Anderson v Gold Coast City Council [2008] QDC 126

DISTRICT COURT OF QUEENSLAND CITATION: Anderson v Gold Coast City Council [2008] QDC 126 PARTIES: NOLA ANDERSON (Appellant) v GOLD COAST CITY COUNCIL (Respondent) FILE NO/S: No 61 of 2007 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: District Court, Southport DELIVERED ON: 13 June 2008 DELIVERED AT: Brisbane HEARING DATE: 23 January 2008 JUDGE: Rackemann DCJ ORDER: The appeal is dismissed CATCHWORDS: Negligence – Trip and fall on protruding service pit cover in footpath – whether duty – whether reasonably foreseeable risk of injury to pedestrian exercising reasonable care for their own safety – whether breach – whether footpath reasonably constructed – whether council knew or ought to have known of risk COUNSEL: Mr D J Kelly of Counsel for the appellant Mr M T O’Sullivan for the respondent SOLICITORS: Parker Simmonds for the appellant O’Keefe Mahoney Bennett for the respondent [1] On 14 October 2000 at about 4:15 pm the appellant tripped on the edge of one of two service pit covers and fell. The cover was set in the ground, but in close proximity to a concrete pavement within the footpath, on the south-western corner of the intersection of Old Burleigh Road and Charles Avenue at Broadbeach. The fall occurred on a bright sunny day, in good lighting conditions and in circumstances -- 1 of 22 -- 2 where the learned Magistrate, at first instance, found that she was able to observe the ground surface in front of her, had she been keeping a proper lookout. The plaintiff claimed to have suffered personal injuries as a result of the fall and subsequently commenced proceedings against the respondent which, it was accepted, was the occupier of the footpath and provided and maintained the footpath, including the covered service pits. [2] By paragraph 5 of the statement of claim, the appellant alleged negligence on the part of the respondent as follows: ● failing to maintain the ground around the service pits level with the service pit so as not to pose a risk of injury to persons such as the plaintiff; ● failing to ensure that the service pit did not pose a risk of injury to persons such as the plaintiff; ● failing to provide a safe means of passage for pedestrians travelling along Charles Avenue; ● failing to ensure that the service pit covers were aligned with the surface level of the footpath; ● adopting a method of maintenance of the service pits that place persons such as the plaintiff at risk of injury; ● failing to detect the risk posed by the service pit; ● failing to properly maintain the footpath around the service pit; ● in circumstances where it knew of the risk to persons such as the plaintiff and failed to minimise that risk; ● in circumstances where the defendant knew of heavy pedestrian use of the footpath facility, to implement regular maintenance of same to prevent the exposure of the edges of the service pit covers. -- 2 of 22 -- 3 [3] By a judgment delivered on 12 January 2007, Lee SM dismissed the plaintiff’s claim. It is against that decision that this appeal is brought. [4] The learned Magistrate found that the plaintiff’s evidence was, in many respects, unsatisfactory and unreliable. He did however, accept that she fell as a result of a trip on the service pit cover, which protruded about one inch above the surrounding ground, and that this was the sole cause precipitating her fall. The learned Magistrate identified the liability issue as whether or not the respondent was negligent in failing to take steps to eliminate the protruding service pit cover, so that it was flush with the surrounding unsealed ground. Having reviewed the relevant authorities, including Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512 (Ghantous) and having analysed the facts, his Honour concluded that a duty did not arise and that, even if it did, no breach of that duty had been established. [5] His Honour did not find it necessary to make findings as to what contributory negligence would have been found, had the respondent been liable, although he indicated that it would have been of “a high degree”. He did address quantum, but found that the appellant had failed to establish her case with respect to general damages or within respect of the Griffiths v Kerkemeyer component. Insofar as general damages are concerned, his Honour observed that the case was complicated by the fact that the plaintiff had sustained a number of other falls before and after the fall of 14 October 2000 and there was a “lack of medical evidence as to the effects of these other falls and as to what injuries (and consequent symptoms) can be attributed to the fall on 14 October 2000”. -- 3 of 22 -- 4 [6] The appeal is against the learned Magistrate’s findings with respect to liability and quantum. It is unnecessary for me to traverse the issues of quantum or contributory negligence, because I do not consider that the finding on liability should be disturbed. [7] It was submitted, on behalf of the appellant, that she was within a class of persons to whom a duty was owed and that the respondent was in breach of that duty for reasons which may be summarised as follows: 1. The protruding services cover constituted a reasonably foreseeable risk of injury; 2. The Council ought to have sealed a greater part of the footpath from the outset, so that the risk did not arise, or – 3. The Council: (a) Was aware of the