Reported Decision : 134 LGERA 407 New South Wales Court of Appeal CITATION : Temora Shire Council v Stein [2004] NSWCA 236 HEARING DATE(S) : 5 July 2004 JUDGMENT DATE : 21 July 2004 JUDGMENT OF : Giles JA at 1; Hodgson JA at 56; Pearlman AJA at 62 DECISION : (1) Appeal allowed; (2) Set aside the verdict and judgment for the respondent and the order for costs made on 14 November 2003; (3) Verdict and judgment for the appellant; (4) Respondent pay the appellant's costs of the trial and the appeal, and have a certificate under the Suitors Fund Act if otherwise qualified. CATCHWORDS : NEGLIGENCE - tripping case - raised edge of driveway across footpath - obvious in daylight to pedestrian taking reasonable care for own safety - plaintiff tripped at night - evidence of street light across road - no evidence of state of illumination of driveway or that plaintiff could not or did not see it - defendant owed duty of care - correct question whether in breach of duty - action or inaction of reasonable council to be assessed on basis of pedestrians taking reasonable care for own safety - whether plaintiff had burden of proof that driveway not visible to such a pedestrian (yes) - whether other matters made it a hazard which, acting reasonably, the defendant should have rectified (no) - not shown defendant failed to act reasonably - negligence not established. D Brodie v Singleton Shire Council (2001) 206 CLR 512; Burwood Council v Byrnes [2002] NSWCA 343; Calfest v Tombleson [2003] NSWCA 210; Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389; Dunn v Star City Pty Ltd [2004] NSWCA 223; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; CASES CITED : Liftronic Pty Ltd v Unver (2001) 179 ALR 321; Newcastle City Council v Lindsay [2004] NSWCA 198; Parramatta City Council v Watkins [2001] NSWCA 364; Parsons v Randwick Municipal Council [2003] NSWCA 191; Richmond Valley Council v Standing (2002) 127 LGERA 237; Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337; Tame v New South Wales (2002) 211 CLR 317; Wyong Shire Council v Shirt (1980) 146 CLR 40. PARTIES : Temora Shire Council - Appellant Yvonne Stein - Respondent FILE NUMBER(S) : CA 41125/03 COUNSEL : J E Marshall SC & P M Sibtain - Appellant M J Cranitch SC & M Inglis - Respondent SOLICITORS : Phillips Fox - Appellant Commins Hendricks - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT DC 83/02 FILE NUMBER(S) : LOWER COURT Williams DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41125/03 DC 83/02 (Wagga Wagga) GILES JA HODGSON JA PEARLMAN AJA Wednesday 21 July 2004 TEMORA SHIRE COUNCIL v STEIN Judgment 1 GILES JA: The respondent fell and was injured when, at about 11 pm on 21 February 2002, she tripped on the edge of a raised driveway crossing the footpath outside 109 Parkes Street, Temora. The judge held that her injury was caused by the appellant's breach of a duty of care owed to the respondent, that the respondent had not been contributorily negligent, and that the respondent was entitled to damages of $221,799.74. The appellant appealed on liability and assessment of damages. 2 For the reasons which follow, in my opinion the appeal on liability should be upheld, and it is unnecessary to deal with damages. The raised driveway 3 109 Parkes Street, Temora was on the corner of Parkes and Deboos Streets. Parkes Street was sealed and had a concrete kerb and gutter. The footpath was reasonably level natural ground, not sealed or paved. From the photographs, for a distance on either side of the driveway it was bare ground, described by the judge as some sort of decomposed granite material, with a little grass near the kerb. 4 The driveway was of concrete. It crossed the footpath to Parkes Street a little way along from the Deboos Street boundary of the property: no measurements were given, but from the photographs the edge first encountered when coming from Deboos Street was about 2 m along from the boundary. Again from the photographs, towards the Parkes Street end the driveway was splayed and level with the footpath before sloping down to meet the road surface. At the Parkes Street boundary of the property it was raised about 50 mm above the footpath, with a gradient to where it became level with the footpath. At the point where the respondent tripped it was raised approximately 30 to 40 mm above the footpath. 5 The driveway had been constructed at least forty years earlier. Mr Kerry Wallace, later mentioned, had gone to school nearby and knew of it from that time. 6 According to a purported expert's report tendered in the respondent's case, the footpath "has been allowed to subside and not adequately filled over a period of time and it is quite apparent that the hazard of the footpath has occurred over a period of time due to the subsidence of the footpath". There was nothing to show how the expert was in a position to make that statement. The judge considered that except for measurements the report was of limited value, and said that he had little regard to it. The respondent did not rely on it in the appeal, on this or any other matter. 7 The respondent was familiar with the area. She lived in Temora, and for more than twenty years had conducted a business involving delivery of brochures three or more nights a week. She had delivered brochures "hundreds, thousands of times" in Parkes and Deboos Streets. The respondent was aware of the raised driveway, because about a year prior to February 2002 she had tripped on it. The circumstances of her tripping were not stated. She said that in the course of a conversation on another matter with Mr Kristan Dunstan, an officer of the appellant, she had told him of the driveway, that it was very dangerous, and that she had tripped on it. Mr Dunstan had no recollection of that matter, and the judge accepted that if anything was said it was only in passing "as part of a number of complaints the plaintiff had in relation to council's activities". He said that if there was the conversation it did not "operate as some sort of notice to the council about the footpath situation". 8 Mr Wallace had become the appellant's risk assessor/safety officer in 2001. He had undertaken a programme of footpath inspections, walking all footpaths to identify any hazard. He was fairly sure he had inspected the footpaths of Parkes Street prior to February 2002, and recalled "going past that area". Asked about the driveway of 109 Parkes Street, he said "I am pretty sure I walked over the area, and I couldn't see any problems there". The driveway was not recorded as a hazard in the results of his inspections. 9 A few months after the respondent's fall the appellant placed a heavy gravel material topped with a finer granite to form a ramp from the footpath up to the driveway ("the filling work"). The evidence did not disclose why it acted when it did, but presumably its action followed notification of the respondent's fall. Mr Wallace agreed that this was a simple and inexpensive measure (the transcript says "expensive", clearly an error). 