Council of the City of Sydney v Bishop

1. [1]

   BASTEN JA: On 31 January 2013 Karen Bishop tripped while stepping over a kerb in Llankelly Place, Potts Point. She fell, breaking her right hip. On 13 September 2016 she commenced proceedings for damages in the District Court. The only defendant was the Council of the City of Sydney.

2. [2]

   The plaintiff’s pleading alleged that the Council “had the care, control and management and was in occupation of … footpaths and walkways” of Llankelly Place. The pleading also referred to a duty of care to ensure “its premises” did not pose a risk of injury.

3. [3]

   The basis for the pleading that the Council had “care, control and management” of the land on which the kerb was located was obscure; it may have been intended to invoke the Council’s role as a roads authority, on the basis that Llankelly Place was a public road. The concept of occupation implies that the Council had some form of interest in the land, not necessarily ownership of a fee simple estate.

4. [4]

   The trial judge (Curtis ADCJ) made a very brief finding as to the basis of the duty of care owed by the Council to Ms Bishop:

5. [5]

   This passage appears to hold that the Council owed a duty of care in its role as consent authority with respect to the development of land adjoining Llankelly Place. No such duty of care was pleaded and, given the agreement of the experts that the approved development did not breach any Australian standards, a possible duty of care with respect to pedestrians on the open paved area in front of the building, presumably unlimited as to the time, would have involved a novel proposition. No such case was argued.

6. [6]

   The approach adopted by the judge appears to have had two sources. First, the plaintiff tendered documents created by Council officers at the time the development application was being considered in July 2009, in order to demonstrate that a Council officer believed, at that time, that the raised kerbing might form “a trip hazard.” Secondly, in final submissions, the plaintiff’s case with respect to duty was articulated as follows: [1]

7. [7]

   That statement assumed, seriatim, that (i) the kerb formed part of a public road of which the Council was the owner, (ii) the Council had care, control and management of the paving between the building and the roadway, and (iii) the Council was the consent authority which approved the development, including the kerbing.

8. [8]

   It is not clear what the trial judge meant in describing the Council’s opposition as “faintly argued”. The relevant allegations were in part denied and in part not admitted in the Council’s defence and, in final submissions, counsel stated, without direct contradiction, that “the plaintiff hasn’t established that the defendant is relevantly an owner or an occupier”. [2] Counsel then accepted the defendant’s role as consent authority for the development, but stated “that doesn’t create a duty.” [3] That proposition was not squarely challenged either.

9. [9]

   In these circumstances, the judge should have dismissed the case on the basis that the plaintiff had not established the underlying facts necessary to found a duty of care in the Council.

10. [10]

    If that analysis be correct, there is no need to consider questions which depend upon identification of an appropriate duty imposed on the Council as the owner (or occupier) of the roadway, and without reference to Pt 5 of the Civil Liability Act 2002 (NSW). However, on the assumption that the case run below turned on the failure of the Council to place (and presumably maintain) a bright yellow strip along the kerbing, I agree with Macfarlan JA that (i) the risk was an “obvious risk” for the purposes of s 5H of the Act, and therefore no duty to warn arose; (ii) if there were a duty to warn, there was no breach within the terms of s 5B(1)(c), and having regard to s 5C(b), in failing to take the proposed precaution; and (iii) if there were a breach by failing to provide a bright yellow strip, the omission was not factually causative of the plaintiff’s trip and therefore of her injury, as required by s 5D(1)(a).

11. [11]

    I agree with the orders proposed by Macfarlan JA.

12. [12]

    MACFARLAN JA: The circumstances that gave rise to this appeal are set out fully in the judgment of Brereton JA which I have had the advantage of reading in draft. For the following reasons I have however reached a different conclusion to his Honour and would allow the appeal and direct the entry of judgment for the appellant.

13. [13]

    By the conclusion of the hearing at first instance, the respondent’s sole contention as to breach of duty was, as subsequently found by the primary judge to be the case, that a reasonable person in the appellant’s position would have applied a reflective yellow strip to the top of the kerb in question, to draw attention to the change in level between the pedestrian laneway and the footpath. Seemingly, the primary judge contemplated that the strip would have extended for the full length of the kerb, irrespective of the gradually reducing height of the kerb. His Honour found that the difference in height between the laneway and the top of the kerb where the respondent tripped was approximately 50-60 millimetres.

