Cooper v Gladstone City Council [2002] QDC 174

State Reporting Bureau Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. [2002] QDC 174 DISTRICT COURT CIVIL JURISDICTION JUDGE C F WALL QC No D143 of 1999 KENNETH ROY COOPER Plaintiff and GLADSTONE CITY COUNCIL Defendant TOWNSVILLE ..DATE 17/06/2002 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date: 20 / 6 / 02 -- 1 of 30 -- 17062002 T2-4/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 2 HIS HONOUR: This is an action by the plaintiff against the defendant for damages for personal injuries. The council having statutory powers of the nature conferred by section 901 of the Local Government Act 1993 was under a duty to take reasonable care that its exercise or failure to exercise those powers did not create a foreseeable risk of harm to road users including the plaintiff. For present purposes that duty was to provide a stormwater grate that was reasonably safe for ordinary use by persons using the road exercising ordinary or reasonable care for their own safety. The defendant agreed as much notwithstanding that Mr Morgan, counsel for the defendant, had some difficulty articulating the content of the duty in the circumstances of this case, which was to some extent understandable. The plaintiff alleges the defendant breached that duty: (1) By installing a grate which allowed a person's limb to pass or slip through the bars and (which is really the same thing) by failing to install a grate which was designed and constructed in such a way that a person's limb would not slip through the bars and; (2) By failing to have any or any adequate system of risk assessment or inspection of such grates. -- 2 of 30 -- 17062002 T2-4/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 3 The plaintiff was injured on the 14th of July 1997 in Short Street, Gladstone. The circumstances of his accident were unusual, to say the least and Mr Costello for the plaintiff conceded as much, transcript page 195. He was not walking along the gutter in Short Street, nor was he crossing the road when he stepped on the grate. On the contrary he was seated on his motorcycle using his legs and heels to push it backwards when his left foot slipped partly through the gap between the kerb and the bar of the grate closest to the kerb, as a result of which he lost balance. He pulled his foot clear of the grate and the motorcycle fell over jamming his ankle between the gutter and the bike breaking his left ankle. The motorcycle then rolled on top of him. The engine of the motorcycle was not running. Short Street and the grate are shown in the photographs, Exhibits 21, 26 and 14A figures 3, 4, 5 and 6. Figure 5 in Exhibit 14A shows the position of the plaintiff's left foot when he lost his balance. He was wearing the boot shown in figure 5 at the time of his accident. It is a size 10 work boot with steel toe cap and thick tread. The plaintiff was an experienced motorcyclist. The motorcycle weighed 220 kilograms and the plaintiff about 92 kilograms. It was a fine clear day. The plaintiff is 6 foot, 2 inches tall and his motorcycle seat was 27 inches from the ground. He had ridden along Short Street intending to go to the premises of Network Car Rentals, shown in photograph number 1, -- 3 of 30 -- 17062002 T2-4/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 4 Exhibit 26. He rode past the Network driveway about 10 metres, stopped, turned the engine off and was pushing the bike backwards along the gutter when the accident happened. As he pushed the bike backwards he was looking over his right shoulder to make sure there was no traffic coming. Once he reached the driveway his intention was to restart the bike and ride into Network's driveway and park the bike. He did not see the grate at all or the associated manhole cover. His credit is not in issue, nor are the circumstances of his accident. He did not look to his left or over his left shoulder or at the road surface to his left or the gutter behind him. He would have seen the grate had he looked back over his left shoulder, but he said he had no reason to look that way. He had seen stormwater grates before, they were not an unusual road feature for him. He was using his legs to move or push the bike slowly backwards. He cannot clearly remember what happened, but felt he stepped into a void. In his statement, Exhibit 2, he says his "left foot went down between a stormwater grate and the concrete gutter". He managed to get his foot out of the gap in the grate before the bike fell over. His boot was not trapped in the grate when the bike fell. The grate was in good condition. The measurements of the grate are not in dispute, they are given in Exhibit 15A. The defendant has about 260 kilometres of roads and 4,059 stormwater grates under its care and control. There are many more of such grates in other parts of Queensland. Piyaraphna Bandara was the defendant's manager of works and traffic from April 1999 until April 2002. He is a -- 4 of 30 -- 17062002 T2-4/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 5 civil engineer. About 90 per cent of the council's grates are gully grates (the type involved in the plaintiff's accident) and the rest are Faston grates (shown in figures 7 and 8 of Exhibit 14A) or what are called new grates (shown in figure 9 of Exhibit 14A). Gully grates have been used by the defendant for more than 25 years and the subject grate would have been installed in about 1975. The defendant resolved on the 27th of August 1999 to start using the Faston grate. I am satisfied that that decision had nothing to do with the plaintiff's accident. Faston grates and new grates are used in new construction or in reconstruction work. Gully grates are hydraulically superior in draining water away. Faston grates have a better surface for cyclists. In evaluating the Faston and new grates as a replacement for gully grates, safety factors would also have been considered. In relation to replacement of grates and maintenance Mr Bandara gave the following evidence, which I accept: "Now, if one of the old grates becomes structurally unsound, what is it replaced with?