Reported Decision : 134 LGERA 188 (2004) Aust Torts Reports 81-757 New South Wales Court of Appeal CITATION : RYDE CITY COUNCIL v SALEH [2004] NSWCA 219 HEARING DATE(S) : 24 June 2004 JUDGMENT DATE : 7 July 2004 JUDGMENT OF : Mason P at 1; Sheller JA at 2; Tobias JA at 21 DECISION : 1 Grant leave to appeal; 2 Appeal allowed and the verdict for the plaintiff set aside; 3 In lieu thereof, verdict for the defendant; 4 The plaintiff should pay the costs of the trial at first instance and the costs of this application and the appeal but should have a certificate under the Suitors' Fund Act 1951 CATCHWORDS : DUTY OF CARE - Council responsible for footpaths - whether tripping hazard - whether failure to carry out reasonable inspection - obligation of pedestrians to take care for their own safety LEGISLATION CITED : N/A Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512 CASES CITED : Burwood Council v Byrnes (2002) NSWCA 343 Littler v Liverpool Corporation [1968] 2 All ER 343 Lombardi v Holroyd City Council [2002] NSWCA 252 PARTIES : Ryde City Council - Claimant Barbara Saleh - Opponent FILE NUMBER(S) : CA 40701/03 COUNSEL : P R Garling SC/R G Gambi - Claimant S Galitsky - Opponent SOLICITORS : Phillips Fox - Claimant Bechara & Company LOWER COURT District Court JURISDICTION : LOWER COURT 9893/01 FILE NUMBER(S) : LOWER COURT McLoughlin DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40701/03 DC 9893/01 MASON P SHELLER JA TOBIAS JA RYDE CITY COUNCIL v SALEH The opponent sustained injury on 7 October 1998 as a result of falling while walking along a footpath in front of 173 Ryde Road, Gladesville. She claimed her fall was due to the negligence of Ryde City Council ("the Council") and commenced proceedings in the District Court to recover damages. In the District Court proceedings the opponent relied upon nine particulars of negligence including a failure on the part of the Council to ensure the footpath was reasonably safe for members of the public, a failure to ensure the footpath was maintained so as not to be a danger to the public and a failure to effect repairs to the footpath and to take steps to remove an obvious hazard. At first instance, the opponent tendered and relied upon two reports from Mr Ian Paul Burn. The Council objected to parts of these reports. The trial Judge gave judgment for the opponent. His Honour accepted that the toe of the opponent's left shoe caught on a piece of raised footpath at a point between two concrete slabs of footpath and that there was a variation in height of some 20 millimetres at the point where the opponent fell. The trial Judge held that this was "a tripping hazard" which was created through the failure of the Council to properly compact the substratum prior to the laying of the concrete and its failure to carry out reasonable inspection to identify such hazards. The trial Judge also found that the opponent did not see the hazard and accepted that she was keeping a proper lookout for her safety. The Council challenged the findings of the trial Judge in relation to duty of care. The Council also claimed that the trial Judge erred in making findings in the absence of any proper evidence that the Council had failed properly to compact the substratum prior to laying the concrete or had failed to carry out reasonable inspection. Held: per Sheller JA, Mason P and Tobias JA agreeing: 1. To the extent that the trial Judge relied on the material contained in Mr Burns' report in arriving at his conclusions, these conclusions were weakened by the report's inadequacy. 2. 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 safety. Burwood Council v Byrnes (2002) NSWCA 343; Lombardi v Holroyd City Council [2002] NSWCA 252; Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512. 3. It was not appropriate for his Honour to draw conclusions about the use of white paint lines to warn of height differentiations, at least without raising this with the parties. There was no evidence that the Council had failed to carry out reasonable inspection to detect hazards arising from defects in compaction. 4. The conclusions of the trial Judge were insupportable. The evidence of Mr Burn and of the photographs demonstrated beyond argument that if the opponent had been keeping a proper lookout for her safety she would have seen the depression in the pavement before she reached it and could quite easily have stepped over it. Cases cited: Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Burwood Council v Byrnes (2002) NSWCA 343 Littler v Liverpool Corporation [1968] 2 All ER 343 Lombardi v Holroyd City Council [2002] NSWCA 252 ORDERS 1. Grant leave to appeal; 2. Appeal allowed and the verdict for the plaintiff set aside; 3. In lieu thereof, verdict for the defendant; 4. The plaintiff should pay the costs of the trial at first instance and the costs of this application and the appeal but should have a certificate under the Suitors' Fund Act 1951. ********** IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40701/03 DC 9893/01 MASON P SHELLER JA TOBIAS JA Wednesday, 7 July 2004 RYDE CITY COUNCIL v SALEH Judgment 1 MASON P: I agree with Sheller JA. 2 SHELLER JA: The claimant, Ryde City Council (the Council), applies for leave to appeal from a decision of Judge McLoughlin given in the District Court on 1 August 2003. 