New South Wales Court of Appeal CITATION : Newcastle City Council v. Mason [2004] NSWCA 108 HEARING DATE(S) : 29 March 2004 JUDGMENT DATE : 29 March 2004 JUDGMENT OF : Giles JA at 25; Hodgson JA at 2; McColl JA at 28 DECISION : Appeal dismissed with costs CATCHWORDS : TORT - Negligence - Hole in footpath - Whether a hazard - Whether council knew or ought to have known of it. CASES CITED : Brodie v. Singleton Shire Council (2001) 206 CLR 512 Graham Barclay Oysters Pty. Ltd. v. Ryan (2002) 211 CLR 540 PARTIES : Newcastle City Council - appellant Craig Mason - respondent FILE NUMBER(S) : CA 40317/03 COUNSEL : Mr. P. Garling SC with Mr. J. Sheller for appellant Mr. P. Biggins for respondent SOLICITORS : Phillips Fox, Sydney for appellant Whitelaw McDonald, Kotara for respondent LOWER COURT District Court JURISDICTION : LOWER COURT DC57/00 FILE NUMBER(S) : LOWER COURT Sidis DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40317/03 DC 57/00 GILES JA HODGSON JA McCOLL JA Monday 29 March 2003 NEWCASTLE CITY COUNCIL V. MASON Judgment 1 HODGSON JA: On 3 April 2003 her Honour Judge Sidis ordered that there be a verdict and judgment for the respondent Craig Mason in the sum of $149,417.76 in proceedings brought by him against the appellant, the Newcastle City Council. Her Honour also made a costs order in favour of the respondent. The appellant appeals from those orders. 2 The proceedings arose out of an accident which occurred on 15 October 1997, when the respondent fell on a footpath in Union Street, The Junction. The accident was caused by the respondent's right foot going into a hole in the footpath. 3 The footpath in the area consisted of pavers located from the gutter right up to the brick wall of a building and adjoining shops, creating a paved area that appears from photographs to be about three metres wide. At a point next to the building, near where it adjoined the shops, several pavers were missing, creating a hole about forty millimetres deep and appearing from photographs to be about 400 millimetres long and to extend about 500 millimetres out from the wall. The hole was adjacent to a Telstra pit. 4 The fall occurred at between 7 and 7.30 at night, when it was just on dark and there was drizzling rain. The respondent had been walking along the front of the shops close to the building because this gave some shelter from the rain. He looked in the window of the shop close to the hole, and in fact stepped up a step at the entrance to the shop. Then he turned and walked three or four steps and fell when his foot went into the hole. He said he did not see the hole before falling into it. 5 There was evidence the hole had been in that condition since 1995, and the primary judge accepted that the defect was one of long standing. There was also evidence that the appellant had a street sweeper in the area about once a week sweeping the footpath. 6 The appellant called no evidence as to any system of inspection or program of maintenance, or as to the financial resources it had for maintenance. 7 The primary judge held that the hole was a hazard in an area heavily trafficked by pedestrians; that the respondent was taking care at a time when it was dark and raining; that there was no direct lighting over the hazard; and that the accident occurred when the respondent was moving from one position to another. She said there was evidence that the hazard was not obvious to the respondent in the circumstances where he fell. The primary judge found that the appellant was in breach of its duty of care to the respondent in failing to identify and rectify this defect. 8 In relation to damages, the primary judge noted that the respondent was in receipt of an invalid pension before the accident, then being not employed because of health problems. Further, she found the accident caused significant injury to his right knee and shoulder, the latter injury causing significant restriction of movement in his dominant arm. 9 The primary judge awarded $70,000.00 for non-economic loss, $3992.10 for out-of-pocket expenses past and future, and damages in respect of the need for domestic assistance calculated at two hours per week at $25 per hour plus twenty-four hours per year at $35 per hour, discounted by twenty per cent reflecting the possibility or probability that he would have needed some assistance in any event. 10 The appellant relies on errors alleged in the following grounds of appeal: 1. Finding that the depression in the public footpath (caused by missing pavers) was not an obvious risk to pedestrians exercising reasonable care for their safety. 2. Applying the wrong test for deciding whether the risk was "obvious", namely, applying a subjective test instead of an objective test (of a pedestrian exercising reasonable care for him or herself). 3. Deciding the duty of care owed and breach of duty of a highway authority by reference to the obligations of a "public authority" generally as opposed to a highway authority. 4. Failing to find the depression was "readily visible" and that the Respondent could have seen the depression in the footpath if he had looked where he was intending to step. 5. Finding the Appellant owed a duty of care for this risk and breached the duty in failing to detect and repair the missing pavers. 