Rallis v Pang [2003] NSWCA 202

New South Wales Court of Appeal

CITATION : Rallis v Pang [2003] NSWCA 202 HEARING DATE(S) : 23 June 2003 JUDGMENT DATE : 31 July 2003

JUDGMENT OF : Beazley JA at 1; Hodgson JA at 2; Tobias JA at 5 DECISION : Summons for leave dismissed with costs.

CATCHWORDS : TORT - negligence - footpath broken due to building works undertaken by owners of property directly behind relevant part of footpath - grass had grown over part of broken footpath - appellant tripped on part of footpath covered by grass - Whether duty of care owed by owners of property and local council - ND Ghantous v Hawkesbury City Council (2001) 206 CLR 512 CASES CITED : Wyong Shire Council v Shirt (1980) 146 CLR 40 Burwood Council v Byrnes (2002) NSWCA 343 PARTIES : Vaso Rallis Saw Hing Pang & 1 Ors FILE NUMBER(S) : CA 40453/02 Mr J McIntyre SC / Mr P Mooney for the Claimant COUNSEL : Mr A Jamieson for the 1st Opponent Mr P Garling SC for the 2nd Opponent SOLICITORS : Steve Masselos & Co for the Appellant Demaine & Associates, Hurstville, for the Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT DC 8002/00 FILE NUMBER(S) : LOWER COURT Williams DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40453/02

BEAZLEY JA HODGSON JA TOBIAS JA

Thursday 31 July 2003 VASO RALLIS v SAW HING PANG & 1 ORS Judgment 1 BEAZLEY JA: I agree with Hodgson JA. 2 HODGSON JA: I agree with the orders proposed by Tobias JA and, subject to what I say below, substantially with his reasons. 3 I would not myself assert a concluded view that the first opponent had no relevant duty of care. I would express the basic reason why the claimant is not entitled to succeed as follows. In the circumstances referred to by Tobias JA, it was not unreasonable for either opponent to leave the footpath in a state falling short of that to be expected of a normal paved footpath. In this situation, in order to show that the claimant was caused to fall by a hazard which should have been attended to by one or both opponents, there was required at least a more accurate identification of what this hazard was, how big it was, and where it was. Otherwise, it could not be found either that one or both opponents were or should have been aware of the risk it constituted, or that reasonable care would have required that they deal with that risk. 4 This is not intended as any criticism of the claimant or her solicitors. It is understandable that no close inspection was made at the time, and the Council's work obliterated the scene of the accident shortly afterwards. But the Court can only act on the evidence presented to it, and that evidence was insufficient to identify a hazard that called for attention in the circumstances of this case. 5 TOBIAS JA: On 6 January 2000 the claimant, a woman of 63 years of age and who resided at 34 Ludgate Street, Roselands, fell and was injured when traversing the footpath in front of the adjoining property, 32 Ludgate Street, which was owned by the first opponent. The footpath was part of the road reserve under the control of the second opponent. 6 The claimant sued the opponents alleging breach of their duty of care towards her by reason of their respective failure to take adequate precautions to ensure the safety of persons using the footpath. The proceedings were heard by his Honour Judge Williams of the District Court who, on 10 May 2002, found in favour of the opponents upon the basis that, although each owed the claimant a duty of care, there had been no breach of that duty. He accordingly entered judgment for the opponents with costs. It is against that decision that the claimant now seeks leave to appeal to this Court. That application and the appeal were heard concurrently. 7 It was common ground that the footpath in front of 32 Ludgate Street was, at the material time, in a state of disrepair being rough and uneven. It had been in this condition since 1998. At least part of the footpath had been damaged and broken up as a consequence of building work carried out, with the second opponents consent, on the first opponent's adjoining property. The direct source of that damage was found by the primary judge to be due to trucks and bobcats entering and leaving that property and trucks delivering bricks to the site. 8 In or about September 1998 the second opponent began upgrading the existing bitumen footpath in Ludgate Street. This upgrading was from a bitumen to a concrete footpath and had, by the end of 1998, been completed in front of 30 and 34 Ludgate Street. However, the new footpath was not extended across the front of 32 Ludgate Street, an officer of the second opponent having informed the husband of the first opponent on or about 7 September 1998 that this work would not be carried out until the building work upon the first opponent's property had been completed. No doubt, this was in order to avoid damage to any new footpath it being conceded by the claimant that it was reasonable for the second opponent to defer the new work for the reason given. 