New South Wales Court of Appeal CITATION: Ainger v Coffs Harbour City Council [2005] NSWCA 424 HEARING DATE(S): 1 July 2005 JUDGMENT DATE: 5 December 2005 JUDGMENT OF: Mason P at 1; McColl JA at 2; Hunt AJA at 120 DECISION: (1) Appeal allowed (2) Set aside the verdict in favour of the respondent (3) Enter verdict and judgment in favour of the appellant (4) Respondent to pay the costs of the trial before Twigg DCJ (5) Remit the matter to the District Court of New South Wales for hearing on damages only (6) Respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled. CATCHWORDS: NEGLIGENCE – Council's non-delegable duty to take reasonable care that the exercise of its powers to carry out road works did not create a foreseeable risk of harm to a class of persons which included the plaintiff - reconstruction works commissioned by Council created an uneven section of footpath upon which a pedestrian tripped and fell - whether Council in breach of duty of care – COURTS AND JUDGES – statement of reasons for decisions – obligation to expose reasons for resolving a point critical to the contest between the parties - CONTRIBUTORY NEGLIGENCE – whether primary judge erred in finding pedestrian guilty of contributory negligence – inadvertence – DAMAGES – whether primary judge's reasons for assessing damages inadequate (D) Civil Liability Act 2002 LEGISLATION CITED: Suitors' Fund Act 1951 Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Buckle v Bayswater Road Board [1936] HCA 65; (1936) 57 CLR 259 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 Hill v Commissioner for Main Roads (NSW) (1989) 68 LGRA 173 Jones v Bradley [2003] NSWCA 81 Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 Mifsud v Campbell (1991) 21 NSWLR 725 Moylan v Nutrasweet Co [2000] NSWCA 337 Mulligan v Coffs Harbour City Council [2005] HCA 63 North Sydney Council v Lygon (1995) 87 LGERA 435 Parramatta City Council v Watkins [2001] NSWCA 364 Roads and Traffic Authority v Scroop (1998) 28 MVR 233 CASES CITED: Roads & Traffic Authority of NSW v Fletcher [2001] NSWCA 63 Roads and Traffic Authority of NSW v Palmer [2003] NSWCA 58 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sutherland Shire Council v Henshaw [2004] NSWCA 386 TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333 Temora Shire Council v Stein [2004] NSWCA 236 Thompson v Woolworths (Queensland) Pty Ltd (2005) 79 ALJR 904; [2005] HCA 19 Vairy v Wyong Shire Council [2005] HCA 62 Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 Webb v South Australia (1982) 56 ALJR 912 Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174 Woollahra Municipal Council v Moody [1913] HCA 21; (1913) 16 CLR 353 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 Zaronias v Papaiani [2002] NSWCA 207 Suzanne Lynda Ainger (Appellant) PARTIES: Coffs Harbour City Council (Respondent) FILE NUMBER(S): CA 40713/04 M J Cranitch SC/M Inglis (Appellant) COUNSEL: P R Cummings (Respondent) MBT Lawyers (Appellant) SOLICITORS: Hunt & Hunt Lawyers (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 125/01 LOWER COURT JUDICIAL OFFICER: His Honour Judge Twigg, QC IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40713/04 DC 125/01 MASON P McCOLL JA HUNT AJA Monday 5 December 2005 Suzanne Lynda AINGER v COFFS HARBOUR CITY COUNCIL The appellant was injured on 22 December 1998 when she tripped and fell on a lip created by an uneven paver in the footpath in Beach Street, Woolgoolga. She brought proceedings against the respondent, Coffs Harbour City Council, which was responsible for the care, control and management of the footpath. The Council had engaged Bomac Engineering (NSW) Pty Limited to undertake reconstruction work on the footpath earlier in 1998 (the "reconstruction works"). The reconstruction works involved, inter alia, laying pavers along a 300 – 400 metre length of footpath, which included the area where the appellant fell. The works were completed on 7 July 1998. Following completion, the respondent complained to Bomac about defects revealed after a final inspection of the reconstruction works, including pavers, which were higher than the adjacent concrete. The respondent directed Bomac that the pavers required "lowering to provide flush even walking surfaces". After another complaint to Bomac concerning (inter alia) trip hazards, which were "still present adjacent to pavers", the respondent terminated Bomac's contract and undertook rectification work itself. After doing so it accounted to Bomac for the balance of monies retained for that purpose. The respondent accepted that the lip constituted a trip hazard which was created at the time of the reconstruction works. The lip was fixed simply and inexpensively the day after the appellant's fall. The primary judge concluded that the respondent had not breached its duty of care because the footpath was constructed so that there was an acceptably small lip which must have been obvious to someone keeping a proper lookout for their own safety. In the event he was wrong on liability he assessed the appellant's damages as $56,844, which he would have reduced by 50% - the extent to which he would also have concluded the appellant had been guilty of contributory negligence. The appellant appealed, contending that the primary judge's reasons were inadequate and challenging his findings on liability, contributory negligence and damages. The respondent conceded that the primary judge's reasons for assessing damages were inadequate. HELD per McColl JA (Mason P and Hunt AJA agreeing) allowing the appeal and remitting the matter for hearing on damages: Adequacy of reasons 1 The primary judge was required to expose his reasons for resolving a point critical to the contest between the parties in a manner which would enable the parties to identify the basis of his decision and the extent to which their arguments had been understood and accepted. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156; North Sydney Council v Lygon (1995) 87 LGERA 435; Jones v Bradley [2003] NSWCA 81 applied; Zaronias v Papaiani [2002] NSWCA 207 distinguished. 2 The primary judge's failure to address the theory of the appellant's case gave rise to the inference that he failed to examine all the material relevant to the question whether the respondent had breached its duty of care so that there was an error in the process of fact finding. Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57I; (2005) 79 ALJR 1816; Moylan v Nutrasweet Co [2000] NSWCA 337; TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333 referred to. On liability 3 The Council owed the appellant a non-delegable duty to take reasonable care that the exercise of its powers to carry out road works did not create a foreseeable risk of harm to a class of persons which included the plaintiff. Roads and Traffic Authority v Scroop (1998) 28 MVR 233; Roads & Traffic Authority of NSW v Fletcher [2001] NSWCA 63; Roads and Traffic Authority of NSW v Palmer [2003] NSWCA 58 applied. 4 The respondent breached its duty of care because, in carrying out the reconstruction works, it created a foreseeable risk of injury to pedestrians and did nothing to rectify it in circumstances where it was on notice as to its existence and had the resources and capacity to remove it. Webb v South Australia (1982) 56 ALJR 912; Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 250; (2001) 206 CLR 512;Vairy v Wyong Shire Council [2005] HCA 62; Mulligan v Coffs Harbour City Council [2005] HCA 63; Hill v Commissioner for Main Roads (1989) 68 LGRA 173 at 181 referred to. On contributory negligence 5 The manner in which the appellant was walking did not support a finding that, allowing for momentary inadvertence, she failed to take reasonable care for her own safety. McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306; Bankstown Foundry v Braistina [1986] HCA 20; (1986) 160 CLR 301; Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 referred to. On damages 6 The primary judge's reasons for his assessment of damages were inadequate as he gave no reasons explaining why he preferred the respondent's medical evidence. Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430; TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333; Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174 referred to. ORDERS (1) Appeal allowed. (2) Set aside the verdict in favour of the respondent. (3) Enter verdict and judgment in favour of the appellant. (4) Respondent to pay the costs of the trial before Twigg DCJ. (5) Remit the matter to the District Court of New South Wales for hearing on damages only. (6) Respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled. ********** IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40713/04 DC 125/01 MASON P McCOLL JA HUNT AJA Monday, 5 December 2005 Suzanne Lynda AINGER v COFFS HARBOUR CITY COUNCIL Judgment 1 MASON P: I agree with McColl JA. 2 McCOLL JA: The appellant was injured on 22 December 1998 when she tripped and fell on the footpath in Beach Street, Woolgoolga. She brought proceedings against the respondent, Coffs Harbour City Council, which was responsible for the care, control and management of the footpath and also against Bomac Engineering (NSW) Pty Limited which had undertaken reconstruction works on the footpath earlier that year (the "reconstruction works"). In the course of the hearing the appellant's counsel asked the primary judge, his Honour P A Twigg QC, to enter a verdict in favour of Bomac with no order as to costs. The appellant's proceedings then continued against the respondent, however Bomac remained a party because the respondent had cross-claimed against it. 3 The appellant's claim failed. The primary judge entered a verdict against her for the respondent and Bomac, and a verdict for Bomac on the cross-claim. He ordered her to pay the costs incurred by both defendants except those agreed not to be paid. In the event that his conclusion on liability was incorrect, the primary judge assessed the damages he would otherwise have awarded the appellant at $56,844 which he would have reduced by 50% on account of the appellant's contributory negligence. Accordingly, if the appellant had succeeded, her damages would have been $28,422. 