Supreme Court New South Wales Medium Neutral Citation: Plaskitt v Pittwater Council [2012] NSWSC 1356 Hearing dates: 12/12/2011-16/12/2011 Decision date: 12 November 2012 Jurisdiction: Common Law Before: Rothman J Decision: (1) Judgment for the defendants on the statement of claim; (2) Cross-claims dismissed; (3) The plaintiff shall pay the defendants' costs of and incidental to the proceedings on a party-party basis; (4) The parties have liberty, within 28 days of these reasons for judgment, to seek different orders as to the payment of costs or orders in relation to any other matter not otherwise dealt with in these orders; (5) Proceedings are otherwise dismissed. Catchwords: TORTS - occupier's liability - council undertaking repairs to footpath owned by other defendants - no issue of principle - risk of harm obvious - no lack of care in construction or repair of footpath - no further precautions required by reasonable person for foreseeable, not insignificant risk of harm Legislation Cited: Civil Liability Act 2002 Occupational Health and Safety Act 2002 Cases Cited: Adeels Palace v Moubarak [2009] HCA 48; (2009) 239 CLR 420 Angel v Hawkesbury City Council [2008] NSWCA 130 Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512 Modbury Triangle Shopping Centre v Anzil [2000] HCA 61; (2000) 205 CLR 254 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Richmond Valley Council v Standing [2002] NSWCA 359 Sibraa v Brown [2012] NSWCA 328 Category: Principal judgment Parties: Danielle Plaskitt (Plaintiff) Pittwater Council (First Defendant) C & A Berk Holdings Pty Ltd (Second Defendant) Wechsler Holdings Pty Ltd (Third Defendant) Representation: Counsel: HN Kelly SC/DJ Williams/S Alexandre-Hughes (Plaintiff) R Gambi (First Defendant) R Cavanagh SC (Second and Third Defendants) Solicitors: Carroll & O'Dea Lawyers (Plaintiff) DLA Piper Australia (First Defendant) Holman Webb Lawyers (Second and Third Defendants) File Number(s): 2008/319308 Judgment 1HIS HONOUR: The plaintiff, Danielle Plaskitt, was walking with her two children in a laneway off Bungan Street, Mona Vale when she fell over on the uneven surface of the concrete footpath. The plaintiff was injured and sues Pittwater Council (hereinafter, the "first defendant"), as the body responsible for the repair of the footpath, and the second and third defendants, C & A Berk Holdings Pty Ltd and Wechsler Holdings Pty Ltd, as the owners of the land on which the footpath is situated, for damages allegedly caused by their negligence. The incident 2On 29 September 2005, the plaintiff was walking from the rear of 16 Waratah Street, Mona Vale along an unnamed laneway (hereinafter "the laneway") in a westerly direction to a position in Bungan Street, Mona Vale. Bungan Street runs north/south. The plaintiff was walking with her two children, aged 10 and almost 2 years of age. The plaintiff was 7 months' pregnant at the time. 3According to the plaintiff, at the intersection of Bungan Street and the laneway, her right ankle rolled outward (i.e. to the right, which was to the north) and, as the plaintiff brought her left foot forward, the left foot hit the ground and rolled inward (again, to the right) as well. The plaintiff then fell forward and to the right onto the concrete pavement. 4The plaintiff fell on to her hands and knees and then on to her back, which made contact with the kerb and gutter. 5The plaintiff says she was in intense pain and unable to get up. 6The plaintiff was taken by ambulance to Mona Vale Hospital and admitted. She was released from Mona Vale Hospital after a few days but, within 24 hours of discharge, had been admitted to Royal North Shore Hospital under the care of Dr Jeffery Hughes, due to the pain that she was suffering. 7It is necessary to describe the footpath of the laneway. The Court viewed the area which had not significantly altered since the date of the incident. The footpath comprised a number of separate concrete panels (or slabs) abutting each other. The laneway runs west to Bungan Street. The last panel adjacent to the laneway has a ramp for the use of wheelchairs, trolleys, strollers and the like. If one is travelling towards Bungan Street along the laneway there is a footpath, which has a triangular shaped panel immediately adjacent to the ramp and a rectangular panel immediately before that. On the southern side of each of those panels (and the southern side of the ramp) are a series of rectangular panels of similar size. The footpath slopes and there is a difference in the level where the panels abut. 8On the day of the incident, the plaintiff was walking in a westerly direction with her children. She was walking on the laneway running off the eastern side of Bungan Street, Mona Vale. The incident occurred in the laneway, which is located at a point approximately 51 metres north of the intersection of Waratah Street and Bungan Street, Mona Vale, near the northern end of Mona Vale Court. 9As earlier stated, the location of the accident site was part of the concrete footpath of the laneway and was contiguous with the footpath in Bungan Street. 10The incident occurred at a point where three concrete slabs or panels come together. Attached to these reasons for judgment is two photographs depicting the location of the accident site, near the northern end of the Mona Vale Court building, a further photograph taken from a position in the laneway and looking towards Bungan Street and three photographs depicting the variation in height between the three concrete slabs. 