New South Wales Court of Appeal CITATION : Bathurst City Council v Cheesman [2004] NSWCA 308 HEARING DATE(S) : 06/09/04 JUDGMENT DATE : 6 September 2004 JUDGMENT OF : Ipp JA at 1; McColl JA at 28; Sperling J at 29 DECISION : (1) Appeal upheld with costs (2) Orders of the trial judge set aside (3) Order Judgment for the appellant and order the respondent to pay the costs of the trial (4) Respondent to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled. CATCHWORDS : TORT - Duty of care - Where plaintiff tripped on slightly raised paver - Where paver was in a footpath in a private area owned by the Council - Whether trippng hazard - Whether it was unreasonable of the Council to have left the footpath as it was - Obligation of pedestrians to take care for their own safety - Whether any relevant difference between this and an ordinary public footpath. D Brodie v Singleton Shire Council (2001) 206 CLR 512 Burwood Council v Byrnes [2002] NSWCA 343 Campbelltown City Council v Frew [2003] NSWCA 154 David Jones Limited v Bates [2001] NSWCA 233 CASES CITED : Francis v Lewis [2003] NSWCA 152 Littler v Liverpool Corporation [1968] 2 All ER 343 Lombardi v Holroyd City Council [2002] NSWCA 252 Phillis v Daley (1988) 15 NSWLR 65 Rasic v Cruz (2000) NSWCA 66 Ryde City Council v Saleh [2004] NSWCA 219 PARTIES : Bathurst City Council (Appellant) Noelene Janice Cheesman (Respondent) FILE NUMBER(S) : CA 41132/03 COUNSEL : C E Adamson SC/G Hickey (Appellant) H Kelly SC/T McKenzie (Respondent) SOLICITORS : Phillips Fox (Appellant) Kenny Spring (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 4/02 FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41132/03 DC 4/02 IPP JA McCOLL JA SPERLING J Monday 6 September 2004 BATHURST CITY COUNCIL v NOELENE JANICE CHEESMAN Judgment 1 IPP JA: The respondent was injured on 6 February 2000 when she fell while visiting the Bathurst swimming pool. She claimed that the injuries she had suffered were caused by the negligence of the appellant, the appellant being the owner and operator of the pool and its surrounds. Goldring DCJ upheld her claim and awarded her damages. The appellant appeals contending that his Honour erred in so doing. 2 The fall occurred at about 10.30am. It was a bright, sunny day. The respondent, then aged sixty one, was taking her grandchildren, aged about five and eight at the time, to the pool. 3 The appellant charged members of the public for admission to the pool. The respondent paid the entry fee for herself and her two grandchildren. Having passed through the entrance, she walked quickly with her grandchildren along a footpath towards a pool used by smaller children. While so walking she tripped, fell and hurt herself. 4 The footpath was constructed of concrete pavers. One of the pavers had an edge that was slightly raised by about 20 millimetres, described by one of the respondent's witnesses as "somewhere less than a 20 cent piece". The respondent tripped over this raised edge. 5 The respondent testified that as she was walking, she did not look down and she was not looking particularly at the footpath. 6 Mr Kelly SC who, together with Mr McKenzie, appeared for the respondent submitted that the difference in height between the pavers was not obvious. 7 It is plain that the differential was not regarded by those who used the footpath as being particularly remarkable. It was the type of everyday minor hazard that visitors to the pool area could be expected to avoid. 8 The respondent's expert witness observed that the concrete path had been laid for a considerable period of time and was constantly used. 9 The manager of the pool, Mr Riley, who had been manager for four years before the incident, had no knowledge of anyone else having fallen over the displaced paver. 10 Miss Fisher, who worked as an attendant and swimming instructor at the pool and had done so for two swimming seasons prior to the respondent's fall, said that she walked across the path many times a day. By the time of the accident, she had been at the pool on more than 100 occasions. Neither she nor anyone else she observed or heard about had been impeded in any way by the displaced paver when walking along the path. 11 The trial judge considered that in these circumstances the appellant breached the duty of care it owed the respondent. He accepted that the respondent was guilty of contributory negligence which he assessed at 15 per cent. His Honour's reasoning as to the liability of the appellant is reflected in the following passage: "In my view, the Council - the Council as occupier, not as Council, and I emphasise that - had a duty of care to make the premises as safe as was reasonably possible in the circumstances, and that [included] the duty to eliminate unevenness in footpaths, which might not be eliminated if they were in a public street, but in commercial premises, constitute a potential hazard. The Council did not fulfil that duty and I therefore find it liable to the plaintiff." 12 The finding of 15 per cent contributory negligence was based on his Honour's conclusion that the respondent was not looking precisely where she was going and in the conditions she could perhaps have done more. 13 The legal principles applicable to the present circumstances are well settled. The trial judge cited the remarks of Samuels J in Phillis v Daley (1988) 15 NSWLR 65 (at 67) which remain an apt statement of the duty upon occupiers, namely "the current law requires an occupier of premises to take reasonable care for the safety of persons entering upon them, bearing in mind what is reasonable". 14 The trial judge correctly observed that irrespective of whether the duty of care upon an occupier arises by way of contract or under the common law, it is no more than a duty to exercise reasonable care and skill. The duty is no higher under contract than it is under the common law of negligence. The standard of care may be higher but this must depend on the relevant circumstances. 