New South Wales Court of Appeal CITATION : Newcastle City Council v McShane [2004] NSWCA 425 HEARING DATE(S) : 22 October 2004 JUDGMENT DATE : 1 December 2004 JUDGMENT OF : Mason P at 1; Sheller JA at 2; Giles JA at 14 DECISION : (1) Grant leave to appeal and direct that the notice of appeal be filed within seven days; (2) Dismiss the appeal; (3) Refuse leave to cross-appeal; (4) Appellant/opponent pay eighty-five per cent of the respondent/claimant's costs of the application for leave to appeal and appeal and the application for leave to cross-appeal. CATCHWORDS : PERSONAL INJURY - footbridge in park blocked off by plastic mesh - plaintiff running for train at night - did not see mesh - fell and was injured - whether insufficient illumination - whether fact plaintiff not keeping proper lookout meant no duty of care - hazard created when defendant could have used more visible means of blocking footbridge - was duty of care - breach of duty of care - CONTRIBUTORY NEGLIGENCE - whether finding of contributory negligence open - DAMAGES - claim to buffer because injury could disadvantage plaintiff on open labour market - whether prospect of pecuniary loss from disadvantage established - no buffer. D Boroondara City Council v Cattanach [2004] VSCA 139; Borough of Bathurst v Macpherson (1879) LR 4 App Cas 256; Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Burwood Council v Byrnes [2002] NSWCA 343; Byrnes v Burwood Council [2003] HCA Trans 462; Fisher v Ruislip-Northwood Urban District Council [1945] KB 58; Greater Shepparton City Council v Davis [2004] VSCA 140; Junkovic v Neindorf [2004] SASC 235; K Mart Australia Ltd v McCann [2004] NSWCA 283; MacArthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145; McClelland v Manchester Corporation [1912] 1 KB 118; CASES CITED : Meurs v Taieri County (1954) NZLR 1081; Municipality of Pictou v Geldert [1893] AC 524; Newcastle City Council v Lindsay [2004] NSWCA 198; Nominal Defendant v Lane [2004] NSWCA 405; Penrith City Council v Parks [2004] NSWCA 201; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR; 492 Richmond Valley Council v Standing (2002) 126 LGERA 237; State of New South Wales v Moss (2000) 54 NSWLR 536; Stoddard v Ashburton County [1926] NZLR 399; Temora Shire Council v Stein [2004] NSWCA 236; Webb v South Australia (1982) 56 ALJR 912; Wyong Shire Council v Shirt (1980) 146 CLR 40. PARTIES : Newcastle City Council - Appellant Travis McShane - Respondent FILE NUMBER(S) : CA 40009/04 COUNSEL : P Garling SC & K Morgan - Appellant M Williams SC & G Beauchamp - Respondent SOLICITORS : Phillips Fox - Appellant Carroll & O'Dea - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT DC 4527/02 FILE NUMBER(S) : LOWER COURT Robison DCJ JUDICIAL OFFICER : OF NEW SOUTH WALES COURT OF APPEAL CA 40009/04 DC 4527/02 MASON P SHELLER JA GILES JA Wednesday 1 December 2004 NEWCASTLE CITY COUNCIL v McSHANE Judgment 1 MASON P: I agree with Giles JA. 2 SHELLER JA: I have had the benefit of reading in draft the reasons for judgment prepared by Giles JA. His Honour has set out the facts which I need not repeat. I agree with the conclusion that the respondent was entitled to recover from the appellant Council damages for the injuries he suffered on the evening of New Year's Eve 1999. I would, however, approach the plaintiff's claim differently. 3 The appellant Council was responsible for the care and maintenance of a public footpath which ran from a public street to the public precinct of a railway station. The footpath crossed by way of a bridge, a watercourse. In October 1999, the posts and rail on one side of the footbridge were damaged and the Council caused plastic orange mesh or webbing to be placed around the footbridge to guard against its use. This mesh was, and was intended to be, an obstacle to any pedestrian following the path either way from or to the public road to or from the railway station. As a result a pedestrian was prevented, as was intended, or inhibited, from following this route without, by some other means, crossing the watercourse. No other practical means of doing so was suggested. As one might expect, people using the footpath tried to push down the mesh so that they could use the bridge. Whatever the success of such people in making the bridge more accessible, the obstacle, though lowered, remained. 4 A good deal of attention was directed to whether or not at night time, with such artificial lighting as there was in place, the mesh was visible to the plaintiff before he fell on to it. However, on any view, the lighting was poor and it was not surprising that the plaintiff did not see the obstacle until it was too late to avoid it. The trial Judge described the plaintiff as one who appeared to be a level-headed sensible person who gave his evidence honestly and accurately as best as he could. The respondent said that he did not see the webbing before he hit it and denied that this was because he was not looking where he was going. He was running for a train that was approaching the railway station, something that a great many train travellers must do every day on public thoroughfares near railway stations. Such people so acting at night, do not expect, in the absence of any proper warning or proper lighting, to run into obstacles constructed over the public way and unavoidable if they are to follow the route down the pathway for the care and maintenance of which the authority, in this case the appellant, was responsible. 5 By constructing such a barricade without proper notice or lighting, the Council acted with reckless indifference to those who used the footpath. Whether in the Borough of Bathurst v Macpherson (1879) LR 4 App Cas 256 the Privy Council correctly categorised neglect to repair a newly constructed drain as misfeasance, as to which see p265-7 and Municipality of Pictou v Geldert [1893] AC 524 at 531, in Stoddart v Ashburton County [1926] NZLR 399, the Full New Zealand Supreme Court comprising five members, held that the County was liable to compensate a plaintiff under the Deaths by Accident Compensation Act 1908 for the death of his wife caused by the County's negligence in erecting a fence upon a public highway and failing to take reasonable precautions to warn members of the public using the road of the danger it created by such a fence. It made no difference that the fence had been erected to prevent people from falling into a hole in the road caused by flood erosion. The wife of the plaintiff died while driving a horse and gig which became entangled in the wire netting of the fence. The Court at 405 referred to the judgment of Lush J in McClelland v Manchester Corporation [1912] 1 KB 118 at 127: "Once established that the local authority did something to the road, and the case is removed from the category of non-feasance. If the work was imperfect and incomplete it becomes a case of misfeasance although the danger was caused by an omission