6. Failing to find the Respondent guilty of contributory negligence. 7. Finding the depression required rectification in order for the Appellant to discharge its duty of care. 8. Failing to make findings as to the period of time the depression existed (other than "long standing") and the frequency of inspection which would have discovered the defect in order to find the Appellant breached its duty of care. 9. Finding that the Respondent was exercising care for himself in the circumstances in which the accident occurred. 10. Awarding general damages of seventy thousand dollars. 11. Allowing the Respondent two hours per week domestic assistance which was against the weight of evidence. 11 In the written submissions, it was put for the appellant that the primary judge failed to consider whether the defect was a hazard to a pedestrian exercising reasonable care for himself or herself. It was put that, in so far as the primary judge found that the hazard was not obvious to the respondent, this was not the correct question and in any event the answer was erroneous. It was put in those submissions that the lighting was adequate, and that the respondent saw different coloured pavers, and saw a dry section of pavers, saw the step to the shop window, so that he would have seen the hole if he had looked where he was going. 12 It was submitted that the footpath was traversed by many pedestrians over a long period with no suggestion of any significant incident. It was also put in these written submissions that it was relevant that at the time the appellant reasonably believed it was not responsible for nonfeasance having regard to the case law as it existed at that time. It was also submitted that, if liability was found against the appellant, the respondent had departed from reasonable care for his own safety, making a reduction of fifty per cent for contributory negligence appropriate. 13 In oral submissions before us today, Mr Garling SC for the appellant submitted that error was disclosed in the reasons of the primary judge by her reference to the judgment of Kirby J in Graham Barclay Oysters Pty Limited v. Ryan (2002) 211 CLR 540, leading to her Honour purporting to accumulate certain facts in the case to give rise to an "ought" on the part of the Council. Mr Garling submitted that it was an error to apply the judgment in that way, because in the reasons at that point Kirby J was considering duty and not breach, the comments of his Honour were not part of the ratio of case, and they were in any event not correct. 14 In approaching the matter in that way, Mr Garling submitted, the primary judge overlooked the following matters. Firstly, that this was in general terms a well-made wide and well-maintained footpath, with plenty of room for people to walk in complete safety. Secondly, the area where the hole existed was adjacent to a wall and next to a post likely to divert people away from it, and was away from darker bricks on the footpath which indicated a smooth trafficable area. Thirdly, he submitted, the primary judge overlooked that in those circumstances, this was not a hazard to which the appellant was required to give priority, and it should not be inferred that the Council was negligent in not dealing with this defect. 15 In my opinion, the judgment of the primary judge can and should be read as making a finding that the hazard was not obvious to the respondent; and in circumstances where the primary judge found that the respondent was taking care, this can be taken as a finding that the hazard was not obvious to a person taking reasonable care. In my opinion, such findings were well open on the evidence. 16 Notwithstanding Mr Garling's submissions concerning the darker bricks indicating a smooth trafficable area, the hazard was within the area which gave the appearance of being completely paved, rather than an area where substantial irregularity would normally be expected. The hazard was not well lit at night. It was in a position where it could be disguised by variations in the colour of paving and lighting and the proximity of the wall. Although it was in a part of the footpath that one would not expect to be generally chosen by pedestrians, it was in a part which could often be used during rain or by persons who had looked in shop windows. It was of such a depth and nature as to be a significant hazard. 17 In my opinion the reference to the statements of Kirby J do not indicate error by the primary judge. In my opinion, the primary judge did not treat these statements as anything more than a shorthand way of approaching the question of the nature of the council's duty and what was required of the council to comply with this duty. The primary judge had previously stated six propositions drawn from Brodie v. Singleton Shire Council (2001) 206 CLR 512; and these are authoritative statements of the approach to be taken. In my opinion, the primary judge did approach the matter in accordance with those propositions. 