15 Here we are concerned with the care owed to a person who enters the grounds of the public bath along a footpath that in virtually every respect is akin to a footpath along a public road. 16 In David Jones Limited v Bates [2001] NSWCA 233 Davies AJA (with whom Heydon JA agreed on the issue) said (at [17]): "In the case of commercial premises, such as retail stores, and in the case of residential premises, the duty is more onerous than that which applies to a highway authority. Nevertheless, it remains a duty to take that care which a reasonable person would take having regard to foreseeable dangers. As Fitzgerald JA said in Rasic v Cruz [2000] NSWCA 66 at [42]: `A shopkeeper owes a duty of care even to careless customers. However, a duty of care is not a general duty to protect careless people from the consequences of their own carelessness. The test of reasonable care is not whether the safety of the shop could be improved.'" 17 In Francis v Lewis [2003] NSWCA 152 Mason P (with whom Hodgson JA and Tobias JA agreed) said (at [40]): "Foreseeability of risk of injury is not determinative of breach of duty of care … The duty is one of reasonable care, not whether safety could have been improved by some modification. The duty is not confined to one owed to those who are careful for their own safety, but it is relevant to take into account that plaintiffs are themselves expected to act reasonably and take care for their own safety when determining what is reasonable". 18 In Campbelltown City Council v Frew [2003] NSWCA 154 Mason P (with whom Santow JA and Tobias JA agreed) stated (at [33]): "The ultimate question remains whether the respondent established that the Council was unreasonable in not doing more than it did, assuming that more could have been done". 19 In Burwood Council v Byrnes [2002] NSWCA 343 Handley JA (with whom Beazley JA and Hodgson JA agreed) said (at [28]): "Pedestrians … are in a position of relative advantage because they can generally protect themselves from uneven surfaces on footpaths and other public areas by keeping a lookout and taking care for their own safety. The position will be otherwise if the surface contains something unusual or unexpected which creates a real danger for ordinary pedestrians." 20 In Brodie v Singleton Shire Council (2001) 206 CLR 512, where there was a differential in height of about 50 millimetres between a concreted footpath and the earth on the side of it, Gleeson CJ observed that the fact that there was an unevenness in a road or footpath which could result in a person stumbling or falling would not suffice to establish negligence. His Honour remarked (at 526, [6]-[7]): "Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land. In Littler v Liverpool Corporation [1968] 2 ALL ER 343 at 345 Cumming-Bruce J said: `Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted.'" Gaudron, McHugh and Gummow JJ observed (at 581, [163]): "It is in the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous , persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes." Callinan J emphasised (at 639, [355]) that: "It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this." 21 In Lombardi v Holroyd City Council [2002] NSWCA 252 the plaintiff tripped over a concrete slab in the footpath which was twenty five millimetres higher than the adjoining slab on one corner. Hodgson JA observed (at [32]): "A plainly visible step of 25 millimetres in a footpath is [not] correctly regarded as high risk or unacceptable risk." 22 In Burwood Council v Byrnes [2002] NSWCA 343 there was again a fall where one concrete paver had sunk to a lower level than others. The plaintiff tripped on the exposed side of the higher paver. The difference in levels was approximately 20 millimetres, the same as in this case. On appeal, the judgment of the trial judge who had found for the plaintiff was set aside. 23 Ryde City Council v Saleh [2004] NSWCA 219 followed Burwood Council v Byrnes. Sheller JA (with whom Mason P and Tobias JA agreed) remarked (at [18]) that it was curious that the trial judge had referred neither to Lombardi v Holroyd City Council nor Burwood Council v Byrnes. I would make the same comment in this case. 24 I do not think the fact that the respondent fell on a footpath that was not alongside a public highway affects the standard of care required of the appellant in this particular case. The remarks of Gleeson CJ in Brodie to which I have already referred emphasise that it is reasonable to expect uneven surfaces on private land as well as public land. This is not a case where a person has fallen inside a shop or indoor commercial premises where the surface of the floor might be expected to be even. Here, the respondent was walking in the open air, on a path traversed by many members of the public over many years. In essence, it was little different from a public footpath. There was no reason for the respondent to pay less attention to the level of the surface of the footpath on which she fell than on any public footpath. 25 Mr Riley, the manager, was aware of the higher differential but decided that it was not necessary to do anything about it. After the respondent fell, it took some three hours of work to grind down the difference. In my view, however, this does not establish that it was unreasonable for the appellant to have omitted to take these steps at an earlier time. 26 Following the reasoning of the authorities to which I have referred, I do not think that it was unreasonable of the appellant to have left the footpath in the way it was at the time that the accident took place. In my opinion, the trial judge erred in finding that the council failed to take reasonable steps for the safety of users of the footpath. 27 Accordingly, I would uphold the appeal with costs, set aside the orders made by the trial judge, order judgment for the appellant and order that the respondent pay the costs of the trial. The respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled. 28 McCOLL JA: I agree. 29 SPERLING J: I also agree. 30 IPP JA: The orders of the Court will be those I proposed. ********** Last Modified: 09/20/2004 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. 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