to do something that ought to have been done. The omission to take precautions to do something that ought to have been done to finish the work is precisely the same thing, in its legal consequences, as the commission of something that ought not to have been done, and there is no similarity between such a case and a case where the local authority has chosen to do nothing at all." 6 Meurs v Taieri County (1954) NZLR 1081 is another case where a plaintiff recovered damages where the County had made a deep excavation across a highway for the purpose of replacing a bridge with a culvert. The County had erected a barrier with a sign "Road Closed" and an arrow marked detour which was not lit. The plaintiff, driving a car, collided with the barricade and crashed into the excavation. In the course of his judgment, Justice McGregor reviewed the authorities. Having referred to the judgment of Lord Greene in Fisher v Ruislip-Northwood Urban District Council [1945] KB 58 his Honour said at 1086 that the principle was "that a corporation exercising its statutory powers is not empowered to exercise such powers without regard to the safety of persons who may be affected. It had a duty in such cases to take adequate and effective precautions to prevent its acts constituting a danger to others. This is a particular example of the duty to take care. But while the absence of lighting may, and in many cases must be, in the case of an obstruction on a highway, an example of failure to exercise the standard of care required, each case must be examined in the light of all circumstances existing at the time and place, and it is a matter always for determination by the jury on the facts of the particular case." 7 In Brodie v Singleton Shire Council (2001) 206 CLR 512 at 540 [54] and [55], Gaudron, McHugh and Gummow JJ said: "[54] … That treatment of the content of the duty of care was consistent with the well-known passage in the judgment of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8 . However, on existing authority, the general considerations respecting the tort of negligence to which Mason, Brennan and Deane JJ referred only applied because the false kerb (into the gap between which and the permanent kerb the plaintiff took his faux pas) was an 'artificial construction'; otherwise the 'immunity' would have applied to the exclusion of any liability to an action in negligence. The applicants seek the removal from the corpus of the common law in Australia of such restrictions upon what otherwise would be the operation of the tort of negligence. [55] In our opinion, various considerations, taken together, favour the following conclusions. In cases such as those giving rise to the present applications, the liability of the respondents does not turn upon the application of an 'immunity' provided by the 'highway rule'. In so far as Buckle and Gorringe require the contrary and exclude what otherwise would be the operation of the tort of negligence, they should no longer be followed. Further, it is the law of negligence which supplies the criterion of liability in such cases; the tort of public nuisance in highway cases has been subsumed by the law of negligence." 8 At 577 their Honours said under the heading "Content and breach of the duty of care": "[150] The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the [Local Government Act 1919 (NSW)] upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist." 9 There follows a division under headings "Construction and design" [153] – [157] and "Repair, maintenance and works" [158] – [162]. Under the first heading this is said in [155]: "[155] The question whether 'due care and skill' was taken in design and construction will require consideration of all the circumstances of the case. The circumstances will include the type and volume of traffic expected. Different roads will serve different purposes and need not be constructed to the same standard. Thus, one would not expect all country roads to be sealed. The cost and practicality of an alternative and safer design, if one be available, may be weighed against the funds available to the construction authority. This may involve striking a balance between competing designs or methods of construction." 10 Under the second heading identified above this is said: "[158] A rejection of the 'immunity' for 'highway authorities' and the recognition of a duty of care in terms expressed above with reference to Wyong Shire Council v Shirt does not necessarily involve the imposition of an obligation in all cases to exercise powers to repair roads or to ensure they are kept in repair. An authority may have various statutory powers invested in it and would be under a duty not to use, misuse or fail to use those powers to create a situation of danger which creates a reasonably foreseeable risk of injury to a user of the road . [159] The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works, from a failure to remove unsafe items in or near a road, or from the placing of items upon a road which create a danger , or the removal of items which protect against danger. [160] In dealing with questions of breach of duty, whilst there is to be taken into account as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness', a proper starting point may be the proposition that the persons using the road will themselves take ordinary care ." [emphasis added] 11 In my opinion, a person, proceeding along a public pathway through a park at night, clearly intended, as evidenced by the presence of lighting, for use at night, cannot be said not to be taking ordinary care because that person happens to be running. It is quite another thing that the person was running holding a glass bottle in one hand 12 Neither the trial Judge nor counsel for the respondent put the respondent's case in the way which, with the greatest respect, it should have been put. However, the same result flows approaching the claim in the way the respondent argued it, as the reasons for judgment of Giles JA demonstrate. Even so, in my opinion, it needs to be stressed that this case was a misfeasance case and should have been determined by the principles applicable to such a case. 13 Leave to appeal should be granted but the appeal dismissed. I would refuse leave to cross-appeal. I agree with the order for costs proposed. 14 GILES JA: The plaintiff was injured on New Year's Eve 1999 when he fell and badly cut his left hand. He claimed damages from the defendant for negligence in creating a hazard which caused him to fall. Robison DCJ found the defendant liable and assessed damages of $62,300, being non-economic loss of $88,500 plus $500 for future out of pocket expenses less 30 per cent for contributory negligence. 