11Expert reports have been tendered and are in evidence before the Court. From those expert reports, and the joint report (or, more accurately, the joint answer to questions posed) the following can be stated with some certainty. (1)On the date of the incident there was more probably than not a variation in height between the concrete slabs at the site of the incident (hereinafter, "the incident site"). (2)The size of the variation, at 29 September 2005, is not known with any certainty. (3)According to the experts, the difference in the height and texture of the concrete slabs does not indicate repair work to the slabs, but the application of a fillet of epoxy cement mortar indicates that a repair has taken place. (4)The view (and the photos attached to these reasons) makes clear that the colours between each of the slabs/panels are slightly different and the colour of the epoxy cement mortar is significantly different. (5)According to the experts, the repair work, evidenced by the existence of the epoxy fillet, was not carried out in a proper and workman-like manner. (6)Further, similar repair work (i.e. epoxy fillet) has been carried out to the eastern side of the footpath at Bungan Street and on other parts of Bungan Street. (7)At the incident site three mutually independent and different concrete slabs abut. Each of those concrete slabs had a different height level. (8)The difference in the level of concrete slabs was caused by subsidence under the northern concrete slab. (9)As earlier stated, the southern concrete slabs sloped downwards towards the north. (10)Not taking account of the downward slope, there was a difference in height between the lower (northern) and higher (southern) concrete slab, at which it is said the plaintiff fell, of greater than 25mm. (11)The epoxy fillet repair work had obviously been carried out in an attempt to alleviate the significant height difference between two of the concrete surfaces at the relevant point. (12)The epoxy fillet was "feathered" to create a ramp that cushioned the height differential between the lower and higher concrete slabs and eliminated the sudden drop between the adjacent edges to the concrete slab, but created a slope as a consequence thereof. 12The overwhelming inference is that the epoxy fillet repair work, when first undertaken, eliminated the sudden drop from the higher slab (the southern slab) and the lower one (the triangular shaped slab to the north thereof), but further subsidence recreated a height differential between the top of the epoxy fillet and the level of the southern concrete slab. 13More generally the footpath at and around the location of the incident was uneven and there were various height differentials between different concrete slabs. As should be clear from the attached photographs, the epoxy fillet is in a different colour to the triangular shaped concrete slab upon which it sits, with the southern slabs (and the adjacent eastern slab) being of a different colour again. 14At the time that the plaintiff was walking westward along the laneway, no one was walking ahead of her. She had a clear view of where she was walking (Transcript, at 25.47). The plaintiff was cross-examined at length as to the circumstances of her journey westward, along the laneway, prior to falling. 15The plaintiff gave evidence that she and her two children walked over a metal cover, at which point she worried about her 2 year old, and, at the time, had her 2 year old and 10 year old in each of her hands (Transcript, at 26.47 - 26.49). The 2 year old was on her left hand side holding her left hand and the 10 year old was on her right hand side holding her right hand. The plaintiff gave the following evidence: "I came around the corner, because at the back there's cars coming and going, so I came around the corner holding their hands, and then I walked up to where that metal plate is and that's where I trod and the thing moved, it was quite loose, and I said to the kids, 'Just be careful here', and the little one was being a bit squirmy, so I said 'All right, let's put you in the middle', so she went to the back of me to hold the 10 year old's hand and my hand in the middle, and we continued to walk." (Transcript, at 28.1 - 28.7) 16The plaintiff gave inconsistent evidence as to whether she stopped while this shifting of positions occurred. At one stage she stated that they stopped while the shifting of positions occurred (Transcript, at 28.16). Later she stated that she did not stop (Transcript, at 28.26). Later still she again asserted that she had stopped (Transcript, at 29.30). The plaintiff then stated that she passed her 2 year old behind her and took her by the hand (Transcript, at 29.49). 17When the plaintiff's left leg trod on the metal plate, the plaintiff moved her 2 year old from her left hand to her right hand at which point her 2 year old was being held by both hands, one holding the right hand of the plaintiff and the other the left hand of the 10 year old. The three of them continued walking towards the corner of the laneway and Bungan Street. 18A few steps later, the plaintiff says she fell. On cross-examination as to the amount of attention the plaintiff was paying to the footpath, as distinct from her 2 year old daughter, again the plaintiff's evidence altered slightly, but significantly. 19If, as previously stated, the plaintiff fell by her right foot rolling outwards and her left foot rolling inwards and, at the same time, the plaintiff was holding her 2 year old with her right hand, her 2 year old would have fallen and possibly been under the plaintiff. 20When asked about the concern the plaintiff was showing for her youngest daughter the following exchange occurred: "Q. So is that what you believe you were doing at the time, you had this incident with the metal plate that caused you a bit of concern, you moved your daughter to be between you, that's the youngest one, between you and the 10 year old, and did you then continue as you walked along keeping an eye out on what she was doing and where she was walking? A. Yes, as well as myself and my other child. Q. Isn't it the case though that you were really more concerned about where your 2 year old was walking? A. No, because actually by the time we got to the corner she had stopped walking and my 10-year old picked her up. Q. You didn't mention that before when you were giving evidence, is that something you've just thought about now? A. No. I've not just thought about it, I haven't been asked about it. Q. Let's go over that bit of evidence, if you don't mind. Where was it that you say your 2 year old stopped walking, how far away from the metal plate? A. Probably just a couple of steps past it. Q. And did you keep walking? A. I kept walking towards the corner and watched as my daughter had stopped, I stopped and looked and thought, okay, come this way to the ramp, and I remember giving them instructions to keep coming towards the ramp. The little one had stopped dead in her track so the 10 year old picked her up. Q. So having stopped in her tracks, as you say, I take it you let go of her hand? A. She pulled away from my high [sic] hand, yes. [I read this as "right" hand.] Q. And you took a few steps moving in the forward direction that you were previously walking along, is that right? A. Yes. Q. And having