New South Wales Court of Appeal CITATION: Bartolo v Owners of Strata Plan No. 10535 & 2 Ors [2005] NSWCA 256 HEARING DATE(S): 2 June 2005 JUDGMENT DATE: 5 August 2005 JUDGMENT OF: Santow JA at 1; Tobias JA at 41; McColl JA at 42 DECISION: Appeal allowed. (see orders at [40]) CATCHWORDS: PROCEDURE - Application of Civil Liability Act 2002 as amended by the Civil Liability Amendment (Personal Responsibility) Act 2002 to re-trial. - LIABILITY AND DAMAGES - Appellant unsuccessfully sought damages when he caught his foot in raised concrete lip and fell while carrying a ladder in a driveway between two blocks of flats - Whether risk reasonably foreseeable - duty of care of occupier to invitee on domestic site for occupier's benefit as compared to highway authority's duty of care to pedestrian - whether new trial should be ordered because of failure by trial judge to disclose process of reasoning. Civil Liability Act 2002 as amended by the Civil Liability Amendment (Personal Responsibility) Act 2002 LEGISLATION CITED: District Court Rules Pt 8 r11(3) Suitors' Fund Act, 1951 Bathurst City Council v Cheesman [2004] NSWCA 308 Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Buckle v Bayswater Road Board (1936) 57 CLR 259 Hastings Council v Giese [2003] NSWCA 178 Peakhurst v Fox & Ors [2004] NSWCA 74 CASES CITED: Phillis v Daly (1988) 15 NSWLR 65 Richmond Valley Council v Standing (2002) NSWCA 359 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Turnbull v Alm & Anor [2004] NSWCA 173 Wyong Shire Council v Shirt (1980) 146 CLR 40 David Troy BARTOLO (Appellant) THE OWNERS OF STRATA PLAN No. 10535 (First Respondent) PARTIES: THE OWNERS OF STRATA PLAN No. 16897 (First Respondent) [discontinued] OLOLA INVESTMENTS PTY LTD (ACN 000 113 815) (Third Respondent) SHIN PROPERTIES PTY LTD (ACN 008 432 004) (Fourth Respondent) FILE NUMBER(S): CA 40334/04 S NORTON, SC/ E WELSH (Appellant) COUNSEL: L KING, SC/ A C CASSELDEN (Respondents) Bryden's Law Office (Appellant) SOLICITORS: Henry Davis York (Respondents) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 7511/02 LOWER COURT JUDICIAL OFFICER: O'Reilly DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40334/04 DC 7511/02 SANTOW JA TOBIAS JA McCOLL JA 5 AUGUST 2005 David Troy BARTOLO v THE OWNERS OF STRATA PLAN No. 10535 & 2 Ors Judgment 1 SANTOW JA: INTRODUCTION The appellant, David Troy Bartolo, unsuccessfully sought damages for injuries occasioned when he fell in a driveway between two blocks of flats, catching his foot in a raised lip some two inches high. The appellant commenced his action by Statement of Claim dated 26 September 2002. It is brought against the first and second defendants, being the respective owners of two strata plans respectively No. 10535 and No 16897 corresponding to the two adjoining strata title buildings on either side of the driveway. Subsequently an amended Statement of Claim dated 4 July 2003 replaced it. To the first and second defendants it adds the third and fourth defendants, respectively Olola Investments Pty Ltd and Shin Properties Pty Ltd, owners of the relevant land. 2 Prior to the trial, the appellant discontinued his proceedings against the then second defendant (the Owners of Strata Plan No. 16897). That left three respondents. The first respondent is the first defendant under the original Statement of Claim of 26 September 2002. The remaining two respondents were and remain Olola Investments Pty Ltd and Shin Properties Pty Ltd (referred to however as the third and fourth respondents). Both, by virtue of Part 8 r 11(3) of the District Court Rules, are taken to have had action commenced against them on 4 July 2003. 3 The relevance of these procedural steps is this. The Civil Liability Act 2002 ("the Act") as amended by the Civil Liability Amendment (Personal Responsibility) Act 2002 commenced on 6 December 2002. By virtue of clauses 2 and 6 of Schedule 1 to that Act its provisions on damages apply to all three defendants whereas the provisions on liability apply only to the two defendants (and now third and fourth respondents) subsequently joined on 4 July 2003. They do not apply to the first defendant and now first respondent, since the proceedings were commenced against it prior to the commencement of the Act. The trial judge, O'Reilly DCJ, did not deal with the application of the Act on the basis that it did not seem to be "debated in the pleadings"; see judgment at Red, 14F-M. This was, with respect, in error. The Act as a statute necessarily applies of its own force, whether or not expressly invoked in the pleadings. However, application of the Act played no part in this appeal. It remains only to note that, should this appeal result in an order for a new trial, as I would conclude (this being the only order sought in that behalf by the appellant), the Act would have potential application in the manner I have described. 4 The central questions in this appeal concern: (a) whether the trial judge had erred in finding the relevant defendants were not in breach of any duty to the plaintiff; (b) whether the trial judge erred in his application of the authorities to which the court was referred; (c) whether the trial judge erred in finding the risk was "obvious" on the evidence before him, and (d) whether the trial judge failed to disclose sufficient reasons and/or a logical reasoning process. SALIENT FACTS 5 The salient facts were essentially not in dispute save that there was dispute as to whether any over-shadowing of the relevant part of the driveway had been established by the appellant, contrary to the finding of the trial judge that it had not. I set out below the relevant circumstances. 