15 These were an application for leave to appeal and a contingent application for leave to cross-appeal, heard on full submissions so that, if leave were granted, the appeals could be determined without a further hearing. The defendant wished to appeal against the finding of liability. The plaintiff wished to cross-appeal, contingently upon leave being granted to the defendant, against the finding of contributory negligence and against the failure to award damages for future economic loss. 16 For the reasons which follow, in my opinion leave to appeal should be granted but the appeal should be dismissed and leave to cross-appeal should be refused. Liability: the evidence 17 The plaintiff was aged 17 at the time of the incident. He was a student at Kotara High School. He was at a New Year's Eve gathering, and together with others decided to catch a train at the nearby Kotara railway station to go to the fireworks at the Newcastle foreshore area. The route to the railway station took the group across Kotara park. It was about 10.30 at night. The sky was clear but there was no moon. 18 The park lay between Park Avenue and the railway station. Park Street was on its east and the railway station was to its west. At its northern end there was road access from Park Avenue sweeping around to the south towards the station. A little distance to the south from the road access, with tennis courts in the park intervening, there was a pedestrian path from Park Avenue running west directly across the park. The path led to and across a footbridge over a creek or drainage depression some 50 metres or so in from Park Avenue. 19 The footbridge was about three metres in length, of timber construction with posts and rails along each side. The posts and rails were painted white. In October 1999 the posts and rails on one side of the footbridge had been damaged. The defendant, which had the control of the park, had caused some plastic orange mesh or webbing to be placed around the footbridge to guard against its use. 20 The mesh was pushed down by people nonetheless using the footbridge, and shortly before Christmas 1999 Mr Stolk, a ganger employed by the defendant, reinstated it. At that time the post on the damaged side of the footbridge at its western end was still standing, but the two other posts and the rails on the damaged side were lying flat beside the footbridge. Mr Stolk put in four star pickets, one at each corner of the footbridge but with one of the four offset by about a metre at the eastern end of the footbridge in order that the mesh surround the posts and rails where they lay on the ground. He pulled up the mesh and wired it in place so that it was taut. 21 Returning to New Year's Eve, the plaintiff went into the park from Park Avenue going west towards the station. He saw a train coming in to the station, and decided to run to catch it. One of his companions, Mr Benjamin Hatherly, did the same. They ran along the path towards the footbridge, with the plaintiff "a fair way" ahead of Mr Hatherly. 22 The plaintiff said that he had not been in the park before. He did not see the mesh. He said - "Q. Now what happened next? A. From there I – as I proceeded to run – I ran and it's like I hit a sudden halt and then I had fallen and cut my hand. HIS HONOUR: Q. What did you say then, as you proceeded to run, you what? A. As I was proceeding to run for the train I come to a sudden halt as I hit the webbing and my hands went straight down and the bottle went through my hand. Q. And the bottle what? A. The bottle broke on impact to the ground on my hand." 23 The bottle was a bottle of beer, which the plaintiff took out of the pocket of his pants as he began to run because it was "jangling". It should be said that it was not put to the plaintiff that he was affected by alcohol at the time. 24 The plaintiff was shown photographs of the footbridge taken about three weeks later. They showed the middle parts of the mesh pushed down to near ground level at each end of the footbridge, as if by people using the footbridge despite the mesh, but with the rest of the mesh angled up to be still at the approximately one metre height of the posts and star pickets at each side. 25 The plaintiff said - "Q. And what's that indicating? The first photograph? A. That's indicating my foot was caught in the webbing. Q. When you hit what whatever you – when you stopped, when your momentum was stopped? A. Yes. Q. What part of you came in contact with the webbing? A. My foot was entangled in the webbing. Q. Did it hit you any higher up than that? A. No, below the knee. HIS HONOUR: Q. Which foot are you referring to? A. I'm referring to – would have been my right foot." 26 The plaintiff said that the area approaching and at the footbridge was "very dark". One of the photographs showed a light pole in the park about ten metres from the eastern end of the footbridge and a little to the left of the path as the plaintiff ran along it. The plaintiff could not recall whether or not the light on the pole was on, but said that there was "[no] light coming across the area of the bridge to show [him] that the webbing was there". 27 In cross-examination the plaintiff said that he could "tell the bridge but I couldn't actually tell it was a footbridge, I just could tell it was a bridge approaching". He denied that he ran into the mesh because he was not watching where he was going. He said that he was looking straight ahead for the train; he also said that he was concentrating on getting to the station as quickly as possible for the train. He repeated that he could not recall whether or not the light was on, and disagreed with the proposition that "there was more than enough lighting to have seen the webbing and the footbridge if [he] had been keeping a reasonable lookout". 28 Mr Hatherly, running behind the plaintiff, did not see the plaintiff fall. He also was not familiar with the park. He was sprinting, with his attention on the railway station and getting to the train. He saw the plaintiff getting up and passed the plaintiff as the plaintiff was getting to his feet. He saw the orange mesh when he was five to ten metres away from the footbridge, made a "split second decision" to hurdle it, and did so, it seems not only at the eastern end of the footbridge where the plaintiff had fallen but also at the western end. Mr Hatherly said that the mesh was about a foot high where he hurdled it. He could not remember one way or the other there being any lighting illuminating the footbridge. 29 The plaintiff called no other evidence as to the illumination of the footbridge, from the light on the pole or otherwise, or of the visibility of the mesh at night. The defendant tendered a report of Dr Gordon Watson, a well qualified electrical engineer and lighting consultant. Dr Watson gave no oral evidence and was not cross-examined. 