taken a few steps further on, you turned around to observe what was going on and you gave them some directions about coming forward? A. I didn't turn around, no. Q. How did you give them directions, were you looking towards the corner? A. They had been right beside me, she pulled away and I saw that my daughter was pulling her up. Q. How did you see that? A. Because I had peripheral vision of what's going on here. Q. Madam, you must have stepped at least a couple of steps forward. As you were walking and your daughter pulled away from you, you couldn't possibly have stopped immediately, could you? A. When you are walking with a 2 year old, you are walking very slow. So what she does you react to as she does it. She pulled away from me and my daughter immediately grabbed her and started to pick her up. I said to them we are going to cross the road at the pram ramp, and that's where we were walking. Q. When did you give her the direction to keep moving towards the ramp, was that after your 2 year old had stopped? A. When you are just walking up the road in a general direction you don't give word-by-word, blow-by-blow direction, you just say, this is where we are going to and this is what you do. HIS HONOUR: The function of a witness, as much as most witnesses don't abide by it, is to answer questions. Counsel will take their own information and their own instructions, so if you just answer the question, that would be helpful. Q. Did you, after your 2 year old [daughter] stopped, did you or did you not give any verbal direction to your daughters about continuing to walk along the footpath? A. No. Q. Did you or did you not turn around to see what either of your two daughters were doing after your 2 year old had stopped? A. No. Q. Did you stop at any time prior to your fall after your 2 year old had pulled away from you? A. No, because I only took one or two more steps and fell." (Transcript, at 33-34) 21The evidence of the witness as to the positioning of her 10 year old and 2 year old and whether she was watching them or the footpath was still not clear. I asked her the following questions and received the following answers: "Q. Can I just come back to the questions you were asked about when you travelled from the back of the building through to the area that you say you slipped, and you said your 10 year old picked up your 2 year old, do you remember that? A. Yes. Q. How did she pick her up, in what way? A. I just know that she let go of my hand and I looked and I could see that she was in the process of picking her up like that. Q. With both hands? A. Yes. Q. I take it at that stage the 2 year old was not holding your hand? A. No, she was on the other side, I originally started -- Q. No, I understand that -- A. She was on the other side with the [10] year old, yes. Q. And after she picked her up did she hold your hand and continue? A. No, because I fell sort of straight after that." (Transcript, at 44) 22The plaintiff's evidence was not particularly reliable. In ordinary circumstances, that might not be unexpected. Nevertheless, her evidence as to what precisely happened altered seemingly dependent upon what she considered to be the purpose or point of the question. 23The plaintiff fell onto the laneway, to which reference has already been made. She fell from an area that is on the property of the second and third defendants, who own the property jointly. 24I accept that the plaintiff rolled her ankle either as a result of the difference in height between the southern concrete slab and the epoxy fillet, or as a result of the slope in the epoxy fillet (or a combination of both). 25I find that the circumstances that were occurring at the time that the plaintiff fell were that the plaintiff was travelling in a westerly direction, as previously stated, with both her 2 year old and 10 year old children. Shortly before the fall she moved her 2 year old daughter from her left hand side to her right hand side so that her 2 year old daughter was positioned between the plaintiff and her 10 year old daughter and both of the 2 year old daughter's hands were being held, one by the plaintiff and one by the 10 year old. 26Shortly thereafter, the 2 year old daughter pulled away from the plaintiff. The plaintiff turned, understandably, to look at the 2 year old and what was happening. She observed that the 10 year old was lifting the 2 year old into her (the 10 year old's) arms and the plaintiff fell. 27It is more probable than not that at the time the plaintiff fell she was observing the 2 year old and ensuring her safety, rather than paying attention to the terrain. The plaintiff says that she saw or noticed nothing on the ground as she approached the area where she fell and made no observation of the footpath while she was on the ground (Transcript, at 35.23 - 35.29). 28The different colours of each of the concrete slabs would have alerted any pedestrian to the fact that there were different concrete slabs that comprised the footpath. Further, the significantly different colour of the epoxy fillet would have alerted a pedestrian to the use of different materials, indicating what were probably "temporary" repairs and the differing terrain onto which the pedestrian was stepping. 29Further, on the basis of the inspection, the report of the experts and other evidence, it is clear that the epoxy fillet was placed there either by the Council, or on its behalf, at a time when other repairs were effected to the footpath. 30Lastly, the Court notes that there is no suggestion that the subsidence of the various concrete slabs/panels was a result of any negligence by any of the defendants. The difference in level between the top of the epoxy fillet and the abutting southern panel was a result of further subsidence to that sought to be corrected by the initial application of the epoxy. The Principles of Negligence 31The proceedings before the Court and the claim for damages are covered by the terms of the Civil Liability Act 2002 (hereinafter, "the Act"). Further, the provisions of s 3B of the Act do not exempt any part of the claims before the Court from the application of the Act. 32It is necessary to deal with some of the provisions that govern this claim for damages. Firstly, that which is claimed is harm within the meaning of that term given by s 5 of the Act, being personal injury and economic loss. The claim is for negligence being a failure to exercise reasonable care and skill. 