4 The appellant appeals on liability, contributory negligence and damages. There is no appeal from the primary judge's decision in favour of Bomac on the cross-claim. 5 The respondent filed what was described as a "Notice of Contention", but did not raise matters appropriate to such a document. Whatever this document was intended to achieve, it was not pursued. Statement of the case 6 On 22 December 1998 the appellant was walking east in Beach Street, Woolgoolga at about 1.50 pm. Her foot caught on a lip, approximately twelve and a half millimetres or three eighths of an inch deep, at the intersection of a row of brick pavers and a large aggregate section of the footpath outside a real estate agency, Coastland Real Estate, which was commonly referred to during the trial as "Don Clinch Real Estate". As she recounted the accident, she fell when: "I felt my foot catch on something and I fell forward … it was my right foot … I tried to stop my fall with my right arm … and I ended up on my back." 7 There was no issue at trial, or on appeal, that the cause of the appellant's fall was the fact that she caught her foot on the lip between the aggregate section of the footpath and the line of brick pavers. 8 She suffered a dislocated right shoulder, an injury to her right rotator cuff and torn muscles in her right elbow. She also claimed that her fall aggravated degenerative changes in her back and neck. 9 The appellant was familiar with the area as she was accustomed to taking a walk around Woolgoolga during lunch hour, during which she regularly traversed Beach Street. She gave evidence that she had observed throughout 1998 that the pavement in Beach Street was "being redone" and that there were road works. 10 The appellant was cross-examined by Mr Kelleher, counsel for the respondent at trial, concerning her observations of the area in which she was walking. The following exchange took place: " KELLEHER: Q. But you're familiar with the footpath is that right? A. I'm familiar with the footpath all around Beach and Market Streets, I've walked in that vicinity yes. Q. And that includes the area out the front of Clinchs Real Estate? A. I've walked in that vicinity yes. Q. You were well aware that there were pavers across the footpath? A. I saw feature pavers. Q. And I think you've seen exhibit K, that's the photographs that were tendered? A. Yes. Q. And you'd agree that there's some rough concrete work on either side of the pavers? A. Yes. … KELLEHER: Q. You agree that there's some rough concrete work on either side of the pavers there? A. That's correct. Q. And there are some height differentials between the pavers and the concrete work is that right? A. Yes. Q. You'd agree it's something you'd need to watch as you went over it is that right? A. If you were walking over it possibly. Q. And I suggest to you that in an area where you had a change in texture of the footpath it was incumbent upon you to watch where you were going is that right? A. Well, I can't be walking with my head down all the time. I just walk like I normally do, which I just walk straight ahead and sometimes you can't see things which are on the ground. … All I can say is I was just walking straight ahead. I was not looking down for any cracks on the ground but yes I was just walking as I normally would. HIS HONOUR: Q. Madam so that I understand, when you say 'walking' do you mean looking straight ahead? A. Well, when you walk down a street you look up, down, straight ahead - - Q. I didn't ask you what you normally do, I want you to explain your answer. Is that what you meant when you say 'I walked straight ahead'? A. Yes, I was walking straight ahead. Q. You looked straight ahead? A. And I was looking straight ahead, and just observing things around me. KELLEHER: Q. What, you weren't looking where you were going as far as the surface was concerned is that right? A. I would probably have been looking a fair way ahead but not as I was approaching things. Q. This was a clear open area is that right? A. Yes, it is. Q. One where you could easily see what was ahead of you is that right? A. Depends on your eyesight I guess. … Q. You could easily see the footpath ahead of you isn't that right? A. I could see the footpath ahead of me. Q. And you are aware of the change in texture of the footpath in this particular area is that right? A. I noticed the change of texture. Q. And as you told us earlier, you were familiar with the area? A. Not every square inch of it. No. … Q. You'd be passing Don Clinch Real Estate daily is that right? A. Not always in the same spot but yes, on that footpath. Q. And the pavers that are in that particular area you have been seeing them daily. A. I walk past that area on a fairly routine basis and I saw that area. I didn't notice the actual pavers. … Q. You agree that you didn't see the actual pavers is that right, didn't notice the pavers? A. I didn't notice the pavers No … Q. Didn't I suggest to you they were obvious to be noticed is that right? A. There was no obvious danger to me as I walking down that road, that path. Q. The pavers were obvious to be noticed isn't that right? A. I couldn't see any potential danger of the pavers as I approached. Q. Would you answer my question please, I didn't ask that you. The pavers were obvious as you approached them? A. Yes, they were obvious that there was a line of feature pavers. Q. It was obvious that there was a change of texture? A. I didn't notice any change of texture. Q. Well, you would – moved from concrete to pavers didn't you? A. Yes, I did. Q. And going across, you're aware that pavers frequently are of varying heights is that right? A. That's right. … Q. You've told us that there was a clear vision? A. Yes. Q. You knew there were pavers across the road at the area of Don Clinch Real Estate? A. They were across the pavement. Q. Yes. You're aware that as you've have told us, that pavers sometimes vary in height? A. Pavers can vary in height. Q. And I suggest that as you approached these particular pavers, there was nothing to prevent you from having a look at nature of the pavers? A. I'm not sure. Q. Well you've told us there was a clear vision isn't that right? A. Yes. There was a clear vision of the pathway ahead of me, yes. Q. What I suggest is that you just didn't keep a lookout is that right? A. I did keep a lookout. Q. Well you've told us you weren't looking at the pavers isn't that right? A. I wasn't looking at the pavers as I actually tripped on them. No. Q. Or as you approached them? A. As I was approaching them they didn't look dangerous to me. Q. As you were approaching them, you've told us you were looking straight ahead and not looking at the footpath. Isn't that right? A. I was looking at the footpath ahead of me at all times and around of me at people. Q. Being aware that pavers can vary in height, you didn't bother to look at these particular pavers is that right? A. They didn't seem – I didn't look at them because I didn't see any danger, at that time. Q. You didn't look at them is that right? A. Not as I tripped on them. No. Q. The reason you didn't see any danger is because you didn't look is that right? A. I looked ahead but as I looked ahead I couldn't see any danger. …. I looked ahead at the pavers but I couldn't tell from – with my eyesight – not just my eyesight, don't get me wrong I have good eyesight, but I couldn't see from straight ahead of me that there would be any danger. Q. Would you have a look at Exhibit K*, it is obvious that there was a difference in height between the pavers and the concrete isn't it? A. Yes, there is. … Q. And you had a clear vision ahead of you at that - of those pavers is that right? A. Yes I did." (emphasis added) * Exhibit K was a number of photographs of the scene of the accident. 11 Mrs Clinch worked in the real estate agency outside which the appellant fell and went to the appellant's assistance after the accident. She gave evidence that she had observed the reconstruction works being carried out in the first half of 1998. She noticed when the work outside her office was completed "… there remained a little lip of concrete above the level of the pavers in some of that area". She described the lip as approximately a metre in length and three-eighths of an inch deep. The parties accepted, presumably on the basis of Mrs Clinch's evidence, that the lip had existed since the completion of the reconstruction works. 12 Mrs Clinch said that in the six months prior to the appellant's fall she had observed three or four people "trip but recover themselves before they fell" on an area "close to the vicinity of the lip between the pavers and the concrete outside the real estate premises". 