30 Dr Watson took illuminance measurements along the centre line of the path approximately five metres from the eastern end of the footbridge. The values in lux were in excess of the 1999 Australian Standard requirements for pedestrian lighting in park paths for the P4 category of low pedestrian activity and low risk of crime. For the P3 category of medium pedestrian activity and low risk of crime the requirements of the standard were not met. The categories were not further explained. 31 Dr Watson also used mesh to reconstruct, from the photographs, the footbridge as it was on New Year's Eve 1999. By that time the posts and rails had been repaired. The mesh was put at the eastern end of the footbridge, not all around it, but there was a reasonable closeness in the appearance to a person approaching the footbridge from the east. On a clear and moonless night Dr Watson undertook visual appraisals, which he described - "19. The first visual appraisal was carried out with the adjacent luminaire switched ON ie in the normal operating mode. I commenced the visual appraisal from approximately 10m east of the footbridge and walked quickly along the path towards the footbridge. The general area in front of the footbridge was visualised clearly together with the white uprights of the bridge rail. I could also visualise and identify the orange plastic barrier as an easy visual task from commencing the visual appraisal at approximately 10m from the entrance to the footbridge to arriving at the footbridge entrance. 20. The second visual appraisal was carried out with the adjacent luminaire switched OFF. I commenced the visual appraisal from approximately 10m east of the footbridge and walked quickly along the path towards the footbridge. The general area appeared illuminated to a low level from the street lighting along Park Avenue. A number of dark shadows appeared across the area caused by large trees within the park. The white uprights of the footbridge rails could be visualised 10m from the bridge, however, the orange plastic barrier was could only be identified in the area of the upright rails. At approximately 5m from the entrance to the bridge the orange barrier could be identified in the centre section of the bridge entrance and was considered as a difficult visual task." 32 Dr Watson noted that, with the light on, there was no shadowing from trees or other objects in the area east of the entrance to the footbridge. He said, however - "27. If a person is distracted from concentrating on the scene ahead, this can lead to visual distraction resulting in failure to identify details within the area ahead into which the person is travelling." 33 When Mr Stolk gave evidence, he said that there were available at the council depot barriers with lights on them and barriers without lights; he described the yellow and black barrier boards on legs commonly seen. He was asked why he did not put such a barrier at each end of the footbridge, and said - "A. Well, there's pretty adequate lighting there from the railway station near the tennis courts, the tennis courts are on your left-hand side and the main road's just through the park. But if you put the – a lot of times you put the barriers there and being a drain they just pull the barriers down and throw them in the drain anyway, so --- " 34 The first part of this answer was of little weight, since it emerged that Mr Stolk had never been in the park at night. The second part no doubt reflected his experience. 35 Mr Stolk was cross-examined - "Q. And did you put any marks on the webbing, anything that might show at night-time? A. No, I just like I said, I pulled it taut, wired it all up so, instead of being that high, it was, you know, like nearly nine hundred high - Q. This is no criticism of you -- A. No, no --- Q. – Mr Stolk, but the council didn't give you for example some illuminated strips and fluorescent strips to put across on the webbing so that it would show up at night-time? A. No., Q. They didn't give you any lights to put on any of the corners to demonstrate where it was? A. No. Q. No? A. Just like I said I fixed the mesh up." Liability: the judge's reasons 36 The judgment is discursive and in a number of respects unclear. The defendant's grounds of appeal did not include that there had been a failure in the judicial obligation to give reasons. If it can fairly be done, it is necessary to infer from the judgment the judge's reasoning to his conclusion on liability. 37 The judge did not find whether or not the light on the pole near the eastern end of the footbridge was on. There was evidence from which the pole and light could be identified in the records of the energy authority, and that the light so identified had not needed attention from the energy authority. The judge appears to have intended to refer to this when he said that there was "some evidence which suggests that [the light] may well have been working, given the material relied upon by the defendant." He said that it did not matter whether the light was on or not. 38 The judge's findings as to the illumination of the footbridge and the visibility of the mesh at night were far from satisfactory. He said that if there was any "ambient light" from the light on the pole it was not sufficient to reveal the existence of the mesh. He referred to the night being "somewhat dark notwithstanding any ambient light from other sources" apparently meaning somewhat dark at the footbridge. His most direct finding appears to be - "I am satisfied from a factual point of view that the light was certainly insufficient, whatever the lighting may have been. It was not sufficient to reveal the existence of the webbing to the plaintiff until it was too late. Fortunately Mr Hatherly did not come to grief. He was able to see the webbing in time but only just in time. Again that underscores the finding that I have made concerning the lack of light." 39 The reason for so finding appears to have been in large part that the plaintiff did not see the mesh, which rather begs the question. At another point his Honour said that "to some extent" Mr Hatherly had difficulty in seeing it, and he said that people were different and "see things differently from different perspectives; people react differently to the circumstances which present themselves at any time". The judge said of the report of Dr Watson that Dr Watson was observing a footbridge which had been repaired and in different circumstances from the plaintiff, and that he gave the report "appropriate weight". He did not otherwise explain what weight he gave it. 40 Although not clearly linked, his Honour's conclusion as to illumination of the footbridge and visibility of the mesh appear to have formed part of his reasoning to liability. He said that the mesh "constituted a hazard not only to the plaintiff but for anybody proceeding over that bridge particularly at night", and reading the reasons as a whole I think he meant that it was a hazard in the circumstances of the plaintiff's fall because there was insufficient illumination for the mesh to be visible. 