New South Wales Court of Appeal CITATION: Bernasconi v Newcastle City Council [2005] NSWCA 422 HEARING DATE(S): 21 November 2005 JUDGMENT DATE: 5 December 2005 JUDGMENT OF: Giles JA at 1; McColl JA at 2; Brownie AJA at 36 DECISION: Leave to appeal refused with costs CATCHWORDS: APPEAL – leave to appeal – NEGLIGENCE - Pedestrian injured when she tripped and fell on an uneven section of footpath in shopping mall – whether primary judge placed excessive emphasis on the issue of obviousness of risk in finding Council had not breached its duty of care – relevance of earlier falls in the mall – leave to appeal refused (ND) LEGISLATION CITED: n/a Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 Mulligan v Coffs Harbour City Council [2005] HCA 63 Richmond Valley Council v Standing [2002] NSWCA 359; (2002) 127 LGERA 237 CASES CITED: Sutherland Shire Council v Pallister [2002] NSWCA 66 Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 Turnbull v Alm [2004] NSWCA 173 Vairy v Wyong Shire Council [2005] HCA 62 Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 Jean Marie Bernasconi (Claimant) PARTIES: Newcastle City Council (Opponent) FILE NUMBER(S): CA 40081/05 P C B Semmler QC/A C Canceri (Claimant) COUNSEL: M T McCulloch SC/G J Hickey (Opponent) CMC Lawyers (Claimant) SOLICITORS: Phillips Fox Lawyers (Opponent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 2254/02 LOWER COURT JUDICIAL OFFICER: McGrowdie ADCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40081/05 DC 2254/02 GILES JA McCOLL JA BROWNIE AJA Monday, 5 December 2005 Jean Marie BERNASCONI v NEWCASTLE CITY COUNCIL Judgment 1 GILES JA: I agree with McColl JA. 2 McCOLL JA: The claimant was injured on 11 July 2000 when she fell in the Hunter Street Mall in Newcastle. She sued the opponent as the local government authority with the care and control of the Mall. McGrowdie ADCJ dismissed her claim, finding that the opponent had not breached its duty of care. His Honour also held that if he was erroneous on his finding on liability, he would have awarded the claimant $31,750.50. 3 The claimant seeks leave to appeal and, if leave is granted, to appeal both from his Honour's conclusion on liability and his assessment of damages. 4 Hunter Street Mall is located in the central business district of Newcastle. It generally runs east/west with shops along its northern and southern sides. The claimant had visited the Mall on a weekly basis for about four years until about six months before her fall accompanied by her daughter, Cheryl. They were principally interested in shops on the southern side of the Mall. The weekly visits ceased about six months prior to the fall when Cheryl's daughter became ill. 5 On 11 July 2000 the claimant walked to the Mall and first visited a number of shops along the southern side. She was walking back towards her home along the southern side when she decided to look at a shop on the northern side of the Mall. As she walked east on that side of the Mall she fell at a point adjacent to the Sanity Music Store. It was mid morning and the weather was fine. The claimant's evidence was that her shoe caught a paver, she tripped forward, put her hands out to save herself but hit her chin on the ground breaking her sunglasses. The left side of her body took most of the impact. After passers-by helped her to her feet she looked to the ground to see what she had tripped on and saw "the paving's sticking up". 6 The Statement of Claim was not included in the White Book, however it is plain from both the judgment below and the manner in which the matter was argued on appeal, that the claimant's essential case against the opponent was that it had breached its duty to take reasonable care for pedestrians using the Mall in failing to ensure that it had an even surface. For its part, the opponent's essential case at trial was that the defect over which the claimant had tripped did not require remedial action, having regard to budgetary constraints as well as the fact that the defect was relatively minor and was one which would have been obvious to a pedestrian taking reasonable care for her own safety. 7 The primary judge recorded the dispute between the parties as having included such questions as the relative level of risk created by the defect, how the defect should be characterised (whether it was an obvious defect or risk) and whether, having regard to all the circumstances, it was reasonable for the opponent to have taken no action in relation to it prior to the claimant's accident. 8 The opponent constructed the Mall in about 1990. Its surface generally consisted of interlocking pavers made from a clay and cement mix. The pavers were described by Dr Bob Emerson, an expert called on behalf of the claimant, as irregular rough textured brick pavers measuring 225mm x 130mm x 85mm. The primary judge found that as a result of settlement and possibly other factors, the surface of the Mall was uneven and the pavers were not always found to be level with each other. 