-- If it is unsafe we replace it, depends on how safety, like, if it presumably is unsafe, we emerge that - urgently replace it - fasten grate, or sometimes is - sometimes the task is completed from old types we used all - gulley grates for the purpose of rectify the safety concerns but we - most of the time nowadays we replace it Faston grates. Has council had a policy of replacing the old style stormwater grates in circumstances where they're still structurally sound?-- No. If the old type gulley grates is structurally sound, we don't replace them unless - no reason to. We don't replace, as a policy, at this stage, all gulley grates. In your old section when you were manager of work and traffic, was there any system in place to ascertain when and where any rectification might be required of any road, footpath or other assets?-- Council employees like -- 5 of 30 -- 17062002 T2-4/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 6 myself and under me that's assistant managers, leading hands, and labourers, they are working outside and routinely drive through, around town all the time because Gladstone is a small area, area wise and 206 kilometres around [indistinct] about and go all the time in town area and whenever we see a safety problem or maintenance problem we urgently attend to them. And do you ever receive public complaints?-- Regarding? Regarding damaged council property?-- We constantly receive public information or complaints all the time regarding potholes or some branches, hanging branches, traffic place, or a lot of things from the public and at that time council attend to these complaints urgently to. Are you aware of the annual budget that you had for drainage maintenance when you were the manager of works and traffic?-- Yeah. I can't recall the figure now. Yeah, I was aware at the time what was the budget for - annually. We - within budget we spent that maintenance for road maintenance attending maintenance. You spent the budget?-- Yeah, for each and every year, we spent a target, at locations we have for maintenance and we attend to all the maintenance when it's required. HIS HONOUR: That includes maintenance of grates and or replacement of the grates if they're found to require replacement?-- Yes, your Honour. Yeah. When they're a maintenance issue, we spend from maintenance budget, if it is a reconstruction work, we are asked - we have a capital works budget, we spend from capital works budget." The council's inspection system would generally, but not always, pick up matters obviously requiring attention but was not intended to alert council to possible safety problems such as the plaintiff here complains of. Realistically, there was no such risk assessment system in place with respect to grates of this type. There was no system of regular checking to see if the grates, as grates, posed a risk to road users. The complaints made by the plaintiff in this case would not be picked up in the system operated by the defendant. The council's inspection system would generally pick up obvious defects like rusting or broken bars in the grates and broken -- 6 of 30 -- 17062002 T2-4/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 7 concrete. It was not directed to general design factors which could possibly impact on the safety of road users, including pedestrians. Like most systems it was not perfect as is apparent from the photographs Exhibit 24B and the evidence in relation to the grates shown in those photographs but, it was, I find a generally adequate system. Repairs and maintenance work are prioritised in accordance with perception of danger to road users and budgetary considerations. In determining priorities for fixing hazards to pedestrians, greater priority is given to the more highly trafficked areas. Mr Bandara considered the subject grate to be "sound" and serving its drainage purpose. I agree. The present accident appears to be the only one ever to the knowledge of the defendant involving grates under its control. Mrs Kim Mann who has fielded complaints to the council for many years cannot recall ever receiving a complaint of an accident caused by a stormwater grate. Mr Edward Crowe has been the council's foreman, then assistant manager, maintenance works section for six years. Before that he was a leading hand in the construction area for four years. During that time he is not aware of anyone suffering injury from putting their foot in a stormwater drain in Gladstone. He agreed with Mr Costello for the plaintiff that with respect to grates there was no system in 1997 that regularly and methodically checked the grates in Gladstone to see if they posed a risk to pedestrians, cyclists or traffic. His task and that of the other outdoor staff was to report and repair obvious safety defects or problems, not address any basic -- 7 of 30 -- 17062002 T2-4/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 8 design issues, which is what the plaintiff complains of here. He said that the cost of removing a gully grate and replacing is with a Faston grate would be between $1500 and $2,000. Miss Julie Reitano, the council's director of Finance and Community Services gave evidence and I accept what she said. In the 1996/1997 financial year the council's drain maintenance budget was $134,000 and actual expenditure in that area was $146,282.84. Comparable figures for the 1997/1998 financial year were $145,000 and the $157,185.42. Anything which came up, whether it was for safety or for urgent repairs, would come out of this budget. The council's gross rate revenue for the same years was $10,815,000 and $11,271,000 respectively. Nett revenue for each year was about $1,000,000 less. Council had a surplus of $1,635,000 in the 1996/1997 year and a deficit of $425,000 in the 1997/1998 year. Miss Reitano then gave this evidence: "MR MORGAN: Miss Reitano, if it was proposed that there be the replacement of 4,000 stormwater grates at $1500 each, at a total cost of $6 million, would that be able to be absorbed into the council budget?