6 The appellant, David Bartolo, was employed by Vision Stream. His job involved attending premises to install cables for cable television. At the time of the accident he had been working for this company for five years, attending various premises including with ladders. 7 On the 31 October 2000 at about 10am, the appellant attended premises at 174-180 New South Head Road Edgecliff with two co-workers to install cables in a unit. He had never been in those premises before. 8 The Appellant was required to walk up the right hand side of a driveway situated between the buildings at No 174 and No 164 and used by both pedestrian and vehicular traffic (see Exhibit A, Combined, 37). It constituted a right of carriageway giving access to three separate blocks of units. Because it was shared by both pedestrian and vehicular traffic, his walking to the right of the driveway is readily explicable. As he walked up the driveway he was within one or two feet of the cars parked on the right. It was put to him that there would be no relevant shadow on the right hand side (the eastern side of the driveway) but he disagreed with that (Red, 16R). There were no photos taken in the morning at a time of about 10am. He gave as his experience that in his work he had walked along many driveways, and that if there were imperfections such as height differentials, they were shown usually by yellow lines. His evidence was that he had not seen a footpath similar to this one before (Red, 16M). 9 The photographic evidence clearly depicts the condition of the driveway. The appellant gave evidence that the state of the driveway as depicted in the photographs was in the same condition as at the date of his accident (T, 21V). The driveway was constructed of different sized concrete sections. The photographs show that it contained a number of raised lips at the junction where each of the concrete sections meet (Exhibits C, D; Appendix C). One can also see that the concrete driveway is uneven and contains fractured and worn concrete sections (exhibits A-D, F and G). 10 As he walked up the driveway, the appellant was carrying a 10-foot ladder over his left shoulder and walking behind his two co-workers. He was taking care that the ladder did not strike his co-workers walking in front of him (T, 8.25). He had to avoid cars coming down the driveway and those which were parked on its right-hand side (T, 5.30 and 22.5), factors emphasised by the respondent as going to the likelihood that he might not have seen the raised lip below and in front of him. However, he earlier gave evidence that his vision was not obscured by the ladder (T, 21), "You always make sure when you're carrying a ladder in front of you to make sure there's no people, or obstructions or whatever …" (T, 8K). He rejected the proposition that if he were keeping a proper lookout he would have been able to avoid the raised lip (T, 25N). 11 As the appellant made a right hand turn between the bollards shown in Exhibit C (Combined, 39), he glanced towards the two men ahead of him when his left foot became 'hooked' behind a lip in the concrete paving and he "tripped and went down" (Judgment, Red 15C). As he started to fall, he put out his right arm and as he fell the ladder came down on top of him. 12 The height differential between the two sections of concrete where the appellant tripped was 51mm or approximately 2 inches (Judgment, Red 13S; see also Exhibit D (Combined, 40), Exhibit F (Combined, 88) and Exhibit G (Combined, 89). It ran the length of the driveway. The appellant was cross-examined to suggest that the height differential was completely obvious and should have been picked up by him if he was keeping a proper lookout, but he rejected that proposition (Red, 16J). 13 The appellant developed neck pain, for which he has been receiving medical attention. 14 The appellant returned to work for a few months between April and October 2001 (transcript, Combined, 12N), but has not worked since November 2001 (Judgment, Red, 15R). The first instance Judgment 15 The trial judge made a number of findings of fact or mixed fact and law. In order properly to lay out the reasoning process followed by the trial judge I shall set out these findings below. I do so in part to appraise one of the grounds of appeal, namely failure to disclose sufficient reasons and/or a logical reasoning process. 16 The trial judge found that it was "quite obvious" that the concrete driveway was "not in good condition at all" (Judgment, Red, 13F). 17 The trial judge found it "a little surprising" that the appellant had not seen the state of the driveway, but appeared to accept his evidence that he was "there to do a job, not look for broken concrete and uneven concrete" (T, 22T) (Judgment, Red 16F). 18 The trial judge appears to have accepted that the Appellant developed neck pain, but made no finding as to whether this was a simple soft tissue injury which has failed to resolve or something else such as a tear in the tendon (Judgment, Red, 15L). Damages were, however, not in issue on this appeal, in the sense that the respondent acknowledged that, if the appeal resulted in a new trial on liability, it would necessarily involve a retrial on damages as well. 19 The trial judge made no findings as to whether shadows may have obscured the concrete lip. The photographs in Exhibits A-G (Combined, 37-40, 88-89) were taken at different times of the day and different months of the year from the time of the accident. The trial judge concluded that "in the absence of photographs taken early in the morning, of the order of 10am, I find it very difficult to do much with the suggestion that there were relevant shadows. The ordinary experience of mankind is that, early in the morning, there is not much in the way of shadows." (Red, 16T-X). 