9 The primary judge summarised the claimant's evidence concerning her familiarity with the surface of the Mall and the manner in which she walked along it on the day of her accident as follows: "The plaintiff was aware that the surface of the mall was pavers but never took all that much notice of them. She generally watched where she walked. Immediately before her fall, the plaintiff was watching where she was walking in the sense that she was looking straight ahead in the direction she was walking. She said that she was not looking at the ground but just looking ahead. The plaintiff agreed that she had been aware that gaps existed between some pavers in the mall and that some were raised. Some areas were worse than others. It was put to the plaintiff in cross examination that 'If you had been looking at the ground and the metres ahead of you, you would have seen the indentation would you not'? In reply the plaintiff said 'Well I didn't look at the ground'. The plaintiff was then asked 'If you were looking at the ground in the metres ahead of you as you were walking along there, you would have seen that indentation would you not?' The plaintiff answered 'I suppose I would have. I was looking down but I wasn't'. Further, it was put to the plaintiff 'But you weren't looking at the pavers immediately in front of you'. To which the plaintiff answered 'No'. The plaintiff agreed that when she looked at the ground after her fall, it was obvious that there was a difference in the level of the pavers". 10 The primary judge accepted that the claimant fell as a result of tripping on the edge of a paver and that, had the opponent removed the height differential before the date of her accident, the fall would have been avoided. 11 Dr Emerson inspected the area where the claimant had fallen approximately 18 months after her fall and measured the unevenness as 10mm. He expressed the opinion that the pavement should have been level to within a 5mm tolerance. He also opined, as the primary judge recorded, that: "… there was no stimulus offered to a pedestrian because of the dirty grey colour of the sunken rough paving tiles being the same colour of the surface of the pavement and that there was no perspective of a ridge caused by the sunken pavers by virtue of a lack of colour contrast and no suitable edge markings to detect the presence of a hazard." 12 The primary judge summarised Dr Emerson's view as being that "the defect was in the nature of a concealed hazard which a pedestrian taking reasonable care would not readily have observed". 13 The primary judge did not accept Dr Emerson's opinion because he concluded it was not supported by the facts. His Honour accepted the claimant's evidence that if she had been looking at the ground ahead of her she "supposed" she would have seen the indentation in the paved area. His Honour also took into account the evidence of the claimant's son that the difference in level could be noticed "from more than just standing over it and the darkened edge of the raised paver could be seen 'sticking up' in the photograph taken by him from a distance of between 2 or 3 metres". 14 The opponent adduced evidence that it was responsible for 730 kilometres of local roads, 100 kilometres of major roads, 650 kilometres of pavement and approximately 1100 kilometres of kerb and guttering. Mr Flamiatos said the budget for expenditure on the maintenance of the pavement area of the Hunter Street Mall was about $15,000 including wages although, if necessary, funds could be sourced from funds allocated for another purpose for its maintenance. 15 Evidence was given on behalf of the opponent that it had a settled system of rating defects in order to determine which needed attention and in what order of priority. That system had been started in April 2000 approximately 3 months before the claimant's accident. 16 According to the system of inspection and rating introduced in April 2000, changes in levels of pedestrian services of less than 10mm were rated as trip hazards, albeit with only a "slight priority for repair". The priority for repair increased depending upon whether the hazard was 10 – 25mm (moderate priority) or 25mm or more (high priority). Location could also alter the priority so that in a high volume pedestrian area, such as the Mall, a hazard of less than 10mm was rated a "moderate" rather than a "slight" priority. 17 In 1998 the opponent raised a budgetary estimate of $3 million for refurbishing the Mall, including repaving it. The work was to proceed in two stages. Stage 1 had been completed in late 1999 or early 2000 at a cost of about $2 million. That stage did not include repaving the main section of the Mall which was apparently to take place in Stage 2. Moneys had not been allocated by the opponent for the implementation of Stage 2 at the time of the trial and, according to the primary judge, "available funds [had] been used on different projects". 18 In 2001 the opponent purchased a concrete grinder for $10,000 which, in late 2002, was found to be successful in smoothing out differences in levels between pavers where remedial work was necessary or desired. Before the grinder was used in the Mall, irregularities in the pavement area were repaired, where necessary, by taking up an area of pavers and relaying them. 19 The opponent investigated the claimant's fall although, on the first occasion, on 15 August 2000 when the Council's insurance officer, Michelle Barnett, inspected the Mall, she was unable to identify precisely where the claimant had fallen. Ms Barnett took photographs in the vicinity of the Sanity Music Store and reported, according to the primary judge, that: "… there were pavers that were lifted slightly, approximately 1 cm in the highest area, [and that] an exact location for the fall would be required as there were many parts of the mall which were lifted". 