33The plaintiff alleges liability on a number of bases. First, as previously indicated, the plaintiff alleges that either the first defendant or the second and third defendants together were the occupiers of the land upon which the incident occurred. As a consequence, whichever of the parties was the occupier owed a duty of care to the plaintiff. 34Further, the plaintiff alleges that the first defendant, the Council, repaired, or arranged for the repair of, the relevant part of the footpath and did so negligently thereby creating an unreasonable risk of injury. In undertaking the repair of the footpath, the Council owed a duty of care to persons within the class of the plaintiff who would thereafter use the footpath. 35There is little doubt that an occupier owes a duty of care to a person lawfully entering the land in question. I will deal later with the nature of the duty. 36The plaintiff alleges that the first defendant (and/or the second and third defendants) breached the duty of care owed by: (a)failing to ensure the footpath where the plaintiff fell was safe for persons such as the plaintiff walking on the said footpath; (b)failing to repair and maintain the footpath properly when it knew or ought to have known that the condition of the footpath was a trip hazard and dangerous; (c)causing and/or permitting the footpath to be constructed or repaired with a change of level which created an unreasonable risk of injury to pedestrians such as the plaintiff; (d)causing and/or permitting the footpath to be constructed or repaired in a manner that provided a pedestrian such as the plaintiff with a false sense of security that the footpath had been repaired to an even level; (e)causing and/or permitting the footpath to be and to remain uneven and a trap to pedestrian users of the footpath such as the plaintiff; (f)failing to provide any or any proper warning to the plaintiff of the risk of tripping and falling by reason of the uneven and dangerous surface of the footpath; and (g)failing to carry out remedial works to rectify the defect in the surface of the footpath prior to the plaintiff's fall. 37As can be seen from the foregoing, the alleged breach of duty of care falls into a number of categories. 38The Act deals with the standard of care and breach thereof, and matters consequential thereto. It does not (despite the headings) deal with the existence of a duty. Nevertheless, it is necessary to recite some of the provisions of the Act: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation'), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability'). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. ... 5F Meaning of 'obvious risk' (1) For the purposes of this Division, an 'obvious risk' to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person ('the defendant') does not owe a duty of care to another person ('the plaintiff') to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection. ... 42 Principles concerning resources, responsibilities etc of public or other authorities The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies: (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions, (b) the general allocation of those resources by the authority is not open to challenge, (c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), (d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate. ... 44 When public or other authority not liable for failure to exercise regulatory functions (1) A public or other authority is not liable in proceedings for civil liability to which this Part applies to the extent that the liability is based on the failure of the authority to exercise or to consider exercising any function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in proceedings instituted by the plaintiff. (2) Without limiting what constitutes a function to regulate an activity for the purposes of this section, a function to issue a licence, permit or other authority in respect of an activity, or to register or otherwise authorise a person in connection with an activity, constitutes a function to regulate the activity. ... 46 Exercise of function or decision to exercise does not create duty In proceedings to which this Part applies, the fact that a public or other authority exercises or decides to exercise a function does not of itself indicate that the authority is under a duty to exercise the function or that the function should be exercised in particular circumstances or in a particular way." 39In order to succeed, the plaintiff must establish that the defendant, against which it hopes to succeed, owes to the plaintiff a duty of care. Not all careless conduct that causes damage results in a cause of action in negligence. There must be a duty of care. 40In Modbury Triangle Shopping Centre v Anzil [2000] HCA 61; (2000) 205 CLR 254 at [13], Gleeson CJ said: "Most actions in tort which come before trial courts arise out of relationships in which the existence of a duty of care is well established, and the nature of the duty well understood. Cases arising out of the use of a motor vehicle, or involving employer and employee, or bailor and bailee, turn upon the application to the facts of well settled principles concerning legal responsibility. References to duty of care, breach of duty, and causation provide convenient sub-headings for a judgment, but in many cases the concepts require no further analysis. In other cases, of which the present is an example, there is a real issue as to the scope of legal responsibility. Such an issue cannot then be resolved by a detailed recitation of the facts, the repetition of the standard rubrics under which discussion of the tort of negligence is commonly organised, and an appeal to common sense." 41Further, at [105] in Modbury, Hayne J said: "In cases such as the present, where the extent of the relevant duty is not clear, it is useful to begin by considering the damage which the plaintiff suffered, and the particular want of care which is alleged against the defendant. Asking then whether that damage, caused by that want of care, resulted from the breach of a duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff's allegations of breach and damage must depend." 