Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Coffs Harbour City Council v McLeod [2016] NSWCA 94 Hearing dates: 26 April 2016 Decision date: 03 May 2016 Before: Gleeson JA at [1] Simpson JA at [60] Sackville AJA at [61] Decision: (1) Refuse leave to appeal. (2) The Court notes that although it is accepted by the respondent that there was an error in relation to the award of $40,000 for non-economic loss, the parties are agreed that this figure is not to be disturbed. (3) Applicant to pay the respondent's costs in this Court. Catchwords: APPEAL AND NEW TRIAL - appeal - general principles – leave to appeal –discretion - slip and fall case – challenges to factual findings of primary judge concerning slip hazard – challenge to finding as to precautions which a reasonable person in the applicant's position would have taken to avoid the risk of harm – challenges to assessment of damages – whether errors of law – where no issue of principle or question of general public importance – whether more shown than that the primary judge was arguably wrong – whether reasonably clear that injustice beyond merely arguable error occurred Legislation Cited: Civil Liability Act 2000 (NSW), ss 5B, 5B(1)(a), 5B(1)(b), 5C, 5D, 16, 16(3), 42, 42(a), 42(c), 43A, 43A(2), 45, 45(3) Roads Act 1993 (NSW), ss 71, 87, 115(1)(d) Supreme Court Act 1970 (NSW), s 101(2)(r) Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 Curtis v Harden Shire Council [2014] NSWCA 314; 203 LGERA 352 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397 Rockdale City Council v Simmons [2015] NSWCA 102 Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598 Category: Principal judgment Parties: Coffs Harbour City Council (appellant) Matthew Peter McLeod (respondent) Representation: Counsel: Mr J Sexton SC with Mr R Gambi of counsel (Appellant) Mr DRJ Toomey SC with Ms G Guiguis of counsel Solicitors: Mills Oakley (Appellant) Stacks Law Firm (Respondent) File Number(s): 2015/295752 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 2 October 2015 Before: Williams ADCJ File Number(s): 2013/255451 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. GLEESON JA: On 15 August 2010 at about 6.10pm, the respondent, Matthew McLeod, slipped and fell on a patch of water on a concrete footpath in the vicinity of 246 Harbour Drive, Coffs Harbour. The respondent claimed that as a result of the fall he suffered injuries, including aggravating a pre-existing injury to his left ankle, injury to his right arm and right shoulder, injury to his right sternoclavicular joint, and injury to his neck and lower back. 2. On 14 August 2013, the respondent commenced proceedings in the District Court against the Coffs Harbour City Council (the Council), seeking damages for his injuries. He was successful in that Court and obtained a judgement for $96,439.25: McLeod v Coffs Harbour City Council (District Court (NSW), 2 October 2015 Williams ADCJ, unrep). 3. The Council seeks leave to appeal against that decision. Leave to appeal is required as the amount in issue is less than $100,000: Supreme Court Act 1970 (NSW), s 101(2)(r). 4. Although the matter was listed for a concurrent hearing of the application for leave and the substantive appeal, the Court invited the parties to address the question of leave first. At the conclusion of oral argument, the Court refused the application for leave, with costs, and stated that reasons would be delivered in due course. These are my reasons for joining in those orders. Factual background and the primary judge's reasons 1. The footpath in the vicinity of 246 Harbour Drive was a concrete slab of pavement and there was water seeping up from and across the path. The respondent was wearing thongs at the time of his injury. He fell on a wet patch on the path when his left foot slipped out completely causing him to fall on his right leg and then forward over his right foot. He landed on his right forearm with his wrist on the concrete and his elbow in mud adjacent to the footpath. There were no witnesses to the respondent's fall, which happened in the dark. 2. After he had slipped on the footpath, the respondent observed, using the torch on his mobile phone, "a dark stain, it was greenish"; water coming up out of the concrete on the left hand side; and a "greeny slime" across the surface of the footpath. Photographs taken the following day, supported the respondent's description of the footpath. In his evidence, the respondent described the footpath as "very slimy and wet" and said that there was a significant amount of "raised muddy dirt" on either side of the footpath. 3. Shortly after his fall, the respondent sent a message to his wife via Facebook Messenger at 6.45pm saying "Limping home now, massive puddle of slimy water opposite the TAFE. Went head over heels and got banged up pretty bad". 4. The wet spot on which the respondent slipped fluctuated in size depending on the weather. Whilst at times of heavy rain water collected in the area of the path in question, water would also come from a particular area underneath the concrete. However, there was no conclusive evidence as to what caused the water to be there. The primary judge found that the reason the respondent fell was the wet concrete. 