-- We can see by the level of general rate revenue that that would consume almost an entire year's rate revenue. There is no way that council could sustain that. There would need to be some loan funds sought for that to happen." This brings me to the evidence of the engineers, Mr King and Dr Johnson. It is clear that the present accident may not have happened with a Faston or new grate and that those grates present less risk to persons walking over or stepping on them -- 8 of 30 -- 17062002 T2-4/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 9 than the gully grate, but that by itself is not determinative of liability. The same applies had an extra bar been welded onto the vertical bars that extend under the concrete base (see figure 2, Exhibit 14B) which according to Mr King would be likely to prevent a shoe, as seen in figure 5 Exhibit 14A, moving far enough to drop down into the opening. Such an extra bar could have reduced the risk to persons stepping on the grate. The reduction in risk associated with either of the new grates is subject to what Mr King says in the last paragraph of his report, Exhibit 14B. Much of what Mr King says in his report, Exhibit 14A, is common sense. There was no Australian Standard at the time the gully grates were installed dealing with design aspects with respect to pedestrian safety. Australian Standard AS3996, which came out in 1992, does not deal with pedestrian safety issues. Dr Johnson says that AS3996 does not require stormwater grates to be "pedestrian proof. Rather, the emphasis is on bicycle safe installations and specific requirements to meet this objective are outlined." The hydraulic considerations relevant to a stormwater grate can apparently be satisfied with the Faston or new grates. Mr King gave the following evidence: "MR MORGAN: Were you provided with the boots that he says he was wearing at the time, Mr King?-- Yes. The boots, I believe - as I recall, are those shown in the photograph. They're a size 10 work boot?-- Yes. The blundstone heavy duty type with steel toe cap and thick tread?-- Yes. -- 9 of 30 -- 17062002 T2-4/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 10 Do you recall that?-- Yes. In the photographs that are in figure 5 and figure 6 of your report-----?-- Yes. -----figure 5, I think, shows the foot?-- Yes. Does it?-- It does. Right. It's the case, isn't it, that with a boot that size his foot would have had to have made contact with the bars and not merely gone into a void?-- If it was brought down vertically it - it certainly would, but from the description given to me and where the motorcycle was placed relative to the curb, it was consistent with the - sorry. The level of engagement demonstrated was consistent with the leg angle that could be achieved while sitting on the - the motorcycle in that position. Yes. It couldn't be said that the angle of descent of his leg towards the road surface or the grate was consistent with the normal walking motion of a pedestrian?-- But not for someone walking close to the curb, however, you could put the foot, if there was a heel strike on the - on the bar, at a point where the boot could slip sideways down the curved face of the bar and take - take the foot in but if you place it down squarely you would certainly contact the bar. You need some slight angulation to - to finally complete the interlocking that I've demonstrated. Even sitting on a motorcycle with your feet splayed out sideways-----?-- Yes. -----there would have had to have been contact with the bars in some way with the boot?-- Oh, I - I - yes. I don't dispute that that could have happened. I mean, obviously, it does depend on the angle of approach and - and you - you could place the foot directly into the opening or you could contact the bar and have the boot slide sideways but most likely there may have been - yes. There was some contact with the circular bars." I have viewed the grate in question and that has helped me to understand the evidence. As a general proposition Mr King's evidence that the "opening is sufficient to capture the foot of pedestrians in general" may be correct, but in my view, that would be an extremely unlikely eventuality for a pedestrian walking forwards looking where he or she was going. In expressing this view, I am not of course to be taken as -- 10 of 30 -- 17062002 T2-4/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 11 substituting my view of the grate for the evidence which I am not. Rather, I am merely endeavouring to highlight my conclusion that the risk of that happening is only remotely foreseeable. In my view, it would be extremely unlikely for that to happen and the pedestrian would be extremely unlucky. The opening is right next to the kerb, the pedestrian would have to not be exercising ordinary care, his or her foot would have to be placed in particular spot and the area is not in what could be said to be the trafficable part of the grate for pedestrians minded to walk along the gutter. Mr King agreed with Dr Johnson's opinion that the total cost of replacing a gully grate with one of the newer grates would be about $1500 per grate and that there are 4,059 stormwater grates in Gladstone, 90 per cent of which are gully grates. The cost of welding an extra bar onto the grate would be about $100 per grate according to Mr King. See Exhibit 14B, page 5 and his evidence on this aspect. Mr King's view was that not all gully grates would have to be replaced "if one was looking at, say, a pedestrian risk order" but he did not say how many. The extra