13 Senior Constable Corbett witnessed the accident. He was standing in the vicinity of the real estate agency facing as the appellant was walking towards him. He observed that she "appeared to just stub her toe on the pavement area and fell heavily to the ground". He also went to her assistance. When asked whether the dip in the pavers shown in a photograph of the accident scene was "obvious", he said: "Well there's a crack between the pavers and the concrete, that's quite obvious." When asked: "That's an area with the – rough edge concrete that you have next to the paver and the pavers – you'd be careful going over it, is that right?" he responded: "Well all I could say – you would certainly notice it." 14 Bomac had carried out the reconstruction works some months before the accident pursuant to a contract with the respondent. The work included laying pavers in the footpath along a length of 300 – 400 metres. Completion date was 7 July 1998. 15 The appellant tendered a number of documents produced by the respondent recording complaints about the quality of Bomac's work. By letter dated 16 July 1998 written over the hand of Mr Davison, the Director of Engineering, (exhibit N1) the respondent complained to Bomac of defects revealed after a final inspection of the reconstruction works including: "5. Many gaps have been left unfilled in the pavement, eg. National Bank wall, between exposed aggregate pavement and pavers at the crossing. … 11. Various pavers that are higher than the adjacent concrete require lowering to provide flush even walking surfaces. 12. Various pavers are tilted and twisted so as not to present an even finish." (emphasis added) 16 On 20 July 1998 Mr Davidson wrote to Bomac again complaining about the quality of the works (exhibit N2). The letter observed that the "quality of the finish seems to have dropped off over time" and pointed out: "... gaps between pavers and concrete have been filled and slurry allowed to spill over on the exposed aggregate. This has led to a loss of contrast and edge definition. Concrete edges abutting pavers are not straight, there were concrete droppings on the pavement, unfilled gaps, broken edges – all things considering, a disappointing job." 17 The letter also referred to an inspection which had taken place on 20 July 1998 during which outstanding defects were noted. Those defects were identified as: "Trip hazards are still present adjacent to pavers [the letter identified as examples areas which it was accepted did not refer to the area where the appellant fell]; … Cracked paver in front of Don Clinch Real Estate." 18 The letter directed Bomac to rectify the defects by 24 July 1998. 19 An internal memorandum dated 27 August 1998 from the respondent's records (exhibit N4) stated: "MATTERS OF AN URGENT NATURE Woolgoolga Town Centre Improvement Works… Cr Essex-Clark, the General Manager and Director of Engineering carried out an inspection of pavement reconstruction works in the CBD at Woolgoolga on 27 August 1998. The work is considered unsatisfactory and community members have requested that the Council rectify the situation. The General Manager advised that Council is withholding funds and will undertake rectification work at the cost of the Contractor." The words "Work programmed for week starting 7th September", a signature and the date "2/9/98" were written on the memorandum. 20 The respondent appears to have retained $6,000 of the contract monies to rectify defective work. On 31 August 1998 Mr Ford, the respondent's Works Manager, wrote to Bomac (exhibit N3) complaining that Bomac's "road pavement rehabilitation work" did not "conform with either the conditions of the quotation or normally accepted industry standards for such pavement construction". The letter identified several faults relating to pavement gravel depths, compaction tests, insufficient cross-falls and poor quality control of materials. It complained, "the pavement is not suitable for its intended purpose". It said that as "a result of these facts, together with the considerable inconvenience and road safety risks being experienced by Woolgoolga ratepayers using this section of the road" and Bomac's "poor response", the respondent terminated Bomac's contract. 21 Mr Davison wrote to Bomac on 2 October 1998 (exhibit N5) advising that the respondent had "completed the pavement works in Beach Street, Woolgoolga" and accounting to Bomac for the balance of the retention sum – an amount of approximately $1200. 22 Mr Boekman, a director of Bomac, gave evidence that the respondent had not questioned the pavers outside the real estate agency during the inspection prior to practical completion. 23 Mr Gilkinson, the respondent's works co-ordinator, gave evidence. He had occupied the same position in a relieving capacity in December 1998. He attended the scene of the appellant's accident. He observed a difference in height between the pavers and the concrete which he estimated to be 10 – 15 millimetres – approximately half an inch deep. He described it as "mid range trip hazard" because of its height. 24 In a report Mr Gilkinson provided to Jardine Australia Insurance Brokers dated 3 January 1999 (exhibit 1D 16) he stated (inter alia): "The footpath at the locality is a combination of concrete slabs separated by paving bricks. At the point where the accident occurred the pavers had sunk/subsided 10mm to 15mm below the level of the adjoining slab. The pavers had sand/water stains on both outer edges which can be seen in the photographs… I placed barricades around the trip hazard overnight. On the 23.12.98 Peter Winkler (council employee) went to the site and reinstated the paver that had sunk." 25 Mr Gilkinson said he identified the area where the appellant fell as potentially dangerous because somebody had tripped there. He arranged for two of the respondent's employees to fix the area, a task to which they attended to the following day. When asked why fixing the area where the appellant had fallen was "so urgent", he responded: "Because the trip was running across the footpath in the pavers and it was easier to pick up, and it was a quick – It wasn't a job where they'd be for a day." He also said he had people in the vicinity; it was a "quick job", a "smallish job". He agreed that the area was fixed simply and inexpensively. He said no complaints had been received in respect of the area prior to the appellant's accident. The respondent had used funds budgeted for footpath repairs to carry out the work. 26 Mr Gilkinson was responsible for organising the repair of trip hazards. In 1998 the respondent's system was that staff walked the footpaths and, if they saw lips, noted their size. If a trip hazard of more than 20 millimetres was identified it was fixed in priority to others. He said that there were "probably thousands" of areas with 10 to 15 millimetres lipping in the respondent's municipality in 1998. Such lips were rated as a "mid range priority" which meant that, if the budget allowed, the average time for dealing with them could be twelve months to two years. It was possible a trip hazard would be assessed more highly if it was in a "heavily trafficked" area. If a lip in a footpath caused a fall the respondent would look at it and, if recommended, fix it straight away. 27 Mr Gilkinson said the Council financed refurbishment work from a different source to its maintenance budget. He agreed that if the lip over which the appellant fell had been apparent at the time the reconstruction works were completed, it should have been picked up and, subject to circumstances, been rectified rather than awaiting somebody else in the Council to "come through and audit it later". 28 Mr Gilkinson said Mr Davison had retired in about 2002. He thought he was in Sydney. He said that Mr Ford, the works manager in 1998, would have become involved in the reconstruction works if there were defects. 29 Neither Mr Davison nor Mr Ford was called. The respondent did not explain their absence. The judgment below 30 At the end of the trial in May 2004, the primary judge reserved his decision. He delivered his judgment delivered on 9 August 2004. 31 His Honour identified the issues as being whether the respondent had failed to inspect these construction works adequately to ensure their safety for pedestrians, had had failed to ensure that Bomac completed the work to an acceptable standard, failed to ensure the pavers were level and had failed to warn pedestrians of the danger. 32 He summarised most of the evidence, although he did not refer to the entirety of the respondent's correspondence with Bomac. 33 His Honour reviewed a number of cases, including Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 250; (2001) 206 CLR 512 ("Brodie") and many decisions of this Court which could loosely be described as "footpath cases". Based on that analysis, he identified the primary question as whether the respondent owed "a foreseeable duty to the plaintiff to avoid a lip of about a half-inch or twelve and a half millimetres in the paver/concrete in Beach Street?" 34 His Honour summarised the parties' submissions. He recorded the appellant's submissions that the area where she fell had been under construction recently, that the state of the paver when she fell was as it had been left after that work was completed and that the lip had been repaired simply and inexpensively the day after her accident. 