10 There were seven photographs in evidence as exhibits A (three photographs), B (two photographs) and C (two photographs). The photographs in exhibit A were of the driveway and a brick wall and hedge at the Deboos Street corner of the property, taken looking from Parkes Street towards the property and looking from Deboos Street along the length of the Parkes Street footpath. They were apparently taken in full sunlight, with marked shadows and the driveway and adjacent bare ground reflecting bright light. The photographs in exhibit B were also of the driveway and in part the brick wall and hedge, taken looking from Deboos Street along the length of the Parkes Street footpath and in one case to some extent angled across Parkes Street. They were taken after the filling work, in less intense sunlight, and showed the driveway as off-white or gray and the adjacent bare ground as a reddish colour. The photographs in exhibit C were photocopies only, apparently close-ups of the raised edge of the driveway at the boundary of the property but that is not clear. 11 The photographs in exhibit A were explained in the oral evidence only as showing the driveway where the respondent tripped. The photographs in exhibit B were explained in the oral evidence only as taken "after the shire had done something". The photographs in exhibit C were not explained. 12 The expert's report contained eight photographs. One (photograph 4) was the same as one of the exhibit A photographs. Another (photograph 8) was the same as one of the exhibit B photographs. Of the others, photographs 1, 2, 3 and 5 were further views of the driveway, brick wall and hedge from different angles, prior to the filling work and in bright sunlight, and photographs 6 and 7 were further views of the driveway after the filling work and in less intense sunlight. The captions of the post-filling work photographs suggested temporary filling work followed by permanent filling work, and the photographs themselves showed different filling materials, but this was not otherwise the subject of evidence. The photographs in the expert's report were not otherwise explained. The respondent's fall 13 On the evening of 21 February 2002 the respondent's delivery of brochures took her along Deboos Street and around the corner into Parkes Street. Her evidence was - "Q. Did you come to the end of De Boos [sic] Street, and then turn into Parkes Street? A. Yes I did. Q. At the intersection of De Boos Street and Parkes Street, was there any street lighting? A. There was – not on that corner, but on the opposite side. Q. What's the approximate width of the road? A. Oh --- Q. Is it a wide street or just an ordinary street? A. Just an ordinary – an ordinary street. Q. You turned into Parkes Street, and did something happen to you? A. Yes. Q. What happened? A. I turned into Parkes Street, From Deboos Street into Parkes Street, and I was brisk walking along and I tripped, and tried to save myself, and I just came down with my hand full of catalogues. … INGLIS: Q. Approximately how many did you have in your arm, do you know? A. I would've had say 100. Q. Do you know what caused you to trip? A. It was the concrete, the driveway." 14 The respondent said that the point at which she tripped was about three to four feet from the boundary of the property, and that she fell on the concrete. She said she fell heavily on her right side, and described her injury. 15 The respondent did not in her evidence in chief otherwise describe the position of the street lighting or the illumination of the driveway, or the visibility of the raised driveway. She did not say that she was unable to see (or even that she failed to see) that on which she tripped. 16 There was no other evidence of the position of the street lighting to which the respondent referred, save that the photograph to some extent angled across Parkes Street showed in the background a pole probably with a street light on the opposite side of the street and some distance down the street. This suggested that the street lighting to which the respondent referred was directly on the other side of Parkes Street, rather than diagonally across the intersection of Parkes and Deboos Streets or directly on the other side of Deboos Street. From the photograph, what the plaintiff described as a street of ordinary width was fairly wide, but the evidence provided no measurements and the photograph is not a sure guide. 17 Cross-examination of the respondent left these matters alone. No other evidence was given as to the illumination of the driveway at night and no evidence at all was given as to its visibility or appearance at night. 18 In the expert's report it was said, "I note no significant lighting in the area and I would therefore assume that at the time of the accident, which occurred at 11 pm, the Plaintiff would have been afforded little illuminance on the visual plane … ". Whatever this meant, the expert did not attend the site and was working only from the photographs in his report. They did not include the photograph showing the pole on the opposite side of Parkes Street, or a photograph showing any street lighting, and presumably the expert assumed only ambient lighting from houses or distant street lighting. He was not in a position to express an opinion, let alone an expert opinion, and his report took the illumination of the driveway no further. The judge's reasoning 19 The judge's description of the driveway and its surroundings included - Exhibit A is a series of photographs taken in daylight at the area in question. By the time the concrete driveway reaches the boundary of 109 Park [sic] Street, it raises to a height of about fifty millimetres above the surrounding footpath and in the area approximately where the plaintiff tripped, which is about three to four feet from the fence, its appears to be thirty to forty millimetres above the surface. There was one street light on the opposite corner to where the accident happened. As can be seen from the photographs which are exhibit A this obvious trip hazard is located a short distance around the corner from Deboos Street. Its existence would be obscured by the hedge for anyone walking up Deboos Street and turning left into Park Street." 20 His Honour relevantly began his reasoning - "Clearly, in daylight as exhibit A depicts, the hazard is obvious and readily visible. However, what may be obvious in the daylight can be rendered less obvious in darkness or poor visibility. There is no evidence from the plaintiff as to the visibility except as to the only street light in the vicinity being on the opposite corner. I am prepared to accept that the lighting at 11 pm at night was a lot different to the lighting depicted in exhibit A." 21 His Honour then turned to the law. He said - "The council had a duty of care to the plaintiff. That duty of care was to use reasonable care to ensure that they did not create or allow to continue a foreseeable risk of harm to a person such as the plaintiff. They are obliged to take reasonable steps within their powers to remediate the risk within a reasonable time. This has been the law in Australia since the High Court decision in Wyong Shire Council v Shirt (1980) 146 CLR 40 where Mason J said that a defendant's response to a perceived risk involved considering the magnitude of the risk and the degree of probability that it would occur, the expense, difficulty and inconvenience in taking the steps necessary to alleviate the danger and any other competing or conflicting responsibilities or commitments of the authority. In Brody [sic] v Singleton Shire Council 206 CLR 512 the joint judgment said that the duty of care expressed in Wyong Shire Council v Shirt does not necessarily involve the imposition of an obligation in all cases to repair roads, and I might interpolate obviously footpaths, or to ensure that they are kept in repair." 