9 In late 1998, after the second opponent had carried out the new footpath work on either side of 32 Ludgate Street, the husband of the first opponent placed two tonnes of road base over the existing footpath in front of her property in order to bring it up reasonably level with the new footpath which had been constructed on either side. By December 1999 the building work upon the first opponent's property was complete and, on 22 December 1999, the first opponent paid to the second opponent the sum of money required by it as the cost of rectification and restoration of the footpath in front of 32 Ludgate Street. Shortly thereafter the second opponent commenced the new footpath work but at the time of the claimant's accident it had not been completed. According to an endorsement on a letter from the second opponent to the husband of the first opponent dated 17 December 1999, that work was completed by approximately 13 January, some seven days after the accident. 10 The claimant's evidence accepted by the primary judge was that she was fully aware that the footpath in front of 32 Ludgate Street was in a state of disrepair in that it was rough and uneven. She herself had traversed the broken footpath probably at least twice a week over the period that the building work was being carried out on the adjoining property. She gave evidence that on numerous occasions she avoided the footpath when there were no cars parked at the kerb by walking on the adjoining roadway because she was aware that the footpath was very rough, uneven and damaged in places. 11 However, on the occasion of her accident there were cars parked along the kerb as a consequence whereof the claimant decided to walk on the footpath itself. It was daylight, the weather was fine, she wore sensible shoes and she was aware of the necessity to be very careful when walking on the footpath due to its condition. When questioned as to the nature of the surface in front of her, she replied that it "wasn't even, it wasn't level". 12 After she had covered approximately 2-3 metres of the footpath in front of 32 Ludgate Street the claimant stepped on a patch of grass, expecting it to be flat, but underneath was a raised, hard object. She stepped on the edge of this object which caused her to lose her balance and start to fall. She managed to stop herself falling to the ground by hanging on to the mesh fencing that ran along of the front of the first opponent's property and as a result, twisted her knee causing extensive damage thereto. 13 The primary judge found that the claimant was unable to say exactly what caused her to fall whether it was a stone, a piece of brick, a rock or a piece of concrete or even a piece of the old uneven footpath. She did not look to see what had caused her to fall as the area was she said, overgrown by grass. There was, according to the primary judge, no evidence as to the size of the object in question or whether it was loose on the surface or buried in some way. 14 Two photographs tendered in evidence (Exhibit A) and taken by an employee of the second opponent between 14 and 17 December 1999 (some three weeks before the accident) indicated that, at the point where the claimant maintained she fell and which she had marked on one of the photographs, there was no grass but, rather, a bare patch of ground. However, the claimant maintained, and the primary judge accepted, that she might have been mistaken as to the exact location of the accident as so marked as she was adamant that where she fell there was grass. In simple terms, the claimant maintained that she stepped onto a patch of grass but was unable to see what lay beneath it as a consequence whereof she unwittingly stepped on the edge of a raised object and lost her balance. 15 The primary judge also found that each of the opponents owed the claimant a duty of care. In respect of the first opponent he held that that duty arose as a consequence of the damage caused to the footpath by the first opponent's building work and, with respect to the second opponent, in permitting that damage to remain, there having been created a situation of some danger that would not normally have been the case on a public thoroughfare. His Honour found that the first opponent's duty was firstly, to minimise that damage and, secondly, to ensure within reason that the damage was unlikely to cause harm to a pedestrian. He was less specific with respect to the duty of care found to be owed by the second opponent. 16 However, the primary judge found that none of the particulars of negligence or, more accurately, breach of duty were made out against either opponent. He found that the area within which the claimant fell was a reasonably level, but rough, patch of pavement that seemed to have loose material and grass distributed over it in different areas. In light of the evidence he was unable to find that the damage which had been caused to the footpath by the building work conducted on behalf of the first opponent upon her property extended to that part of the footpath where the claimant said she fell. He said that the photographs (Exhibit A) were not of such a quality that he could reliably determine the state of the footpath close to the claimant's premises (that is, I assume, in the area two to three metres along the footpath from where it commenced at the common boundary between 32 and 34 Ludgate Street) and that no evidence had been given with respect to that area in particular except to the effect that the footpath was much the same all over. 17 The primary judge also found that there was no evidence that in the two years prior to the accident and during the course of the building work upon 32 Ludgate Street, anyone else had experienced any problem in the area including the claimant who had used the footpath regularly. The roughness of the surface was obvious and well known to the claimant. He found that building sites such as that with which the first opponent was associated were a regular occurrence in suburban and metropolitan areas and that the footpaths outside such sites have to be regularly negotiated by pedestrians. 