14. [14]

    By the end of the hearing, the respondent did not contend that the kerb was constructed contrary to any design standard or that a different construction method should have been adopted to obviate the need for a kerb.

Duty of Care

1. [15]

   Regard is to be had to the provisions of the Civil Liability Act 2002 (NSW) in determining whether the appellant is liable to the respondent. So far as duty of care is concerned, s 5H(1) of that Act provides that “[a] person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff”. “Obvious risk” is defined in s 5F(1) to be “a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person”.

2. [16]

   Although not made by reference to the Civil Liability Act, observations made in the High Court decision of Ghantous v Hawkesbury City Council [reported with the decision in Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29] are relevant to the present case, in particular as to the question of whether the risk of a person such as the respondent tripping on the kerb was obvious.

3. [17]

   In that case, the plaintiff fell after stepping from a concrete footpath on to an earthen verge which had subsided about 50 millimetres below the level of the concrete. The claim in negligence against the authority responsible for the footpath and road failed. Callinan J (with whom Gaudron, McHugh and Gummow JJ agreed) stated at [355]:

4. [18]

   Gaudron, McHugh and Gummow JJ also observed at [163]:

5. [19]

   Earlier, in Phillis v Daly (1988) 15 NSWLR 65 at 74, Mahoney JA had made the following observations to a similar effect in an action for damages against an hotel owner brought by a visitor in respect of injuries she suffered when she stepped onto and fell from a log situated in the hotel’s parking area:

6. [20]

   Mahoney JA’s observations were cited with approval by Gleeson CJ in Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 at [24]. His Honour added at [23]:

7. [21]

   In the present case the plaintiff was walking along a paved pedestrian laneway before she turned and tripped on the kerb separating it from the slightly higher footpath which was also paved. The kerb was constituted by a strip of concrete, wider by some margin than a shoe. Between this concrete strip and the footpath was a metal drain approximately twice the width of the concrete. As can be seen in the photograph reproduced below, taken at about the time the area was reconstructed in 2010, the concrete kerb had, as the respondent’s expert described it, a “light-coloured surface”, whereas the laneway was a “dark grey pavement”. The contrast between the two can be seen in the photograph. It is difficult to see how the application to the kerb of a “reflective yellow strip”, as the primary judge concluded should have occurred, would have added significantly to the prominence of the kerb, at least during daylight hours.

8. [22]

   It is also difficult to determine from the evidence whether other photographs that were in evidence were taken shortly after the respondent’s fall in January 2013, or only after the commencement of the District Court proceedings in 2016. Assuming in the respondent’s favour that they were taken in 2013, they suggest that there had been wear of the kerb in the two to three years since its installation such that its colour was not as consistent or as bright as it had been when constructed. Nevertheless, the respondent’s expert acknowledged that a contrast remained between the kerb and the laneway, albeit that it was not in his opinion sufficient for the area to be safe. The appellant’s expert took a different view on the safety issue in concluding that “the light coloured surface of the concrete kerb provides sufficient contrast with the dark grey pavement of the laneway to draw attention to the kerb… In my opinion, the kerb is obvious”.

9. [23]

   These expert opinions were arguably inadmissible (see for example Hawkesbury Sports Council v Martin [2019] NSWCA 76 at [27]-[33]) although no objection to their use was taken at first instance or on appeal. It can at least be said that the expert opinions were of limited weight and did not preclude the Court from forming its own view about what was in essence a matter of ordinary experience (see Ghantous v Hawkesbury City Council at [355]).

10. [24]

    The limited nature of the assistance that the Court could derive from the experts’ reports in the present case was emphasised by the absence of cross-examination of either of them and the fact that neither of them inspected the scene of the accident at night. They were therefore not able to express a useful view about the impact of the lighting in the area (which may in any event have changed in the four years between the accident and the experts’ reports). All that was before the primary judge as to the position at night was a photograph that was of limited utility because the glare of the lights rendered it indistinct. Nevertheless it showed a contrast between the light coloured kerb and the dark coloured paving of the laneway. It was for the respondent, on whom the onus of proof rested, to show that the kerb was not sufficiently discernible to pedestrians at night. In my view, she did not discharge that onus. In particular, her evidence that the area was “not well lit” and that it was not light enough to read a book did not do that, especially when pedestrians walking through areas that are “not well lit” can be expected to exercise increased vigilance to avoid tripping.