22 His Honour then focussed on the duty of care owed to pedestrians. He recognised that pedestrians are expected to take reasonable care for their own safety, and said that "[t]he standard of care is that which is reasonably required to protect pedestrians who are taking reasonable care for their own safety". He also said, referring to the judgments of Handley JA in Burwood Council v Byrnes [2002] NSWCA 343 and Heydon JA in Richmond Valley Council v Standing (2002) 127 LGERA 237, that "[t]he concept of a reasonable [sic] foreseeable risk of injury involves the assumption that pedestrians would also be taking reasonable care for their own safety". He said - "If a defendant knows, or ought to have known that an unreasonable risk of harm had been either created or permitted, would a reasonable person in the defendant's position assess the extent of the risk as sufficient to require remedial action bearing in mind that the defendant is entitled to expect that persons of a class will take reasonable care for their own safety." 23 The judge continued - "This is not a case where the issues of council's other responsibilities or budgetary considerations is really relevant. Apart from the fact that there is no evidence as to council's other competing responsibilities, or budgetary restrains, the evidence from Mr Wallis [sic] is that a system of inspection and priorisation of footpath hazards was in place, the accident site had been investigated by him prior to the accident in question but he had not classed it as being hazardous at all. If in fact the area is hazardous, and that is a matter for the Court to decide, a council [can] not escape liability simply because it has put into place a system. There is no evidence for example as to the criteria imposed by council in the determination of what was or was not a hazard or on how any particular hazard would be prioritised. Council needs to take steps to see that (a) the system put in place is an adequate one and (b) that persons operating the system have proper training and an understanding of the criteria involved. That evidence was absent from this case. In my view the raised concrete drive creates an obvious risk, it becomes an even more substantial risk after dark. It is a risk to pedestrians coming around the corner whose view of what is ahead is substantially reduced by the wall and hedge. Without a contrasting shadow or other delineation, the drive appears to be of the same colouration as the footpath it crosses, a situation that would obviously become more of a problem at night. Not all pedestrians can be expected to be familiar with the area in question, although there is no evidence of any previous injury or complaint by anyone other than the plaintiff. That does not mean that the risk is far fetched or fanciful. I have no doubt that the majority of footpath defects in any council area have never been the subject of injury or complaint. That does not mean that a council needs to do nothing. They need to take reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. (Refer to Brody v Singleton Shire Council p 580 para 159.) Once a plaintiff has established a duty of care and circumstances suggestive at a prima facie level that the duty of care has been breached, then the burden of proof shifts to the defendant to establish the matters referred to by the High Court in Wyong Shire Council v Shirt and Brody v The Singleton Shire Council referred to above. As I have stated the risk in my view is obvious, especially bearing in mind the area will not always be bathed in sunlight. Mr Wallis's value judgment to disregard the risk was, with respect to him, not reasonable in all the circumstances. I am satisfied that the council has breached its duty of care to the plaintiff." 24 With respect, there is some uncertainty in this passage. As his Honour first said, Mr Wallace had not regarded the driveway as hazardous at all; there was no question of his making a value judgment to disregard the risk. It is not clear what his Honour meant by a shift in the burden of proof, or what he meant by "the matters referred to by the High Court … referred to above". When Mr Wallace had not regarded the driveway as hazardous at all there was no question of "prioritisation", or of the appellant having an evidentiary burden to show the adequacy of a system of prioritisation, and there may have been intrusion of an incorrect attribution of an evidentiary or possibly legal burden of proof. Further, there seems to have been a change in his Honour's use of "obvious". He began his reasons referring to a risk which was obvious and readily visible in daylight but less obvious in darkness or poor visibility, speaking of what a pedestrian could see. In this passage he seems to refer not to the risk being less obvious to a pedestrian after dark or when the area is not "bathed in sunlight", but to the risk after dark when the area is not sunlit being more obvious in the sense of a greater risk. 25 In the end it seems that his Honour reasoned as follows. The risk presented by the raised driveway was obvious and readily visible in daylight to a pedestrian exercising reasonable care for the pedestrian's own safety. It was not obvious and readily visible to the pedestrian at night, but was a greater risk, with reference in that connection to first, the wall and hedge reducing the pedestrian's view of what was ahead and secondly, absence of contrasting shadow or other delineation and similar colouration of the driveway and footpath. (In fact the wall was very low, only the hedge impeded the pedestrian's view.) The night-time risk, one not obvious to the careful pedestrian, should have been recognised by the appellant, through Mr Wallace, and its simple and inexpensive response should have been to provide the filling to form a ramp from the footpath up to the driveway. It should have done this prior to 21 February 2002, and was in breach of its duty of care. A council's duty of care and pedestrians 26 In Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512 the position of a highway authority, which includes a council in which footpaths are vested, was brought within the ordinary principles of negligence. The ordinary principles of negligence included the consideration of the reasonable response to a foreseeable risk of which Mason J spoke in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8. In their joint judgment Gaudron, McHugh and Gummow JJ said (at [150]-[152], 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 LG Act 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. 