risk; or (b) Would or should have been aware of the risk, had it undertaken inspections at reasonable intervals; and (c) Failed to take reasonable steps, within a reasonable time, to address the risk prior to 14 October 2000. Reasonably foreseeable risk of injury [8] What constitutes a reasonably foreseeable risk of injury, sufficient to oblige an entity in the position of the Council to take reasonable steps to address it, was the subject of consideration by the High Court in Ghantous. The plaintiff in that case tripped and fell while walking along a concrete footpath. Since the original construction of the footpath, erosion had resulted in subsidence of the earth in some places, so that the verge was about 50 millimetres below the concrete. Mrs Ghantous tripped when she stepped aside to allow other pedestrians to pass. She placed her foot so that it was -- 4 of 22 -- 5 partly on the concrete and partly on the lower verge, resulting in her fall. In the joint judgment of Gaudron, McHugh and Gummow JJ it was said (at pars 158-163) as follows (my underlining): [158] A rejection of the “immunity” for “highway authorities” and the recognition of duty of care in terms expressed above with reference to Wyong Shire Council v Ghert does not necessarily involve the imposition of an obligation to exercise powers to repair roads or to ensure they are kept in repair. An authority may have various statutory powers invested in it and would be under a duty not to use, misuse or fail to use those powers to create a situation of danger which creates a reasonably foreseeable risk of injury to a user of the road. [159] The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works, from a failure to remove unsafe items in or near a road, or from the placing of items upon a road which create a danger, or the removal of items which protect against danger. [160] In dealing with questions of breach of duty, whilst there is to be taken into account as a ‘variable factor’ the results of ‘inadvertence’ and ‘thoughtlessness’, a proper starting point may be the proposition that the persons using the road will themselves take ordinary care. [161] Not all failures to repair will create risk to the users of a road, or at least not risks which would, as a matter of reasonable foreseeability, pose a risk of injury … [162] The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authority. In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations. The resources available to a road authority … may dictate the pace at which repairs may be made and affect the order of priority in which they are made. [163] The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise -- 5 of 22 -- 6 sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger … or the surrounding area … in such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a ‘trap’ or, as Jordan CJ put it, ‘of a kind calling for some protection or warning’. In Romeo, Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises ‘is generally entitled to assume that most entrants will take reasonable care for their own safety’. Each case will, of course, turn on its own facts.” [9] Callinan J said (at par 355) as follows (my underlining): “… even if I were to assume that an action in negligence lay against the respondent for any failure to maintain or improve the footpath or keep or make it safe, whether as a matter of misfeasance or otherwise, I would conclude that there was no failure in that regard because the footpath was not, despite what the expert witness was allowed to say, unsafe. The case of the applicant in negligence was that a differential in height between the concreted part of the footpath and the earthen part of it created a dangerous situation. A court is not obliged to accept an expert, especially when his or her evidence is evidence purportedly resolving and concluding an issue of the kind which arose here. A court is not bound to accept that a matter of ordinary observation such as the readily apparent state of the footpath is a matter calling for expert opinion. But in any event the expert’s opinion (uncontradicted as it was) did not go so far as to say that the ‘poor maintenance’ which caused the ‘hazard’ actually caused one of such a nature that to leave it unrectified was negligent. There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course they walk along. No special vigilance is required for this. The applicant herself admitted in cross-examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the earthen verges. There was no negligence on the part of the respondent either in the construction of the footpath or in not keeping the concrete strip and verges level.” [10] Gleeson CJ said at par 6 (my underlining): -- 6 of 22 -- 7 “… 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. Not all footpaths are perfectly level. Many footpaths are uneven. People are regularly required to walk on uneven surfaces on both public and private land. [7] In Littler v Liverpool Corporation, 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, and such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green.’ [8] I agree with Callinan J that no case of negligence was made out against the respondent.” [11] In Richmond Valley Council v Standing (2002) NSWCA 359 the New South Wales Court of Appeal was concerned with a plaintiff who was injured when she tripped and fell on an irregular paved concrete surface in the vicinity of a school which she had just visited. The surface was a junction between a footpath and a driveway. The concrete surface contained cracks and holes of various sizes, and some differences in height between its various portions. The plaintiff believed that she tripped when her foot caught in a hole in the crack between portions of the concrete surface. After reviewing relevant passages from Ghantous, Heydon J (with whom Handley JA and Sheller JA agreed) said at par 29 (my underlining): “The first question is whether the defendant owed a duty of care to the plaintiff. That turns on whether the failure of the defendant to repair the footpath created a ‘foreseeable risk of harm’ to pedestrians. That expression appears to be a reference to a reasonably foreseeable risk, since at [161] in Brodie v Singleton Shire Council Gaudron, McHugh and Gummow JJ said: “Not all failures to repair will create risks to the users of road, or at least not risk which would, as a matter of reasonably foreseeable, pose a risk of injury”. The existence of a duty must be assessed in part by reference not to any requirement that the footpath ‘be safe … in all circumstances’, but by reference to the position of ‘users exercising reasonable care for their own safety’ (at 163). This was said to be particularly important in relation to -- 7 of 22 -- 8 pedestrians. The question is whether there was a reasonably foreseeable risk of harm to a pedestrian exercising reasonable care for her own safety, bearing in mind the particular advantages of pedestrians. The issue of the capacity of the defendant to deal with particular risks and the competition between claims on scarce resources is not specifically relevant to the question on the scope of the duty, but to the questions of its breach.” And at pars 54-55 (my underlining): “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 millimetres 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 …” [12] Heydon JA went on to apply the reasoning of Hodgson JA (Foster A-JA and Brownie A-JA concurring) in Lombardi v Holroyd City Council (2002) NSWCA 252 at 32 where he said (my underlining): “I do not accept that a plainly visible step of 25 millimetres in a footpath is correctly regarded as high risk or unacceptable risk. It is desirable that even obvious steps of 25 millimetres in footpaths be -- 8 of 22 -- 9 avoided and eliminated if possible; but that is not to say that the failure of a Council to detect and eliminate all such risk is negligent. As a general rule, in my opinion it is not.” [13] In Neindorf v Junkovich (2005) HCA 75, the High Court was concerned with the application of the Wrongs Act 1936 (SA) in the context of a respondent who suffered injury when she tripped on an uneven surface in the driveway of the appellant’s home while attending a garage sale. While the matter concerned statutory provisions, observations were made about the common law position. Callinan and Heydon JJ said (my underlining): “[99] This appeal raises no question of principle. It simply represents a question whether under the Wrongs Act (the Act), an occupier of residential premises owes entrants a duty of care to prevent a minor and obvious risk of injury which an entrant, exercising reasonable care for his or her own safety, could reasonably be expected to notice and avoid. … [113] The case in the courts below was conducted largely on the basis of the common law rather than the Act. No one suggested that the appellant did not owe a duty of care to the respondent. The duty was a duty however to take reasonable care only. It did not extend to a duty to adopt any measures of a kind canvassed, of warning, differently locating the table, or placing a mat on the driveway, or otherwise the levelling out of the difference in height at the joint.” [14] In applying those principles in this case the learned Magistrate posed the question of whether there was a reasonably foreseeable risk of harm to a person in the position of the plaintiff. In answering that question, his Honour appears to have considered it relevant to take into account matters which are specific to the plaintiff, including that she was a “local in the area”, who was very familiar with the area in which she fell and was fully aware of the presence of the service pit cover. He did not consider it a case of mere inadvertence. Counsel for the appellant submitted that this approach was in error, since the duty of care (if it arises) is one owed to the plaintiff as a -- 9 of 22 -- 10 member of a class (i.e. pedestrians using the footpath) rather than to her as an individual and that circumstances which are specific to the plaintiff are irrelevant. [15] Reliance was placed upon the reasons of Jerrard JA in Layden v Caboolture Shire Council [2007] QCA 134, in which his Honour quoted the following passage of McHugh J in Mulligan v Coffs Harbour City Council (2005) 223 CLR 486: “Consistently with the decision in Romao, then, it should now be accepted that the duty of care owed to an entrant on public land is a duty owed to them as a class, and not to each of them as individuals. In so far as a public authority owes a duty to an individual entrant, it is correlated with the duty of the class and is not measured by reference to the personal characteristics of that individual member. Only in that sense can the duty be said to be owed to each entrant personally. There is