Clarke v Energy Australia [2003] NSWCA 193

New South Wales Court of Appeal

CITATION : Clarke v Energy Australia [2003] NSWCA 193 HEARING DATE(S) : 14/07/03 JUDGMENT DATE : 14 July 2003

JUDGMENT OF : Ipp JA at 1; Tobias JA at 25; McColl JA at 26 DECISION : Appeal dismissed with costs.

CATCHWORDS : NEGLIGENCE - Appellant injured when her foot caught in an embedded footprint in concrete - Evidence that tended to establish that respondent had not repaired the footpath was overwhelming - Appellant failed to establish that whomsoever repaired the footpath did so in a negligent manner. Burwood Council v Byrnes [2002] NSWCA 343 Hastings Council v Giese [2003] NSWCA 178 CASES CITED : Luxton v Vines (1952) 85 CLR 352 Richmond Valley Council v Standing (2002) Aust Torts Reports 81-679 Roads and Traffic Authority of NSW v McGuinness (2003) Aust Torts Reports 81-688 PARTIES : Joyce Margaret Clarke (Appellant) Energy Australia (Respondent) FILE NUMBER(S) : CA 410409/02 COUNSEL : D E Baran (Appellant) J Timbs QC/ A M Enright (Respondent) SOLICITORS : Keddies (Appellant) Colin Biggers & Paisley (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT DC 3115/01 FILE NUMBER(S) : LOWER COURT Hogan ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41049/02 DC 3115/01

IPP JA TOBIAS JA McCOLL JA

Monday 14 July 2003 JOYCE MARGARET CLARKE v ENERGY AUSTRALIA Judgment 1 IPP JA: This appeal concerns an action for damages for personal injuries. The appellant was injured on 15 December 1998 when she fell while walking along a footpath alongside Stirling Street, Redfern. As she walked past a telegraph pole her foot caught in an impression of a footprint that had been made in the concrete surrounding the pole. The impression had been made by a person walking on the concrete before it had completely set. 2 It was common ground that in 1993 or early 1994 the respondent caused the telegraph pole in question to be inserted in the footpath in replacement of another that had previously stood there. The appellant contended that, in replacing the pole, the concrete surround had cracked and this led to the respondent applying fresh concrete to the cracked area. 3 The appellant contended that after leaving the concrete to dry the respondent had failed to ensure that it had set in a level form. The particulars of negligence alleged that the respondent was negligent in failing to ensure that nobody deformed the concrete, in failing to put up barricades to ensure that no person could walk through the wet concrete, in failing to inspect the job after completion and in failing to repair the damaged concrete. 4 After reviewing the evidence the trial judge held against the appellant. He said: "[E]ven if I were satisfied, (which I am not), that the defendant probably did damage the footpath in extracting the previous pole, it does not follow that the defendant probably did the work of repairing it".

5 The footpath fell within the jurisdiction of the South Sydney Council. The appellant attempted to prove that the Council did not carry out any repairs to the concrete on the footpath. This was essential to the appellant's case, as she sought, on the basis of circumstantial evidence, to establish an inference that the work had been done by the respondent. The drawing of such an inference depended, partly, on the exclusion of the reasonable possibility that the work had been done by the Council. 6 To prove that the Council had not done the concreting, the appellant relied on the evidence of Colin James Maher. Mr Maher had been the Council's Insurance and Risk Manager for three years from April 1999 to May 2002. Mr Maher had arrived on the scene several years after the concreting had been carried out. He requested some person in the Council to check for any documentation in relation to concreting work that might have been done on the footpath by the Council. According to Mr Maher, the investigation by this person revealed nothing. 7 The reliability of the investigation depended on the care taken by the individual carrying it out and the accuracy and completeness of the Council's records. 8 As the person who carried out the investigation did not testify, it was not possible to determine with what degree of care it was undertaken. 9 When Mr Maher was asked about the state of the Council's records, he said that he had not looked through them in detail. He said that the system of maintaining records seemed "to work reasonably well". When pressed on this issue, he said that he could not state that the records were so perfectly kept that they would necessarily contain the relevant documentation. He accepted that there could be books or documents missing. 10 Mr Maher accepted that he could not exclude the possibility that the Council had in fact done the concrete reinstatement work. 11 It was put to Mr Maher that, on that basis, if the respondent had not done the concrete paving work, the Council must have done it. He replied that some private contractor might have done the work and remarked that that occurred from time to time. In support of this possibility, he said that he noticed from a photograph that there was drainage from an adjacent building and sometimes persons needed to open the footpath to replace drains or clean them out. So this was a third possibility that he raised, namely, that the concrete had been done by some third party. 12 In summary, therefore, Mr Maher's evidence was to the effect that: (a) He could not vouch for the accuracy of the investigation into whether the Council had done the concreting work;