20 The trial judge evidently accepted the evidence of Rebecca Mansfield, who has owned a flat in the block for five years, to the effect that: (a) she regularly used the entrance in question, including to move furniture; (b) she had "never had any mishap"; (c) she had never noticed the concrete lip before; (d) she had not noticed any change in the area in the last five years (Red, 17E). However, I interpolate that the familiarity of an adjoining resident is not necessarily to be attributed to a visitor for the first time invited to carry out work. 21 The trial judge's conclusions appear primarily to be based on Ghantous v Hawkesbury City Council (2001) 206 CLR 512 (Red, 19S) and Hastings Council v Giese [2003] NSWCA 178 (Red 20B). Both cases were concerned with the duties of highway authorities to persons walking on public roads and footpaths. At no point did he draw any distinction between a highway authority and an occupier, as to the content of the duty of care owed to a person in the appellant's position. I refer here in particular to: (a) what kind of risk is taken to be reasonably foreseeable, here by an occupier, not a highway authority, with respect to a shared internal driveway, privately owned, and (b) what is a reasonable response to such risk, in terms not only of whether or not the risk might be considered obvious, but also whether, assuming it be not "far-fetched or fanciful", a reasonable person would take precautions against it having regard to the other factors (not here considered by the trial judge) as identified by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 in the well-known passage at 47-8: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." 22 The trial judge's conclusions and reasoning I have attempted to set out below, in summary form, adding the relevant citations: (a) In a general sense there could be "a foreseeability" that somebody might trip (Judgment, Red, 17R). However, the appellant was required to show that the driveway was dangerous. That did not merely mean that it could possibly be an occasion of harm. People are regularly required to walk on uneven surfaces on both public and private land: Ghantous (supra) per Gleeson CJ at 526 (Red, 19S). (b) Pedestrians are generally more able to see and avoid imperfections in a road surface: Ghantous per Gaudron, McHugh and Gummow JJ at 581 (Red, 20E). (c) Pedestrians are ordinarily required to exercise reasonable care for their own safety by keeping a proper lookout, and thereby perceiving and avoiding obvious hazards such as uneven paving stones, tree roots or holes: Ghantous per Gaudron, McHugh and Gummow JJ at 581 (Red, 20E); Richmond Valley Council v Standing (2002) NSWCA 359 per Heydon JA at [54] (Red, 21O). (d) The imperfections in the driveway were of a kind which were obvious and common across the country. It was reasonable to expect the appellant to have seen the imperfections as he walked along in daylight: Richmond Valley Council v Standing (2002) NSWCA 359 per Heydon JA at [54] (Red, 21R-V), (e) There was no breach of duty because the concrete lip "was there, it was obvious, it was to be seen" (Red, 22G). This was not a case where the danger was not readily perceived because of inadequate lighting or the nature of the danger or the surrounding area (as in Buckle v Bayswater Road Board (1936) 57 CLR 259 where the hole was concealed by grass), where there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety (Red, 20Q, citing Ghantous per Gaudron, McHugh and Gummow JJ at 581). (f) While no express finding was made as to whether the appellant was exercising reasonable care for his own safety (appellant's submissions, Orange, 8O), a finding that the appellant was not exercising reasonable care may be inferred from the judgment, but, I interpolate, based only on the propositions earlier set out as derived from highway cases; see Red, 20-22. 23 On damages the trial judge did not make any assessment but did jot down some notes as to how he might assess them (Red, 23D and Red, 32). The grounds of appeal 24 I have summarised these in [4] above. DISPOSITION 25 I consider that a re-trial must be ordered, both as to liability and damages. This is for reasons essentially based on the failure of the trial judge to address the questions which must necessarily arise in this case. His error lay, with respect, in addressing the question of liability solely in terms of the liability of a highway authority and then exclusively by reference to the obviousness of the risk. Thus no consideration appears in the judgment as to whether, in the context of occupiers' liability, the relevant risk, here of a tradesman coming onto the property by invitation and tripping on a just over two inch lip, was reasonably foreseeable, by reference to that list of the factors in Shirt which determine what should be a reasonable person's response to that risk. These include consideration of the magnitude of the risk, the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have, properly balanced out. Given that here the tribunal of fact did not carry out that essential step, it could not be confidently asserted what is the standard of response to be ascribed to the reasonable man when placed in the defendant's position. 