41 The judge referred to the mesh as a hazard created by a "clumsy and inefficient method of dealing with the problem", as I understand it regarding the installation of the mesh to close off use of the footbridge as an inferior method to the alternatives about which Mr Stolk was asked. He must have meant inferior because the alternatives would have been more visible in the conditions of illumination. His ultimate statement as to liability was - "So all in all I am satisfied that negligence has been established and the defendant clearly should have taken steps to rectify the problem such as the placement of a structure or device which would have alerted those proceeding towards the bridge particularly at night. In any event the remedial measures would have been within the resources of the defendant and frankly the defendant should have undertaken more assertive measures to remove this hazard and indeed it was a hazard which presented itself to anybody proceeding in that particular area at that time." 42 This was a finding of breach of a duty of care. The judge's conclusions as to a duty of care must be gleaned from a number of passages. 43 First, his Honour observed that the photographs showed "some facilities for the public to use in the vicinity of the bridge", apparently meaning the tennis courts and some playground equipment, and - "All in all, the council who had the care and control of the subject area at the relevant time, clearly had a duty of care to the public generally, including this plaintiff." 44 Secondly, his Honour said - "Further when it comes to the question of the defendant's responsibility in the context of a duty of care, this park being a public park was in the vicinity of Kotara railway station. It should have been reasonably foreseeable insofar as the defendant was concerned that persons may well use that bridge as a short cut even with webbing there, human nature being what it is." 45 Thirdly, his Honour said - "[Counsel for the defendant] has submitted amongst other things and correctly so that the law does expect a person to act reasonably when coming on to premises. Human nature must be allowed for. He has submitted and correctly so that the heart of duty of care and any breach boils down to a question of reasonableness and that of course accords with the authorities. Clearly one needs to determine questions of the duty, the scope and the breach, the magnitude of the risk and clearly – and this is in accordance with authority – it is not every risk which must be guarded against. Indeed, frankly it is not the law that a person or authority must by whatever means protect entrants from obvious dangers. In particular entrants who may act foolishly with complete disregard for their own safety or who act recklessly. But the plaintiff in my view does not fall into that category. Certainly it would have been prudent not to have carried a bottle in his hand whilst he was running and he certainly should have kept a better lookout than he did. He must bear some responsibility for all of this." 46 Fourthly, just before the ultimate statement as to liability set out above his Honour said - "As to the duty of care, clearly there was a duty of care to take reasonable precautions to prevent a foreseeable risk of injury to persons using that particular area. In my view there was indeed a breach of the duty of care cast upon the defendant counsel to protect entrants from a foreseeable risk of injury. Indeed in the social context to which Mr Justice Kirby observed in the proceedings in the High Court of Australia concerning Byrnes v Burwood Council, heard on 14 November 2003, and I note what he has observed there together with the observations of Mr Justice McHugh." 47 Fifthly, in finding contributory negligence his Honour said - "The plaintiff should have been more careful with his actions that night. He should have kept a better lookout. In my view he failed to do so and accordingly he has been guilty of contributory negligence and the damages I am about to award the plaintiff are to be reduced by thirty per cent which is commensurate with the level of negligence that has been established against him." 48 The judge had earlier referred to the plaintiff running while carrying a bottle in his hand. I take the contributory negligence to have been not just failing to keep a better lookout, but the combination of the plaintiff running while carrying a bottle in his hand and not keeping a better lookout. 49 In my opinion, on a fair reading there can be discerned in the judge's reasons the following path to his conclusion on liability. The defendant owed to users of the park a duty to take reasonable care to prevent a foreseeable risk of injury. It was entitled to expect the plaintiff to take reasonable care for his own safety, but it owed him the duty of care notwithstanding that he was neglectful of his own safety in running while carrying a bottle in his hand and not keeping a better lookout. In discharging the duty, the defendant did not have to guard against actions by entrants to the park who completely disregarded their own safety, but the plaintiff was not an entrant of that kind. He was an entrant for whom the state of the mesh presented a hazard, even if the light on the pole was on, because the illumination was not sufficient that when running for the train he was likely to see it. This was so even though Mr Hatherly saw the mesh at the last moment. The defendant's breach of duty lay in creating the hazard, by re-using the mesh when it had been earlier been pushed down and would probably be pushed down again, rather than using a barrier or better still a barrier with a light, which would have been more visible and provided a better indication to persons in the position of the plaintiff that the footbridge was blocked off. Liability: duty of care 50 The defendant submitted that, the judge having found that the plaintiff should have kept a better lookout, no duty of care was owed to him. It submitted that, following Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512, it owed a duty only to users of the park exercising reasonable care for their own safety, and that in failing to keep a better lookout the plaintiff was not doing so. It distinguished from this the plaintiff's neglect for his own safety in carrying the bottle in his hand as he ran, which it acknowledged could stand with a duty of care and could give rise to contributory negligence. 51 The parsing of failure to exercise reasonable care into failure destructive of a duty of care and failure consistent with a duty of care was not developed. It involves complication and artificiality. The need for the plaintiff to watch where he was going was heightened by running, more so by running carrying a bottle, throwing up combined reasonableness of care for his own safety. Conversely, the exercise of reasonable care for his own safety which the defendant was entitled to expect of the plaintiff involved amongst other things, whether entrants to the park might be running to catch a train with their attention concentrated on its approach. 