151 The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt at 47-48., a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. … " 27 When dealing with failure to repair their Honours said (at [158]) that "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 ensure they are kept in repair". They said (at [159]–[161] - "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. 161 Not all failures to repair will create risks to the users of a road, or at least not risks which would, as a matter of the reasonably foreseeable, pose a risk of injury. Although it has been said many times that the digging of a hole in a roadway constitutes an actionable misfeasance, the size and location of such a hole may vary and must be considered when determining, on the facts of the particular case, whether it will reasonably foreseeably lead to injury or harm to a user of the road. Depending on the conditions of the road, a 'hole' caused by removal of a portion of the road surface may not pose any foreseeable risk to cars; signs may provide adequate warning against whatever risks it poses to motor-cyclists or cyclists. On the other hand, a trench in the roadway, whether arising from active digging or decay of the road or structures within it, will more readily give rise to a foreseeable risk of injury, particularly where it cannot easily be seen or avoided by a road user. The nature of the defect, and not the question of whether it arose by action or 'non-feasance', should be significant. … " 28 Specifically referring to pedestrians, their Honours said (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." 29 In the joint judgment their Honours agreed with Callinan J's conclusion that there was no breach of duty in Ghantous v Hawkesbury City Council "because the footpath was not unsafe for a person taking ordinary care" (at [166]-[167]). Callinan J, with whom Gleeson CJ and Hayne J relevantly agreed (at [8], [339]) said (at [355]) - "Even if I were to assume that an action in negligence lay against the respondent for any failure to maintain or improve the footpath to keep or make it safe, whether as a matter of misfeasance or otherwise, I would conclude that there was no failure in that regard because the footpath was not, despite what the expert witness was allowed to say, unsafe. The case of the applicant in negligence was that a differential in height between the concreted part of the footpath and the earthen part of it created a dangerous situation. A court is not obliged to accept an expert, especially when his or her evidence is evidence purportedly resolving and concluding an issue of the kind which arose here. A court is not bound to accept that a matter of ordinary observation such as the readily apparent state of the footpath is a matter calling for expert opinion. But in any event the expert's opinion (uncontradicted as it was) did not go so far as to say that the 'poor maintenance' which caused the 'hazard' actually caused one of such a nature that to leave it unrectified was negligent. There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. 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. The applicant herself admitted in cross-examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the earthen verges. There was no negligence on the part of the respondent either in the construction of the footpath or in not keeping the concrete strip and verges level." 30 Kirby J agreed with the joint reasons as to the existence of a duty of care (at [243]), but did not come to his conclusion in Ghantous v Hawkesbury City Council "upon any enlarged assumption about a pedestrian's need for vigilance for his own safety" (at [247]). His Honour considered that no breach of duty had been shown, and that the mishap was "simply an accident" (at [248]). The observations in the joint judgment, taken with those of Callinan J, have prevailed in later decisions where pedestrians have fallen on imperfect footpaths or other public areas. 31 The later decisions are legion, but firmly establish that the content or breach of the duty of care of a council (or other entity responsible for a public area) involves regard to the obviousness of the risk to a pedestrian exercising reasonable care for his or her own safety. I refer only to illustrative cases. 32 In Burwood Council v Byrnes Handley JA, with whom Beazley and Hodgson JJA agreed, referred to and cited from Ghantous v Hawkesbury City Council and then said (at [33]-[38]) - "33 A Council's duty to pedestrians is therefore to take reasonable care to prevent or eliminate the existence of dangers in the road or footpath. The duty is not to prevent or eliminate 'obvious hazards' which 'could possibly be an occasion of harm' [para 29 above]. The standard of care is that which is reasonably required to protect pedestrians who are taking reasonable care for their own safety. The care which pedestrians must themselves take enters into the definition of the duty and is not relevant only to contributory negligence. 34 This Court has considered Ghantous in at least three cases involving pedestrians injured on a highway. In Hawkesbury City Council v Ryan [2001] NSWCA 212 the plaintiff was returning to her car parked in Richmond shopping centre next to the kerb. At this point the gutter was deep and the top of the stone kerb was 22mm higher than the brick paved footpath. The plaintiff tripped over the kerb while stepping down into the gutter. Williams DCJ held that the height differential at the edge of the kerb was a trip hazard. It had been created either when the footpath was laid or as a result of subsidence due to poor compaction of the foundation material. His judgment in favour of the plaintiff was upheld by this Court. 35 In Parramatta City Council v Watkins [2001] NSWCA 364 the plaintiff again succeeded. She had parked her car next to the kerb in a designated parking area in Granville shopping centre. She walked around the front to get to the footpath and fell onto a manhole cover. This was flush with the road surface at the kerb but 50 mm or 2" below with a steep drop from the surface on the side furthest from the kerb. The manhole was partly obscured by her car and the space in front of her car was probably limited by another parked vehicle. 36 There was a similar manhole cover 40 metres away which did not present the same hazard because of the gradual slope from the surface to the cover. The judgment of Robison DCJ was upheld because the change in level would not have been expected and its existence was likely to be and was partially obscured by the car. The change in level was found to be an unreasonable hazard created during resurfacing work a few years earlier. 