11. [25]

    I accept that small differences in height (as was the case along much, if not most, of the kerb) are often more difficult to detect than large ones. Nevertheless, I consider that the kerb, being differently coloured to the laneway, gave a sufficient visual cue to pedestrians of a change in height. The respondent herself was well aware of the kerb and therefore of the change in height, as in Ghantous v Hawkesbury City Council (see [17] above).

12. [26]

    I should add that I do not, with respect, agree with Brereton JA’s observation at [64] below that there was no challenge on appeal to the primary judge’s finding that it was probable that (absent a yellow reflective strip) a pedestrian would fail to detect the risk of tripping on the kerb. In its Notice of Appeal, the appellant challenged his Honour’s findings as to obvious risk, duty and breach (as well as causation). As its submissions demonstrated, this necessarily raised for this Court’s determination the correctness of his Honour’s inferences as to the probability of the risk of tripping eventuating.

13. [27]

    I also add that the primary judge did not have any significant advantage over this Court in determining whether the risk of a person such as the respondent tripping was obvious because (i) his Honour did not have a view of the accident site, (ii) the respondent readily admitted in her evidence that she was well aware of the existence of the kerb and, as I have said, (iii) the experts were not cross-examined.

14. [28]

    In my view the risk of a person such as the respondent tripping on the kerb was an obvious one for the purposes of s 5H of the Civil Liability Act. As a consequence the appellant did not owe a duty of care to warn the respondent of it. As in Ghantous v Hawkesbury City Council, there was a “discernible difference” between the kerb and the lower level and “[t]here was no concealment of the difference in height. It was plain to be seen”. Further, as the extracts from that case quoted above indicate, occupiers are entitled to assume that people will take care not to trip on the multitude of obstacles, both large and small, that are likely to be in their paths in walking from one place to another. Pedestrians are not entitled to assume that they are traversing “a level playing field” (ibid at [355]).

15. [29]

    There was nothing in the circumstances of the present case that rendered it necessary for the appellant to draw further attention to the step constituted by the concrete kerb. It was a hazard of an ordinary character that a person walking through the pedestrian precinct could be expected to encounter and could be expected to watch out for. A contrast can be drawn with a situation such as that in Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103 at [66]-[69] where the plaintiff tripped over a low but raised platform which the Court found that a pedestrian would not ordinarily expect to encounter in a hotel lobby.

Breach of Duty

1. [30]

   For the same reasons, I consider that the risk of a person tripping on the kerb was not such that a reasonable person in the appellant’s position would have taken the precaution identified by the primary judge. An occupier’s duty is to exercise reasonable care to make their premises safe for entrants exercising reasonable care for their own safety (Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [45]). Here the risk of a person who was exercising reasonable care for his or her own safety tripping was very low, such that it cannot be said that a reasonable person in the appellant’s position “would” have taken the identified precaution. That such an occupier “might” have taken that step and that that step might have avoided the accident is not significant, as is emphasised by s 5C(b) of the Civil Liability Act which states that:

Causation

1. [31]

   The issue of causation does not arise as, on my view, the respondent’s claim fails on the issues of duty and breach. Nevertheless, I make the following brief observations as to whether the respondent established that her injuries were caused by the breach of duty that she alleged.

2. [32]

   In her evidence-in-chief, the respondent said that as she walked along the laneway on the night in question there were people ahead of her “socialising, drinking and whatnot”. As a result she turned to her right but tripped on the kerb in doing so. She said that she was probably looking forward, not down. In cross-examination she agreed on some nine occasions that when she tripped she was trying to step up onto the “ledge” (that is, the kerb). She said that she was aware that the ledge was there and had seen it many times before. She said that attempting to step up onto the ledge was “just something I did, it was just part of my routine”. Over objection, her counsel was permitted to ask her in re-examination whether she saw the ledge before she fell. She answered “[n]o”.