nothing unusual in the common law defining a duty in terms of class without regards to the characteristics of individual members of that class.” [16] While Jerrard JA was in dissent, that was because the majority found that the defence of volenti non fit injuria applied. McKenzie J stated that he agreed with Jerrard JA’s reasons otherwise. [17] I note that, in the passage from Ghantous quoted earlier, Callinan J said “the applicant herself admitted in cross examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface”, but I do not take that observation as a statement of principle that the issue of reasonable foreseeability should be resolved having regard to circumstances that are specific to the plaintiff, rather than to the position of the class of persons, of whom the plaintiff is a member (including by reference the particular advantages of that class). [18] The question is as stated in Richmond Valley Council v Standing: “The question is whether there was a reasonably foreseeable risk of harm to a pedestrian exercising a reasonable care for her own safety, bearing in mind the particular advantages of pedestrians.” -- 10 of 22 -- 11 [19] While I accept that his Honour’s reasoning may have erred in this respect, it does not alter the correct conclusion on liability. It is difficult to conclude that the unevenness of the surface, by reason of the service cover protruding about one inch above the worn surface around it, would, as a matter of reasonable foreseeability, pose a risk of injury to pedestrians exercising reasonable care for their own safety. [20] In this case the question of whether there was a reasonably foreseeable risk of injury relates to pedestrians who choose to take a short cut by traversing the unsealed part of the footpath, in which there were plainly observable service pit covers, instead of using the sealed pavement provided. As was pointed out in Ghantous, pedestrians are, in general, more able to see and avoid imperfections in a road surface and it is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. Further, as Gleeson CJ noted, many footpaths are uneven. That is particularly so for those who choose to traverse the unsealed part of a footpath, which has obvious wear and in which there are obvious service installations which, as one would expect, are also quite obviously not laser level with the surrounding ground. [21] As was noted in Richmond Valley Council v Standing, manhole covers are an example of common features which pedestrians encounter all over the country. Covers such as those upon which the plaintiff tripped in this case are but another example. The evidence, including the photographs tendered at trial, show that the covers (including the protruding edge) and the nature and condition of surrounding ground surface were visible and indeed obvious. There was no obstruction from view by grass, other concealment or inadequate lighting. No special vigilance was required. The learned Magistrate’s finding that “this is not a case where the service lid cover constituted a hidden, unusual or unexpected danger” was clearly open and -- 11 of 22 -- 12 indeed justified. To the extent that there was any risk, it was ordinary, minor and obvious. [22] While almost any injury can, with the benefit of hindsight, be said to be foreseeable, the unevenness of the surface, by reason of the services cover not being flush with the surrounding ground surface did not, in my view, constitute a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety. That conclusion sits well with (but is not dependent upon) the lack of prior reported falls in this area, notwithstanding that the area appears to have been used by a sufficient number of pedestrians to cause the ground to have become worn. [23] In contending to the contrary, counsel for the appellant placed reliance upon: • evidence of Council officers that the condition of the area, as shown in the photographic evidence, would have justified remedial works; and • Council’s subsequent actions, in sealing a greater part of the area, including that around the services covers. [24] Those matters are not determinative . In that regard: (i) That the condition of the area qualified, under the Council’s system, for remedial works and that works were subsequently carried out, does not necessarily lead to the conclusion that the Council was under a duty at law. Counsel for the respondent submitted that his client had done works even though it had no duty to do so. (ii) If the evidence of the Council officers is taken to be evidence of their opinion that there was a foreseeable risk of injury then, even if admissible, those opinions are not binding upon the court; and -- 12 of 22 -- 13 (iii) As the learned Magistrate pointed out, the evidence did not necessarily relate to the unevenness caused by the protrusion of the service cover, upon which the plaintiff tripped, rather “this evidence encompassed the whole area”. That area included other parts, including eroded areas immediately adjacent to the sealed part of the footpath, which resulted in an exposed edge and “drop off” over a significant distance. I note that one of the Council officers, Mr Davis, in agreeing that the area shown in the photograph was a “high priority defect”, made specific mention of “the worn grass area beside the footpath”.1 At trial the plaintiff said she had first tripped on the service pit cover before