42The judgment in Modbury was considered by the High Court in Adeels Palace v Moubarak [2009] HCA 48; (2009) 239 CLR 420, where the Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ) said: "[23] Contrary to the submissions on behalf of Adeels Palace, this Court's decision in Modbury does not dictate the conclusion that Adeels Palace owed no relevant duty of care to the plaintiffs in the present cases. Like the claims now under consideration, the claim that was made in Modbury was for damages for personal injury suffered as a result of a criminal assault. The injured plaintiff in Modbury had been attacked in a shopping centre car park at night when the lights in the car park were off. He alleged that the shopping centre proprietor was negligent in not leaving the car park lights on. A majority of the Court held that the shopping centre did not owe the plaintiff a duty to take reasonable care to prevent injury to the plaintiff resulting from the criminal behaviour of third persons on the shopping centre's land. It is important to recognise, however, that the duty alleged in Modbury was said to be founded only on the defendant's position as occupier of the land controlling the physical state of the land (there the level of its illumination). What is said in Modbury must be understood as responding to those arguments. No complaint was made that the defendant should have controlled, but did not control, access by the assailants to the land it occupied. [24] It is, of course, important to recognise that the decision in Modbury forms part of a line of cases in which consideration has been given to whether and when one person owes another a duty to take reasonable care to control the conduct of a third person. And the fact that the conduct in question is criminal conduct is of great importance in deciding not only what, if any, duty is owed to prevent its commission, but also questions of breach and causation. [25] Several considerations set the present case apart from Modbury and point to the conclusion that Adeels Palace owed each plaintiff a relevant duty of care. First, the complaint that was made in these cases was that the occupier of premises failed to control access to, or continued presence on, its premises. Secondly, the premises concerned were licensed premises where liquor was sold. They were, therefore, premises where it is and was well recognised that care must be taken lest, through misuse and abuse of liquor, 'harm [arise] from violence and other anti-social behaviour'. And thirdly, the particular duty said to have rested on the occupier of the premises (who was the operator of the business that was conducted on the premises) is a duty to take reasonable care to prevent or hinder the occurrence of events which, under the Liquor Act, the licensee was bound to prevent occurring - violent, quarrelsome or disorderly conduct. (And although variously expressed in the legislation of other Australian jurisdictions, the evident scheme of all liquor licensing laws in Australia is to minimise anti-social conduct both on and off licensed premises associated with consumption of alcohol.)" 43As Gleeson CJ noted, certain relationships have been established as relationships that give rise to a duty of care. 44Occupier's liability is one of the established categories in which the occupier owes a duty of care. If one or more of the defendants is the occupier of the land upon which the incident occurred, that defendant owes a duty of care to persons in the class of the plaintiff and, necessarily, to the plaintiff. The issue then becomes the nature of the duty. 45The plaintiff by particulars (c) and (d) seemed to be suggesting that a duty of care is owed by the Council, even if it were not the occupier, by reason of the repair by it, or on its behalf, of the footpath. For the remainder of these reasons, I will assume, without deciding, that the Council owed a duty of care once it undertook repair of land over which it had control or was to be used, knowingly, as a public thoroughfare (but see s 46 of the Act). 46As can be seen from the foregoing, once there is a duty of care, the provisions of s 5B of the Act govern findings of negligence and require that precautions against risk of harm (being, relevantly, personal injury) are not required to be taken, unless the risk was foreseeable and not insignificant. Further, the precautions must be taken only where a reasonable person in the defendant's position would have taken those precautions. 47No party has suggested, understandably, that the risk of personal injury arising from tripping on uneven concrete slabs in the footpath was not "foreseeable", being a risk known to the defendants and each of them or that ought to have been known to them. Further, it is not suggested that the risk of some harm is not insignificant. The fundamental issue in these proceedings is whether a reasonable person in the position of each of the defendants would have taken precautions necessary to ameliorate the risk of harm and, in that regard, must take account of the severity of injury that was foreseeable. The risk is required to be assessed prospectively and refers to "harm that might be suffered by anyone to whom the defendant owes a duty of care, as a consequence of the failure to take the precautions referred to in s 5B(1)": see Sibraa v Brown [2012] NSWCA 328 at [41], per Campbell JA, with whom Hoeben JA and Tobias AJA agreed. 48Much attention was given, during the course of the proceedings, to whether the risk arising from the difference in the levels of the concrete slabs was an obvious risk: s 5G of the Act. If it were obvious (as defined in s 5F), the plaintiff is presumed to be aware of it. However, such a presumption does not negate or overcome the duty of care or liability for acts of negligence, other than those acts arising from a failure to warn of risk (see s 5H of the Act): see Angel v Hawkesbury City Council [2008] NSWCA 130 at [24], per Beazley and Tobias JJA, with whom Spigelman CJ, Giles and Campbell JJA agreed. The plaintiff alleges negligence by a failure to warn: see particulars (d) and (f) above at [36]. 49It is necessary to deal with each of the particulars of negligence, as outlined in [36]. 50First the allegation in particular (a) that the defendants failed "to ensure the footpath ... was safe" needs to be examined in light of the standards of care required by the Act, and generally at common law. If the term "ensure" was intended to convey a guarantee of safety, there is no such duty under the Act or under the common law. No person is required, under the common law, to guarantee safety. (It is unnecessary to discuss, in the context of these circumstances, issues associated with the operation of the Occupational Health and Safety Act 2002.) 