3. [33]

   Neither this nor any other evidence in my view established that the respondent’s injuries were caused by the appellant’s alleged breach of duty. If the alleged breach of duty had not occurred the kerb would, on the respondent’s case, have been of a more prominent colour. There is no basis for concluding however that if it had been more prominent, the respondent would probably have observed it and not tripped.

4. [34]

   The primary judge referred to, and gave reasons for not attaching weight to, a history given by the respondent to Dr Thomas Rosenthal that “she tried to take a step up on the ledge but tripped on the ledge and fell” (at [40]). His Honour also referred to cross-examination of the respondent which he said sought to have her “concede that she actually saw the raised surface of the kerb before she fell”. His Honour continued at [42]-[43]:

5. [35]

   These observations do not, with respect, focus on the critical point that, time and again, the respondent acknowledged that she was attempting to step up onto the kerb when she tripped. Neither in re-examination nor elsewhere did she contradict that evidence. The effect of her evidence was that, although she was not looking down and therefore did not see the kerb, she was well aware that it was there and when she turned, as she had done before to avoid people on the laneway, she instinctively lifted her foot to step up onto the kerb that she knew was there, in her words, as “part of [her] routine”.

6. [36]

   The primary judge concluded on this issue at [50] as follows:

7. [37]

   The respondent did not however need to be reminded of the presence of the kerb. She was aware that it was there as she turned, even though she was not looking at it. A more prominent colouring of the kerb would not have told her anything that was not already present to her mind.

8. [38]

   For these reasons, if duty and breach had been established, I would have nevertheless concluded that the respondent did not prove that her injuries were caused by the breach.

9. [39]

   I add the following in relation to the primary judge’s reference in the quotation in [34] above to a view of Mr Prakash. This was a reference to the view Mr Rajnesh Prakash, the appellant’s Public Domain Coordinator in 2009, expressed to the developer of the area where the respondent tripped that “a kerb height of 65 millimetres, is not acceptable as it would form a trip hazard”. Mr Prakash suggested a design change that would have obviated the need for a kerb. What was intended at that time, so far as visual prominence of the kerb was concerned, is not known. It is sufficient to note that, one way or the other, the Council was satisfied with the development that was undertaken the following year. The recorded comment of Mr Prakash is not therefore of any present relevance.

Conclusion

1. [40]

   For these reasons, I propose the following orders:

   1. (1)

      Appeal allowed.

   2. (2)

      Set aside the judgment and orders made at first instance on 10 July 2018.

   3. (3)

      Give judgment for the appellant against the respondent.

   4. (4)

      Order the respondent to pay the appellant’s costs of the proceedings at first instance and on appeal.

   5. (5)

      Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

2. [41]

   BRERETON JA: On 31 January 2013, at about 8:15pm, the respondent Karen Bishop, then 57 years of age, was walking, as she had hundreds of time before, from her work place in Macleay Street, Potts Point, to Kings Cross station in order to catch a train home. As she walked south along the walkway in Llankelly Place, a pedestrian precinct, she saw a group of patrons of one of the restaurants/bars which were located ahead of her on the eastern side (her left) of Llankelly Place. In order to avoid them, she turned to her right to the footpath, which is separated from the walkway by a kerb which progressively and gradually decreases in height from a step of about 16 centimetres at its northern end, to become flush with the walkway eight metres south of there. At the point which she had reached when she turned to step from the walkway to the footpath the kerb was, so far as can be ascertained from the photographs in evidence, perhaps four to five centimetres in height. As Ms Bishop stepped from the walkway to the footpath, she tripped on the kerb, fell, and sustained serious and incapacitating injuries.

3. [42]

   In proceedings in the District Court, she sued the appellant, the Council of the City of Sydney, for damages for negligence, on the footing that it was the occupier, or at least controller, of the walkway and kerb. In an ex tempore judgment delivered on 21 June 2018, Curtis ADCJ held that the Council, having “overall control of the development and power to compel the developer to adopt the directions of its planning personnel”, owed Ms Bishop a duty of care, notwithstanding that there was no evidence that the kerb was on Council land rather than the developer’s land; [4] that the Council was negligent in failing to install or require that there be installed a yellow reflective strip along the top of the kerb; [5] that the absence of such a strip was a necessary condition of Ms Bishop’s injuries; [6] and accordingly, that the Council was liable to Ms Bishop for damages, which his Honour assessed at $1,019,556 – which was later amended to $977,864, and ultimately, on 17 September 2018, to $750,000, by reason that the defendant had not consented to the extended jurisdiction of the District Court.