35 He noted that the appellant argued that the lip created a hazard, that there had been stumbles on it before her fall, that she was keeping a proper lookout "although not watching the pavement directly in front of her" and that the Council "knew or ought to have known that it created a hazard likely to be a danger to a pedestrian keeping a proper lookout for her own safety". He noted the appellant's reliance on Mr Gilkinson's evidence that he had classified the lip as a "trip hazard", had put barricades around it after the accident and had said that if it had been properly inspected by an engineer before the accident, it would have been "obvious to that observer". 36 Insofar as contributory negligence was concerned, his Honour recorded the appellant's submissions that she had been "walking normally, keeping a proper lookout and wearing appropriate footwear" and that "the real cause of her fall was the creation by the [Council] of a trip hazard, not any negligence by the plaintiff". 37 His Honour then recorded the respondent's argument that it did not owe a duty of care to protect the appellant from "an obvious unevenness in the lip of the paver that was twelve and a half millimetres", that such an unevenness did not create an unacceptable risk" and that "such a variation of height in the lip should generally be expected, particularly where the plaintiff had been aware for some time that there was a mosaic pattern created by the insertion of the pavers into the footpath". The respondent also submitted that there was an "obvious change of texture between the pavers and the concrete", that "many pedestrians had traversed it over the preceding six months without harm" and that "the plaintiff was looking further ahead and at people around her and not looking at the footpath". 38 His Honour, as the respondent conceded, then pithily reached his conclusions which I set out in their entirety: "I accept the submissions both of the First and Second Defendants, as I have outlined in detail. I cannot accept that the Plaintiff, if she was keeping a proper lookout, could have failed to observe and avoid a lip in a paver that was between 10 and 15 millimetres high and along a metre section. On her own evidence she was not watching where she was going. But, even if she was taking appropriate action for her own safety, such an uneven part of the footpath must have been obvious to her. There was no extraneous factor such as poor light to create any hidden aspect of the lip, and she was well acquainted with the area when she knew Council had authorised construction work earlier in 1998. The obligation on Council is to avoid the creation of a danger, but this footpath was constructed so that there was an acceptably small lip which must have been obvious to someone keep a proper lookout for their own safety. It follows that there must be a verdict for the First Defendant on the Plaintiff's claim. It further follows that there must be a verdict for the Second Defendant on the Cross-Claim. Damages In the event that I am held on appeal to be wrong I shall assess damages. I am of the view that, in any event, the extent of the contributing [sic – as in original] negligence of the Plaintiff is 50%. She was familiar with the area, she was not watching the area where the lip in the paver was in the concrete but she was looking ahead and at the people walking around her." 39 His Honour assessed the appellant's damages as $56,844 reduced, as I have noted, to $28,422 to take account of his assessment of contributory negligence as 50%. The appellant also complains this assessment as well as about the quantum of damages. Grounds of Appeal 40 The appellant's Amended Notice of Appeal contains nineteen grounds, not all of which were pursued either in written or oral submissions. The grounds which were pursued can be summarised as: (a) that the primary judge failed to provide adequate reasons for finding for the respondent; (b) that the primary judge erred in not finding the existence, and breach, of a duty of care owed by the respondent to the appellant; (c) that the primary judge erred in finding that (in the event he was held on appeal to be wrong in his finding a verdict for the respondent) there was contributory negligence on the part of the appellant to the extent of 50 percent; (d) that the primary judge failed to provide adequate reasons for his findings on contributory negligence. 41 There were also a number of grounds of appeal relating to damages. Consideration Adequacy of reasons 42 Mr Cranitch SC, who appeared with Mr Inglis for the appellant on appeal but not at trial, complains both that the primary judge erred in failing to examine all the evidence relevant to the question whether the respondent had breached its duty of care - so that there was an "error in the process of fact finding" - as well as that the primary judge failed sufficiently to expose the reasons for his decision in a manner which would facilitate appellate review: see Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [129] – [130] per Hayne J (with whom McHugh J at [26]) and Gummow J (at [27]) agreed; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 259 per Kirby P. 43 Mr Cummings, who appeared for the respondent on appeal but not at trial, accepted that it was incumbent upon the primary judge to expose his reasoning process, but argued that his Honour was not obliged to spell out every detail of the reasoning process he had pursued, nor to sift through all the evidence and analyse everything which was conceivably inconsistent with his findings and conclusions. He relied on Zaronias v Papaiani[2002] NSWCA 207 at [7] per Meagher JA. 44 Mr Cummings also argued that the primary judge had not simply accepted the respondent's submissions without explaining why he did so. He submitted that he had made "short, but pivotal factual findings which disposed of the conflict between each parties' position, which his Honour had carefully spelt out in his judgment". 45 The appellant's written submissions identified examples of evidence, arguably supportive of her case, which she submitted the primary judge had not dealt with adequately, if at all, in his reasons. Those matters included the evidence that the respondent had identified trip hazards in the area where she fell since at least 20 July 1998, that other people had tripped in the vicinity of the lip prior to the appellant's accident, that the respondent had retained money from Bomac to rectify trip hazards but had failed to rectify the lip over which she tripped, that the respondent identified the lip as a trip hazard after her fall and took immediate measures to repair it, that the personnel were, and "had been at all times", available to rectify the defect and that the area in which the accident occurred was a "high traffic area" with a traffic volume of up to 500 people per day. 46 Mr Cummings argued there was no evidence the respondent had identified trip hazards in the area where the appellant fell prior to her accident, that to the extent there was evidence of stumbles in the vicinity of the lip prior to the accident, those constituted a "vanishingly small percentage of footpath users" and that the lip had been rectified after the appellant's accident because there had been a trip on it and it was relatively easily fixed. Mr Cummings contended that, in this light, the matters the appellant contended the primary judge had failed to consider adequately were not inconsistent with his Honour's findings. Accordingly, the question as to whether he should have dealt with them in his reasons fell away. 47 Adequacy of reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 per Meagher JA. 48 The primary judge was not obliged to spell out every detail of his process of reasoning (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 171, 182), however he was obliged to expose his reasons for resolving a point critical to the contest between the parties: North Sydney Council v Lygon (1995) 87 LGERA 435 at 442 per Kirby ACJ; Soulemezis at 270 per Mahoney JA, at 280 per McHugh JA. This obligation lay upon him to enable the parties to identify the basis of his decision and the extent to which their arguments had been understood and accepted: Soulemezis at 279 per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 at [129] it was necessary that the primary judge " 'enter into' the issues canvassed and explain why one case was preferred over another". 49 Zaronias v Papaiani does not detract from these obligations. In that case Meagher JA (with whom Foster and Ipp AJJA agreed) said (at [7]) that where evidence was not absurd or self contradictory, the trial judge was not obliged to sift through all the evidence and explain at length why he rejected each item conceivably inconsistent with his decision. Zaronias v Papaiani concerned a trial judge's acceptance of a witness's evidence that he had told the deceased approximately 10 to 15 minutes before the accident that caused his death, that he was not needed on site. The appellant asserted that before the trial judge accepted that account he should have referred to "some evidence" that the time which elapsed between the conversation and the accident was 25-30 minutes. Meagher JA said (at [7]) "generally speaking", once the trial judge accepted the witness's account of the period which elapsed between the two events, and in circumstances where "it simply does not matter", he was under no obligation to explain why he did not accept the 25-30 minutes evidence. 50 In my view, the appellant's submission that the primary judge's reasons were inadequate should be accepted. 