Defences - Section 45 Civil Liability Act 2002 - Non-Feasance Protection And Section 5F And 5G

Case Note

Angel v Hawkesbury City Council [2008] NSWCA 130

Spigelman CJ, Beazley JA, Giles JA, Tobias JA, Campbell JA

In Brief

• The appeal was heard consecutively with that of Blacktown City Council v Hocking & Anor. [2008] NSWCA 144 as in both matters the Defendant Councils raised a defence based upon s45 of the CLA. In doing so, each relied upon the majority judgments of Basten and Bryson JJA in Roman.

• Special leave was granted in the decision of Roman, however the proceedings settled before the appeal could be heard. Accordingly, the Chief Justice of the Court of Appeal directed the appeals in both this matter and that of Hocking be heard together by a bench of five to ensure consistency of decision making.

• The Court of Appeal considered s45 of the Civil Liability Act 2002 – Special Non- Feasance Protection for Road Authorities and whether the council could defend the claim on the basis that it had no actual knowledge of the risk which in this case was a raised footpath.

• This paper deals solely with the Angel v Hawkesbury City Council [2008] NSWCA 130 decision.

Background

• On 29 July 2005, at approximately 10:30 am, the Plaintiff, a 65 year old woman, was injured when her left foot caught on the leading edge of a displaced concrete slab section of the footpath, which had became displaced due to tree roots.

• The Plaintiff alleged she tripped and fell as the footpath was scattered with the shadows of tree branches to the extent that the area in front of her, at the location where she tripped, was quite dark. The Plaintiff gave evidence that she was looking where she was going as it was her practice to scan the area in front of her when she was walking.

• The Plaintiff was attended by two independent witnesses, Ms Coull and Ms Willmington, immediately after she fell. Both gave evidence at the trial as to the shadows across the relevant section of the footpath and that the height differential in the footpath could not be seen until one was within "a couple of feet" of that location. The Council submitted Ms Coull's evidence was inadmissible as it was based on opinion.

• The Plaintiff's son attended the incident site approximately one and a half hours after the incident occurred and took photographs of the raised footpath which were tendered into evidence.

• The Plaintiff and her son visited the Council the day following the accident and had a conversation with Ms Flanagan, who at the relevant time was an assistant insurance officer in the Risk Management Department of the Council.

• The Plaintiff gave evidence that she informed Ms Flanagan that she had tripped and fallen over a raised lip in the footpath that had trees casting shadows across it at the time. The Plaintiff alleged Ms Flanagan advised her she was aware that someone had been injured at that spot on the footpath and that the area had been earmarked for repairs, but the incident occurred before the repairs were carried out. The Plaintiff alleged Ms Flanagan was unable to explain why a barricade had not been erected at the site if the Council were aware of the problem before the Plaintiff's injury.

• The Plaintiff's son corroborated the Plaintiff's recollection of the conversation with Ms Flanagan, stating that Ms Flanagan stated "we knew about this" and "you got there before we did to repair it."

• Ms Flanagan accepted that she had a conversation with the Plaintiff but denied the terms of the conversation as asserted by the Plaintiff. Furthermore, Ms Flanagan stated that it was not her role or that of her Department to monitor or be aware of those assets of the Council which were listed for repair. Her evidence was that if a member of the public complained of being injured due to a poorly maintained Council asset, the complaint would be referred to the Manager of the Risk Assessment Department who would then seek a report from the Council's Engineering Department.

• The Plaintiff gave evidence that whilst she had not walked upon that area of the pavement before the accident, she was generally aware from her own experience that footpaths were sometimes uneven and had bumps of various types on them. She was also aware shadows were being cast by trees over the footpath upon which she was walking.

• The Plaintiff alleged the Council was in breach of its duty of care in failing to maintain and/or repair the footpath to ensure that it did not pose a hazard to pedestrians in circumstances where it knew the footpath was defective.