4. [43]

   The Council appeals to this Court, on the question of liability only. Though the Notice of Appeal enumerates five grounds, there are in substance three issues:

   1. (1)

      As to duty: did the Council owe no duty of the kind found by the trial judge, by reason that the duty found was a duty to warn, but the risk was an “obvious” one in respect of which there could be no such duty. This invokes s 5H of the Civil Liability Act 2002 (NSW).

   2. (2)

      As to breach: would a reasonable person in the Council’s position have installed or insisted on installation of a yellow reflective strip along the kerb, having regard inter alia to the burden of taking precautions to avoid similar risks of harm elsewhere within the city. This involves s 5B(1)(c) and s 5C(a) of the Civil Liability Act.

   3. (3)

      As to causation: was the absence of a yellow reflective strip a “necessary condition” of the occurrence of Ms Bishop’s injuries. This involves s 5D(1)(a) of the Civil Liability Act.

Duty of Care

1. [44]

   Before turning to the question of “obvious risk”, which is the only issue raised in this context by the grounds of appeal, it is appropriate to observe that there was some ambiguity in the basis upon which the Council’s duty was said to arise.

2. [45]

   The Statement of Claim pleaded that the Council “had the care, control and management and was in occupation of various footpaths and walkways situated on Lankelly [sic] Place”, and “owed the Plaintiff a duty to ensure its premises did not pose risks to health and safety and that reasonable care was taken to avoid exposing the Plaintiff to unnecessary risks of injury”. Those allegations, which appear to invoke occupier’s liability, were “not admitted” in the defence.

3. [46]

   In the defendant’s submissions at trial, counsel said, in response to his Honour’s question “You say there’s no duty?”:

4. [47]

   Before the trial judge, the plaintiff’s submission was:

5. [48]

   His Honour’s reasons dealt with this issue as follows: [7]

6. [49]

   At the outset of the trial, counsel for the defendant had eschewed reliance on any of Civil Liability Act, s 42 (Principles concerning resources, responsibilities etc of public or other authorities), s 43 (Proceedings against public or other authorities based on breach of statutory duty), s 43A (Proceedings against public or other authorities for the exercise of special statutory powers), s 44 (When public or other authority not liable for failure to exercise regulatory functions), and s 45 (Special non-feasance protection for roads authorities). Given the submission made by counsel for the plaintiff as set out above, and the eschewing by counsel for the defendant of any reliance on the provisions of the Civil Liability Act which protect public and planning authorities, the case appears to have been conducted on the basis that the Council was the occupier of the roadway and adjacent kerbs. As the only ground upon which his Honour’s holding that the Council owed Ms Bishop a duty of care was challenged was the contention that the risk was an obvious one of which there could be no duty to warn, it is unnecessary to consider further the basis on which the duty arose, and to do so would introduce issues which were not litigated at trial, and not raised by the grounds of appeal.

7. [50]

   Civil Liability Act, s 5H, provides that there is no duty to warn of an “obvious risk”:

8. [51]

   What amounts to an “obvious risk” is defined in s 5F, as follows:

9. [52]

   In Wyong Shire Council v Vairy, [8] Tobias JA, with whom Mason P agreed, adopted and explained the definition to be found in the Second Restatement:

10. [53]

    While the test is an objective one, the reference in s 5F(1) to a risk that would have been obvious in the circumstances means that it must be applied in the context of and having regard to the particular circumstances in which the harm is incurred. The definition of "obvious risk" incorporates an objective test but one that is to be applied to the position of the person concerned. In a passage that has been frequently cited, Tobias JA said in Fallas v Mourlas: [9]

11. [54]