51 First, his Honour's pithily expressed conclusions did not do justice to the issues posed by the appellant's case: see Moylan v Nutrasweet Co [2000] NSWCA 337 at [61] per Sheller JA. 52 The appellant had argued below that the fact the lip had been created by the respondent as part of the recent reconstruction works and had not been repaired during rectification works out of monies retained from the contract for such purposes distinguished her case from other footpath cases. The evidence Mr Cranitch submitted the primary judge had not dealt with adequately went largely to this case. 53 Although the primary judge made passing reference to some of the evidence upon which the appellant relied, he gave no reasons for apparently according it little or no weight. Significantly, his Honour failed to address the theory of the appellant's case, turning as it did on the respondent's role in creating and failing to rectify the trip hazard she had encountered. This omission leads to the inference that he failed to examine all the material relevant to the question whether the respondent had breached its duty of care (see TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333 at [150] per Spigelman CJ) - so that there was an "error in the process of fact finding". 54 Secondly, his Honour failed to expose his reasons for resolving the breach of duty point in a way that would enable the appellant, in particular, to determine whether her arguments had been understood and why they had been rejected. Finally it is not possible to discern why his Honour preferred the respondent's case and rejected the appellant's. His reasons do not, therefore, facilitate appellate review. 55 The second ground of appeal should be allowed. 56 The parties agreed that if this conclusion was reached this Court could decide the issue of liability (see Beale at 444) to which I now turn. Liability: submissions 57 The essence of the appellant's case as developed by Mr Cranitch was: (a) the respondent's reconstruction works created a height differential which constituted an unacceptable trip hazard or a trap; (b) the height differential constituted an unacceptable trip hazard or trap both because the appellant had not noticed it and also because, prior to her accident, 3 or 4 other people had been observed to stumble in its vicinity; this conclusion could also be reached because Mr Gilkinson classified the lip as a trip hazard on the day of the accident; (c) the appellant knew the footpath had recently been reconstructed, and was entitled to assume as she progressed along it that the new footpath would be even; (d) alternatively and/or in addition to (c) the appellant progressed along the footpath taking reasonable care for her own safety and keeping a proper lookout; (e) the respondent knew or ought to have known, of the trip hazard because its officers had inspected the reconstructed pavement where the accident occurred prior to its occurrence; (f) the respondent ought to have rectified the trip hazard prior to the appellant's accident; (g) there were no economic factors militating against the repair of the trip hazard/trap both because the respondent had retained moneys from the Bomac contract to rectify such defects and, in any event, the evidence demonstrated that its repair involved little economic outlay; (h) there were no other resource issues involved as the evidence revealed personnel were available to rectify the trip hazard. 58 The respondent accepted that the lip constituted a trip hazard and that the appellant had tripped on it. It also accepted the primary judge's finding that the trip hazard had been created at the time of the reconstruction works. It argued that the fact a trip hazard existed in the footpath should not determine the matter in the appellant's favour. 59 Mr Cummings submitted that the reconstruction works were "a large job" and that the defects the respondent identified, which included having to remove and replace sections of the pavement and road surface, were substantial. He referred to the evidence that there were thousands of trip hazards of the proportion of the lip in the respondent's municipality. In that light he contended that a defect the size of the lip was insignificant, and was, as the primary judge found, "acceptably small". 60 Mr Cummings submitted that it was a matter of speculation whether the retention monies could have been applied to repair the lip. He argued that was, in essence, an irrelevant inquiry if the respondent had acted reasonably in the circumstances. 61 Mr Cummings argued that the lip was an acceptable risk because it was the sort of variation of height in a footpath which pedestrians could expect to encounter and with which they should be able to cope (Brodie) and, too, because the unevenness was obvious. He relied upon the fact that the lip occurred in an open area with nothing disguising, hiding or concealing it from pedestrians. He also submitted that the brick pavers should have alerted the appellant to a transition between two differently paved surfaces and, therefore, to the fact that she could not expect continuity in the footpath. 62 He contended that the appellant had not been keeping a proper lookout prior to her fall and that the lip would have been obvious to her if she had. 63 Mr Cummings sought to draw support for the respondent's case from Mrs Clinch's evidence that, notwithstanding her observation of the lip and the fact that she had seen several people stumble in its vicinity, she did not complain about it to the respondent herself. He submitted that that was consistent with the lip being the sort of matter commonly encountered in footpaths. 64 Insofar as the question of rectifying the lip was concerned, Mr Cummings submitted that the Court should take into account the strain on the respondent's resources if it was exposed to an obligation to repair the thousands of trip hazards which Mr Gilkinson said existed within the respondent's local government area. He argued that in considering whether it was reasonable, in respect of the particular trip hazard, for the respondent to have allocated scarce resources towards its elimination, the Court could take into account that lips of this dimension were a "common everyday avoidable risk". He contended that the respondent was not required to take steps to eliminate the lip in the footpath where it was "normal", visible and was not a hidden trap. 65 Finally, Mr Cummings argued that in the absence of express evidence from the appellant, she was not entitled to argue that her knowledge of the footpath's recent reconstruction meant she proceeded along it expecting it to be even. Liability: consideration 66 It was common ground that the respondent had the care, control and management of the footpath. Its liability, if any, for the appellant's injury, turns on principles of negligence: Brodie at [55]. It was obliged to take reasonable care that its exercise of its powers to design or construct roads, or carry out works or repairs upon them, did not create a foreseeable risk of harm to a class of persons (road users) which included the plaintiff. If the state of a roadway, whether from design, construction, works or non-repair, posed a risk to road users, then, to discharge its duty of care, it was obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk: Brodie at [150]; Vairy v Wyong Shire Council [2005] HCA 62 per Gleeson CJ and Kirby J (at [6]); per McHugh J (at [20]); per Hayne J (at [118]); cf Gummow J (at [73]). 67 The respondent's duty did not extend to ensuring the safety of road users in all circumstances. Whether it breached its duty of care turned upon evaluating the facts and circumstances disclosed by the evidence (Brodie at [151]; Vairy at [20] per McHugh J, Mulligan v Coffs Harbour City Council [2005] HCA 63 at [52] per Hayne J) by reference to the factors identified in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47 – 48 – in an exercise often referred to as the "Shirt Calculus", a characterisation criticised by Gleeson CJ and Kirby J in Mulligan at [27]. That evaluation must be undertaken not with the benefit of hindsight, but prospectively, "looking forward from a time before the occurrence of the injury giving rise to the claim": Vairy at [105], [127] and Mulligan at [50] per Hayne J. 68 In Brodie the first applicant was injured when he drove a truck owned by the second applicant onto a bridge constructed some 50 years earlier within the Singleton Shire. The truck weighed 22 tonnes and the bridge was adapted to bear a load of 15 tonnes. The timber girders failed, the bridge collapsed and the truck fell onto the creek bed below. At trial the applicants tendered evidence from the Council's files "indicating that it had been aware of the poor condition of the bridge" and had "within the recent past before the accident … carried out some repairs on it": Brodie (at [174]). The primary judge found that Council staff should have discovered that the girders on the bridge were "substantially affected by piping" at the time these repairs were carried out: Brodie (at [176]). He held that the evidence disclosed a case of misfeasance in the exercise of the power to repair and found for the applicants on the ground that the council had been negligent in failing to take steps to replace the girders. 69 Gaudron, McHugh and Gummow JJ concluded that the evidence disclosed "the conduct of periodic inspections but the failure to take in the course of those inspections reasonable steps to look for such dangers as might reasonably be expected to arise": Brodie (at [178]). 