stumbling over the edge of the concrete footpath, but the learned magistrate found that the trip on the service pit cover was the sole cause of the fall. I do not accept the submission of Counsel for the appellant, that the evidence established that the whole of the area, including all parts of it, constituted a foreseeable risk of injury. Indeed that is unlikely to be so, since the area which was ultimately sealed included parts that were previously sealed and in respect of which there was no suggestion of any defect. [25] My conclusion, in this respect, is sufficient to dispose of the appeal, but I will also consider whether the Council was in breach of its duty, on the assumption that the unevenness in surface level gave rise to a duty. Inadequate Footpath [26] It was contended, on the hearing of the appeal, that the Council was negligent in failing to seal the whole of the area from the outset, or at least much sooner than it did. The evidence did not establish when the footpath was first constructed. It was pointed out that, although the Council had provided a safe, sealed surface for pedestrians to use, it was foreseeable that pedestrians would take a “short cut” across the unsealed portion, including the area within which the service covers were located. Given the location of the footpath, opposite a shopping area, it was foreseeable that pedestrian traffic may lead to that area becoming worn, uneven and a risk of injury to 1 T 19 l 40. -- 13 of 22 -- 14 pedestrians traversing it. I do not consider however, that the Council’s actions fell below the standard of reasonableness. [27] Different footpaths are, of course, constructed to different standards. Some are fully sealed, some partly sealed and some not sealed at all. It would be unduly onerous to hold that the standard of reasonableness requires full sealing of all footpaths, or all footpaths in urban areas or even all footpaths which are likely to be subject to frequent pedestrian use. Issues of resourcing and relative priority can obviously intrude into the decision making of an authority, in selecting the standard to which a given footpath will be constructed. [28] There was evidence at trial that: ● The Council had a budget with respect to the maintenance and sealing of the many kilometres of footpaths within the large area of its responsibility, which comprises the city of the Gold Coast.2 ● It was beyond the means of the budget to bring all unsealed areas up to the same standard as sealed areas.3 ● The Council had a system of priority. The areas with highest priority and which obtained full sealing and the most regular inspections are “CBD type areas” which are mapped accordingly. They are generally footpaths which adjoin commercial premises, where people undertake day to day commerce. 2 T 26-27 of 24 November 2006. 3 T 27 of 24 November 2006. -- 14 of 22 -- 15 ● While the subject area is proximate to a shopping centre and would have “reasonably” high pedestrian traffic, it was not part of the area afforded the priority of a CBD area. ● In addition to undertaking works, Council also has a system of regular inspections of footpaths, including the subject footpath, so as to detect to identify, prioritise and undertake maintenance and rectification works as required. • The Council also responds to complaints. [29] While counsel for the appellant argued that the subject area should have been given the same priority as a “CBD” area, this was little more than an assertion, based on its proximity to such an area and the fact that the unsealed area had in fact become worn. The evidence fell short of demonstrating that the Council’s approach to prioritising the expenditure of resources on footpath sealing and subsequent inspection and works failed the test of reasonableness. The standard of construction in the subject area and the frequency of inspections of that area appear to have been in accordance with that programme. [30] Having observed that there had been no reported incidents at the site prior to 14 October 2000 and that there was a satisfactory system of inspection in place, the learned Magistrate said that he did not consider the argument (that the area should have been sealed earlier) as one of great force. That was a sound conclusion. Did the Council fail to take steps, within a reasonable time, to address a risk of which it was aware or of which it should have been aware -- 15 of 22 -- 16 [31] Assuming, contrary to my earlier conclusion, that the protruding services cover constituted a foreseeable risk of injury, sufficient to give rise to a duty to abate it, the next question is whether the Council knew or ought to have known about the risk in sufficient time to have acted reasonably to abate the risk prior to the incident on 14 October 2000. Counsel for the appellant contended that: ● The Council’s system of inspections was deficient; and ● The Council had been put on notice of the risk, by a letter of complaint. [32] The Council did have a system for inspecting footpath areas, recording defects and prioritising the work needed to correct them. Mr Davis was the inspector at the relevant time and had, in accordance with Council’s inspection regime, visited the subject area in November 1999. No defects of relevance were noted at the time. There was no suggestion that Mr Davis carried out his inspection negligently. The learned Magistrate found that the condition of