• The Council filed a defence denying it was in breach of its duty of care and asserted that it was not liable to the Plaintiff by virtue of s45 of the Civil Liability Act, 2002 ("CLA"). The Council also relied upon ss 5F and 5G of the CLA asserting the defect in the footpath was an obvious risk of which the Plaintiff was presumed to have been aware.

District Court Decision

• Trial Judge, Sorby DCJ, found the obvious risk of harm as judged by a reasonable person in the position of the Plaintiff was the raised lip of concrete pavement, stretching across the footpath to a height of two inches.

• Sorby DCJ accepted the shade from the trees and the contrasting shadow along the footpath "could obscure the view of the raised concrete lip, creating a hazard that could expose pedestrians such as the [Plaintiff] to the risk of injury by tripping on the raised lip of concrete."

• Nonetheless, Sorby DCJ relied upon the Plaintiff's evidence that she was aware of the types of risks associated with footpaths, ultimately concluding that where the Plaintiff was aware of the type or kind of risk, that the risk was therefore obvious and one which the Plaintiff was presumed to have been aware of. Accordingly, the Plaintiff's claim failed.

• In respect of the Council's defence based on s45 of the CLA, Sorby DCJ could find no reason why the photographs exposed of the footpath taken by the Plaintiff's son could not be allowed into evidence, where there was corroborating evidence of two independent witnesses who assisted the Plaintiff at the time of her fall.

• Furthermore, Sorby DCJ accepted the Plaintiff's version of the conversation with Ms Flanagan and noted that the Council accepted that once the evidence relating to the Plaintiff's conversation with Ms Flanagan was admitted and accepted, it constituted evidence of the truth of its content notwithstanding the hearsay elements. Accordingly, Sorby DCJ found that Ms Flanagan's knowledge of the defective slab and her assertion that it had been ear marked for repair constituted actual knowledge of the Council for the purpose of s45(1), thus engaging the exception to the Council's statutory nonliability for its failure to repair the defective slab.

• Judgment was given on 28 November 2006, before the judgement in North Sydney Council v Roman [2007] NSWCA 27 ("Roman") was handed down.

The Appeal

• In the present matter, the Plaintiff appealed the decision of Sorby DCJ on the issue of liability only. The Council filed a Notice of Contention seeking to support the findings on liability based on ss5F and 5G of the CLA and filed a cross-appeal on three basis. Firstly, the trial judge's finding of actual knowledge for the purposes of s45 of the CLA and secondly, the award for future gratuitous attendant care services and thirdly, the trial judges failure to find contributory negligence.

Court of Appeal Decision

• Beazley and Tobias JJA wrote the unanimous decision.

• Beazley and Tobias JJA looked to the decision in Roman in which it was held that for the purposes of s45 of the CLA, actual knowledge must be found in the mind of an officer within the council having delegated (a statutory) authority to carry out the necessary repairs. Basten JA expressed the view in Roman that the Plaintiff bears the onus of proving the facts necessary to engage the exception to the immunity.

• The Court of Appeal found Sorby DCJ did not make a finding as to whether any officer within the Council, who had delegated authority to carry out or authorise the carrying out of repairs to the subject footpath or to consider carrying out such repairs, had actual knowledge of the defective slab.

• In applying the majority judgment in Roman, Beazley and Tobias JJA found a relevant officer of the Council had actual knowledge of the particular risk which resulted in the Plaintiff's injury, on the basis that Ms Flanagan had advised the Plaintiff the day following the accident that the location of the footpath where the accident occurred had been ear marked for repair. It therefore followed that the officers of the Council responsible for the carrying out of the relevant work must have had actual knowledge of the particular risk. Accordingly, it was held the exception referred to in s45(1) of the CLA was engaged.

• In determining whether the risk was "obvious", it was found the oral evidence of Ms Coull was admissible as it related to what she saw at the scene of the accident within moments of the accident occurring.