70 The Council had led no evidence as to liability and, in particular, did not lead evidence to rebut any "inference arising from the applicants' case that it knew the bridge was in a dangerous condition" or any "evidence of reasons why it could not or did not carry out further work on the bridge". In such circumstances Gaudron, McHugh and Gummow JJ said (at [180]) "… there was at least an evidentiary onus on the defendant to bring into contention the assertion that there were exculpatory economic circumstances which it might adopt as a shield": Hill v Commissioner for Main Roads (1989) 68 LGRA 173 at 181 per Samuels JA. 71 Accordingly, they concluded the primary judge's decision in favour of the applicants was supportable by the application of ordinary principles of negligence to the facts as found: Brodie (at [180] – [181]). Kirby J agreed: Brodie (at [249]). As the matter had been conducted below on the basis that liability was to be determined in accordance with the highway rule and there had been no challenge in the Court of Appeal to the primary judge's findings of fact, their Honours concluded (at [182]) that the matter should be returned to the Court of Appeal for further determination. 72 Brodie was heard and decided with Ghantous v Hawkesbury City Council, which concerned a pedestrian's bid to recover damages in respect of injuries she suffered when she tripped and fell when walking along a concrete footpath. She sued the council within whose municipality the footpath was located. The original construction of the footpath involved no negligence, but erosion had resulted in subsidence of the earth in some places so that the verge was about 50 mm below the concrete. The pedestrian had stepped aside to allow others to pass; she placed her foot so that it was partly on the concrete and partly on the lower verge and thus fell. The primary judge held that the council's failure to keep the verge in adequate repair constituted non-feasance and dismissed the claim. The Court of Appeal dismissed the plaintiff's appeal. All members of the High Court held that that decision was correct, albeit that they reached that decision by applying principles of the law of negligence. 73 In a now well-known passage Gaudron, McHugh and Gummow JJ emphasised the advantages pedestrians enjoy, saying (footnotes omitted): "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 The State of 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." 74 Kirby J eschewed (at [247]), as determinative of the issue of breach, "any enlarged assumptions about a pedestrian's need for vigilance for his or her own safety". He formulated the duty the Council owed a pedestrian as being "to construct the footpath in question and to keep it reasonably safe for ordinary use": Brodie (at [243]). He concluded that Mrs Ghantous had not demonstrated a breach of any such duty because she had not established "that the original construction of the footpath was negligent; that its design or state at the time of the accident was in any way inappropriate or a cause of her accident or that the respondent's exercise of its planning powers was defective": Brodie (at [244]). 75 In Kirby J's view ([246]) the sort of evidence which might render the "the Council liable to her momentarily because she took a false step" would include "evidence of poor original design [and/or] a history of previous accidents." 76 Gleeson CJ (at [6]) and Callinan J (at [355]) also commented on the fact that assuming a duty of care formulated by reference to principles in negligence, a pedestrian injured by falling on a road or footpath might not establish a breach of duty having regard to the common occurrence of uneven footpaths with which pedestrians should be able to cope might not successfully claim the responsible authority had breached that duty. 77 Callinan J concluded (at [355]) that there was no negligence on the part of the Council either in the construction of the footpath or in not keeping the concrete strip and verges level. Gaudron, McHugh and Gummow JJ (at [167]) agreed with his Honour's observations, adding (at [168]) that "the Council neither created or negligently continued a nuisance". 78 Following Brodie, a debate arose about whether the obviousness of a risk went to whether the respondent owed the appellant a duty of care or to whether any such duty was breached - a debate played out in this Court in Temora Shire Council v Stein and Sutherland Shire Council v Henshaw [2004] NSWCA 386. 79 Since Brodie the High Court has addressed the significance of obviousness of risk in Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; (2005) 79 ALJR 904 and, most recently, in Vairy and Mulligan. Ipp JA analysed the treatment of the issue of obviousness of a risk in those decisions in Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 and concluded (at [53]): "53 A common expression of principle as to the concept of obviousness of risk is manifest from the unanimous decision in Thompson and the judgments of those justices in Mulligan and Vairy who formed a majority on this issue. It can be articulated as follows. Obviousness of risk is not a phrase that denotes a principle or rule of the law of negligence. It is merely a descriptive phrase that signifies the degree to which risk of harm may be apparent. It is a factor that is relevant to whether there has been a breach of the duty of care. I make no comment as to whether it is relevant also to the existence of a duty of care as that was not in issue in this case (and see Ghantous and the comments of Gummow J in Vairy at [55] and [80]). The weight to be attached to the obviousness of the risk depends on the totality of all the circumstances. In some circumstances it may be of such significance and importance as to be effectively conclusive." Giles JA and Hunt AJA agreed with his Honour. 80 Ipp JA also took the issue of obviousness of risk into account on the issue of contributory negligence, albeit in the context of s 5R of the Civil Liability Act 2002: in Edwards at [64] – [67]. A plaintiff is guilty of contributory negligence if he or she exposes him or herself to a risk of injury which might reasonably have been foreseen and avoided and suffered an injury within the class of risk to which he or she was exposed: Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [16] per McHugh J. Obviousness of risk must go to this issue too. If it were determinative of liability in every case, then, as the Court observed in Thompson (at [37]), "there would be little room for a doctrine of contributory negligence". Creating the risk 81 The fact that the respondent created the lip over which the appellant tripped is central to resolution of the issue of liability. The respondent did not contend that it was not responsible for Bomac's defective work. Nor could it. Its duty of care was non-delegable: see Roads & Traffic Authority v Scroop (1998) 28 MVR 233 at 237 – 238; Roads & Traffic Authority of NSW v Fletcher [2001] NSWCA 63; (2001) 33 MVR 215 at [40] per Handley JA; Roads and Traffic Authority of NSW v Palmer [2003] NSWCA 58; (2003) 38 MVR 82 at [151] per Spigelman CJ (with whom Handley JA agreed, subject one non-germane matter) and see, too, Giles JA at [248]. 82 Even when the highway rule (which Brodie relegated to history) prevailed, a road authority which created dangers by new work was guilty of misfeasance and responsible for any resulting damage (Woollahra Municipal Council v Moody [1913] HCA 21; (1913) 16 CLR 353 at 358). If the danger created was such that it could have been avoided by the use of reasonable care and skill, the authority was liable upon ordinary principles of nuisance and negligence: Buckle v Bayswater Road Board [1936] HCA 65; (1936) 57 CLR 259 at 283 per Dixon J. 83 Brodie recognised the road authority's responsibility for original construction. Gaudron, McHugh and Gummow JJ referred (at [54]) with apparent approval, to Webb v South Australia (1982) 56 ALJR 912 in which the plaintiff injured his foot by reason of the defendant's "artificial construction" in the highway, and recovered damages in negligence. After saying that the content of the defendant's duty of care was to be determined in accordance with Wyong Shire Council v Shirt, Mason, Brennan and Deane JJ said (at 913): "The respondent created the danger by its artificial construction in the highway. In this situation the application of a reasonable standard of care calls for the elimination of risk of injury to users of the highway presented by that artificial construction, the more so where elimination of the risk can be achieved without undue difficulty and expense. It is well established that it is the duty of highway authorities to keep '… the artificial work which they [have] created in such a state as to prevent its causing a danger to passengers on the highway which, but for such artificial construction, would not have existed, or, at the least, of protecting the public against the danger …' ( Borough of Bathurst v Macpherson (1879) 4 App Cas 256 at 265; Thompson v Mayor, etc of Brighton [1894] 1 QB 332 at 339 see also; Buckle v Bayswater Road Board (1936) 57 CLR 259 at 283–4). It would not be right or reasonable for a highway authority to ignore a risk of injury, which it has created by its artificial construction in the highway, if it entails a possible risk of injury to pedestrians which, though small, is not fanciful or far-fetched." Their Honours concluded that the highway authority had breached its duty of care to the pedestrian. 