26 The respondent in response to this attack relied in particular on the passage cited by the trial judge from Ghantous where Gleeson CJ said (at [6]) that: "when general principles of negligence, unqualified by any rule of immunity, were applied, the court insisted that an injured plaintiff had to show that the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land " [emphasis added]. 27 The passage quoted ought not be understood as equating the content of the present duty of care to that of a highway authority with responsibility for kilometres of roadway. It must be clearly borne in mind that we are here dealing with the duty of care of a private owner with respect to a relatively short internal driveway and in relation to an invitee using it. While the reasonable steps to be taken in relation to a pedestrian on a public roadway by a statutory authority brings to bear the same Shirt calculus factors, they are applied to a very different factual context, namely what may consist of hundreds of kilometres in a particular municipality or shire; compare Brodie in the joint judgment of Gaudron, McHugh and Gummow JJ at [150] to [152] and [158] to [160]. 28 When one considers the nature of the risk in the present case, it is certainly not far-fetched or fanciful. 29 Whether the risk was reasonably foreseeable depends upon factors yet to be taken into account and properly the subject of a re-trial. The appellant relies upon the potential for shadowing. That was a submission itself not the subject of any expert evidence. It was dismissed by the trial judge for reasons set out in [19] above, based on what he described as "the ordinary experience of mankind". However, I note that such experience would lead one to the conclusion that at 10am in October the sun would be on a north easterly trajectory so that a building such as No. 174 which, according to the photographic evidence was some storeys high and located immediately adjoining the eastern boundary of the driveway and extending along what appears to be the whole of its length, may well have thrown a shadow over that part of the driveway where the appellant tripped. Whether this is so in fact should be the subject of evidence. 30 Reliance was also placed by the appellant on what was said to be the tendency of someone carrying a ladder to look forward rather than down at the lip, when walking within one or two feet of parked cars running in a parallel line. The appellant, whilst necessarily acknowledging the evidence that the ladder would not prevent observation of the ground below and in particular the lip, placed particular reliance upon two passages in his evidence which I quote below: "Q. … I want to suggest to you that this driveway … that you walked over on the day of the accident, was uneven and that there were raised pieces of concrete in the joints, the various joints, leading from the footpath towards where your car was parked, up until the stairs into unit 174. A. Well, I didn't take no notice of none of that, and I didn't recognise it, no. I was there to do a job, not to look for broken concrete and uneven concrete." T, 22S-U. 31 Earlier, in examination in chief, the appellant conceded that the two men with him were five to ten metres in front of him, walking up the driveway but then relies on the following passage as to the circumstance in which he came to overlook the lip when turning to the right: "Q. As you came up to the position where the first of those two steel poles sticks out of the ground, how did you move your body? A. I turned around to the right and proceeded to go right and, actually the fellows were going up the stairs and, quick glance to see which way they were going, and just made sure – you always make sure when you're carrying a ladder out in front of you, you watch out in front of you, make sure there's no people, or obstructions, or whatever, or that." T, 8H-M 32 The evidence was that the ladder was a 10-foot ladder with slightly more of the ladder in front than behind him. 33 The appellant places particular reliance upon the judgment of Bryson JA, concurred in by Giles and Tobias JJA, in Turnbull v Alm & Anor [2004] NSWCA 173. There the respondent had successfully claimed damages for personal injuries she suffered when stepping into a hole in a privately owned footpath adjacent to shops where the lighting was dim. At [43] Bryson JA draws the distinction, overlooked here, between decisions relating to the liability of highway authorities and the liability of occupiers. He correctly points out that what should be regarded as reasonable care for their own safety in the case of entrants vis a vis occupiers is likely overall to be less exacting for them than persons exercising their legal rights to use roads over which public authorities have powers of maintenance. His Honour thus observed: "[43] In the Shirt Calculus the consideration that a duty is owed to persons who take ordinary care for their own safety is only one of the elements in the calculus; the nature and the difficulty of the measures which would overcome the risk, and the likelihood that the risk will come to realisation at some time in the course of use of the footpath by the public are also elements in the calculus; all have to be taken together. The decisions to which Spigelman CJ referred include decisions relating to the liability of highway authorities and also to the liability of occupiers: these are different areas of the law of negligence, with different histories