    The extent to which it is necessary to descend to the particular circumstances in which the harm is incurred is illustrated by CG Maloney Pty Ltd v Hutton-Potts, [10] in which the plaintiff slipped on unbuffed polish on the wooden floor of a hotel left by a cleaner who was still working nearby. The proposition that the plaintiff ought to have been aware of the hazard arising from a cleaner carrying out floor polishing in the vicinity was rejected, because the risk that materialised was not that a recently polished floor would be slippery because it was polished, but that there was invisible unbuffed polish remaining on the floor. [11] Similarly, in Alameddine v Glenworth Valley Horse Riding Pty Ltd, [12] an eleven year old girl was injured during a quad bike excursion in a recreational park. Liability was established because the leader of the excursion accelerated his quad bike, which then led the plaintiff also to accelerate to an excessive speed. Macfarlan JA described the relevant risk as “the risk of injury resulting from an instructor riding faster than was safe for inexperienced or young participants and effectively giving such persons no real choice but to also do so in order to keep up with him”. [13]

12. [55]

    In Glad Retail Cleaning Pty Ltd v Alvarenga, [14] Sackville AJA, with whom Barrett and Gleeson JJA agreed, said:

13. [56]

    Because the test is objective, the plaintiff’s actual knowledge of the existence of a risk is irrelevant to the question whether the risk would have been obvious to the hypothetical reasonable person in the circumstances of the plaintiff, save insofar as the manner in which the plaintiff acquired such knowledge may be relevant to the forward looking inquiry. This was explained in Liverpool Catholic Club Ltd v Moor, by Meagher JA, with whom Emmett JA and Tobias AJA agreed (emphasis added): [15]

14. [57]

    For the appellant, Mr Sexton SC submitted, with reference to s 5F(4), that here the risk was “physically observable” and thus must be “obvious”. However, while s 5F(4) provides that a risk can be obvious even if it is not physically observable, that does not mean that every physically observable risk is obvious. Obvious in this context refers to something which is clearly apparent, or easily recognised or understood. [16] In Jaber v Rockdale City Council, Tobias JA, with whom Campbell JA and Handley AJA agreed, said (at [35]):

15. [58]

    An obvious risk is one which is readily apparent to a person who confronts it. A risk which, while physically observable, would be appreciated only as a result of consideration and reflection is not an obvious one. This is illustrated by Ratewave Pty Ltd v BJ Illingby [17] – a case which bears a number of parallels with the present case – in which the respondent had been injured when he tripped over the corner of a raised timber platform while walking across the lobby of the appellant’s hotel. Meagher JA, with whom Macfarlan JA agreed, held that the risk of tripping on the raised platform would not have been “obvious” to a reasonable person in the respondent’s position, and that certain “visual cues” as to the existence of the platform were not such as to render it “obvious”. His Honour said:

16. [59]

    In the present case, the relevant risk was that of injury from falling as a result of tripping on the kerb. In the terms of the Second Restatement definition, the condition would be the change of level between walkway and kerb, and the risk would be that of injury from tripping on the kerb.

17. [60]

    The relevant circumstances here are those of a pedestrian, walking along Llankelly Place – a precinct which was reserved for pedestrians and from which vehicular traffic was excluded, so that it should be expected that a pedestrian’s sense of safety would be heightened, and their index of suspicion and vigilance less acute – after dark and in poor lighting, who reasonably decides when she encounters a crowd on the walkway in front of her to avoid walking through it, and turns to step from the walkway to the footpath, at a point where the difference in level is somewhere between three and six centimetres. While there was some colour contrast between the walkway, the kerb and the footpath, this appears to have faded since the precinct was first developed and was not nearly so stark as it had been a couple of years earlier. More significantly, and as had been the case in Ratewave Pty Ltd v BJ Illingby, the colour contrast reflected a difference in the surface materials rather than in the surface levels. Indeed in the present case this was all the more so, because the colour contrast between the “footpath” and the “walkway” extended consistently throughout Llankelly Place from its northern end to its southern end, without regard or relevance to presence or absence of any difference in the surface level; in other words, the same “visual cue” of a change in surface colour was present where the footpath was flush with the walkway, just as it was where there was a kerb. It therefore did not provide a cue as to the existence of the kerb – or at least, could be so interpreted.

18. [61]

    The presence of the kerb, at the point at which the plaintiff tripped on it, was not so obvious that, from the perspective of an occupier considering the hazard which it represented, it could confidently be predicted that a person walking along Llankelly Place in the circumstances which I have described would necessarily have become aware of, or adverted to, its presence. As I have observed, the plaintiff’s prior knowledge that there was a kerb for part of the length of Llankelly Place is irrelevant to whether the risk was obvious to a reasonable person in her position. In my judgment, in the circumstances which I have described, the condition, let alone the risk, would not be obvious to a person in the position in which Ms Bishop was.