20 About six or eight weeks after the claimant's fall, the claimant went to the Mall with her son who took photographs of where she said she had fallen. Those photographs were provided to the opponent. Mr Flamiatos, the opponent's asset engineer inspected the area they depicted. He measured the height differential on the pavers identified in the photographs as less than 10mm, probably around 6 or 7mm. He said that taking into account that the height differential occurred in the Mall the height differential where the claimant fell would have been rated as moderate. This meant, according to his Honour, that the opponent would not have "actioned it", meaning, I assume, that it would not have been repaired. 21 The primary judge accepted that if the opponent should, prima facie, have attended to the defect over which the claimant tripped, repairing it would not have been so difficult or costly as to render that course impractical. 22 At least 10 other falls in the Mall had been reported to the opponent from July 1997 up to and preceding the claimant's fall in July 2000. None of the falls were identified as having occurred in the same spot as the claimant's fall. The primary judge accepted that those falls were relevant to the issue of breach, but not that they necessitated a conclusion that the opponent had been negligent in not attending to the defect on which the claimant had tripped. He added that "on balance" he did not consider those falls materially assisted in the determination of the allegation of negligence made against the opponent. 23 The primary judge's conclusion that the claimant had not established that the opponent had been negligent was based on the propositions that the claimant was aware there were "differences in levels of the surface of the pavers" and that the difference in level where she tripped was apparent or obvious to pedestrians using the Mall and was something she might have been expected to notice. He concluded there was nothing unusual or unexpected in there being a section of pavement in the Mall with a difference in level between the pavers of probably less than 10mm and that, while inadvertence might be relevant in some cases, there was nothing to suggest inadvertence or momentary inattention assisted the claimant. 24 Mr P Semmler QC who appeared with Mr A Canceri for the claimant on appeal, but not at trial, submitted that leave to appeal should be granted because the primary judge had erroneously decided the case on the basis of obviousness of risk alone and had not paid sufficient attention to the particular circumstances of the case. He also submitted that the case involved a point of principle, which he acknowledged had not been raised at trial, which was that the Ghantous test (a reference to Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512) should not be applied in areas of high pedestrian traffic such as the Hunter Street Mall. Mr Semmler sought to argue that the case was more properly to be aligned with those concerning the liability of an occupier of a supermarket or a footpath on private land: cf Turnbull v Alm [2004] NSWCA 173. He acknowledged that he needed leave to raise the Ghantous point because it had not been relied upon at trial. 25 Mr M McCulloch SC who appeared with Mr G Hickey for the opponent on appeal, but not at trial, opposed the claimant being given leave to argue the Ghantous point. He contended that had the point been raised at trial the opponent could have adduced evidence concerning the status of the Mall within the opponent's road network "catalogue". He submitted, in essence, that the case had been conducted on the basis that Ghantous applied and that the opponent would be prejudiced if the claimant was permitted to argue the appeal differently. Mr Semmler acknowledged that there had been no attention given, at trial, to the question whether the Mall had any status different from that of the roads or footpaths vested in the opponent. He did not contest the proposition that the opponent would be prejudiced if his "new" point was raised. In the circumstances it would not be appropriate to permit the claimant to advance it: Suttor v Gundowda Pty Limited [1950] HCA 35; (1950) 81 CLR 418; Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491. 26 The claimant's remaining argument was that the primary judge paid too much attention to the obviousness of the risk and insufficient attention to the evidence of prior complaints of falls in the Mall. He submitted that, having regard to the number of complaints the opponent had received, and in circumstances where it was neither costly nor difficult to fix the unevenness in the Mall, the Council had to consider "whether something needs to be done about it". He argued that taking that factor into account, the Shirt balancing exercise should have led his Honour to conclude that the opponent had breached its duty of care. 27 In my view, the claimant's argument that the primary judge determined the matter on the basis of obviousness of risk alone cannot be sustained. The primary judge paid close attention to the evidence concerning the condition of the Mall and the opponent's evidence concerning the system it had for inspecting the Mall, for prioritising repairs of unevenness detected in the Mall and the budgetary constraints upon which it relied. His Honour accepted that the Mall was a high pedestrian traffic area and one he would generally consider was "something of a special category and somewhat unique in its character compared to other locations within the Council's area". To this extent, at least, his Honour does appear to have considered the Ghantous point on which the claimant sought leave to rely. In the light of that conclusion his Honour said that it was difficult to give overriding weight to the budgetary and other considerations governing the opponent's maintenance of its road network so that, if he was of the view the defect needed attention, "it would be difficult to escape a conclusion that it should have been attended to". 