84 In Brodie all members of the High Court regarded the fact that Mrs Ghantous had not demonstrated negligence in the original construction of the footpath as significant in determining whether the Council had breached its duty of care: see Gleeson CJ (at [5]), Gaudron, McHugh and Gummow JJ (at [167]), Kirby J (at [244], [246], Callinan J (at [355]) (with whom Hayne J at [339] agreed). Footpath cases 85 Mr Cummings provided the Court with a summary of what he called "the footpath cases", which purported to analyse this Court's decisions since Brodie in claims for damages arising from trips and falls on footpaths. He said that the analysis was "inspired" by the passage from Bryson JA's judgment in Sutherland Shire Council v Henshaw (at [70]) in which his Honour said that "[a]s a generalisation, cases based on tripping hazards where there are height discrepancies in the order of 25mm or 1 inch between otherwise regular paving slabs generally do not succeed; discrepancies treated as tripping hazards are usually greater and often are highly irregular or have some other unusual features." Mr Cummings submitted, based on his analysis of analogous footpath cases that his Honour's generalisation was correct". 86 It is important to bear in mind, as Gleeson CJ and Kirby J emphasised in Vairy (at [2]) that "decided cases in this area are fact-sensitive, and it is a sterile exercise, involving a misuse of precedent, to seek the solution to one case in decisions on the facts in other cases"; see also McHugh J (at [21]). That is not to say that there may be no reference to cases involving like facts. They "may give guidance in identifying the issues to be resolved, and the correct legal approach to … [their] resolution". This assists in maintaining judicial consistency. But in the final analysis, each case turns on its own facts: see Vairy (at [3]) per Gleeson CJ and Kirby J (at [31] per McHugh J). 87 Such a summary cannot be used, as Mr Cummings sought, to found the conclusion that the respondent had not breached its duty of care by leaving a 10 – 15 millimetre lip in situ. The case stands or falls on the facts and circumstances disclosed by the evidence assessed in the light of the respondent's duty to take reasonable care for the appellant's safety. Decision 88 The evidence established that the respondent created the trip hazard, was or ought to have been aware of its existence and took no steps to rectify it using available funds and personnel. 89 The respondent's employees who conducted the final inspections of the reconstruction works as requiring rectification identified trip hazards of this nature. Significantly Mr Davidson wrote to Bomac on 16 July 1998 complaining about pavers being higher than the adjacent concrete and saying they required lowering to provide "flush even walking surfaces". In his letter of 20 July 1998 he drew Bomac's attention to the fact that trip hazards were still present adjacent to pavers. He also complained of a cracked paver in front of Don Clinch Real Estate. It might be accepted, as Mr Cummings emphasised, that Mr Boekman's evidence was that the lip outside the real estate agency was not identified during the inspections, however, it is reasonable, in my view, to infer from that correspondence that the respondent was concerned that the rectification works should have resulted in an even footpath so that all areas where pavers were higher than the adjacent concrete constituted trip hazards and required rectification. 90 I am fortified in drawing this inference by the fact that the respondent classified height differentials of 10 – 15 millimetres as mid-range trip hazards, and had a policy to repair them. It would confound commonsense to conclude that, notwithstanding the intended contractual outcome and that policy, it acted reasonably in leaving a mid-range trip hazard to await possible repair pursuant to that policy – especially one located in a busy part of the shopping area. The respondent's system of classifying trip hazards (and common sense) demonstrated that the lip exposed pedestrians to a possible risk of injury which was not far-fetched or fanciful. 91 Although the respondent originally directed Bomac to rectify the defects it had identified, it subsequently undertook that rectification work itself, applying a portion of the retained contract monies to that exercise. It did not rectify the trip hazard which caused the appellant to fall. It accounted to Bomac for moneys which, having regard to Mr Gilkinson's evidence that repairing the lip was inexpensive, it can be inferred could have been applied to rectify the trip hazard outside Don Clinch Real Estate. The internal Council documents also demonstrated that Council personnel were available to rectify the defects in the reconstruction works in early September 1998. By the time the Council wrote to Bomac on 2 October 1998 it had purportedly completed the task. 92 As in Hills case, the evidence called by the appellant cast an evidentiary onus on the respondent to assert, if it could, that there were reasons, including economic circumstances which militated against it rectifying the trip hazard. No such evidence was called. Evidence was called of the policy of identifying trip hazards in the ordinary course of events – but that evidence did not meet the case the appellant advanced that the respondent was on notice of its defective reconstruction works and had the immediate resources to rectify it. 93 The evidence discloses that the respondent had determined that the reconstruction works should leave a "flush even walking surface". This was a responsible position, recognising, as is commonsense, that allowance must be made for a pedestrian's inadvertence: Brodie (at [160], [163]); Thompson; Webb at 913. The respondent first directed Bomac to achieve that outcome at the intersection of pavers and concrete. It is plain that it did not regard the pavers as sufficiently marking a transition with the concrete surrounds as to make it "obvious" let alone constitute a "warning of the possibility of trip hazards": cf Brodie (at [90]). It took over the rectification work from Bomac. I cannot accept Mr Cummings' submission that it was reasonable not to repair the lip having regard to the size of the reconstruction works. In fact the reconstruction works were relatively modest at (300 – 400 metres long); they were the subject of detailed inspection; trip hazards were identified. No explanation was proffered for not repairing this one. Absent any such explanation the conclusion is open that there is no reason that work could not have been done during the rectification of the defective reconstruction works: Hill at 181. 94 The appellant established that it would have required little expense, difficulty or inconvenience to the respondent to ensure that outcome. The respondent did not establish that there were any other competing or conflicting responsibilities or commitments to prevent it from ensuring the footpath was even. 95 This was a case of defective reconstruction works. The respondent created a foreseeable risk of injury to pedestrians in the reconstruction works and did nothing to rectify it in circumstances where it was on notice as to its existence and had the resources and capacity to remove it. This was not a case where it was open to the respondent to do nothing. It could not turn a blind eye to the risk it had created. The action it took immediately after the appellant's fall to rectify the hazard was a recognition of the danger it posed. There was nothing to prevent it, on the evidence, having taken steps to prevent the lip remaining a source of risk prior to the accident when it was rectifying other defects in the reconstruction works: Brodie (at [159]). In my view, the exercise of reasonable care required it to remove the lip at that time. Its failure to do so constituted a breach of its duty of care. Contributory negligence 96 Mr Cranitch submitted that the primary judge failed to give adequate reasons for his findings on contributory negligence and, in particular, failed to address the issue of whether or not she was merely inadvertent and, therefore, not guilty of contributory negligence: McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306; Bankstown Foundry v Braistina [1986] HCA 20; (1986) 160 CLR 301. He also submitted the assessment of contributory negligence as being 50% was erroneous. 