19. [62]

    Accordingly, Grounds of Appeal 1, 2 and 3, which challenge his Honour’s finding that the Council owed Ms Bishop a relevant duty of care, fail.

Breach of Duty

1. [63]

   The trial judge found that a reasonable person in the defendant’s position would have taken the precaution of installing, or requiring the developer to install, a yellow reflective strip along the length of the kerb.

2. [64]

   In conclusions which are not challenged on appeal, his Honour found that it was foreseeable that pedestrians would trip and suffer injury on the kerb; that (absent a yellow reflective strip) it was probable that a pedestrian at night would fail to detect the risk; and that such risk was significant, as it was probable that a pedestrian at night would in the absence of a yellow reflective strip fail to detect its existence and, if it materialised, the potential consequences extended to catastrophic injury or death. As to what a reasonable person in the Council’s position would have done by way of taking precautions, his Honour had regard to the probability that a pedestrian would fail to detect the risk, the very serious harm that could result from a fall, the trivial cost of installing a yellow reflective strip (no more than $500, which his Honour said would in any event be visited on the developer and not the Council), and the absence of any adverse impact on social utility, and concluded: [18]

3. [65]

   The appellant rightly acknowledges that the question posed by s 5B(1)(c), namely whether in the circumstances a reasonable person in the defendant’s position would have taken the relevant precaution, does not necessarily turn on the particular circumstances known to the plaintiff, but rather on whether in a more general sense the occupier of Llankelly Place would take the precaution of marking the kerb against the risk that a pedestrian might fail to advert to the kerb and trip on it.

4. [66]

   It is of course established that the mere existence of something on which a pedestrian may trip does not necessarily oblige an occupier to remove it, or to take any other precaution to reduce it, [19] and that pedestrians are not entitled to assume that they are “on a level playing field”. [20] Thus in Ghantous v Hawkesbury Shire Council, Callinan J said: [21]

5. [67]

   It must be accepted that reasonable precautions do not require the occupier of land to eliminate every change in level on which a pedestrian might trip, nor to warn of its existence. However, that is not to say that there is no case in which removal, or a warning, will be required, as appears from the judgment of Gaudron, McHugh and Gummow JJ in Brodie: [22]

6. [68]

   The thoroughfare in question in the present case was not an infrequently used footpath in a sparsely populated suburb. Nor did the kerb separate a footpath from a street through which the passage of traffic would itself alert pedestrians to danger. Llankelly Place had been developed as an exclusively pedestrian precinct, with no vehicular traffic. In it were restaurants, bars and cafes whose occupancies encroached onto the walkway, on which they had outdoor areas. The precinct was intended to and did attract patrons to dine at restaurants and drink at bars. Plainly, its users would include some who were not at the peak of their powers of discernment and perception. And, as I have observed in connection with the question of “obvious risk”, the very fact that it is a pedestrian precinct would naturally heighten their sense of safety and reduce their vigilance.

7. [69]

   Moreover, this was no ordinary or regular change of level. At the northern extremity the difference was some 16 centimetres, but over a distance of about eight metres the difference in level walkway reduced until the walkway and the footpath were flush. As the difference decreased, so did its perceptibility. It was not far from the point at which they became flush that Ms Bishop tripped and fell, and there the differential was slight. The lighting by night was not good; it appears – from a photograph in evidence – to have been intended more for atmospherics than for illumination; as Ms Bishop described it:

8. [70]

   As the trial judge pointed out, the defendants’ expert Dr Cooke recognised that some visual cue to the existence of the change in level was appropriate; he said:

9. [71]

   Neither Dr Cooke nor the plaintiff’s expert viewed the location after dark; both inspected it by day. Although there are in evidence two photographs taken in 2010 when the development was brand new (at about 10:00am when the light was good) which clearly depict the kerb in a whitish colour contrasting with its grey surrounds, that contrast is much less apparent in the photographs taken for the plaintiff post-accident, some of which appear to depict the paint as having worn off in spaces. Indeed, the contrast can be detected barely – if at all – in the single photo which appears to have been taken after dark. Moreover, as the trial judge pointed out, the contrast – to the extent that there is any – is constant from the position where the kerb begins at a height of 16 centimetres and continues the length of Llankelly Place, beyond the position where the kerb ends and the pavement becomes level with the footpath. [23]

10. [72]

    To the extent that the colour contrast operated as a visual cue, it existed both where there was and where there was not a change in surface level. In those circumstances, the contrast between the colour of the kerb and the walkway was not adequate to warn a pedestrian of the existence of the slight change in surface level proximate to where the surface of the walkway became flush with the footpath – which is where the respondent tripped and fell.