51On the other hand, if particular (a) is intended only to require precautions to be taken to obviate the risk of foreseeable injury, it adds little, if anything, to the other particulars of negligence. 52Secondly, it is necessary to deal with the allegation that negligence occurred in the repair and maintenance of the footpath: see (b) and (c) at [36]. The footpath, at the relevant area, was repaired. There is no evidence that when first constructed the footpath was such as to involve different levels or involve a risk of harm to a pedestrian walking along the footpath. 53Further, the overwhelming inference from the current state of the footpath, or its state at the time of the incident, is that the epoxy fillet was applied in a manner which feathered the gap from the southern concrete slab to its northern neighbour, in order, amongst other purposes, to allow wheeled vehicles to move from the road surface to foot path level and to lessen any risk of harm. The foregoing is the overwhelming inference, also drawn (or assumed) by one or more of the engineering experts. 54At the time of the application of the epoxy fillet, the highest level of the epoxy fillet would have aligned with the level of the southern concrete slab. The gap that existed at the time of the incident in the level of the southern slab to the top of the epoxy fillet was a gap that was caused subsequent to the repair by further subsidence of the northern concrete slab. Again, this is the view taken by the engineering experts. 55Thus far reference has been made to a 25mm differential in height. That measurement is taken from the extrapolation of the slope of the southern concrete slab to a point beyond the epoxy fillet. It also takes account of the differing slope of each of the concrete slabs. The best estimate of the height differential between the highest point of the epoxy fillet and the southern concrete slab to which it abuts is 10mm and the depth at the point of abutment (i.e. the thickest point) of the epoxy is approximately (but slightly less than) 15mm (Transcript, at 295). 56As the evidence of the experts established, the application of the epoxy to the northern concrete slab ameliorated the risk of harm. Each of the engineering experts (Colin Wingrove and Jackson Clark) testified that the epoxy applied to the northern concrete slab reduced the risk of harm caused by the uncorrected gap between the two concrete slabs (Transcript, at 304.34 - 307.13). Further, Mr Wingrove testified that the risk of harm was much worse without the epoxy resin. 57The other aspect of this evidence that is noteworthy is that the application of the epoxy to the northern slab neither created a new risk nor worsened the risk that was already there. It reduced or ameliorated the existing risk. 58No part of the plaintiff's case alleges that the footpath, when originally constructed, was constructed negligently or gave rise to a risk of harm. Further, no part of the plaintiff's case suggested that the subsidence was caused by any conduct of any one of the defendants (negligent or otherwise). 59As a consequence of the foregoing, it cannot be said that the repair to the footpath created a risk or had any effect other than reducing the risk that already existed, and these particulars of negligence must fail. 60The particulars of negligence with which the Court is still required to deal are those that allege a failure to warn; causing or permitting the footpath to remain uneven or in a manner which provided "a false sense of security"; and the failure to carry out further remedial works to rectify the uneven surface. They relate to nonfeasance, rather than misfeasance. 61As to the failure to warn, the provisions of ss 5G and 5H of the Act must be considered. In so doing the definition of "obvious risk" in s 5F of the Act is relevant. 62Mr Colin Wingrove was qualified as an expert, being a Consultant Transport Engineer with degrees in science and engineering science, by the plaintiff. Mr Jackson Clark was qualified by the second and third defendants. Each prepared a report and was thereafter asked to confer with the other and answer further questions. They gave evidence in conclave. The reports, questions and answers are contained in Exhibit F. 63In the course of oral evidence, Mr Wingrove expressed the opinion that the repair work "effectively disguised from a visual point of view the difference in the height between the adjacent slabs" (Transcript, at 282). In my view, this is testimony that is outside the expertise of the witness and involves a conclusion as to the perception of pedestrians. 64The concrete slabs, in their original condition, were an extremely similar colour, although the northern triangular shaped slab is a little darker in colour than the slab adjacent to it to the south. Each is a mid-grey in colour. The epoxy is a taupe or dark fawn colour. As a consequence of the different colouring, the fact that there has been different material applied to the site is more obvious than would be the situation if no repairs were undertaken. 65I do not accept that the application of the epoxy made the difference in height less obvious or less noticeable to a reasonable person in the position of the plaintiff. In my view, taken both from the evidence and the view conducted during the course of the proceedings, the application of the epoxy made the difference in the material, the difference in height and the fact of a repair more obvious than would otherwise have been the case. A reasonable person in the position of the plaintiff, being a person taking reasonable precautions in walking along the footpath, would have known that there was a risk that the concrete slabs were at a different level. Such a risk, including the risk of harm arising therefrom, would have been obvious to a reasonable person in the position of the plaintiff. 66As a consequence, and by operation of s 5H of the Act, none of the defendants owed a duty of care to the plaintiff to warn her of the risk associated with the different levels between the concrete slabs. 