the area, as shown in the photographs, developed after his inspection and that the Council “did not know of the state of the area in question as of 14 October 2000”. [33] Where defects were observed, they were ordinarily noted and prioritised. In the case of sealed footpaths, the Council had established “intervention levels” to trigger remedial work. Mr Cooper who, at the relevant time, was the manager of maintenance services with the Council, gave evidence that the intervention levels for sealed footpaths were that a “step” no greater than 50 mm was classified as urgent work, to be attended to within 24 hours. Steps of between 25 and 50 mm were high priority, to be actioned within two weeks, if in the designated “CBD” areas and were -- 16 of 22 -- 17 otherwise “medium priority”, to be actioned within three months. Steps of between 10 to 25 mm were accorded a low priority.4 [34] Depressions or worn areas in unsealed areas were referred to the parks maintenance section for assessment. That is what Mr Davis would have done, had he seen the area in the state as depicted in the photographs5 although he would have regarded it as high priority.6 Mr Cooper’s evidence was that unsealed areas were given a high priority if they were deemed to be a safety issue, a matter which would be assessed by the relevant supervisor or inspector.7 In addition to the system of regular inspections, the Council also undertook investigations as a result of complaints or incidents. [35] The Council’s system appears to be within the bounds of reasonableness and was followed in respect to the subject area. The only real criticism was that the particular area in question should have been inspected more frequently, such that the Council might have earlier detected the condition of the unsealed part of the footpath and undertaken remedial works. While a more frequent inspection regime logically leads to a greater prospect of detecting developing problems earlier, it does not follow that the Council’s system of inspection was other than reasonable. I am not prepared to disturb the learned Magistrate’s finding that “the system of inspection put in place was a reasonable response”. [36] It was further submitted, on behalf of the appellant, that even if the Council was not negligent in failing to earlier detect the condition of the footpath by inspection, it was 4 T 23 l 24 -T 30 of 24 November 2006. 5 T 19 l 41-43 of 24 November 2006. 6 T 19 l 50 of 24 November 2006. 7 T 24 l 20-25 of 24 November 2006. -- 17 of 22 -- 18 at least negligent in failing to respond to a specific complaint, received within a reasonable time prior to the incident in question. Indeed this was said to be the matter which was likely to be found to be the critical factor with respect to breach.8 In this respect however, the defendant also failed to establish her case. [37] The appellant relied upon a letter, dated 26 September 2000, from the body corporate of a nearby development to one of the Councillors. The letter referred to the “poor condition” of the footpath, that it was a “heavy pedestrian traffic area” and that the body corporate “looks forward to improvements to the footpath”. The letter did not assert that there was any safety issue and, in particular, did not raise any complaint about a protruding edge of the services cover. It did however, attach some photographs. [38] The learned Magistrate said that the fall occurred “only a matter of days after making allowance for delivery of that letter”, but counsel for the appellant pointed to the two and a half week period between the date of that letter and the date of the incident, together with the evidence of Mr Cooper, that unpaved sections of footpaths which were assessed to be high priority, on the basis of safety, could be made safe within three days. Counsel suggested that the respondent ought reasonably have attended to this area prior to 14 October 2000. That submission however, overlooks a number of things. [39] The letter was written by Mr Yeats, who gave evidence at trial. His evidence was that, in September 2000, the owners of his building asked him to write to the local Councillor with respect to the footpath. He identified the letter as one which he wrote to the Councillor, but was not asked whether he sent the letter on the same day or at 8 T 21 of transcript of 23 January 2008. -- 18 of 22 -- 19 some later time. It is, of course, not unknown for people to prepare a letter one day but fail to post it until a later date. Further, no evidence was called to establish when the letter was received by the Councillor. [40] Secondly, the letter was not addressed to the Council, or to its chief executive or even to the relevant section within the Council, responsible for the inspection and repair of footpaths. Rather, it was a letter to an individual politician who was a Councillor. As the learned Magistrate noted, “it was sent to a politician instead of to the correct address in Council administration dealing with repair of footpaths”. Generally, the state of mind of individual Councillors can only be attributed to the corporate body constituted by a council if there is some provision to that effect, or by other recognised principles of general law.9 Counsel for the appellant did not refer me to any statutory provision or to any authority in support of the proposition that the Council, as a corporate entity, is taken to be on notice