18 Having referred to the decision of the High Court in Ghantous v Hawkesbury City Council (2001) 206 CLR 512 and citing from [6], [153], [249] and [356] thereof and after referring to what is known as the Shirt calculus (Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48), the primary judge summarised his findings in the following terms: "Here there was a hard irregularity under some grass, it not being known how long the grass was. What that hard irregularity was is unknown. Indeed there is no evidence to link what it was to either defendant. It could have been something discarded by a complete stranger, we just do not know…… No one has been criticised for allowing the grass to grow and as to how much of it would have grown between the date the photographs were taken and 6 January, I am not prepared to speculate on. No one suggests that the defendants should have remade the path in some fashion each day." 19 So far as the second opponent was concerned the primary judge, after referring to the fact that it was reasonably probable that the second opponent commenced work on the rectification of the footpath shortly after 22 December 1999, said this: "Their failure, that is the council's failure, if it indeed is a failure to complete the work before the plaintiff's fall is hardly a negligent act contributing to the fall because the footpath situation had been its known state for a very long time." 20 The primary judge concluded that he would not categorise the pathway as unsafe. Certainly it was rough and uneven and could possibly be an occasion of harm but neither of those factors of themselves bespoke either negligence or breach of a relevant duty of care. Accordingly, he held that the claimant had failed to establish a breach of any duty of care on the part of either opponent. 21 It is clear that the primary judge properly directed himself as to the relevant legal principles as articulated in the then recent decision of the High Court in Ghantous. That decision has been followed and applied in this Court on numerous occasions. Those decisions establish that a pedestrian has no expectation that the surface of a footpath will be smooth and lack imperfections or defects. This is so because pedestrians are in a position of advantage as they can protect themselves from uneven surfaces of footpaths by keeping a proper lookout for the purpose of taking care for their own safety. This is particularly the case where the hazard is one which is obvious. 22 In the present case, the footpath, to the knowledge of the claimant, was in an obvious state of disrepair and, therefore, constituted a hazard of which she was well aware. As a consequence, when she was able to do so, she had avoided the footpath by walking on the adjoining road. However, it was submitted by the claimant that irrespective of whether she stepped on a rock, a piece of concrete a brick or some other object, that which caused the claimant to lose her balance was concealed from her view by grass which had grown within the footpath area. 23 In my view the fact that part of the footpath surface may have been covered by grass should, if anything, have alerted the claimant that the grass covered area was to be avoided as it was more likely than not that the surface underlying the grass was rough and uneven (consistent with the footpath generally) and, therefore, a hazard. This is not a matter relevant only to contributory negligence as the care which pedestrians must themselves take also enters into the definition of the duty of care: Burwood Council v Byrnes (2002) NSWCA 343 at [33] per Handley JA (with whom Beazley and Hodgson JJA agreed) 24 It was submitted by the claimant that the first opponent's duty of care arose on three bases. The first was that it was a condition of the Road Opening Permit which the first opponent obtained from the second opponent on 17 September 1997 that the permittee would be responsible for the protection of the public from risks which may be caused by the opening of the road carriageway or nature strip. The second was that, having placed road base upon the footpath at the end of 1998 the first opponent had a duty to ensure that it had been laid in a manner which did not cause danger including a duty to ensure that grass did not grow over the road base in a manner that concealed dangers lurking beneath. The third was to the effect that the first opponent also had a duty to ensure that no debris from the building work being conducted on her property was permitted to remain on the footpath concealed from view by the growth of grass over it. In each case it was contended that the duty referred to was breached by the failure of the first opponent (and, for that matter, the second opponent) to remove the grass by physically pulling it out or poisoning it so as to reveal the underlying uneven surface. 