welded bar suggested by Mr King is a "stop gap measure that would take away the entrapment possibility for most adults" which is probably, he said, "the more serious feature associated with this type of grate." I agree that, at its highest, the likelihood of adult entrapment, is only a possibility. Contributing to this possibility is the fact that a grate presents an uneven surface which would also be relatively slippery in wet -- 11 of 30 -- 17062002 T2-4/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 12 conditions. All of the grates, gully, Faston and new, have, to a greater or lesser extent, an uneven surface. Ideally, according to Mr King, what is required is what he describes as "a more pedestrian friendly surface." He also said that the greatest risk would be for people alighting from motor vehicles or from someone walking along the gutter. Mr King also said: "And your one hundred dollar remedy of putting a bar underneath the curb welded to the ends of the perpendicular-----?-- Yes. -----curb - the curb ends-----?-- Yes. -----of the perpendicular bars, wouldn't have any effect at all, of course, on the perceived lack of traction on the tubular bars, would it?-- Other than it would stop - stop this angular contact, because the foot - unless, as you said before, the foot was virtually placed horizontally into that opening, the additional bar would stop the foot making this contact on the angular surface. It would span, at least, two of the bars because of the leg control brought about the - the concrete curb itself. You just couldn't get the leg in enough angle under normal walking or vehicle alighting or indeed motor bike pushing conditions. I - I imagine this bar to be partially beyond the vertical line of the curb, so that, as I said, angular contact would not occur." This evidence, I think, highlights the unusual way in which the plaintiff's foot went into the opening and also the reverse angle required for it to do so. Mr King did not know but "suspected" that the type of accident which befell the plaintiff is probably a "very rare event" but suggested that the "entrapment, tripping, flipping" features of this grate do present an increased risk to the pedestrian public in general. In my view, that increased risk is of an -- 12 of 30 -- 17062002 T2-4/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 13 extremely low magnitude and was not such as to call for a response from the defendant such as the plaintiff suggests. I am reinforced in this opinion by the following evidence of Mr King in relation to the list of "some of the factors associated with" the plaintiff's accident on page 4 of his second report, Exhibit 14B": "The two references you made there to parking aren't particularly relevant to an understanding of this injury, are they, since Mr Cooper was not attempting to park his vehicle on the road?-- They're - they're relevant in the sense that if you were doing a - an audit of a facility, you should take into account features which present the pedestrian risk in general. I mean, you - you certainly may not, and it would be unlikely to predict a certain type of injury or event, such as this one in question, so when you're - you're looking at identifying a risk factor you look at one that is known to be associated with an elevated risk of a range of activities. So, in that sense the fact that there was parking permitted introduced the possibility of pedestrian or being in the area as car occupants or - so, that was the - the reason that that was put in." Mr King continued as follows, which is to the same effect: "The fourth bullet point you have there is that the leg could enter in a relatively vertical direction?-- Yes. That's not really the case at all, is it?-- Yes, that - that was what was demonstrated and that was what I intended to say, that it was - as I said initially, it was not a - a manipulated insertion of the leg to get to the position that I photographed, it was certainly not a - a vertical entry, but it's at a slight angle from the vertical that allowed the foot to - to enter that gap. Well, my understanding of your evidence and Mr Cooper's evidence has been that the reason he had some problem with his foot was that he was a six foot two man sitting on a motor cycle seat on 27 inches off the ground?-- Yes. The result was that his leg was splayed out sideways at an angle?-- Yes. And it was that unusual position that caused his foot to -- 13 of 30 -- 17062002 T2-4/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 14 have difficulty negotiating the grate, which he hasn't - hadn't observed before he was attempting that manoeuvre?- - Well, that - that certainly allowed it to enter, but I think if a normal motor cycle or a more upright angle of the leg would still or could still result in the - the foot entering the - the gap. I certainly agree that a vertical approach by an adult would be unlikely to - to result in the foot going in and as it slipped off the curb bar that, with a slight angulation yes, it - it certainly can go in. Now, obviously, the closer the leg is to the horizontals the - probably this increases the likelihood, but it - certainly by bringing the - the leg closer to the vertical does not eliminate the risk by any means. You disagree with Dr Johnson that the true measure of the opening or the actual opening is-----?-- I don't disagree with his measurements----- Sure, but you say that that-----?-- -----as being the horizontal distance. I'm just saying that that does not represent the - the opening available in which to insert a foot, so if you approach at an angle, you - you have a much wider opening in which to - for - for the foot or the shoe to pass through. And if you have a - a size 10 work boot it, for example, would be as long as or longer than the gaps between the perpendicular steel bars?