3 The opponent, Barbara Saleh, was the plaintiff in proceedings brought against the Council to recover damages for injuries the plaintiff suffered on 7 October 1998 as a result of falling while walking along a footpath in front of 173 Ryde Road, Gladesville at about 5.30 pm. The Council accepted that the footpath was under its statutory care and control and was its responsibility. In her amended statement of claim, the plaintiff alleged that her foot "caught in a crack in the concrete of the footpath and as a result she fell heavily thereby sustaining injury". She claimed the falling was due to the negligence of the Council. She furnished nine particulars of negligence which included: · failing to ensure that the footpath area was reasonably safe for members of the public such as herself; · failing to ensure that the footpath was maintained so as not to be a danger to the public; · failing to effect repairs to the footpath and failing "to take steps to remove an obvious hazard". 4 The trial Judge accepted, and this was not challenged, that the toe of the plaintiff's left shoe caught on a piece of raised footpath outside 173 Ryde Road at a point between two concrete slabs of the footpath. The trial Judge described that part of the footpath as follows: "… at a point between two concrete slabs of the footpath, which were on the right hand side of the plaintiff as she approached, [the footpath] had no deviation in height, but the variations in slabs as the slabs ran towards the gutter and roadway reached some 20 millimetres in height at the point where the plaintiff's foot caught and she fell." 5 The plaintiff tendered a report by a civil engineer, Ian Paul Burn, of 29 April 2002 and a further report by Mr Burn of 10 October 2002, with changes and additions to the earlier report based on further information. Mr Burn had first visited the site on 15 April 2002. The Council objected to parts of these reports. The grounds of these objections were explained by counsel in his final address. So far as the material before this Court goes, the trial Judge did not rule on these objections and may implicitly have admitted the evidence. His doing so is not a ground of the proposed appeal. 6 Even so, as a matter of principle, it is important to advert to some parts of the report to which objection was taken. At page 3 in the original report it was said that what was described as the trip hazard where the plaintiff fell, appeared to have arisen from "footpath settlement" and that the "footpath along the frontage of 173 Ryde Road showed signs on (sic) uneven settlement possibly due to major services constructed in the footpath prior to the construction of the footpath". On page 4 of the first report, Mr Burn said that on the basis of his observations it appeared that the Council had had its work crews carrying out works on the footpath in Ryde Road at Gladesville on a frequent basis. Objection was taken to the last four words which I have underlined. 7 The next part of Mr Burn's report, repeated in the amended report, was headed "4.0 Standards and Statutes". The Council objected to this section of the report. In it Mr Burn referred to an insurance audit undertaken by insurance brokers, Statewide Mutual, of public liability claims received against local government and to a best practice manual prepared in 1997 as an outcome of this work for use by local government "to proactively manage their public liability risk exposure". Mr Burn said that this guideline was useful in assessing the severity of hazards identified on the footway. Based on this, Mr Burn said that it could be seen that the identified trip step where the plaintiff suffered her misadventure would qualify for a "high risk hazard rating". There followed reference to a table from the manual recommending an intervention regime for identified hazards, which suggested that the Council should have responded to the high-risk hazard by effecting repairs within 24 hours. This insurance publication was neither a standard nor a statute and was published in 1997 by insurers to reduce their public liability risk exposure. The manual was published before the decisions of the High Court in Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512. Partly because of its source and partly because of its nature, I do not believe that this material could be of any assistance in determining the issues in these proceedings. 8 The standards and statutes part of Mr Burn's report went on to refer to the Guide Traffic Engineering Practice Part 13 Pedestrians, Austroads/Standards Australia 1995, which pointed out that it was important for many people that surfaces, presumably across which they have to move, should be flat and that this was particularly so for disabled people. The point was made that small ridges and protrusions as low as 6 mm can cause such people to stumble and fall. The guide continued: "Surfaces should not deviate more than 5 mm from a 500 mm long straight-edge layed [sic] anywhere on the surface." Mr Burn observed that the trip hazard at the site of the plaintiff's misadventure was more than 5 mm so would be considered a hazard under the guide. I can only say that the suggestion, if there was one, that Councils be universally required to meet that standard on all footpaths under their control is unreal. Again this part of the report is of no value in these proceedings. 