18 In all the circumstances, in my opinion it was open to the primary judge to find there was a hazard which should have been attended to, if it did or should have come to the attention of the appellant. It was open to the primary judge to find that it either did or should have come to the attention of the appellant, during the long period of time when it was in existence. In circumstances where the appellant gave no evidence of any system of inspection or its program of maintenance, or its knowledge or otherwise of this particular defect, it was in my opinion open to the primary judge to draw the inference that the appellant breached its duty to the respondent. 19 The submission that the council may have reasonably believed it was not responsible for misfeasance was not elaborated on in oral submissions. I would just make three brief comments on it. 20 First, where there was no evidence at all called from the council as to its program or attitude to matters of this kind, it would not in my opinion be an error for the primary judge not to have taken this into account. Second, the submission seems to be contrary to the principle that ignorance of the general law is no excuse. And third, the question of what is reasonable is not a matter that depends solely on legal rules. The fact that a person may believe that he or she will not be subject to a legal liability if he or she does something does not necessarily mean that it is reasonable for the person to take that action. In circumstances where a council has a responsibility for roads and footpaths, is aware of a significant risk, and allows this risk to continue, this may be considered unreasonable conduct, even if the council does have the view that this conduct would not subject it to legal liability. 21 The appeal was brought also on the question of damages. The written submissions were as follows: 34. The general damages were manifestly excessive for the level of disability to the Respondent's right shoulder and right knee (in circumstances where the Respondent was receiving a disability pension at the time of the accident and had left and hip replacements which were unrelated to the accident). 35. The Respondent's knee and shoulder do not trouble him to the extent that he was prepared to undergo an arthroscopy (Red AB25E-L). 36. The trial judge allowed damages for the cost of "domestic assistance" for the Respondent's personal requirements of two hours per week (Red AB27Y). 37. This allowance was excessive having regard to the following: • The allowance was for heavy work in the house, home maintenance and attention to gardens and lawns (Red AB 28A); • The Respondent could still carry out home maintenance tasks (T31.35; 31.45; 32, 33.15) which were not prevented by his preexisting hip disability; • The arrangements as to cooking meals did not change (T33.45); • The heavier duties involved mowing the lawn which the Respondent's son (Chad Mason) carried out as he lived with his parents and did so before the accident (T34.05) but not the gardening (T34.10); • The Respondent's son, Chad, carries out gardening mainly on weekends (T35.01). The mowing takes three quarters of an hour every fortnight (T14.20); • The vegetable garden was about 2 metres by 4 metres (T23.55 2nd day). 38. The Appellants submits an appropriate allowance for heavy domestic duties is in the order of a half hour per week discounted by 20% as found by the trial judge. 22 In my opinion, no error of principle is shown to have been made by the primary judge and the various elements of damages are not so out of line that the evidence and the facts found as to warrant appellate intervention. 23 I should add that in my opinion also the view of the primary judge that the respondent was taking care for his own safety is not one that this court should interfere with, and the appeal in so far as it relates to contributory negligence should also be dismissed. 24 For those reasons, in my opinion the appeal should be dismissed with costs. 25 GILES JA: Subject to the following remarks, I agree. 26 The submission which was not elaborated orally was that the standard of care owed by the appellant was moulded, amongst other things, by the fact that at the time of the accident and according to the law prior to Brodie v. Singleton Shire Council (2001) 206 CLR 512 highway authorities had a nonfeasance immunity. It was put in the written submissions that it could be inferred at the time the appellant believed it was not obliged to inspect for defects for which it was not responsible by way of misfeasance. 27 That was a limited submission, and it really had nothing of much to bite on because of the longevity of the hole and the fairly constant passage of the street sweeper's machine. It seems to me that it was correct to infer, as the judge plainly did, that the appellant was aware that the hole existed. The question whether the pre-Brodie immunity can properly be taken into account when considering the extent of a highway authority's duty of care was not developed in this appeal, and I prefer not to express any view upon it. It is something which can wait for a proper vehicle. 28 McCOLL JA: I agree. 29 GILES JA: The order of the court is that the appeal is dismissed with costs. ********** Last Modified: 04/05/2004 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.