52 Temora Shire Council v Stein [2004] NSWCA 236 included consideration of whether obviousness of the risk to the careful pedestrian went to the duty of care or to breach of the duty of care. For the reasons there given, I concluded that the latter was the preferable approach. Hodgson JA and Pearlman AJA agreed. The defendant submitted, with exquisite politeness, that there was error in this respect. It said that it was not consistent with statements found in the judgments of Handley JA, with whom Beazley and Hodgson JJA agreed, in Burwood Council v Byrnes [2002] NSWCA 343, of Heydon JA in Richmond Valley Council v Standing (2002) 126 LGERA 237, and of Tobias JA, with whom I and McClellan AJA, agreed in Newcastle City Council v Lindsay [2004] NSWCA 198. It also referred to observations on the application for special leave to appeal to the High Court from the decision in Burwood Council v Byrnes, Byrnes v Burwood Council [2003] HCA Trans 462. No doubt the same politeness caused the defendant not to refer to Boroondara City Council v Cattanach [2004] VSCA 139, Greater Shepparton City Council v Davis [2004] VSCA 140 and Junkovic v Neindorf [2004] SASC 325, on one view to the contrary of Temora City Council v Stein (see especially Greater Shepparton City Council v Davis footnote 8). 53 The cases to which the defendant referred were noted in the consideration in Temora Shire Council v Stein; they are part of the observation (at [37]) that the language used in the cases has not been uniform, or always consistent. On the application for special leave to appeal in Byrnes v Burwood Council, McHugh and Kirby JJ's remarks accepted that a duty of care owed by a highway authority to those using roads and footpaths could co-exist with contributory negligence on the part of the user. A plaintiff's obligation to take reasonable care for his own safety was endorsed as relevant to the existence of a duty of care, McHugh J saying at one point that the Court "had dropped from the abstract to a more concrete situation and it has eliminated from the duty certain kinds of hazards". The Victorian and South Australian cases speak of the content of the duty of care, language which tends to mask the vexed question of duty of care or breach of duty of care. I do not think this case is an occasion to return to the question. A resolution will come only in a substantive decision of the High Court. Taking up McHugh J's reference to elimination from the duty of certain kinds of hazards, I do not think that there has been eliminated the hazard encountered by the plaintiff. 54 To return to the core passage in Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council at [163] - "[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 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." (emphasis added) 55 Webb v South Australia (1982) 56 ALJR 912, to which this passage referred, is instructive. A pedestrian injured his foot when it was jammed in a gap between a permanent kerb on the edge of a footpath and a temporary false kerb constructed by the highway authority. Mason, Brennan and Deane JJ considered that the highway authority was in breach of its duty of care to the pedestrian. Wilson and Dawson JJ dissented. The majority said (at 913) - "The primary judge found that the false kerb and the intervening space was 'a very obvious feature'. And so it was. The primary judge also found that the false kerb was not dangerous. This findings seems to have been based on its obviousness and on the circumstance that in the seven years that elapsed since its construction there was no record of any previous accident. But obviousness and the absence of accident over this period does not mean that the construction presented no risk of injury. As the false kerb was adjacent to a bus stop there existed the distinct possibility that a pedestrian, because he was in a hurry to catch a bus or was intent on observing an approaching bus or because his attention was distracted for some other reason, would fail to take sufficient care to avoid injury to himself. The happening of the accident demonstrated, if demonstration be needed, that the construction had the potential to cause injury. Of course a pedestrian could avoid the possibility of injury by taking due care, However, the reasonable man does not assume that others will always take due care; he must recognise that there will be occasions when others are distracted by emergency or some other cause from giving sufficient attention to their own safety. It seems to us that the courts below gave undue emphasis to the circumstance that injury could be avoided by a pedestrian who took reasonable care for his own safety. The question then is: What is the response which the reasonable man, foreseeing the risk, would make to it? … " 56 In like manner, in my opinion, there was in the present case a distinct possibility that persons using the path to the station would fail to take care, because in a hurry to catch a train. Failure to take care could readily include running at night, with attention fixed on an approaching train, such that under poor illumination the mesh blocking off the footpath would not be seen, particularly when it had been pushed down. That was the plaintiff's situation. The judge did not err so far as he considered that the defendant owed to the plaintiff a duty of care. Liability: breach of duty 57 The defendant submitted that the judge's finding of inadequate illumination was in error. It said that on the probabilities the light on the pole was on, that there was sufficient illumination for Mr Hatherly to see the mesh when five to ten metres away, and that Dr Watson's evidence both of light readings sufficient for a category P4 area and of his visualisation of the reconstructed mesh at the near end of the footbridge should have brought a contrary finding. It further submitted that there was insufficient evidence of alternative means of blocking off the footbridge and warning of the impediment to passage for a finding that its response to the risk posed by the mesh in the conditions of illumination was unreasonable, on the balancing spoken of in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8. 58 It is unfortunate that the judge did not make or express better findings as to illumination. So far as he relied on the fact that the plaintiff did not see the mesh, there is some tension with his view that the plaintiff should have kept a better lookout: necessarily, the mesh may have been seen if the plaintiff had kept a better lookout. In my opinion, on the probabilities the light was on, based on the records of the energy authority which could be expected to show repair of the light if it had not been functioning. What the judge meant by saying that he took into account Dr Watson's evidence is quite unclear. These matters present difficulties in the finding of inadequate illumination. 