and different considerations affecting foreseeability of risk and also reasonable response to foresight of risk. To my mind there is no easy transition between decisions and judicial experience relating to highway authorities, with their context of public duty, public resources and legal right to use the road, and decisions and experience relating to occupier's liability, in particular for commercial and retail premises where entrants are present with the permission and, however indirectly, in the interests of an occupier who is entitled to control and (as a matter of right) to forbid their presence but allows their presence in a context which includes that their access and presence suit the occupier's interests. While an adjudication on what is reasonably required should take place in each case on the facts and circumstances of each case, and the development of standard responses and patterns of interpretation for recurring situations of fact should be received with caution, what should be regarded as reasonable care for their own safety and as acceptable inadvertence on the part of entrants to retail premises, even on the periphery as in this case, is likely overall to be less exacting of them than what is regarded as reasonable care for their own safety on the part of persons exercising their legal rights to use roads over which public authorities have powers of maintenance and repair imposed by public law. The relationships are completely different, and the calls for self-regarding vigilance are different." 34 The respondent sought to distinguish Turnbull (supra) on the basis that it concerned commercial premises where there is indeed a clear benefit to the occupier in attracting custom to the premises. However, the fact that premises may be commercial does not to my mind render that distinction valid. One is here concerned with the analogous purpose of a private residential owner seeking the indirect benefit of a tradesman to enter the premises to undertake work for that owner; there is also the collective benefit for all owners in being able to bring tradesmen onto their premises from time to time. 35 The respondent made reference also to the decision of Court of Appeal in Bathurst City Council v Cheesman [2004] NSWCA 308. There Ipp JA concluded that the fact that the respondent fell on a footpath that was not alongside a public highway did not affect the standard of care required of the council, where injury occurred to a person who entered the grounds of a public swimming pool along a footpath which he considered "in virtually every respect is akin to a footpath along a public road"; at [15] and [24]. 36 These, however, are matters for a re-trial. The purpose of referring, as I have done, to the appellant's case and to the authorities as they bear upon the different contexts of a public highway, a path leading to a public swimming pool, commercial premises and residential premises is simply to indicate that a re-trial properly conducted is by no means a foregone conclusion in favour of the respondent, such that ordering it "would be an exercise in futility"; compare Tobias JA in Peakhurst v Fox & Ors [2004] NSWCA 74 at [37]. 37 Finally, I should refer to the trial judge's failure to consider factors other than obviousness of the risk. The trial judge referred to Shirt and dismissed its relevance on the basis that the risk existed only in the case of someone ignoring the obvious (Judgment Red, 18) citing Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [455 ]. 38 In doing so, he did with respect go too far. Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 at 74 puts "obviousness" as an important factor but not one which obliterates all others: "But the fact that a danger is not hidden or unusual but obvious remains of significance. As Wyong Shire Council v Shirt establishes, the court must identify the risk and decide what the defendant should have done to avoid injury from it. In deciding that, it is to take into account "the magnitude of the risk", "its degree of probability", and "other relevant factors". Those factors include, inter alia, two things: that the risk is ordinary and that it is obvious." 39 Obviousness of risk, while clearly relevant and indeed of significance, remains but one of the factors to be taken into account under the Shirt calculus. Concededly in particular circumstances, if there be no other factor pointing towards liability, obviousness of risk may indeed clinch the matter for the defendant. It remains for a re-trial to determine the effect, if any, of any other relevant factors, but doing so in the context of an occupier's liability with respect to a private driveway vis a vis an invitee upon it and not to the liability of a local government council with respect to roads and footpaths within its area. OVERALL CONCLUSION AND ORDERS 40 I consider that the trial judge, with respect, was in error in failing to disclose a process of reasoning which addressed itself to the relevant considerations and principles. I propose orders as follows: (1) Appeal allowed. (2) Set aside the judgment and orders made by O'Reilly DCJ on 7 April 2004 and in lieu thereof order that there be a new trial in respect of both liability and damages. (3) The respondents to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act, 1951, if otherwise entitled thereto. (4) Costs of the trial below to abide the result of the new trial. 41 TOBIAS JA: I agree with Santow JA. 42 McCOLL JA: I agree with Santow 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.