67I am comforted in the foregoing approach by the comments of Gleeson CJ in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512: "[6] In England, the common law rule which the applicants in both matters seek to challenge was abolished by statute in 1961. It then became easier for a pedestrian who was injured by falling on a road or footpath to succeed in an action for damages resulting from failure on the part of the responsible authorities to maintain and repair the road or footpath. Even so, when general principles of negligence, unqualified by any rule of immunity, were applied, the courts 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: Meggs v Liverpool Corporation [1968] 1 WLR 689; [1968] 1 All ER 1137. 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. [7] In Littler v Liverpool Corporation [1968] 2 All ER 343 at 345, Cumming-Bruce J said: 'Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green.'" [An inch is approximately 25.4 mm.] 68In the same judgment, Callinan J remarked, no doubt using the obvious pun, that "The world is not a level playing field." (Brodie; Ghantous at [355]). In Richmond Valley Council v Standing [2002] NSWCA 359, Heydon JA (as his Honour then was) stated: "[54] Almost any injury that happens is an injury in respect of which there can be said to have been a foreseeable risk. In that sense, there was a foreseeable risk of injury here. But it was not a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety. The plaintiff, like pedestrians generally, was in an excellent position to see and avoid imperfections in the surface. There could have been no expectation on her part that the surface would be smooth. The unevenness in the paving slabs, the cracks and the holes at the place where the plaintiff was moving were as obvious as similar features all over the country, and as obvious as other common features like raised tree roots and manhole covers. There was no concealment of any of the features of the site which the trial judge criticised. There was no inadequacy in the lighting, or obscuring of the hazard by grass or otherwise. It was reasonable to expect the plaintiff to have seen what lay ahead of her as she walked along in broad daylight: what was there was obvious and called for no special vigilance. [55] So far as there was any hazard it was both not only obvious but insignificant and common. The condition of the pavement was typical of innumerable kilometres of pavements in the cities, suburbs and towns of this country. The imperfection was of a kind which users of footpaths have from childhood habituated themselves to look out for and avoid, in view of the fact that surfaces which pedestrians use may be uneven, not flat and not smooth. The imperfection was not a danger, a hazard or a trap. Neither Mr Moir nor the trial judge demonstrate how Mr Moir's figure of 10 mm depth in the hole as the criterion of liability was crucial, and, if it was, how that view could be reconciled with the reasoning in Brodie's and Ghantous's cases. Though Mr Moir referred to other experts, he did not explain their thought processes." These comments of Heydon JA are most apposite and apply with equal force, and relevance to the circumstances facing the plaintiff. 69Fundamentally, the risk of harm was a risk that would not significantly lead to serious injury. In this case it is alleged the injury is more serious than that which would ordinarily or reasonably be foreseeable from a trip over an unevenness in a footpath of approximately 10mm. The question that must be asked arises from the terms of s 5B(1)(c) namely, what would a reasonable person in the position of any one of the defendants have taken by way of precautions. 70On one view, the defendants could have avoided any claim for negligence by not building a footpath. Otherwise, given that the defendants did not cause the subsidence, the only recourse would have been for one or more of the defendants to reconstruct the whole footpath or totally replace one or more concrete slabs at regular intervals. This would have been a costly and inconvenient exercise aimed solely at the almost fanciful proposition that someone tripping on the footpath would occasion some serious injury, as distinct from simply grazing their foot or twisting their ankle. Conclusion on liability 71In all of the circumstances, I accept, without deciding, that there is a duty of care by each of the defendants as occupiers of the land and/or from undertaking repairs. Because of the other findings, it is unnecessary to refine that finding any further. 72I conclude that there was no negligence in the repair of the concrete slab when it was performed; nor was there negligence in the construction of the footpath when first built. Further, the risk of harm, being a risk of personal injury caused by uneven surface between different concrete slabs, was an obvious risk, bearing in mind the definition of that term in s 5F of the Act, for which none of the defendants had a proactive duty to warn the plaintiff (s 5H of the Act). Lastly, in this respect I do not consider that any further precautions would have been taken by a person in the position of any one of the defendants to obviate or ameliorate further the risk of harm created by the uneven footpath. Remaining matters 73Notwithstanding the foregoing conclusions, it is necessary for me to deal with other aspects of the proceedings. Firstly, if I were incorrect in my conclusions as to the risk being obvious or the availability of reasonable precautions, or the lack of care in the repair work, I would conclude that the repairs to the slab were not a factual cause of the injury, in that the repairs to the slab were, on the evidence before the Court, to which reference has already been made, an ameliorating factor to the risk of injury otherwise occasioned. 74Further, to the extent that the earlier findings as to negligence in failing to ensure safety and/or failing to rectify the risk arising from uneven surfaces are incorrect, then, and only then, I would conclude that such negligence was a necessary condition of the occurrence of the harm (see s 5D(1)(a) of the Act). In such limited circumstances, I would consider that there was contributory negligence, arising from the conduct to which reference has already been made, namely, that the plaintiff did not keep a proper lookout, but was concerned with and looking at her daughters, rather than where it was she was walking. 75I take the approach to contributory negligence summarised in the classic dicta in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." 