97 Like his conclusion on liability, his Honour's conclusion on contributory negligence was succinctly expressed. He said: "I am of the view, that in any event, the extent of the contributory negligence of the Plaintiff is fifty percent. She was familiar with the area, she was not watching the area where the lip in the paver was in the concrete, but she was looking ahead and at the people walking around her." 98 Mr Cranitch submitted that if the lip was a hidden trap, there could be no contributory negligence but that, in any event the appellant's failure to see and avoid the lip constituted excusable inadvertence. This submission sought, albeit not expressly, to draw on the observations in the joint judgment in Brodie (at [88]) that a road authority may have been guilty of misfeasance if it "created a false sense as to the security or safety of a road … [if] its work … created or maintained a 'trap' by creating an appearance of safety, or at least uniformity across its surface, which could readily mislead …". I cannot accept the lip was a "hidden trap". The pavers made it apparent the surface was not uniform, so that different levels might be encountered: see Parramatta City Council v Watkins [2001] NSWCA 364 at [27] per Hodgson JA. 99 The appellant's evidence concerning the manner in which she walked along Beach Street prior to her accident was, in my view, consistent with the manner in which most pedestrians would have approached that exercise. She was "looking straight ahead, and just observing things around me", she accepted that the pavers were "obvious", that pavers can vary in height, she had a clear vision of the pathway ahead of her but she "wasn't looking at the pavers as [she] actually tripped on them". She said she was "looking at the footpath ahead of me at all times and around of me at people". She said she did not look at the particular pavers because she "didn't see any danger, at that time". She accepted when she looked at photographs of the pavers that there was a difference in height between them and the concrete. 100 It is appropriate, in my view, to understand the primary judge's consideration of the issue of contributory negligence as having taken into account his conclusion on the principal issue of liability that "such an uneven part of the footpath must have been obvious to her". 101 With the respect to the primary judge I do not accept that that is so. True the dimensions of the lip were characteristic of the uneven surfaces pedestrians ought expect to encounter: Brodie (at [6] – [7]). That does not mean, however, that the lip was "obvious" in the sense that it was readily apparent to the naked eye. It might be thought that one of the reasons it was identified as a "trip hazard" by the respondent was because it was of sufficient dimensions to lead to a person stumbling on it but, not, of such dimensions that it was readily apparent. 102 The primary judge's conclusion on contributory negligence also proceeded from the premise that the appellant "was not watching the area where the lip in the paver was in the concrete …". In my view that indicates error on his Honour's part. There is no principle of law, or even of commonsense, which dictates that pedestrians are required to walk, head down scouring the footpath for any possible unevenness which may cause them to trip. The law allows for inadvertence. 103 The respondent sought to draw some comfort from Senior Constable Corbett's evidence but that evidence (which I have already set out) did not support the conclusion that the dip was "obvious" but, rather, that "you would certainly notice" the concrete edge next to the pavers. Mr Cummings conceded that answer was equivocal. 104 The photographs of the area where the appellant stumbled afford little assistance in determining the question whether a reasonable pedestrian would have seen the lip. Two are taken at right angles to the line of pavers, while those taken front on appear to be taken from the level of a pedestrian's knees (Ex K1) and in the other case (Ex L1) from an ant's perspective. 105 I am not satisfied that the evidence established anything other than, possibly, momentary inadvertence on the part of the appellant. The evidence of the manner in which the appellant was walking did not, to my mind, support a finding that she was, in any relevant respect, failing to take reasonable care for her own safety. 106 In my view, the primary judge erred in concluding that the appellant was guilty of contributory negligence. Damages 107 Although the parties were content that the issues of liability and contributory negligence be dealt with in this Court, Mr Cranitch accepted that if error was demonstrated in the primary judge's assessment of damages, that issue would have to be remitted to the District Court. 108 The appellant complained that the primary judge had not explained why he had preferred the respondent's medical evidence or why he had discounted and/or ignored the appellant's evidence concerning her symptoms. In this respect, the appellant complained that the primary judge's reasoning infringed the authorities concerning reasons to which I have already referred as well as Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174 which concerned the judicial obligation to give reasons when resolving issues between experts. 109 The respondent reiterated in its written submissions that it conceded that the primary judge had fallen into error in not explaining the reasons he preferred its medical evidence. It contended that, nevertheless, the primary judge's preference for its medical evidence was supported by that evidence and that, taking that evidence into account, the primary judge's damages assessment should not be disturbed. 110 The respondent's frankness is to be commended. The parties have a far better understanding of the medical issues than this Court can obtain from a mere perusal of the transcript and the competing medical reports. In such circumstances the respondent's concession that the primary judge's reasons for assessing damages were inadequate supports a prima facie finding of a miscarriage of justice: Beale (at 431; TCN Channel Nine Pty Ltd v Anning at [149] – [151]; Wiki at [56]). 111 It is, of course, not every case in which there are inadequate reasons that either appealable error will be found to have occurred or that a new trial will be ordered. 112 The appellant's written submissions again complained that the primary judge failed to provide adequate reasons in relation to damages. This complaint (albeit that it was not translated into a ground of appeal) was, somewhat surprisingly, echoed in the misnamed Notice of Contention to which I have already referred in which the respondent stated that the primary judge had erred in not explaining why he had preferred its medical evidence to the appellant's. 113 The appellant's case at trial was that as a result of the accident she had injured her right arm, shoulder and elbow and exacerbated a pre-existing injury to her right shoulder. Her uncontradicted evidence was that prior to the accident she had led an essentially normal existence so far as her shoulder was concerned but, thereafter, her shoulder had been symptomatic to the extent that she was unable to perform a significant number of her daily activities. She led evidence that the limitations caused by the accident resulted in a need for modification to her premises and that she was unable to perform secretarial duties to the extent to which she had been prior to her injuries. 114 The primary judge found that the appellant had been leading a normal life prior to the accident and that the injuries she suffered aggravated her pre-existing injury. After reciting some medical evidence (principally the respondent's) he said he preferred the respondent's medical assessments. On this basis he concluded the appellant was capable of returning to her future employment, did not need home modifications or future care. The appellant led medical evidence that she suffered continuing limitations because of the injuries she suffered in the accident. The primary judge gave no reasons for preferring the respondent's medical evidence. 115 The appellant complains that the primary judge failed to take into account the symptomatic problems she encountered which limited her activities. It was those symptomatic problems, the appellant contended, which supported her claim for ongoing treatment and care. 116 In this case, however, it is apparent from the judgment below that the primary judge gave no reasons for how, if at all, he reconciled the appellant's complaints about her ongoing limitations with his acceptance of the respondent's medical evidence. In view of the fact that the respondent's case included video evidence (another piece of evidence with which the primary judge did not expressly deal), it would not be open to this Court to reassess damages. Nor am I of the view that the only conclusion open on the evidence available at trial concerning the appellant's medical condition was that reached by the trial judge: cf Beale (at 444). 117 The result is that the appeal should be upheld and the matter remitted to the District Court for assessment of damages only. 118 The primary judge ordered the appellant to pay all the costs incurred by both the respondent and Bomac except those which it had been agreed she should not pay. He made that order because he was satisfied that it was appropriate for the respondent to cross-claim against Bomac, particularly as the appellant had joined Bomac as the second defendant and only withdrawn that claim when the evidence closed. The order the appellant's counsel asked the Court to make in that respect was to enter a verdict for Bomac against the appellant with no order as to costs. Having regard to that order the respondent cannot maintain the costs order the primary judge made in its favour against the appellant that she pay Bomac's costs. Orders 119 The following orders should be made: (1) Appeal allowed. (2) Set aside the verdict in favour of the respondent. (3) Enter verdict and judgment in favour of the appellant. (4) Respondent to pay the costs of the trial before Twigg DCJ. (5) Remit the matter to the District Court of New South Wales for hearing on damages only. (6) Respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled. 120 HUNT 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. 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