5. Mrs Sprogis, who lived at 246 Harbour Drive, described the footpath out the front of her property as watery in rain, and afterwards that there was a small area of the footpath that emitted air or water from underneath. She had observed at least three prior incidents - involving an elderly lady, a middle-aged man and a few children – where people had fallen on the same area of path as the respondent's fall. She said that those people fell because the path was wet. Mrs Sprogis reported these incidents to the Council on 29 April 2009, telling Council officers that they were going to have a law suit on their hands if they did not hurry up and do something about the footpath because numerous people had fallen. 6. The Customer Request for Action form dated 29 April 2009 (prepared, it seems, by Council officers) only refers to subsidence of the nature strip outside 246 Harbour Drive. Nonetheless, his Honour found that Mrs Sprogis also told the Council officers of the three other incidents she had observed. 7. There was also evidence of three other Customer Request for Action forms that pre-dated the respondent's injury. These complaints related to (a) the water main leaking water at 246 Harbour Drive (29 April 2008); (b) a broken water service at 246 Harbour Drive (29 August 2008); and (c) a complaint that the footpath between 246 and 246A Harbour Drive had become muddy and inaccessible (25 June 2010). 8. The primary judge found that the Council owed the respondent a duty of care "to ensure that its public areas were reasonably safe for pedestrian access, pedestrians taking reasonable care for their own safety". 9. His Honour found that the general vicinity of the footpath and surrounding grassed verge had been the subject of a number of complaints to the Council as evidenced in Customer Request for Action forms, together with the evidence of Mrs Sprogis. He rejected the Council's submission that the incidents observed by Mrs Sprogis could not be attributed to the wet area on the footpath. He found that it was more probable than not that the falls related to the area in question and it being wet. 10. His Honour concluded that the footpath area in front of 246 Harbour Drive had been the subject of a number of complaints "of a similar nature". He found that the Council breached its duty in that, knowing there was a risk of a slip hazard present on the footpath outside 246 Harbour Drive, it did nothing to obviate that risk. 11. His Honour found that the harm resulting from a slip and fall was reasonably foreseeable, the relevant harm being the likelihood of a person suffering personal injury. He found that the risk of harm was not insignificant and could have easily and cheaply been obviated by the presence of barriers and, at night, appropriate warning lights. His Honour concluded that the Council's breach of duty to the respondent directly caused the harm suffered. 12. His Honour rejected the statutory defences raised by the Council under s 43A and s 45 of the Civil Liability Act 2002 (NSW) (Civil Liability Act). 13. After referring to the provisions of ss 5B, 5C and 5D of the Civil Liability Act and the duty of care of a council for road works stated in Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 at [158]-[163], his Honour made the following findings: The council was negligent in failing to take precautions against a risk of harm that was foreseeable, it being a risk of which the council knew or ought to have known, the risk was not insignificant and, in the circumstances, a reasonable person in the council's position would have taken those precautions. Further it was probable that the harm would occur if care were not taken, that the harm would likely be serious and that the burden of taking precautions to avoid the risk of harm was not great, such as the erection of barricades and lights. I find that the negligence was a necessary condition of the occurrence of the harm and that it is appropriate for the scope of the Council's liability to be extended to the type of harm that occurred. 1. His Honour rejected the defence of contributory negligence and there is no challenge to that finding. 2. With respect to damages, his Honour indicated that he was more inclined to accept some of Dr Smith's diagnoses than those of Dr Hopcroft. These were relevant to whether the respondent's previous asymptomatic problems arising from prior injuries to his left ankle, right shoulder and neck became symptomatic again and had continued to the time of trial. 3. His Honour found that the respondent had suffered an exacerbation of his previous injuries which continued for longer than assessed by Dr Smith. He found that the ankle injury had returned "to what it was prior to the fall", but did not make a specific finding as to when that had occurred. In relation to the right shoulder, his Honour seems to have preferred the opinion of Dr Smith, that it was highly improbable that there was anything wrong with the respondent's right shoulder. His Honour found that a claim of full incapacity could not be justified, albeit there may have been a partial incapacity on the general labour market in the period following the respondent being made redundant on 21 November 2011. 4. His Honour considered that the respondent's economic loss was incapable of any mathematical calculation and was best reflected in a cushion for both the past and the future on the basis that it involved a finite period of reduced work capacity. He assessed a cushion of $50,000, being $30,000 referable to the past and $20,000 to the future. 5. With respect to non-economic loss, his Honour rejected the figure suggested by counsel for the respondent of $200,000 (35%), as neither justified nor supported by the evidence. He assessed an amount of $40,000 which he considered "allows a period of exacerbation of pre-existing disabilities and/or degenerative changes". 