28 His Honour then carefully analysed the evidence concerning the nature of the height differential where the claimant had fallen and its visibility and reviewed the relevant authorities before holding that the claimant had not established that the opponent had breached its duty of care. 29 It is true that his Honour did not deal in detail with the evidence the claimant adduced concerning prior complaints about the condition of the Mall. As I have earlier said, his Honour did not regard that evidence as materially assisting him in determining the claimant's case. I do not accept that that meant his Honour paid no regard to those complaints at all, merely that he concluded that in all the circumstances the earlier complaints did not demonstrate that the opponent had failed to discharge its duty of care. 30 In my view that was a conclusion open to his Honour. The review of the evidence concerning the complaints which was undertaken in the course of argument demonstrated that upon receiving complaints of falls the opponent had inspected the area in question, to the extent it could be identified. In some cases where it had formed the view that the area was unsafe, it had repaired it including, on one occasion at least, relaying pavers. In another case, it had inspected the area and formed the view that repair was not required. Contrary to Mr Semmler's submission, the evidence concerning prior complaints demonstrated that the opponent had attended to them and determined the course to be pursued following an inspection of the area. Accordingly, while the issue of prior falls was relevant to the issue of reasonable foreseeability of injury (see Richmond Valley Council v Standing [2002] NSWCA 359; [2002] 127 LGERA 237 at [58]; Sutherland Shire Council v Pallister [2002] NSWCA 664) it was not determinative. While some guidance may clearly be drawn from these cases, in the final analysis, each case turns on its own facts: Vairy v Wyong Shire Council [2005] HCA 62 at [3] per McHugh J. In this case the primary judge was entitled to regard that evidence as one matter to be considered with all other factors on the issue of breach – including the comparatively slight nature of the height differentials, some sense of which can be gauged from Ms Barnett's report. 31 It was common ground between the parties that obviousness of risk was a factor to be considered on the question whether the opponent had breached its duty of care. That issue was analysed most recently in Vairy v Wyong Shire Council [2005] HCA 62 and Mulligan v Coffs Harbour City Council [2005] HCA 63 which, in turn, were reviewed in Consolidated Broken Hill Limited v Edwards [2005] NSWCA 380. In Edwards, Ipp JA (with whom Giles JA and Hunt AJA agreed) concluded (at [53]) that obviousness of risk "is a factor that is relevant to whether there has been a breach of the duty of care" and that "the weight to be attached to the obviousness of the risk depends on the totality of all the circumstances … [and that] in some circumstances it may be of such significance and importance as to be effectively conclusive". 32 Mr Semmler said that he did not accept Ipp JA's analysis but did not descend into any detailed criticism of its reasoning saying it was not necessary to the claimant's case to contravert it. Rather, he argued, that while obviousness of risk was an important consideration it did not, on the circumstances of this case, outweigh the other factors to which I have referred. 33 The question whether the difference in the height of the pavers was, or ought to have been, apparent to a class of pedestrians including the claimant was a matter which the primary judge was required to consider. His Honour's conclusion that, on the claimant and her son's evidence, the height differential ought to have been seen by her was open to him. 34 In my view, the claimant has not demonstrated any arguable error on the primary judge's part. His Honour did not give inappropriate weight to the issue of obviousness of risk. Rather, as I have outlined, he considered that issue in the light of all the circumstances including the location of the fall, the nature of the opponent's responsibility in a highly trafficked area and the practicality of remedying unevenness in the Mall. Notwithstanding, those matters he concluded that the opponent had not breached its duty of care because in all the circumstances the opponent's response to the risk of injury was reasonable when a person in the claimant's position ought to have been able to see and avoid the uneven paver. In my view, that was a conclusion open to his Honour on the facts and on the relevant legal principles. 35 I would refuse leave to appeal with costs. 36 BROWNIE AJA: I agree with McColl JA. ********** 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.