of everything contained in correspondence passing between constituents and individual Councillors. [41] That a letter of complaint was addressed to an individual Councillor, would not justify the Council in ignoring that complaint, if it came to the Council’s attention. The next question therefore, is whether the Councillor passed the complaint on and, if so, when. There was however, no evidence as to when the letter was received within the Council. Faced with this “gap” in the evidence, counsel for the appellant, at the commencement of the hearing of this appeal, made an instanter application for leave to call further evidence, but ultimately withdrew his application, in the face of opposition by the respondent. Accordingly, it is not possible to say how much (if any) prior notice the Council had of the contents of the letter to the Councillor. 9 See Perth City Council & Ors v DL & Ors (1996) 90 LGRA 178. -- 19 of 22 -- 20 [42] Further, once the letter of complaint came to the Council’s knowledge, the most the law of negligence would require is for the Council to take reasonable steps within a reasonable time. That did not necessarily require works within three days of the receipt of the letter. Much was sought to be made of Mr Cooper’s evidence that the standard for dealing with high priority matters involving safety on unsealed footpaths was three days. That three day period however, assumes not only that the letter had been received, but that the area had been assessed as being one of high priority. As Mr Cooper explained with respect to the time taken for an inspection: “Within reasonable timeframes. Obviously to – once a letter’s received to Council it goes through the processes before it’s handed to the relevant people that do the inspections, and they would then programme that inspection.”10 [43] Having been pressed on whether the area would have been afforded a high priority on the basis of the photograph attached to the letter, Mr Cooper responded: “Within the limits of the resources, because obviously this would go through the supervisor for that area and he, amongst his other duties, would – would arrange his inspections to look at these matters.”11 [44] Reminded of his evidence about attending to high priority matters within three days, Mr Cooper explained that that was on the basis of something which had already been identified as being of high priority. As he explained, a three day response time cannot be expected from the time a letter is received by the Council, because a letter must be processed and directed to the correct person before the matter can be assessed to determine the appropriate response.12 10 T 31 l 5-10 of 24 November 2006. 11 T 31 l 25 of 24 November 2006. 12 T31 of 24 November 2006. -- 20 of 22 -- 21 [45] The evidence falls short of establishing that the Council had sufficient prior notice of the condition of the footpath, such that the duty to act reasonably demanded remedial works prior to 14 October 2000. Conclusion [46] I am not prepared to disturb the learned Magistrate’s conclusion on liability. The risk of injury, upon which the appellant relies to found a duty, is a risk to a class of persons of whom she is a member, namely pedestrians, that they may trip and fall on the protruding edge of a services cover, should they choose to shortcut across an unpaved, uneven section of footpath in which there are service pit covers. That the protrusion could possibly have been an occasion of harm does not mean that the Council was under a duty to eliminate the risk. The footpath was not dangerous. Many footpaths, particularly parts of footpaths which are unsealed, are also uneven and accommodate facilities like the service covers in question here.13 It is not unreasonable to expect that pedestrians who choose to take a short cut across an obviously uneven, unpaved section of footpath containing such service covers, will see and avoid those imperfections. In the circumstances, the risk is not a foreseeable risk for pedestrians exercising reasonable care for their own safety. In accordance with the principles in Ghantous, the Council was not under a duty to eliminate the risk. [47] Even if the risk gave rise to a duty, the Council did not fail to act reasonably. The evidence did not justify a finding that the Council was negligent in the design or construction of the footpath or in its inspection and maintenance regime. The most 13 Indeed I note from the photographs of the area post-completion of the council works, that the services, which are now within the paved area, do not appear to be entirely laser level with the sealed surface. -- 21 of 22 -- 22 recent inspection had not revealed anything untoward. There had been no reported incidents and, apart from the letter dated 26 September 2000 to a Councillor, there had been nothing to put the council on notice of the developing condition of the footpath. Further, the evidence failed to show that the letter of 26 September 2000 was communicated to the Council sufficiently in advance to justify a finding that the Council failed to take reasonable steps within a reasonable time prior to the incident in question. [48] The Council was not under a duty to eliminate the risk posed by the protruding edge of the services cover but, in any event, the evidence did not establish that the Council had failed to act reasonably. The appeal is dismissed. -- 22 of 22 --