6. His Honour awarded past out-of-pocket expenses which had been agreed at $3,439.25. He allowed future out-of-pocket expenses of $3,000. 7. In the result, his Honour assessed total damages of $96,439.25 made up as follows: Non-economic loss $40,000.00 Past out-of-pocket expenses 3,439.25 Future economic expenses 3,000.00 Past economic loss 30,000.00 Future economic loss 20,000.00 Total: $96,439.25 Proposed grounds of appeal 1. The Council's draft amended notice of appeal advanced 14 proposed grounds of appeal; eleven directed to liability issues and three directed to damages. 2. Proposed ground 1 relates to his Honour's statement of the scope of the Council's duty of care. It is contended that his Honour erred in stating the duty as requiring the Council to "ensure" that its public areas were reasonably safe for pedestrian access, assuming pedestrians were taking reasonable care for their own safety. 3. Proposed ground 2 relates to the risk of harm. It is contended that his Honour incorrectly defined the risk. 4. Proposed grounds 2A, 3A and 3B relate to factual challenges concerning the findings relating to the slip hazard created by water on the concrete path and the significance of prior complaints made to the Council. 5. Proposed ground 3 relates to his Honour's findings that the risk of harm was foreseeable and not insignificant: s5B(1)(a) and (b) of the Civil Liability Act. 6. Proposed grounds 4, 4A and 5 relate to the precautions which his Honour found a reasonable person in the position of the Council would have taken. 7. Proposed ground 6 relates to causation and was abandoned. 8. Proposed grounds 7 and 8 relate to the statutory defences under s 43A and s 45 of the Civil Liability Act, which his Honour rejected. 9. Proposed grounds 9, 10 and 11 relate to damages. The Council seeks to challenge his Honour's assessment of non-economic loss under s 16 of the Civil Liability Act ($40,000), the allowance to future economic loss ($20,000) and the allowance for future out-of-pocket expenses ($3,000). Submissions 1. In oral argument, greatest emphasis was placed on the challenge to his Honour's findings as to the reasonable precautions which a person in the position of the Council would have taken to avoid the risk of harm (proposed grounds 4, 4A and 5). It was submitted that the respondent had slipped and fallen on an unremarkable area of wetness on a concrete footpath, that the water was only an intermittent problem, and that it was not a current problem known to the Council at the time of the respondent's fall. It was further submitted that the specific complaints the subject of the Customer Request for Action forms had been addressed by the Council and none of the complainants had contacted Council again. Accordingly, it was argued that an inference should be drawn that they were satisfied with what had been done by the Council. 2. Reference was also made to the provisions of s 42 of the Civil Liability Act which set out a number of factors that are to be considered by a court in determining whether or not a public authority has a duty of care, and if so, whether that duty of care has been breached. Complaint was made that the primary judge had not considered the financial and other resources that are reasonably available to the Council for the purpose of exercising its functions (s 42(a)), or the broad range of the Council's activities (s 42(c)). The difficulty with this submission is that Council had expressly eschewed any reliance on s 42 of the Civil Liability Act at trial. 3. More generally, the Council complained that his Honour's finding that the risk of harm could have easily and cheaply been obviated by the presence of barriers and, at night, appropriate warning lights, was a "simplistic finding" and not the way the case was run at trial. That submission ignored both the expert evidence and the respondent's submissions at trial directed to that issue. 4. Although the main focus of the expert evidence was on whether or not the Council should have installed a sub-soil drainage system, the respondent also relied upon the failure by the Council to take preventative measures, in particular, to install barricades and, at night, appropriate warning lights. Evidence to this effect was given by Mr Cockbain, an expert in occupational health and safety and risk management called in the respondent's case. The response of the expert called by the Council, Mr JA Clarke, was that he did not consider that the surface of the footpath would have become hazardous when it became wet. But his Honour implicitly rejected this in finding that the area of the footpath was a slip hazard. That finding did not involve any error, particularly having regard to the respondent's evidence that the footpath was "very slimy and wet" and the evidence of Mrs Sprogis who had observed three previous incidents in the wet area of the footpath. It is also supported by the photographs of the footpath taken the following day. 5. With respect to the factual challenges, the subject of proposed grounds 2A, 3A and 3B, I do not consider that his Honour misunderstood the significance of prior complaints made to the Council, which his Honour described as being of "a similar nature". Given that his Honour's finding relating to the slip hazard created by water on the concrete path, the factual challenges do not undermine his Honour's reasoning in relation to the reasonable precautions issue. 