59 Returning to what I believe to have been the judge's path to his conclusion, illumination of the footbridge sufficient for the mesh to have been seen by some users of the path keeping a proper lookout is not inconsistent with breach of duty. As is said at the end of the passage from Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council at [163] earlier set out, each case will turn on its own facts. Here the path led directly across the footbridge to the station, and users of the path could be expected sometimes to be running with their concentration on an arriving train and not on what was immediately in front of them. The white painted posts and rails would be more readily visible at night than the orange mesh, particularly when the mesh had been pushed down in the centre, and if the illumination was not good would give the impression of available passage. In my opinion, the judge considered that although the illumination was such that some users of the path would see the mesh, even if at the last moment as did Mr Hatherly, other users of the path intent on getting to the station would not. The plaintiff was in the latter class of users. 60 This can be reconciled, as the judge plainly did, with the evidence of Dr Watson. Dr Watson took his light measurements about five metres out from the near end of the footbridge; what that would mean for the levels at the mesh itself was not stated. While the levels met the Australian Standard for a category P4 path, if the path were in the P3 category the illumination would not have met the standard; the difference between low pedestrian usage and medium pedestrian usage was not elucidated, but presumably the latter meant greater occasion to avoid obstacles, and here there was important occasion to ensure that users of the path avoided the obstacle of the mesh. The judge was entitled to regard Dr Watson's visualisations, made in the knowledge of the existence of the mesh and an issue over its visibility, as a less than compelling guide to how the footbridge would have appeared to a person in the position of the plaintiff, unfamiliar with the park and running for the train. 61 On Mr Stolk's evidence, a yellow and black barrier board or a board with a light was available and could readily have been used. While Mr Stolk referred to experience of such equipment being thrown into the drain, that did not mean that it should not be used if a more visible barrier providing a better indication that the footbridge was blocked off was desirable; it could mean that the board should be wired to star pickets, or that the defendant should check periodically to make sure that the barrier and warning were still in place. This was not a matter on which extensive evidence, or exploration of the defendant's budget and priorities, were necessary. 62 In my opinion, on a fair view of the judge's path to his conclusion of breach of duty, the finding of breach of duty was open to him and should not be disturbed. Leave to appeal and contingent leave to cross-appeal 63 The judge's reasons were on liability not satisfactory, the damages were not insignificant, and the issues touched upon, at the least, an area of the law currently causing some difficulty. In my opinion, it is appropriate that leave to appeal be granted, although for the reasons I have given I consider that the appeal should be dismissed. 64 The plaintiff understandably wished to avoid the additional expense and exposure to costs which would accompany a cross-appeal. The application for leave to cross-appeal was said to be contingent on leave to appeal being granted, and when asked his position if leave to appeal were granted but the appeal was dismissed the plaintiff responded that the cross-appeal should be considered. It is a little odd, but we should act accordingly. Contributory negligence 65 I have set out the judge's finding as to contributory negligence. The plaintiff submitted that the only basis for reduction for contributory negligence was that he should have kept a better lookout, and that on what the judge said as to the illumination and visibility of the mesh this was not a proper basis. 66 As I have said, in my view the basis for reduction for contributory negligence was the combination of the plaintiff running while carrying a bottle in his hand and not keeping a better lookout. It is an error to look at each alone. Running heightens the need to look where one is going, carrying a bottle while running makes it more important again. In my opinion, there was contributory negligence. While fairly high, in accordance with the approach described in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493-4 the judge's thirty per cent reduction should not be upset. Future economic loss 67 The plaintiff was left with diminished function and unsightly scarring of his left hand. He could not bend his little finger to the palm, he could not lift some things with his left arm, the hand and wrist was very sensitive if knocked and he sometimes had pain and cramping or numbness. 68 Dr Honner, qualified for the plaintiff, assessed that the plaintiff had suffered a permanent loss of 33 per cent of the use or function of his left arm. His report included - " FITNESS FOR WORK He is fit to carry out most of the tasks of a primary school teacher, but is not fit for any job requiring prolonged heavy lifting or powerful gripping with his left hand, and is not fit for a job where he has to handle hot or sharp objects with his left hand. His partial incapacity for work is all due to the specific injuries occurring on 31st December 1999, and is not due to any injury or other condition." 69 Dr Faithfull, qualified for the defendant, said that there was a loss of sensation and "loss of power due to weakness in the repaired flexor tendons", that there was a permanent loss of use, and - "9. Mr McShane appears to be able to undertake his future employment as a Kindergarten Teacher however he would be unable to undertake work requiring the strenuous use of his left arm or dexterity in his left hand. … 17. I do not believe that Mr McShane's earning capacity will be affected so long as he is able to undertake employment that does not require the strenuous use of his left hand. His current aims as a Primary School Teacher, I believe, he should be able to carry these out satisfactorily with his current disability." 70 The plaintiff's case at the trial appears to have focussed on economic loss because the injury had brought to an end a promising cricketing career, alternatively (or perhaps cumulatively) because the injury impeded him in following his chosen vocation of a primary school teacher. At the time of the trial the plaintiff was a trainee teacher undertaking tertiary studies to qualify him for primary teaching. 