• It was found that Sorby DCJ erred in finding the raised lip of the footpath was an obvious risk within the meaning of s5F and that it was the type of risk a person was aware of within the meaning of s5G. Beazley and Tobias JJA wrote at [66]: "It is true that a pedestrian is required to take reasonable care for his or her own safety. But that does not require that a person must walk along a footpath with their eyes continuously glued to the area immediately in front of them. In our view, and as the [Plaintiff] submitted, there was nothing unreasonable in the [Plaintiff's] failing to notice a defect in the footpath of the nature of that in the present case when such a defect only became apparent when the [Plaintiff] was within "a couple of feet" of it."

• Turning to the decision in Hastings Council v Giese [2003] NSWCA 178, Beazley and Tobias JJA accepted the difference between a defect in a footpath which is obvious and one which is not because it is obscured even to a pedestrian taking reasonable care for his or her own safety.

• The Court of Appeal held the obviousness of the risk is not irrelevant to an analysis of a breach question, but one of the considerations to be taken into account in determining the reasonable response of a Defendant to a foreseeable risk of harm, as referred to by Mason J in Wyong Shire Council v Shirt [1980] HCA 12.

• Beazley and Tobias JJA found the shadows cast over the join between the defective slab and its immediate neighbour did obscure the Plaintiff's view of the raised lip until it was too late for it to be avoided. Accordingly, the risk of harm was found to not have been obvious to a reasonable person in the Plaintiff's position, "nor would it have been either apparent to nor recognised by such a person exercising ordinary perception, intelligence and judgment". The Court of Appeal did not accept the Council submission that a Court must find the vision of a Plaintiff must be "totally and absolutely" obscured in order to give rise to a risk.

• The Council challenged the extent of Sorby DCJ assessment for gratuitous care on the basis of the Plaintiff's pre-existing injuries and submitted His Honour made no finding to support the threshold requirements of s15(3) of the CLA. Sorby DCJ heard oral evidence from the Plaintiff and her son. Furthermore, he had available to him medical reports of Dr Bodel and Dr Conrad. Neither Doctor was called to give oral evidence.

• The Court of Appeal found Sorby DCJ was in the best position to assess the evidence of the Plaintiff and her son, particularly in light of the "significant attack that was made by council in cross-examination on the [Plaintiff's] claim having regard to her preaccident history and in assessing her response. Whilst this Court can assess that matter by reference to the transcript, full weight should be given to the advantage the primary judge had in hearing the evidence and observing the witnesses." Accordingly, the Court of Appeal found that it was open, on the evidence available, to award 8 hours per week for gratuitous care.

• On the question of contributory negligence, it was held the Council's contention that due to the shadowing on the footpath the Plaintiff should have exercised extreme care to ensure the shadows did not obstruct her view of any imperfections or bumps in the footpath which she might encounter was not reasonable, was to impose a "counsel of perfection" rather than a reasonable person test. The Council's cross-appeal ground on contributory negligence was therefore rejected.

• The Plaintiff's appeal was allowed and the Council's cross-appeal was dismissed. The orders of Sorby DCJ were set aside in lieu of a verdict and judgment for the Plaintiff in the sum of $165,178.20.

Implications

• Roman's case was applied and upheld.

• The decision confirms the onus lies with the Plaintiff to prove the Defendant had actual knowledge of the risk with the knowledge being held by an officer with delegated authority to carry out the necessary repairs. The decision will therefore be of assistance to Councils in defending claims where the Plaintiff will have difficulty proving the Council had actual knowledge of a risk.

• The facts of this case were somewhat unusual in that an oral admission was made by a Council officer to the effect that the Council had actual knowledge of the defect and the footpath had already been earmarked for repairs. Such admissions are unlikely to occur in the future.

• The Court of Appeal will not enter into discussions on contributory negligence where a defendant claims a counsel of perfection rather than what a reasonable person in the position of the Plaintiff might do in exercising reasonable care for his or her own safety.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.