(b) The investigation was based on imperfect records; (c) He could not exclude the possibility that the Council had done the work, (d) He could not exclude the possibility that private contractors had done the work. 13 The respondent relied on the evidence of Mr John Stratford Angus McKay, the Acting Manager, Field Services of the respondent. The area in question fell under Mr McKay's responsibility. 14 Mr McKay accepted that there was a possibility that, because the street where the accident occurred was an old street, the concreting on the footpath had come right up against the previous telegraph pole. This being so, there was a possibility that, in removing the pole, the respondent might have cracked the concrete. He asserted, however, that, in that event, the respondent would not have carried out any concrete work itself. He gave evidence to the effect that the respondent did not have the facilities to do concreting work, there was no economic reason for it to do such work, it did not employ any persons qualified to lay concrete and its employees carried no trowels or other equipment which would be needed to lay concrete. The gravamen of his evidence was that the respondent would simply not have done the concreting work. 15 Mr McKay said that if the respondent had to do concreting of footpaths it would have to engage a contractor to do the work. This was an answer to a question put on a hypothetical basis and there was no evidence that the respondent had ever in fact engaged a contractor to do concreting work. 16 Mr Jenkinson, the respondent's Senior Field Support Officer for the area in question, said that he had never known of anyone from the respondent to do a concrete footpath reinstatement. 17 Thus, the evidence from the respondent, accepted by the trial judge, established that it was entirely contrary to the respondent's practice to do concrete repair work. 18 Against that evidence was the evidence of Mr Maher which left it open that the Council or some third party may have done the work. 19 The appellant contended that the trial judge had failed to apply the reasoning expressed in Luxton v Vines (1952) 85 CLR 352. In my opinion however, this is not a Luxton v Vines case at all. In this case the evidence that tended to establish that the respondent had not done the work was overwhelming. 20 In my opinion the trial judge was entirely correct in concluding that the appellant had failed to prove that the respondent had done the concreting work. On that ground I would dismiss the appeal. 21 I should also say that the appellant failed to establish that whomsoever repaired the footpath did so in a negligent manner. 22 The indentation in the footpath was fourteen millimetres deep at the heel and ten millimetres at the toe. The appellant, in testifying, accepted that the footpath was in a rough condition. She said that she worked at a factory nearby and there were many occasions on which she had walked down that footpath to her work and had returned along the same footpath. She agreed that it was a good idea on a rough footpath such as the one in question to look where she was going. She said that she didn't look for anything because she wasn't expecting anything to be there. 23 In accordance with the principles expressed in cases such as Burwood Council v Byrnes [2002] NSWCA 343, Richmond Valley Council v Standing (2002) Aust Torts Reports 81-679 and Roads and Traffic Authority of NSW v McGuinness (2003) Aust Torts Reports 81-688, negligence was not proved. It is sufficient to repeat what Handley JA said in Burwood Council v Byrnes at para 33: "A Council's duty to pedestrians is therefore to take reasonable care to prevent or eliminate the existence of dangers in the road or footpath. The duty is not to prevent or eliminate `obvious hazards' which `could possibly be an occasion of harm' [para 29 above]. The standard of care is that which is reasonably required to protect pedestrians who are taking reasonable care of their own safety. The care which pedestrians must themselves take enters into the definition of the duty and is not relevant only to contributory negligence".

It was not shown that the appellant took reasonable care for her own safety. 24 I would dismiss the appeal with costs. 25 TOBIAS JA: I agree. I would add to the list of authorities referred to by Ipp JA that of this Court in Hastings Council v Giese [2003] NSWCA 178 where all the authorities referred to by him are collected and analysed in relation to the duty of care owed by a road authority or a body of that ilk to a pedestrian. In particular, in this case it is to be noted that Ms Chapman (a friend of the appellant) gave evidence at Black 51 Q-R that she preceded the appellant along the footpath and was fully aware of the footprints in the cement from having walked along it on many previous occasions as had the appellant. Ms Chapman managed to avoid stepping on the footprints and the fact that the appellant did not inevitably leads to the conclusion that she was not keeping a proper lookout and was therefore not taking reasonable care for her own safety.

For those reasons as well as those advanced by Ipp JA I agree with the orders he proposes. 26 McCOLL JA: I agree with Ipp JA. 27 IPP JA: The order of the Court will be that the appeal is dismissed with costs. **********

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