76Applying that approach to the circumstances of this case, and assuming, contrary to my conclusions, that one or more of the defendants were negligent, I would consider that the contributory negligence of the plaintiff was 75% of the cause of the injury and reduce any award accordingly. I note that, pursuant to s 5S of the Act, contributory negligence may account for all of the injury, but, in this case, if I were otherwise to have held that negligence occurred, that negligence would have contributed approximately 25% of the resulting injury. Given the hypothetical nature of this conclusion, I do not assess the proportionate contribution, if any, of the first defendant or the second and third defendants. Nor do I deal with the rather complicated issue of which defendant (or two defendants) is the occupier. Damages 77The medical evidence before the Court is that there is no continuing physiological reason for the alleged continuing disability suffered by the plaintiff. The evidence of the experts qualified by both the plaintiff and the defendants was that the plaintiff sustained a frank injury to her arm, treated appropriately at the time, for which surgery was conducted. 78Her treating surgeon, Dr Hughes, provides no basis for her continuing complaints. Both neurosurgeons, Dr Grant and Dr Blum, in their joint statement at Tab 26 of Exhibit J, make clear that the sensory loss, of which the plaintiff complains, to the whole of her left upper extremity extending to the whole of the left side of the face and chest, is not medically consistent with any injuries suffered by her as a result of the incident. 79Further the joint report makes clear that the pain, of which the plaintiff complains, in both legs, and weakness or giving way of the legs, is inconsistent with the fall or injuries arising from the fall. 80Each of the neurosurgeons expressed the opinion that the physiological effects of the fall would now be concluded and, even if they were not, would not restrict her capacity to carry out her activities in accountancy. They further express the opinion that there is no evidence of any neurological basis to any impairment that would restrict recreational activities or limit the carrying out of domestic duties, including the caring for her children. 81The headaches of which the plaintiff complains are also not consistent with any injuries suffered by her, again, from a neurological perspective. Perhaps their approach is best described by the agreed position which was: "This person ... suffered no injuries other than that to her elbow. The presenting clinical picture is not in any way ... influenced by injuries that she has had earlier in her life." 82Each of the doctors found no objective signs on clinical presentation. To the extent that the applicant is genuinely suffering pain, it is psychosocial or psychological, not clinical. 83I have viewed the recorded activities of the plaintiff and have seen the plaintiff in the witness box and in Court during the course of the proceedings. All injuries will differ in effect and will vary in intensity, from time-to-time. Nevertheless the demeanour of the witness, both in the precincts of the courtroom and in the witness box, confirms the impression one gains from a viewing of the recording of her activities in the course of the investigation for the purpose of these proceedings, which impression is inconsistent with her testimony as to her continuing disabilities. 84In my view the complaints by the plaintiff of continuing disability and pain are disingenuous and/or mendacious. If the plaintiff does have continuing pain, it is in no way as severe as sought to be portrayed in the witness box or as described in her evidence. 85Further, I do not accept the loss of earnings as portrayed, not only because the injuries do not interfere with the income earning capacity of the plaintiff, but also because the potential income that the plaintiff could earn, if she were working full time, is grossly overstated (and therefore does not satisfy the provisions of s 13(1) of the Act). 86The plaintiff suffered an injury. It was treated. There is no independent evidence from which I would conclude, contrary to my impression from her demeanour and the evidence recorded of her activities, that the plaintiff is not capable of performing a full range of activities that she would otherwise be able to perform were it not for the incident and the injury arising therefrom. 87Notwithstanding the foregoing, if it be necessary to proceed further, I do not assess damage, other than by buffer, because there is insufficient evidence before the Court, which I accept, from which I could assess economic loss or non-economic loss. Further, there is probably insufficient evidence from which I could assess a buffer to compensate for any such injury, if there were negligence and if damages were to arise. If I were to assess damage (notwithstanding the lack of accepted evidence), I would assess non-economic loss of $40,000 and economic loss, as a buffer, of $60,000. Expenses have been agreed. Those figures, if an award were to issue, would be reduced by 75%. None of the thresholds in s 13, s 15(2) and s 16(1) of the Act have been satisfied. 88As a consequence of the conclusions as to the liability in negligence and damage, each of the cross-claims (seeking proportional liability and/or indemnity between the defendants) should be dismissed. 89For the foregoing reasons, the Court makes the following orders: (1)Judgment for the defendants on the statement of claim; (2)Cross-claims dismissed; (3)The plaintiff shall pay the defendants' costs of and incidental to the proceedings on a party-party basis; (4)The parties have liberty, within 28 days of these reasons for judgment, to seek different orders as to the payment of costs or orders in relation to any other matter not otherwise dealt with in these orders; (5)Proceedings are otherwise dismissed. ********** Photo Attachments Photograph 3: View depicting the variation in height between the slabs of concrete at incident location. Photograph 1: Location of accident site. Photograph 2: Location of accident site. Photograph 6: Example of height difference. Photograph 5: Measured difference in height between highest and lowest concrete slab on footpath. Photograph 4: View of three different heights to the concrete footpath at the accident site. 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. Decision last updated: 16 November 2012