-- Yes, they are and so you - the foot isn't placed down at the plane of the - the - defined by two bars. There's a slight angulation that the foot requires for it to clear that area." Mr King agreed that stormwater drains and the grates that go over them are an extremely common and necessary installation, things that we must have. I cannot accept Mr King's opinion that the fact that the plaintiff was moving backwards makes no difference. In my view, the plaintiff would not have been injured had he been moving forwards or had he been exercising ordinary care when moving backwards. He conceded that a pedestrian walking forwards would be more able to see and avoid any risks associated with this grate than if the pedestrian was moving backwards. That seems perfectly obvious to me. -- 14 of 30 -- 17062002 T2-4/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 15 I have referred to those passages of Mr King's evidence which I have found of particular relevance to the resolution of the issues in this action. Subject to what I have already said, generally I accept what he says. The gully grate was the standard grate used throughout Queensland when it was installed. According to Dr Johnson, whose evidence I also generally accept, the subject grate is a typical gully grate. In more modern designs the lip of the kerb is overhanging, further reducing the capacity for a foot to slip into the opening. The potential for such accidental entry is reduced with a Faston grate. I accept what Dr Johnson says in his report, Exhibit 19A as follows: "The principal documents used in the design of urban roads in Queensland are Queensland Streets (Institute of Municipal Engineers Australia) and Guide to Traffic Engineering Practice (Austroads). Although both refer in detail to pedestrian safety issues, there are no references to potential conflicts with street drainage elements. While Part 13 of the Austroads standard does refer to the impact of covers and gratings on pedestrian movements, it does so only in the context of footpath areas as referenced by the following quotation: 'Placing manhole covers and gratings in major pedestrian walkways should be avoided. However, this is not always practicable and where it is necessary to locate them in the footpath area, they should be of non-slip surface, laid flush with the footway.'" In relation to the extra bar referred to by Mr King I cannot really accept the evidence of Dr Johnson that such a bar would obstruct water flow to the extent of adversely affecting "the -- 15 of 30 -- 17062002 T2-4/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 16 drainage capacity of the system." I say that merely because the new grates appear to have more in the way of obstructions to water flow than the gully grate. I accept though that Dr Johnson's expertise is water and urban development. Dr Johnson later said that "the grate doesn't serve that much purpose in terms of drainage. It's there to prevent debris being washed into the drain. The real hydraulic performance in the grate, whether it be the old type or the Faston grate, is the amount of space at the back of the grate." See also his evidence at pages 137-138 of the transcript. Of the way in which the plaintiff was injured, Dr Johnson said in evidence: "...it's not a common injury that councils report in terms of pedestrians or of other road users. If it was simple and easy to get your foot in there, then I would expect that the number of accidents that may have occurred with this type of system would be much more prevalent than they are. ...I can only return back to the photo that you have referred to me, figure 5. His foot there is at some angle to the vertical in terms of it getting into the back of the grate. It's not as though you can vertically walk straight into the grate, in my opinion." That accords with my view of the accident and the evidence. I accept what Dr Johnson says in Exhibit 19A as follows: "The investigation indicates that it is clearly possible for a person's foot to be trapped in the manner described. However, this trapping relies on the establishment of a specific set of conditions which would be rarely achieved. -- 16 of 30 -- 17062002 T2-4/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 17 In my opinion, the circumstances of the accident are likely to be virtually unique, relying on the injured party being seated on a motorcycle, moving the motorcycle backwards manually across a stormwater inlet, and placing his leg and foot in a closely defined position on that inlet. In this regard, it could be considered that Mr Cooper suffered the consequences of a series of coincidental events, all of which needed to occur to cause the injury. The reality is that the area in question is part of a roadway within an industrial development, where a footpath is available for pedestrian movement. The road in this area is not a shared-use system, as might be found in newer residential areas, and pedestrian movements are therefore expected to be largely limited to the footpaths." Notwithstanding that these opinions may be more a matter for me rather than Dr Johnson, they accord with my view of the evidence and the circumstances of the plaintiff's accident. To the extent that Mr King's opinion differs I cannot accept it. I also prefer Dr Johnson's evidence to Mr King's as to the risks presented by gully grates to pedestrians crossing the road and pedestrians alighting from or entering vehicles. Again, Dr Johnson's opinions may be outside his area of expertise, but what he says more accords with my view of the matter. Further, the uneven surface of any grate presents risks to anyone walking over it or stepping on it. The system of inspection which the defendant had was such that it would generally pick up structural deterioration in grates which presented a safety risk and any deterioration impairing their ability to function hydraulically. -- 17 of 30 -- 17062002 T5-6/HG M/T M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT