in this matter, but there is no evidence of any system of inspection of grates and the only thing approaching it is Mr Johnson's acknowledgment of having a general supervisory role and what he said about checking that the pavers were all in place (Black 68H). 32 There is another difficulty for the council in this aspect of its case. After the respondent's injury, the council secured the grates with clips or "tie devices". Re-bolting was found to be too difficult for reasons which are not immediately apparent. The tie devices allow the drain to be opened for cleaning. Ties can be sprung off with a screwdriver or a device referred to in evidence as a bodgie (Black 117). At the very least, this demonstrates the availability of a cheap, available alternative to bolting that would ensure the grates lay flush as well as deter non council employees from interfering with the grates. 33 In my view the trial judge was correct in his conclusion that there was an unsafe system of inspection and maintenance for this busy mall. I see that as turning upon two alternative but related bases. There was lack of reasonable care in allowing the bolting system to deteriorate and become virtually non existent. And in addition, or in the alternative, there was lack of reasonable care in a proper inspection system addressing that situation. 34 If one were to accept the council's submission that from time to time strangers could be expected to pick up grates to retain lost belongings from the drain or for other purposes, this could only reinforce the need for a better system in seeing that matters were kept reasonably safe for pedestrians. 35 In light of the minimal cost involved in a better system that would have been effective, I conclude that there was negligence and agree with the trial judge's conclusion in that regard. 36 I infer as a matter of fact, that this careless omission contributed materially to the situation that led the respondent to fall. Cf Betts v Wittingslow (1945),71 CLR 637 at 649. 37 In my view the appeal should be dismissed with costs. 38 HANDLEY JA: I agree. 39 BEAZLEY JA: I agree. 40 MASON P: Appeal dismissed with costs. ********** Last Modified: 04/22/2003 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.