71 The judge was not satisfied that the plaintiff would have "achieved the [cricketing] heights to which he aspired in his younger days prior to the injury", and said as well that he did not have evidence of the earnings of professional cricketers. This aspect of economic loss was not revived in the cross-appeal. 72 The judge thought it more likely than not that the plaintiff would succeed in the vocation of a primary teacher. He noted that the plaintiff had asked for some help in lifting things in the course of his practical teaching, and that the plaintiff was "concerned about his future when it comes to the question of picking up books and matters of that kind", but said that "the evidence reveals that thus far he has been able to cope, with some degree of difficulty". Referring back to what he had said about a cricketing career, his Honour said - "I also make the same observation concerning his future career as a teacher. There is no indication at all of any economic loss in the teaching field. True it is, he is not yet a qualified teacher. True it is he is only twenty years of age with his whole life ahead of him. True it is, that he has undertaken some practical teaching; he has been successful in that and I also accept that he has had some need for assistance in carrying books and the like. But the evidence does not go beyond that. Again the onus is on the plaintiff. The matter must be looked at in accordance with the provisions of s 13 of the Civil Liability Act . In my view I am not satisfied that the plaintiff has provided a foundation by way of evidence for the award of any damages at all for economic loss and accordingly I decline to award the plaintiff any economic loss component for this area." 73 At a later point the judge referred to the opinion of Dr Honner set out above, commenting that there was - " … nothing in the plaintiff's evidence which reveals that he had any intention to embark on a career where he would have to handle any hot or sharp objects with his left hand and there is nothing to indicate that he intends to undertake any job which required prolonged heavy lifting or powerful gripping with his left hand." 74 His Honour referred also to Dr Faithfull's report, expressing acceptance of the opinions set out above and saying - "I have no doubt that the plaintiff will complete his tertiary studies. He will be successful in those studies. He is a determined young man and I have the expectation that he will undertake his duties as a teacher as best as he can, albeit with some difficulty with the use of his left hand." 75 The plaintiff submitted that there was an evident loss of earning capacity, for which damages should have been awarded by way of a buffer of the order of $40,000. It was rather faintly said that there was a loss of earning capacity as a primary school teacher, because in competing with other primary school teachers the plaintiff would be at a disadvantage. It was also said that there was a loss of earning capacity on the open labour market, if for some reason the plaintiff wanted or had to move from primary school teaching to another occupation involving heavy lifting, gripping, or strenuous use of his left hand. The plaintiff referred to State of New South Wales v Moss (2000) 54 NSWLR 536 at [66]-[87] for compensation for reduced earning capacity in the absence of specific evidence of how the loss of earning capacity would produce pecuniary loss. 76 As at one point the judge noted, s 13 of the Civil Liability Act must be followed. It provides - " 13 Future economic loss—claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 77 The defendant submitted that the plaintiff fell foul of s 13(1). It said that s 13(1) required the court to determine the plaintiff's most likely future circumstances. The judge had done so, they being employment as a primary school teacher. The defendant said that his Honour could not award damages for what was no more than a possibility that the plaintiff would earn remuneration in some other way and be disadvantaged in doing so. 78 Prior to argument in this case s 13 had been considered in this Court in MacArthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145, Penrith City Council v Parks [2004] NSWCA 201 and K Mart Australia Ltd v McCann [2004] NSWCA 283. In the former case Hodgson JA raised, without deciding, whether an award in the nature of a buffer was permitted by s 13. In the latter cases it was said that it was. Since argument in this case s 126 of the Motor Accidents Compensation Act, equivalent to s 13, has been considered in Nominal Defendant v Lane [2004] NSWCA 405. 79 It is not necessary, in my opinion, to revisit what was said in these cases. Loss of earning capacity must be productive of pecuniary loss. Unless at least the prospect of pecuniary loss is established, no question of a buffer arises, or of an adjustment for the contingency that the loss will be greater than the loss arrived at based upon the "assumptions" according with the plaintiff's most likely future circumstances but for the injury. 80 The judge's findings do not support that the plaintiff would be at a disadvantage in competing with other primary school teachers. Nor was there evidence from which it could be concluded that any disadvantage on the open labour market would be productive of pecuniary loss, and the judge implicitly found that it would not. There was nothing to support that if the plaintiff was not employed as a primary school teacher, he would engage in an occupation involving heavy lifting, gripping or strenuous use of his left hand rather than an occupation not requiring a fully functioning hand. His talents did not direct him or limit him to manual occupations. Nor was there anything to support greater earnings from the manual occupations than from occupations not requiring a fully functioning hand. An abstract assertion of disadvantage on the open labour market was insufficient. The prospect of pecuniary loss produced by the reduction in hand functioning was not established, and whatever the impact of s 13 future economic loss was not established. Leave to cross-appeal 81 In my opinion, no occasion for leave to cross-appeal has been shown and leave should be refused. Costs 82 The defendant has failed in the appeal. The plaintiff has some costs exposure because of his application for leave to cross-appeal. In my opinion, a just costs outcome is that the defendant should pay eighty-five per cent of the plaintiff's costs of all the appellate proceedings. Orders 83 I propose the orders - 1. Grant leave to appeal and direct that the notice of appeal be filed within seven days. 2. Dismiss the appeal. 3. Refuse leave to cross-appeal. 4. Appellant/opponent pay eighty-five per cent of the respondent/claimant's costs of the application for leave to appeal and appeal and the application for leave to cross-appeal. ********** Last Modified: 12/07/2004 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.