The plaintiff conceded that the subject grate was not located in a place where pedestrians would normally walk and that a person alighting from a vehicle and stepping on a Faston or new grate could lose their balance especially a female, for example, wearing high heeled shoes. In my view, a reasonable person in the position of the defendant would have foreseen that providing or placing gully grates in roads under its control for stormwater drainage purposes, would involve a risk of injury to road users of which the plaintiff was one, who may walk over or step on the grate. The risk to a pedestrian of slipping, tripping, over- balancing, stumbling, falling or placing a foot or leg in one of the gaps or openings in such a grate and losing balance and falling over and thereby suffering injury when walking over or stepping on a grate, is foreseeable in the sense of not being far fetched or fanciful more so if the person was not looking where he or she was stepping and much less so if he or she was. The plaintiff submits that in response to that risk a reasonable person would (a) have designed the grate so that the opening closest to and parallel with the kerb would not allow a person's leg to pass through it; or -- 18 of 30 -- 17062002 T5-6/HG M/T M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT (b) have fitted an extra bar on that part of the grate closest to and parallel with the kerb thereby reducing the size of the opening there such that a person's leg could not pass through it; or (c) (which was advanced at trial) have refitted the grate so that it was aligned perpendicular to the gutter; or (d) have had in place a system for risk assessment with respect to such grates. As to whether a reasonable person would have done so involves the striking of a balance between various relevant considerations, very important among these being the magnitude of the risk of injury, the degree of probability of its occurrence, the expense, difficulty and inconvenience of alleviating action of the type suggested and the other conflicting responsibilities of the defendant. It is clear for example that an extra bar on the grate would probably have prevented the plaintiff's injury. The question is whether the defendant should have installed one. To answer that question it is necessary to balance the various considerations which I have just mentioned. It is not so clear that one of the newer grates would have prevented his injury but they may have. -- 19 of 30 -- 17062002 T5-6/HG M/T M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT In my view the plaintiff has not established that the defendant was negligent in the circumstances of this case. I am not satisfied that the defendant did not take reasonable care for the plaintiff. I am not satisfied that any causal connection between the allegations relied on by the plaintiff and the plaintiff's injury has been established. I say so for the following reasons: 1. It was daytime. The grate was highly visible, obvious and easily avoided. 2. The grate was a common and necessary road feature in Gladstone. 3. The grate was not broken, it was in proper order. 4. The grate was not located in an area of pedestrian traffic. 5. It would be highly unlikely that a pedestrian walking over it along the gutter would be injured as the plaintiff was. 6. The highly unusual and to use Dr Johnson's description, "unique" nature of the plaintiff's accident including the facts that the plaintiff was reversing his motorcycle and not looking where he was going. -- 20 of 30 -- 17062002 T5-6/HG M/T M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 7. The absence of any other reported accidents involving grates in Gladstone. There was nothing to alert the defendant to any design related safety problem. None had ever been reported nor had any complaints been received of any accidents involving grates. 8. The risk of a person being injured in the way the plaintiff was, was no more than slight. In fact it was, to again use Dr Johnson's description, "negligible". 9. The gully grate was the standard grate used not just in the Gladstone local authority area but in other parts of Queensland at the time it was installed and was appropriate bearing in mind its function and the type, nature and volume of pedestrian traffic expected. 10. The defendant is gradually phasing in the newer grates. 11. There is no Australian standard dealing with pedestrian safety aspects of storm water grates. 12. The inspection and safety risk assessment system operated by the defendant was adequate and appropriate in the circumstances taking account of the magnitude of the risk of injury, the degree of -- 21 of 30 -- 17062002 T5-6/HG M/T M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT probability of its occurrence, the other responsibilities of the defendant (the nature of which is referred to in Exhibits 30, 31 and 32 and the evidence of Miss Reitano) and the absence of any reported accidents involving the grates notwithstanding that in all respects the system may not have been perfect. 13. The absence of a duty to ensure the safety of road users in all circumstances and the fact that local authorities do not warrant the absolute safety of roads. 14. The cost to the defendant in replacing gully grates with the new grates and the impact that would have on its budget and other responsibilities. 15. The cost to the defendant of adding an extra bar to the grates bearing in mind the matters referred to in paragraphs 1 to 14 hereof. 16. The fact that no grate referred to in the evidence is perfectly safe to walk or step on. 17. The understanding or expectation on the part of the defendant that road users will take reasonable care for their own safety and watch where they are going and where they place their feet. -- 22 of 30 -- 17062002 T5-6/HG M/T M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 18. The obvious risk presented by the grate to a person not looking where he or she was stepping or placing their foot. 19. The hydraulic considerations relevant to the design of stormwater grates as mentioned by Dr Johnson. 