37 In the third case, Lombardi v Holroyd City Council [2002] NSW CA 252, the pedestrian failed. The plaintiff tripped over a concrete slab in the footpath which was 25 mm higher than the adjoining slab on one corner and substantially level with it at the other. This Court upheld the decision of Patten DCJ who found that the difference in height was plainly visible and could not be categorised as a concealed hazard. Hodgson JA, who delivered the principal judgment in this Court, said (para 32): 'that a plainly visible step of 25 mm in a footpath is [not] correctly regarded as high risk or unacceptable risk'. 38 In the first two of these cases the Court found that the state of the road or footpath created a hazard which was dangerous to pedestrians but not obvious. In the last of the cases the Court found, in effect, that the footpath 'could possibly be an occasion of harm' but it was 'an obvious hazard'. The facts of the present case are, in essentials, indistinguishable from those in Lombardi v Holroyd City Council. Indeed the height difference in this case was less." 33 In Richmond Valley Council v Standing Heydon JA, with whom Handley and Sheller JJA agreed, asked whether the defendant owed a duty of care to the plaintiff and said that that "turns on whether the failure of the defendant to repair the footpath created 'a foreseeable risk of harm' to pedestrians" (at [29]). His Honour said - "The question is whether there was a reasonably foreseeable risk of harm to a pedestrian exercising reasonable care for her own safety, bearing in mind the particular advantages of pedestrians. The issue of the capacity of the defendant to deal with particular risks and the competition between claims on scarce resources is not specifically relevant to the question of the scope of duty, but to the question of its breach." 34 His Honour examined the facts, and concluded (at [53]) that a pedestrian exercising reasonable care for his or her own safety ought to have seen the hole in which the plaintiff tripped. He continued (at [54]-[60]) - "54 Almost any injury that happens is an injury in respect of which there can be said to have been a foreseeable risk. In that sense, there was a foreseeable risk of injury here. But it was not a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety. The plaintiff, like pedestrians generally, was in an excellent position to see and avoid imperfections in the surface. There could have been no expectation on her part that the surface would be smooth. The unevenness in the paving slabs, the cracks and the holes at the place where the plaintiff was moving were as obvious as similar features all over the country, and as obvious as other common features like raised tree roots and manhole covers. There was no concealment of any of the features of the site which the trial judge criticised. There was no inadequacy in the lighting, or obscuring of the hazard by grass or otherwise. It was reasonable to expect the plaintiff to have seen what lay ahead of her as she walked along in broad daylight: what was there was obvious and called for no special vigilance. 55 So far as there was any hazard it was both not only obvious but insignificant and common. The condition of the pavement was typical of innumerable kilometres of pavements in the cities, suburbs and towns of this country. The imperfection was of a kind which users of footpaths have from childhood habituated themselves to look out for and avoid, in view of the fact that surfaces which pedestrians use may be uneven, not flat and not smooth. The imperfection was not a danger, a hazard or a trap. Neither Mr Moir nor the trial judge demonstrate how Mr Moir's figure of 10 mm depth in the hole as the criterion of liability was crucial, and, if it was, how that view could be reconciled with the reasoning in Brodie's and Ghantous's cases. Though Mr Moir referred to other experts, he did not explain their thought processes. 56 The reasoning of Hodgson JA (Foster AJA and Brownie AJA concurring) in Lombardi v Holroyd City Council [2002] NSWCA 252 at [32] applies here: 'I do not accept that a plainly visible step of 25 millimetres in a footpath is correctly regarded as high risk or unacceptable risk. It is desirable that even obvious steps of 25 millimetres in footpaths be avoided and eliminated if possible; but that is not to say that the failure of a Council to detect and eliminate all such risk is negligent. As a general rule, in my opinion it is not.' 57 Hodgson JA's reasoning in Parramatta City Council v Watkins [2001] NSWCA 364 at [27] also applies; speaking of a 50 mm change of level from the surface of a road to a manhole cover, he said: 'I am inclined to think that sudden variations in level of this magnitude may generally be expected at the edge of footpaths, at transitions between different paths or surfaces, and even between footpath slabs in the vicinity of trees; and also between paved and unpaved areas of road. However, the same may not be true within the paved surface of an apparently well-maintained road, particularly where the change of level is not obvious; and the circumstance that the change in level in this case was in a designated parking area, where it could be partially obscured by a parked car, would add to the risk.' Here there was no obscuring of the imperfection by a parked car or otherwise; the case did not concern the paved surface of an apparently well-maintained road, but a cracked pavement; the fact of the crack between the pavers was obvious enough actually to be seen by the plaintiff, and the change in level sufficiently obvious that she ought to have seen it; and the imperfection was similar to one occurring between footpath slabs in the vicinity of trees. … 59 The conditions of the site were so obvious and so typical of those commonly to be encountered in daily life that the defendant was not under any duty to undertake inspections to identify them. Even if the defendant had become aware of the particular conditions of the site, it had no duty to alter them in view of their obviousness. 60 In short, the defendant did not owe the plaintiff a relevant duty of care either to identify the features of the site or to remove them." 35 Moving to the recent decision in Newcastle City Council v Lindsay [2004] NSWCA 198, Tobias JA, with whom McClellan AJA and I agreed, summarised the position (at [49]) - "49 It is clear from the authorities referred to that any duty to take reasonable care for the safety of pedestrians by warning them of, or protecting them from, a defect in a footpath only arises if the defect is not obvious. The defective pavement slab in question was not in shadow or otherwise obscured or concealed. It was not in a location where it would not be looked for or expected but was in full view of any pedestrian keeping a reasonable lookout as they went about their business. In these circumstances, the respondent did not demonstrate that the relevant part of footpath was dangerous so as to require, by way of reasonable response thereto, the placing of barriers by the appellant around it. This was so notwithstanding that the appellant was aware of the defect and considered it sufficiently hazardous as to justify its prompt repair." 