9 Under the heading "Foreseeability" Mr Burn said: "Based on the risk analysis undertaken by Statewide Mutual during the preparation of the best practice manual, and based on the information in the Traffic Engineering Guidelines: part 13 Pedestrians, the trip hazard present on the footpath in Ryde Road Gladesville outside no. 173 is an obvious hazard." 10 I do not understand why reference to an insurance risk management manual or a standard directed particularly to disabled persons should be considered to replace what a mere glance at the photographs in evidence and the application of commonsense would demonstrate, namely that a 20 mm difference in level between two adjoining concrete slabs making up a footpath is a hazard and an obvious one. But that conclusion hardly advanced the plaintiff's case if account is taken of what Gaudron, McHugh and Gummow JJ said in Brodie/Ghantous at 581: "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 of 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." 11 In his original report Mr Burn, after stating a fairly straight forward means for removing the trip hazard, expressed in conclusion and subject to objection the opinion that: "the misadventure suffered by [the plaintiff] was due to uneven footpath settlement in the vicinity of services laid within the footway prior to the construction of the concrete footpath. For the footpath to subside unevenly along its length suggests less than adequate compaction of the ground under the footpath prior to the pouring of the concrete. Further in view of the previous works carried out by Council workers in the vicinity of the accident site, and the placement of a white line at the trip site, it appears Council is aware of the trip hazard but has yet to act to remove the hazard." There was no evidence that at any time a white line had been placed at the trip site. 12 In my opinion, the profession does no service to its clients by relying upon such unhelpful material under the guise of expert evidence and judges should be circumspect in accepting it. 13 Mr Burn was not required for cross-examination and the Council produced no contrary professional opinion. Further, there is no proposed appeal against the trial Judge's failure to exclude parts of Mr Burns' report or failure to deal with the objections. But, to the extent to which the trial Judge relied on the material contained in Mr Burns' reports in arriving at his conclusions, these conclusions were weakened by the report's inadequacy. 14 In Burwood Council v Byrnes (2002) NSWCA 343, a case in which a plaintiff tripped over a concrete paver on a council footpath and fell heavily, it was found that at the place of the fall one paver had sunk more than others resulting in a height difference of 20 mm. At para [26] Handley JA, with whose judgment Beazley and Hodgson JJA agreed, said: "A height differential of 20 mm is not an unexpected or unusual danger to a pedestrian in the Sydney metropolitan area who is taking reasonable care and keeping a proper lookout." 15 After referring to Brodie/Ghantous, his Honour contrasted the facts in that case with Brodie/Ghantous and said at para [28]: "Pedestrians on the other hand 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." 16 Cited was Littler v Liverpool Corporation [1968] 2 All ER 343 at 345 where 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. A highway is not to be criticised by the standards of a bowling green." This comment emphasises the unhelpfulness of the guide to which Mr Burn referred. 17 At para [37] Handley JA referred to Lombardi v Holroyd City Council [2002] NSWCA 252 where the plaintiff had tripped over a concrete slab in the footpath which was 25 mm higher than the adjoining slab on the 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". In the Burwood Council case, Handley JA concluded at para [39]: "It follows in my judgment that the judgment under review was vitiated by legal error because the Judge misdirected himself as to the Council's duty of care. This is a matter of some public importance and the size of the judgment should not, by itself, protect it from appellate review." 