20. The road, including the grate, was not in such a condition that it was in real terms, hazardous or dangerous to persons using it. 21. Had the plaintiff looked where he placed his foot the accident would not have happened, he would not have been injured. 22. Any imperfections, hazards or dangers in the grate as a result of its design and nature of the type relied by the plaintiff were obvious and easily able to be seen and avoided. 23. The grate was not unsafe for a person taking ordinary care, making allowance for inadvertence; it was reasonably safe for ordinary use. 24. To adopt the words of Kirby J in Ghantous v. Hawkesbury City Council (2001) 75 A.L.J.R 992 at 1041, paragraph [248] the plaintiff has not established a want of reasonable care causing his injuries. His "mishap was simply an accident". -- 23 of 30 -- 17062002 T5-6/HG M/T M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 25. I am unable to conclude that the council should reasonably have regarded the grate as a potential hazard to the extent that it should have either removed and replaced it with either of the newer grates, refitted it or added an extra bar to it. 26. It was not unreasonable for the council to expect that pedestrians would not normally walk or step on the grate and if they did they would exercise ordinary care in doing so. 27. Any dangers to pedestrians which the grate presented were not in the nature of a "trap" of a kind calling for some protection or warning. Storm water grates are of different design and any danger presented by each to road users exercising ordinary care is obvious and not unusual or out of the ordinary. 28. The plaintiff was not a pedestrian as such. He was seated on his motorcycle and the motorcycle contributed to his accident. He was not alighting from the motorcycle. For the same reasons the plaintiff has not established his cause of action relying on a breach of statutory duty, assuming for present purposes that section 901 confers a statutory cause of action. As to the cause of action in nuisance that also has not been made out for the same reasons and in any event "the tort of public nuisance in highway cases -- 24 of 30 -- 17062002 T5-6/HG M/T M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT has been subsumed by the law of negligence" (Brodie v. Singleton Shire Council and Ghantous v. Hawkesbury City Council (2001) 75 A.L.J.R. 992 at 1002 paragraph [55]. The plaintiff has therefore not made out his case on any of the causes of action relied upon. I must however assess damages. The plaintiff is aged 43 having been born on the 10th of November 1958. He is a qualified electrician. I accept what he says in his statement, Exhibit 2, and in evidence about his injury and the restrictions and limitations it has caused and does cause for him. Special damages, past economic loss and past care and assistance are either agreed or not disputed. The main area of dispute relates to future economic loss and the plaintiff's claim here is dependent on whether his injury was responsible for his decision to cease construction work and work in the less remunerative maintenance side of the industry. I am satisfied that but for his injury the plaintiff would have continued construction work. The plaintiff planned to work in the construction side of his industry until retirement at about age 60 years. He has moved from construction to maintenance because it is "less taxing and easier physically on his foot than trying to go around a -- 25 of 30 -- 17062002 T5-6/HG M/T M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT construction site." The pay rate in construction work is higher than his base salary rate in maintenance. His current employment is with a gold mining company, Equigold, and is permanent. The mine has an estimated 10 years work ahead. He commenced work with Equigold on the 28th of November 2001 and up until then he was persevering painfully and with restrictions with construction work. Construction work was not permanent or necessarily for the whole of each year. It involved regular changes of employer but the plaintiff's employment in that area seems to have been fairly constant. He said that in the years that he worked a full year, two years ago, he grossed $85,000 per annum in construction and his current salary is $65,000 gross per annum. As to current problems at work he gave this evidence: "Now, Mr Cooper, just with respect to the injury, what are the problems that you presently have on a daily basis with your work?-- On a daily basis my leg's usually fairly sore in the morning when I first get up and it doesn't seem to be too bad when I start walking around but if I'm on my leg for extended periods of times it gets quite sore. I have difficulty going up and down ladders; stairways; in confined spaces, squatting that type of thing. Does that affect the way you walk, for example?-- Yeah. I tend to limp around a little bit after - you know, towards the end of the day after you've been on your leg for a fair while and just becomes fairly sore." His current gross income is similar to what he earned in some of his years working in construction. He gave this evidence: -- 26 of 30 -- 17062002 T5-6/HG M/T M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT "You said that with the exception of the time you grossed $85,000, your income was 50 to $60,000, but that wasn't working for the whole year?