36 As Ghantous v Hawkesbury City Council made plain, a council owes a duty of care to pedestrians using its footpaths. The duty was stated as a duty to take reasonable care to prevent foreseeable risk of harm from the condition of the footpath, the foresight of risk of harm including that pedestrians can be expected to take reasonable care for their own safety by perceiving and avoiding obvious hazards. 37 Obviousness to the careful pedestrian has been spoken of sometimes as going to the duty of care, and sometimes as going to breach of the duty of care. Reference to the content of the duty of care may have brought a slide to the existence of a duty of care. On the one approach, risk of harm is not foreseeable if the defect in the footpath is obvious to the careful pedestrian; on the other approach, there is no breach in failing to remedy the defect if the defect is obvious to the careful pedestrian. The language used in the cases has not been uniform, or always consistent: for example, in the summary in Newcastle City Council v Lindsay (with which I agreed) Tobias JA began by speaking of a duty arising, but ended by speaking of the need for action as a reasonable response to a demonstrated danger. 38 In most situations it will not matter, but for a number of reasons it seems to me that the preferable approach is that obviousness of the risk to the careful pedestrian goes to breach of the duty of care. As I have said, it is plain that a council owes a duty of care to pedestrians using its footpaths. In Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council at [160] the proposition that persons using the road will themselves take ordinary care was for "dealing with questions of breach of duty", and I have referred to the heading associating content with breach, although later passages moved to language of duty. When reasonable foreseeability has become an undemanding test, as lamented by McHugh J in Tame v New South Wales (2002) 211 CLR 317 at [96]-[99], risk of injury even to the careful pedestrian can usually be found, so regard to pedestrians taking ordinary care would mean little in describing the content of the duty of care. Further, what risk would be encountered by the careful pedestrian can really only be determined by regard to the particular defect, and focus on the content of the duty could lead to the error of a duty of care "formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated", see Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [192] per Gummow and Hayne JJ; see also McHugh J at [106] - "The duty of care owed by a manufacturer or producer to a consumer is a duty to take reasonable care to avoid injury to the consumer. To formulate the duty in more specific terms invites error because it is likely to mix a question of law (whether a duty existed) with a question of fact (whether a breach occurred)." 39 On my reading, the reasoning in the joint judgment in Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council made the proposition that persons using the road will themselves take ordinary care one of the matters in the balancing of matters in accordance with Wyong Shire Council v Shirt. On the approach that obviousness of the risk to the careful pedestrian goes to breach of the duty of care, if there is a foreseeable risk then in the balancing of matters the response of the reasonable council takes into account that pedestrians are able to see and avoid imperfections and "will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards …" (see at [163]). 40 It does not automatically follow that, in arriving at the response of the reasonable council, a defect obvious to the reasonable pedestrian needs no attention. As their Honours added (at [163]), "some allowance must be made for inadvertence". They had earlier (at [160]) referred to taking into account "as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness'", citing Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 343 where Taylor J spoke of doing that in enquiring what precautions or safeguards the exercise of reasonable care by an employer required. It is not clear whether their Honours meant, by the illustrations following, that inadvertence was failure by a pedestrian exercising reasonable care to perceive a danger where perception of the danger was diminished, for example because of inadequate lighting or concealment by grass, so that the danger was "in the nature of a trap". The line between failure to take reasonable care and inadvertence is fine, and an expectation that pedestrians will exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards leaves little room for inadvertence. It has not featured in the decided cases; in Newcastle City Council v Lindsay it was unsuccessfully argued that the pedestrian was distracted by unusual objects adjacent to the defect in the footpath, but it was said (at [42]) that inadvertence was relevant only if the pedestrian was otherwise exercising sufficient care. 41 In the balancing required in accordance with Wyong Shire Council v Shirt the obviousness of the risk to the careful pedestrian will not be the only consideration, although it is likely to be dominant. In Parramatta City Council v Watkins [2001] NSWCA 364 at [27], included in the passage from Richmond Valley Council v Standing earlier set out, Hodgson JA envisaged that a sudden variation of level in the paved surface of an apparently well-made road, even if obvious, could call for remedy because unexpected. In a case decided after the hearing in this appeal, Dunn v Star City Pty Ltd [2004] NSWCA 223 (not a footpath but the foyer of the Star City Casino), it was relevant that the pedestrian would not reasonably have expected that the mats over which she tripped would have been in her path (see at [48]). Taking reasonable care can involve what is reasonably expected as well as what is obvious, and what is obvious in hindsight must be considered together with the occasion to perceive it at the time. In this respect, and more generally, the matters for consideration will include whether the defect was "in the nature of a trap". 42 In the balancing exercise, the ultimate issue is what reasonable care required. All the circumstances of the risk presented to the careful pedestrian must be considered. Equally, see McHugh J in Liftronic Pty Ltd v Unver (2001) 179 ALR 321 at [25], it is an erroneous assumption that, if there was a reasonably foreseeable risk of injury to the plaintiff that could have been avoided, the defendant was necessarily negligent: as his Honour said, "[t]he issue in negligence is always whether reasonable care required the elimination of the risk having regard to the consequence of the risk, the probability of its occurrence and the cost, expense and inconvenience of eliminating it". See also Tame v New South Wales at [99] and Calfest v Tombleson [2003] NSWCA 210 at [18]. The burden of proof 43 The respondent had the burden of proof of negligence, including proof that the scope of the appellant's duty of care extended to remedyng any danger presented by the raised edge of the driveway or, as I would prefer to put it, that the reasonable response of the appellant was to remedy any danger, prior to 21 February 2002, for example by providing filling to form a ramp from the footpath up to the driveway. As part of her proof of negligence, it was for the respondent to provide evidence, and persuade the judge, that the hazard was not one which, with the exercise of care on her part, she could have seen and avoided. If she did not do so, she was exposed to the finding that there was nothing unreasonable in the appellant's response of inaction. 