6. Next, reliance was placed on s 43A of the Civil Liability Act. It provides as follows: (1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority. (2) A special statutory power is a power: (a) that is conferred by or under a statute, and (b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority. (3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. (4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44. 1. There are a number of difficulties with the Council's attempt to rely upon s 43A on appeal. The first is that the only "special statutory power" identified in the Council's defence was s 71 of the Roads Act 1993 (NSW) (the Roads Act). No complaint is made in relation to the way in which his Honour dealt with s 71 of the Roads Act. 2. Secondly, in this Court, the Council contended that the failure to install barricades and appropriate warning lights involved a failure to exercise a "special statutory power" conferred on the Council by s 87 and s 115(1)(d) of the Roads Act. It is unnecessary to refer to the terms of these provisions as they were not pleaded, nor relied upon at trial by the Council. It was necessary for the Council to plead the material facts giving rise to the engagement of s 43A in relation to the exercise, or failure to exercise any "special statutory power": Curtis v Harden Shire Council [2014] NSWCA 314; 203 LGERA 352 at [244] Basten JA (with whom Bathurst CJ agreed in this respect). 3. It seems to be common ground that after the trial had concluded, the Council sought leave to make submissions with respect to s 43A and his Honour refused that application. None of the proposed grounds of appeal seek to challenge that ruling. In the circumstances, the Council should be held to the way in which it conducted its case at trial. It should not be permitted to raise a new point on appeal: Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598 at [51]. 4. With respect to proposed ground 1, nothing turns on a single, infelicitous expression of the Council's duty as to "ensure" pedestrian's safety. The judge did not say that the Council was under some form of absolute duty to "ensure" that some particular circumstance prevailed or that some particular step was to be taken: Rockdale City Council v Simmons [2015] NSWCA 102 at [73]. A fair reading of the reasons as a whole indicates that his Honour approached the question of breach on the basis of a duty to take no more than reasonable care. 5. With respect to proposed ground 2, his Honour identified the risk of harm as the likelihood of a pedestrian slipping and falling at night on the slip hazard created by the wet patch on the concrete path. The Council's complaint is not that his Honour's identification of the risk was either too broad or too particular but rather that the risk assumed that the wet patch was a slip hazard. That complaint is untenable. It ignores the evidence that at least three people had fallen on the same area of path before the respondent's fall. It ignores his Honour's finding that those persons fell because the path was wet. It also ignores the respondent's evidence and the photographic evidence taken on the day following the accident. Given his Honour's acceptance of the respondent's evidence that he slipped, his Honour was entitled to infer that the presence of water on the path was causing the path become unduly slippery and that was the cause of his fall. There was no error by his Honour defining the risk of harm in the way that he did. 6. With respect to proposed ground 3, there is no substance in the complaint that his Honour's finding (that the risk of a person slipping on that area of path and suffering injury was reasonably foreseeable) was in error. Nor is there any substance in the complaint that the risk of harm, identified by his Honour, as "not insignificant", was in error or lacked evidence. The risk of harm had already materialised in the present case by the time of Mrs Sprogis' complaint to the Council on 29 April 2009. 7. With respect to proposed ground 7, s 45 of the Civil Liability Act provides that a "roads authority" is not liable for harm arising from the failure of the authority to carry out roadwork, or to consider carrying out roadwork, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm. (In this Court, the Council fairly acknowledged that there was never an issue at trial that some form of complaint or record was made, nor was there an issue that such a complaint did not make its way to a responsible officer within the Council to do something about it. The issue was as to the nature, extent and effect of the "complaint" and what "actual knowledge" the responsible officer of the Council could make of such complaints.) 8. There are two difficulties with the Council's reliance on s 45 of the Civil Liability Act. 9. The first is that the definition of "carrying out roadwork" in s 45(3) of the Civil Liability Act directs one to the meaning of "road work" in the Roads Act, and the definition of "road work" does not include a "traffic control facility". The Council did not contend that the precautions which the primary judge found a reasonable person in the Council's position would have taken to avoid the risk of harm fell within the definition of "road work". 