25 In my opinion, none of the bases advanced to found a duty of care on the part of the first opponent have substance. The first is misconceived given that the state of the footpath was not brought about as a consequence of any opening of any part of the road reserve including the footpath. As to the second, there was no suggestion either in the particulars of negligence or in the evidence that the first opponent's husband had laid the road base other than in an appropriate manner. To suggest that, having laid the road base, the first opponent had a duty to ensure that no part of the footpath became overgrown with grass is, with respect, fanciful. The first opponent was not the occupier of the footpath and had no control over it. There was nothing to suggest that any conduct of hers was the cause of the growth of the grass of which complaint was made. 26 As to the third basis, there was no evidence that the object upon which the claimant stepped and which caused her to lose her balance was debris from the first opponent's building work. Nor in my opinion, could it be inferred that it was. In this regard, the evidence did not identify with any precision where and how the accident occurred to enable the primary judge to determine what, if anything, could have been done to avoid it. His Honour expressed misgivings with respect to the imprecision of the evidence on these important issues and, in my opinion, he was clearly justified in so doing. In a case such as the present, in order to assert a duty of care to avoid the risk of injury that she sustained, the claimant was required to establish with a degree of precision not only the location but also the manner and cause of her fall. That precision was conspicuously absent in the present case. 27 Furthermore, I am not satisfied that it was properly put before the primary judge that the nature and extent of the duty of care upon the first opponent and, for that matter, the second opponent, was one which required her (or it) to remove the grass by poisoning or otherwise so as to reveal the underlying uneven surface. Such a case was not particularised and there is nothing in the evidence which suggests that such a case was being advanced. I see no reason to depart from the primary judge's specific finding that "No one has been criticised for allowing the grass to grow" 28 For the foregoing reasons, therefore, I am of the opinion that the primary judge was correct in finding that there had been no breach of any duty on the part of the first opponent. Furthermore, in my opinion there was no relevant duty of care imposed on the first opponent and the primary judge should not have found that there was. 29 The claimant submitted with respect to the second opponent that it controlled the footpath and had been aware of its unsafe condition since September 1998 when it was so informed by the first opponent's husband. It was therefore submitted that it had a duty to inspect the footpath from time to time and to take steps to minimise any danger to pedestrians revealed by such inspections. Had such an inspection taken place the first opponent would have discovered, so it was contended, that grass had grown to such an extent that it had concealed the underlying uneven surface thus obliging it to take steps to remove that grass and expose what was otherwise concealed. 30 Employees of the second opponent inspected the footpath at the time that the photographs (Exhibit A) were taken between 14 and 17 December 1999. That inspection revealed the state of the footpath as depicted in the photographs. The inspection took place for the purpose of determining the extent of the work required to restore the footpath. That work commenced a short time after 22 December 1999 and was completed within a few weeks of commencement. 31 It was not suggested that the second opponent was dilatory in its commencement and completion of the restoration of the footpath subsequent to the inspection in mid-December. Nor was it suggested by the claimant that the second opponent was negligent in the carrying out of that inspection. Furthermore, as the second opponent submitted, the mere fact that there was some object rendering the footpath uneven beneath the grass was not a sound basis upon which to found liability against it. In the circumstances, particularly where the claimant had acknowledged her awareness of the rough and uneven nature of the footpath, she could not reasonably have had an expectation that there was no roughness or unevenness within the alignment of the footpath beneath the grass which she observed and upon which she stepped. To that extent, the defective nature of the surface of the footpath continued, to the claimant's knowledge, to constitute a hazard which she could and should have avoided had she taken care for her own safety by looking where she was going and avoiding an area where she could not be confident that the surface was safe to walk on. 32 Accordingly, I am of the opinion that the primary judge was correct in finding that there had been no breach of any duty of care on the part of the second opponent. However, as with the first opponent, I am also of the opinion that, in the circumstances, the second opponent did not owe the claimant a relevant duty of care in the first place. 33 For the foregoing reasons, I am therefore of the opinion that the primary judge was clearly correct in entering judgment in favour of the opponents. There being no matter of principle involved, in my opinion leave to appeal should be refused. I would accordingly propose that the summons for leave be dismissed with costs. **********