44 That the respondent had the burden of proof in this respect is demonstrated by Parsons v Randwick Municipal Council [2003] NSWCA 191, as it happens a case turning on proof of inadequacy of lighting. The pedestrian lost his footing at 1 am on a broken part of the footpath. The break would have been obvious to a pedestrian during daylight. There was evidence of two street lights, one of which a Mr Pritchard said cast "some reflected light" on the area, but otherwise no evidence of the illumination of the broken part of the footpath. The trial judge said that the defect was "obvious and one of which the plaintiff should have been well aware with the slightest observation, even at 1am in the morning there being no evidence that the light from the lights on the two light posts was inadequate". On appeal the finding of obviousness was held to be unwarranted, but the appeal was nonetheless dismissed, by majority, because the pedestrian had failed to prove that the defect was not obvious. 45 Sheller JA said (at [30]-[41]) - "30 If the lighting in the area of the fault in the pavement was inadequate in the sense that a person using the footpath and exercising due care could not have seen the fault and recognised its nature the fault became a concealed trap for such a person walking along the pavement and expecting to proceed along what appeared to be a defined concrete pavement available to be used by pedestrians during the night. However, the evidence does not enable this conclusion to be reached any more than it supports what the trial Judge said about it. One has only such inferences as can be drawn from the fact that Mr Parsons apparently while turning around on the pavement walked into the fault and Mr Pritchard who was close behind him did not immediately see the fault. … 34 There is no evidence to support the trial Judge's conclusion that at 1 am in the morning the subsidence in the footpath was obvious and one of which Mr Parsons should have been well aware "with the slightest observation". Equally it is true that there was no evidence that the light from the lamps on the two poles was inadequate in the sense that any witness expressed such an opinion. 35 In evidence there were photographs of the road showing the poles and the arms with lamps directed down on the road. Doing the best I can from looking at those photographs, I would not have thought that the light thrown on that part of the pavement where the fault was and which was approximately half way between the two poles, which could have been as much as 50 metres apart, would have been particularly good. However, surprisingly, no evidence was called beyond what Mr Pritchard said about the lighting. … 41 The onus was on Mr Parsons to prove that such was the state of the lighting that he could not have seen and recognised the nature of the fault in the pavement even if he had been sober and taking care for his own safety as he walked along the footpath. That onus, in my opinion, he failed to discharge." 46 Ipp JA agreed with Sheller JA, with additional remarks. His Honour said (at [71]-[73]) that in daylight the hole in the footpath would have been obvious to any reasonable user of the footpath, that whether it would have been equally obvious in the dark depended on the state of the lighting in the vicinity of the hole, and that "[t]he state of the lighting was crucial to the success or otherwise of Mr Parsons": for this he cited from Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (at [163] and [169]). His Honour spoke (at [74]) of highway authorities owing no duty of care to persons who do not exercise reasonable care for their own safety: I have adverted to this way of putting it. He referred to the need for the pedestrian "to prove his case in accordance with the standards the law requires", set out the evidence of reflected light, discussed that evidence, and said (at [85]) - "85 The evidence called on Mr Parsons' behalf in connection with the lighting was skimpy indeed. It was also vague and ambiguous. Applying the ordinary rules as to onus of proof, the evidence led does not establish that the lighting at the place where Mr Pritchard [sic] fell was such that, exercising reasonable care for his own safety, he would not have seen the hole and taken steps to avoid it." 47 Beazley JA dissented in the result, but not as to burden of proof: her Honour considered that the evidence, including as to the lighting, was sufficient to establish that the broken footpath "presented a danger to persons who were taking care for their own safety" (at [57]). Discussion and decision 48 The judge noted the evidence as to a street light and the absence otherwise of evidence as to visibility of the driveway. He was prepared to accept that the lighting at 11 pm was "a lot different to" the lighting depicted in the photographs in exhibit A, which is readily understandable but did not mean very much – it was not a substitute for evidence that the illumination was such that the raised driveway could not be perceived and avoided by a pedestrian exercising reasonable care. 49 The judge appears nonetheless to have found, without any better evidence of the illumination or visibility of the driveway, that the raised driveway was a risk which reasonable care required the appellant to remedy, because - "In my view the raised concrete drive creates an obvious risk, it becomes an even more substantial risk after dark. It is a risk to pedestrians coming around the corner whose view of what is ahead is substantially reduced by the wall and hedge. Without a contrasting shadow or other delineation, the drive appears to be of the same colouration as the footpath it crosses, a situation that would obviously become more of a problem at night." 50 The following may be said of this. First, it has the difficulty in the use of "obvious" earlier mentioned, obviousness in the sense of a great risk rather than visibility or perception. Illumination bearing upon visibility or perception is just not considered. Secondly, while the hedge would have prevented a pedestrian coming around the corner from Deboos Street from seeing the driveway until around the corner, from the photographs the pedestrian would see it when nearly three metres away, and more if not hugging the corner. Pedestrians should take care going around blind corners, and there was no evidence that the hedge and distance made the driveway a danger because unexpectedly close to a pedestrian coming around the corner. If despite any unexpected appearance the hazard was, as the judge said, obvious and readily visible in daylight to a pedestrian coming around the corner, whether it was different at night depended not on the proximity of the corner but on the lighting, of which there was no evidence. Thirdly, what contrasting shadow or other delineation there may have been at night depended on the lighting. Fourthly, again from the photographs, it is not correct that the driveway and the footpath were of the same colouration. The glare in the photographs in exhibit A made them appear similar in colour, but they were readily distinguishable in the photographs in exhibit B. His Honour did not refer to the photographs in exhibit B. How the different colours would have appeared at night was another matter, of which there was no evidence, and again depended on the lighting. 