-- No. Because of the type of contracts at times, sometimes there's a break in between them. But as you get further known and - and more experienced, the work seemed to flow on a lot more and that's what I was aiming for." He says that his present employment is not as physically demanding as construction but he still experiences some difficulty carrying it out. Two orthopaedic surgeons gave evidence. I prefer Dr Curtis to Dr Martin because I accept what the plaintiff says and Dr Curtis's opinions are more consistent with the plaintiff's complaints than are Dr Martin's. The plaintiff suffered a tri malleolar fracture of the left ankle which has left him with a 10 to 12 and a half per cent permanent impairment of his left leg. This is based on wasting of the calf muscle, swelling of the ankle and in particular, restriction of movements of both the mid-tarsal and sub-talar joints of the ankle. Dr Curtis then said as follows in his evidence: "A lack of flexibility is the main part; is that so?-- Well, that is the main objective physical sign that one can observe; other assessments generally which one takes into account of a functional complaints of pain, of walking endurance, of ability to climb or run or jump. In your report you talk about a 10 to 15 per cent in the first instance in the second report at 10 to 12 and a half per cent impairment of the left lower limb as a whole. Is that consistent with him having continued to work fully employed, apart from immediate post-operative recuperation periods in his former manual employment?-- -- 27 of 30 -- 17062002 T5-6/HG M/T M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT It is. It indicates that although he has succeeded in returning to work and doing the bulk of his duties there is nevertheless some restriction in his capacity to stand for long periods, perform off-ground tasks, squat or work in other confined space with lifting and carrying heavy objects." In his report dated 16th of May 2001, Exhibit 10B, Dr Curtis said: "X-rays do now show the development of early post traumatic changes which could be expected to gradually deteriorate in forthcoming years, producing probably a further 5% impairment over the next 10 or more years. There is no indication for further treatment particularly of an operative nature, although the need for this in future years cannot entirely be excluded. He is having difficulty coping with certain aspects of his trade and these difficulties could be expected to continue. He would be able to continue until his expected time of retirement in a supervisory or administrative role." In relation to the expected future deterioration Dr Curtis gave the following evidence: "When you speak of the possibility of him having a gradual deterioration producing at most a further five per cent impairment over the next 10 or more years, I take it you're speaking mathematically of an increase by between a third and a half of his existing disability in a gradual way over that time?-- Yes, that is correct. If now five years after the accident he is functioning on a full-time basis in his trade there would be every expectation that there is a much better than even prospect that he will be able to continue to do so. Would you agree?-- No, I wouldn't agree with that. He is functioning with difficulty, and I think, over the forthcoming five to 10 years those difficulties will increase. At present the handicap is such that he - he is - he is just coping, but a little increased handicap will have a progressively greater effect on diminishing his coping ability. -- 28 of 30 -- 17062002 T5-6/HG M/T M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT I think it's most unlikely that any further surgical intervention will be required. Were you aware that in November last year he'd switched from construction work to being an electrician in a mine?-- I wasn't aware of it until I read his statement which I received just recently. HIS HONOUR: Doctor, he says he's gone from construction work to maintenance work?-- Yes, your Honour. That would be consistent with him having a greater level of difficulty with the heavier duties of construction work." I accept what Dr Curtis says. I find that the plaintiff has a 10 to 12 and a half per cent permanent impairment of function of his left leg which may increase by five per cent over the next eight to 10 years as a result of progressive post-traumatic arthritic changes. His disability is productive of a loss of income for him and this will continue for the rest of his working life until retirement at age 60 years. The mid point of his claim for future economic loss is $80,000 which equates to about $150 per week using the 5 per cent table for 15 years. That I think is an appropriate amount to award for this part of his claim taking into account the usual contingencies, his pre-accident construction earnings and also the effect that further deterioration of his condition may be productive of greater difficulty in carrying out his work. For pain, suffering and loss of amenities I think he is entitled to damages of $35,000. His injury is associated with a weight bearing limb and relatively constant pain of one form or other. -- 29 of 30 -- 17062002 T5-6/HG M/T M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT I assess his damages as follows: 1. General damages for pain, suffering and loss of amenities $ 35,000.00 2. Interest on $20,000.00 of general damages at 2 per cent for four years 11 months $ 1,966.00 3. Special damages $ 6,534.87 4. Interest on $4,872.17 of special damages at 5 per cent for 4 years 11 months $ 1,186.67 5. Past economic loss $ 33,638.00 6. Interest on $26,278 of past economic loss at 5 per cent for four years 11 months $ 6,460.00 7. Loss of past superannuation at 8 per cent $ 2,691.04 8. Past Griffiths and Kerkemeyer $ 1,080.00 9. Interest on past Griffith and Kerkemeyer at 5 per cent for four years 11 months $ 265.50 10. Future economic loss $ 80,000.00 11. Loss of future superannuation at 9 per cent $ 7,200.00 Total $176,022.08 ___________ I give judgment for the defendant against the plaintiff together with costs to be assessed on a standard basis unless agreed. ----- -- 30 of 30 --