18 I find it curious that Judge McLoughlin did not refer to either the Burwood Council case or Lombardi. His Honour found, and this seems likely, that the plaintiff, before she fell, had not detected the difference in surface of 20 mm. His Honour continued: "There is also evidence uncontradicted from Mr Burns, as to the cause of this being through poor compaction. The evidence of the plaintiff when taken with the expert report of Mr Burns to which I have referred, was such that in my view the area where the plaintiff's left toe portion of her foot caught, was a tripping hazard, which was created through the failure of the defendant to properly compact the substratum prior to the laying of the concrete and its failure to carry out reasonable inspection to detect hazards arising from such defects in compaction. Because to the house side of the footpath there was no differential of height between the two slabs, it was a much more difficult hazard to detect by persons using the footpath and taking reasonable care for their own safety. [Mr Burn referred to this height differential but drew no such conclusion]. Because of the level of discrepancy only being to the road side of the slab and not to the house side, the slipping [scil tripping] hazard, in my view, would not readily be detected by an observant pedestrian. It had not been detected on the many occasions this plaintiff had traversed the street. In my view this height variation between the two slabs to the road end of the footpath was a foreseeable risk of injury and a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety. Whilst the plaintiff was in a position to have seen the height variation as depicted on the photographs, the unevenness was not obvious and it would have required close scrutiny to detect, as the plaintiff approached because of its placement on the part of the footpath and not the whole. There is also the angle as well to be taken into account. This pavement had been repaired in parts and was in good condition. In addition, the council had, I find, marked by way of paint marks, height differentials at other parts of the footpath to bring to the attention of pedestrians, using reasonable care, the height variations so that they could avoid them. This the council had not done with this height variation and defect. I draw the inference it did not do so because it did not observe the height differential at the time that the paint marks were marked further down the footpath, on more obvious height variations of footpath, and did not observe them when they had carried out repairs in close proximity, where there were other height variations in the same footpath when they should have seen them and carried out repairs to the area where the plaintiff fell. In my view this height variation was a danger because of its location, and failure by the council to identify it, as it had done others, represented a hazard or a trap." 19 Criticism was, in my view, correctly made by counsel for the appellant about findings in the absence of any proper evidence that the Council had failed properly to compact the substratum prior to laying the concrete or had failed to carry out reasonable inspection. In Mr Burn's later report there was some evidence of work carried out by a contractor in September 1997 outside 167 Ryde Road but none to suggest that this was footpath repair other than following up service access across the footpath to those premises. The other examples of repair occurred after the plaintiff's accident. It was not appropriate for his Honour to draw conclusions, based on what he had observed in other council areas, about the use of white paint lines to warn of height differentiations, at least without raising this with the parties, which his Honour did not do. There was no evidence that the Council had failed to carry out reasonable inspection to detect hazards arising from defects in compaction. 20 His Honour accepted that the plaintiff did not see the hazard and also accepted that she was keeping a proper lookout for her own safety. If the hazard was obvious, as the plaintiff pleaded and as Mr Burn stated, and if the plaintiff was keeping a proper lookout for her own safety she must have seen the hazard. The trial Judge's course of reasoning was to infer from the fact that the plaintiff did not see the hazard before she fell that it was difficult to see because the depth of the depression varied from zero to 20 mm from right to left. On this basis, his Honour was prepared to find that the depression was a concealed trap. Absent such a conclusion, the plaintiff's claim must have failed, whatever the degree of compaction and to whatever extent the Council inspected the pavements or should have been aware of the hazard. The evidence of Mr Burn and of the photographs demonstrated beyond argument that if the plaintiff had been keeping a proper lookout for her safety she would have seen the depression in the pavement before she reached it and could quite easily have stepped over it. If, as the plaintiff said, she had never seen it before on other occasions when she had passed along this pavement, that suggests, if anything, that she did not recollect doing so no doubt because she did not regard it as anything unusual on a suburban pavement. In my opinion, the trial Judge's conclusions were insupportable. The case is of some public importance because it involves a council responsible for pavements. Accordingly, I propose the following orders: 1. Grant leave to appeal; 2. Appeal allowed and the verdict for the plaintiff set aside; 3. In lieu thereof, verdict for the defendant; 4. The plaintiff should pay the costs of the trial at first instance and the costs of this application and the appeal but should have a certificate under the Suitors' Fund Act 1951. 21 TOBIAS JA: I agree with Sheller JA. ********** Last Modified: 07/08/2004 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.