10. Secondly, and in any event, the Council's contention that none of the "complaints" relied upon by the respondent gave rise to actual knowledge of the particular risk that resulted in harm to the respondent, ignores his Honour's finding that the complaint made by Mrs Sprogis provided information to the Council which gave it actual knowledge, both of the problem of water across the footpath and that its presence created a risk to pedestrians of slipping and falling. To that may be added the content of the complaint the subject of the Customer Request for Action form dated 25 June 2010 which recorded that the footpath between 246 and 246A Harbour Drive had become muddy and inaccessible. 11. With respect to damages (proposed grounds 9, 10 and 11), the complaints advanced by the Council can be dealt with briefly. 12. First, as to non-economic loss, the respondent conceded that his Honour erred by failing to determine damages for non-economic loss in accordance with the table to s16(3) of the Civil Liability Act. However, nothing flows from this error because the Council acknowledged that, notwithstanding this error, it did not seek to disturb the award of $40,000 in relation to non-economic loss. 13. Secondly, as to future economic loss, the Council complains that his Honour allowed the respondent a "cushion" of $20,000. It is contended that there was no proper basis for making that allowance given his Honour's finding that the respondent had recovered and that his ankle had returned to its pre-injury condition. 14. Against this, it may be observed that his Honour approached the overall assessment of damages on the basis that there had been an exacerbation, caused by the fall, not only of the respondent's ankle injury but of other "disabilities". His Honour allowed a modest sum for the prospect that the exacerbation of those disabilities might give rise to some financial loss in the future, particularly where the respondent had not returned to his ordinary pre-injury duties by the time of trial. 15. Thirdly, as to future out-of-pocket expenses, the Council conceded that the dispute relating to the allowance of $3,000 is "relatively trivial". That is an understatement. The Council's submissions omitted to mention that, at trial, the Council had submitted that the amount which should be allowed for future out-of-pocket expenses should be $2,000. Refusal of the application for leave to appeal 1. The question of a grant of leave is discretionary and must be determined according to well-established principles. Ordinarily, leave to appeal is granted only when the matter involves an issue of principle or question of general public importance, or where it is reasonably clear that there has been an injustice which, in the circumstances, should be addressed. That may be the case if on an application for leave to appeal something more is shown than that the primary judge was arguably wrong: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[39]; Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397 at [45]. This is not such a case. 2. None of the proposed grounds of appeal raise any question of principle or general public importance. Mr J Sexton SC, who appeared for the Council, did not suggest otherwise. All turn upon alleged errors in his Honour's factual findings, or the legal conclusions to be drawn from those findings. 3. It is not in dispute that the respondent slipped and fell on a wet patch of concrete footpath which was very slimy. The Council had been informed of three prior incidents involving persons falling on a wet patch in the same area. The Council did not call any witnesses to contest that evidence. Nor did the Council assert that it did not have "actual knowledge" of the matters the subject of complaint by Mrs Sprogis or in the other Request for Action forms. There was expert evidence of preventative measures which the primary judge found that a reasonable person in the position of Council would have taken to avoid the risk of harm - in the form of installing barricades and, at night, appropriate warning lights. No submission was made by the Council at trial that the burden of taking those particular precautions to avoid the risk of harm was such that a reasonable person in the Council's position would not have taken those precautions. Nor did the Council plead or conduct its defence relying upon the protection from liability for the failure to exercise a "special statutory power" within the meaning of s 43A(2) of the Civil Liability Act, beyond the "road work" provision in s 71 of the Roads Act, which the Council did not pursue on appeal. 4. The Council has not made out an injustice which is reasonably clear, in the sense of going beyond a merely arguable error. The Council has not demonstrated a reasonably clear case that the primary judge erred in reaching his conclusion that the Council breached its duty of care to the respondent or in his assessment of damages. 5. For these reasons, I joined in the following orders made by the Court at the conclusion of the hearing of the application for leave to appeal: 1. Refuse leave to appeal. 2. The Court notes that although it is accepted by the respondent that there was an error in relation to the award of $40,000 for non-economic loss, the parties are agreed that this figure is not to be disturbed. 3. Applicant to pay the respondent's costs in this Court. 1. SIMPSON JA: The reasons for judgment of Gleeson JA express my reasons for joining in the orders made on 26 April 2016. 2. SACKVILLE AJA: I agree with the orders proposed by Gleeson JA and with his Honour's reasons. ********** 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: 03 May 2016