51 Each of what a pedestrian coming around the corner from Deboos Street would encounter, contrasting shadow or other delineation, and different colouration depended on the illumination cast on the driveway from the street lighting. More widely, the pedestrian's perception and avoidance of the hazard depended vitally on the illumination and visibility. So far as the judge intended to find that the raised driveway was "in the nature of a trap", that finding could not be detached from the state of the lighting. Where there was evidence of a street light on the other side of Parkes Street, it was not sufficient to say that the lighting at 11 pm would have been different from the glare of sunlight in the photographs in exhibit A. As in Parsons v Randwick Municipal Council, the state of the lighting was crucial to the success or otherwise of the respondent, and I do not think the absence of evidence of illumination or visibility can be put aside. 52 It would have been easy for the respondent to give evidence, if it were the case, that the illumination of the driveway was such that the raised edge of the driveway was not visible to her on 21 February 2002. If she was not looking where she was going on that occasion, she or someone else could nonetheless have given evidence, from later attendance and inspection, of poor illumination of the driveway at night and that the hazard was not obvious. Inferences favourable to the respondent should not be drawn: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-9. In my opinion, it was not open on the evidence to find that the driveway was a hazard which was not obvious to and avoidable by a pedestrian exercising reasonable care for his or her own safety. 53 The balancing exercise must still be undertaken to assess the reasonable response of the appellant to the existence of the raised driveway. The respondent failed to show that the raised driveway was a hazard which was not obvious to and avoidable by a pedestrian exercising reasonable care for his or her own safety. In the absence of knowledge of its illumination and visibility, it was not shown to have been in the nature of a trap because of the hedge or colouration. It is easy to say that the filling work was simple and inexpensive, as in isolation no doubt it was, but it should not be seen in isolation. Although there was no detailed evidence, the appellant had to consider the state of all of its footpaths (and no doubt roads), and could not give its attention exclusively to the driveway in Parkes Street. I do not think that the appellant's inaction was shown to be unreasonable. 54 Other matters support that no action was required by the appellant. Pedestrians would expect to find driveways along Parkes Street. The driveway had been there for many years, perhaps not always so proud of the footpath (although the evidence does not enable a clear finding). The local school was nearby, so the area would not have been without pedestrian activity. There was no record of previous falls notified to the appellant. These additional matters are far from determinative, but none in my opinion assists the respondent towards negligence on the appellant's part and they tend against a need for alleviating action. I do not think negligence was established. Orders 55 I propose the orders - 1. Appeal allowed. 2. Set aside the verdict and judgment for the respondent and the order for costs made on 14 November 2003. 3. Verdict and judgment for the appellant. 4. Respondent pay the appellant's costs of the trial and the appeal, and have a certificate under the Suitors Fund Act if otherwise qualified. 56 HODGSON JA: I agree with the orders proposed by Giles JA, and substantially with his reasons. 57 The view that the formulation of the duty of care should be left in general terms as a duty to take reasonable care to avoid injury, and that the determination of what the duty requires in a particular case is a question of fact to be considered when addressing the question of breach, is supported by the passages in Graham Barclay Oysters Pty. Ltd. v. Ryan (2002) 211 CLR 540 at [106] and [192], referred to by Giles JA. 58 However, this question of fact is one which is to be determined in accordance with legal requirements, in particular the requirement that regard be had to the competing considerations referred to by Mason J in Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47-48. One thing that must be considered is the magnitude of the risk of injury to the plaintiff or to a class of persons including the plaintiff, that a reasonable person in the defendant's position would have foreseen his or her conduct involved. Also, Brodie v. Singleton Shire Council (2001) 206 CLR 512 shows that, in relation to road users generally and pedestrians in particular, the relevant risks to which road authorities should have regard are the risks of injury to persons exercising reasonable care for their own safety. 59 In cases such as the present, where the magnitude of the risk could be very different for different classes of pedestrians, it is in my opinion appropriate to consider the question of breach having regard to the foreseeable risk of injury to a class including the plaintiff that is narrower than the class of pedestrians generally. In the present case, the relevant class would in my opinion be pedestrians of normal physical capacities using the footpath at night. 60 Thus, the question in this case is whether it was shown that a reasonable person in the Council's position would have foreseen that the raised edge of the driveway involved such a risk of injury to pedestrians of normal physical capacity using the footpath at night, and exercising reasonable care for their own safety, that such a reasonable person would have taken remedial action prior to the accident. 61 This in turn requires a judgment as to how obvious the raised edge was at night. There was evidence that the nearest street light was on the other side of the road, but no evidence from the appellant or any other witness as to the visibility of the edge at night. In those circumstances, in my opinion the evidence did not justify a finding that the raised edge was not readily visible at night to persons taking reasonable care for their own safety, or that it involved such a risk of injury that the Council, knowing of it, should have remedied it. 62 PEARLMAN AJA: I agree with Giles JA. ********** Last Modified: 07/26/2004 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.