11. [73]

    I have concluded, above, that the presence of the kerb, at the point at which the plaintiff tripped on it, was not so obvious that, from the perspective of an occupier considering the hazard which it represented, it could confidently be predicted that a person walking along Llankelly Place in the circumstances which I have described would necessarily have become aware of, or adverted to, its presence. In my view, it was plainly foreseeable that a low kerb in a pedestrian precinct where people would be expected to walk, posed a risk of such persons tripping on it, and that such persons might do so because they were not aware or did not advert to the existence of the raised structure as they stepped or moved – including in order to avoid obstacles, such as crowds, in their route – in a way which resulted in their tripping.

12. [74]

    In Ratewave Pty Ltd v BJ Illingby, to which I have referred above, Meagher JA, with whom Macfarlan JA agreed, said:

13. [75]

    In my judgment, much the same applies here: pedestrians walking through Llankelly Place would be exercising varying degrees of care, but most would have a more relaxed than usual sense of vigilance both because it was exclusively for pedestrian use, and because it was designed to attract custom to the bars and restaurants in it, and many would use it by night; the footpath and walkway were for some of the length of the precinct flush but towards the northern end were separated by a kerb, the perceptibility of which varied according to its height and the light; it was not to be expected, in part because of the varying height of the kerb, that pedestrians exercising care for their own safety would necessarily see and avoid it; a person tripping on the kerb could, as is well-known, sustain serious injuries; pedestrians could be made aware of the existence of the kerb in a way which enabled them to avoid tripping on it if its existence was highlighted by a yellow reflective strip; that precaution could be taken without difficulty or expense; and there was no social utility in having the kerb unaccompanied by such a warning.

14. [76]

    That is by no means to say that every change of surface level needs to be marked with yellow highlighting. It is the circumstances of the nature and user of this particular thoroughfare, the quality of the lighting, and the fact that the relationship between the footpath and the walkway changes from flush to different levels gradually, such that the existence of a change in surface level is least likely to be perceived where it is at its slightest, that generates the duty in this case.

15. [77]

    For those reasons, I am unconvinced that the trial judge erred in finding that a reasonable person in the Council’s position would have installed, or required to be installed, a yellow reflective strip to the top of the kerb. Ground of Appeal 4 therefore fails.

Causation

1. [78]

   The appellant challenges his Honour’s causation conclusion on two bases. The first is that, assuming the facts as his Honour found them, causation was not established. The second is that his Honour erroneously preferred evidence given by the plaintiff in re-examination to concessions made by her in cross-examination and a prior statement made by her to a doctor, supposedly to the effect that it was not failure to advert to the presence of the kerb, but a misstep in attempting to ascend it, that caused her fall.

2. [79]

   His Honour found that a yellow reflective strip would have been obvious to Ms Bishop as she approached Llankelly Place, reminding her of the presence of the kerb before she found it necessary to step off the walkway. [24] Counsel for the respondent submitted that the presence of the yellow strip as she entered Llankelly Place would have alerted her to the existence of the kerb.

3. [80]

   The trial judge did not find, and it was not submitted before us, that when Ms Bishop diverted from her course along the walkway to avoid the crowd by turning right and stepping onto the footpath she would at that time and place have observed, and reacted to, a yellow reflective strip. She would not have done so for the very reasons she did not notice the kerb immediately before she tripped and fell, namely that as soon as she changed her direction of travel, she tripped on the kerb, and she was looking ahead, not down. In other words, she was so close to the kerb that when she stepped to the right it would not have been in, but beneath, her field of vision.

4. [81]

   However, if she was so close to the kerb as to trip on it as she stepped to the right, she must have walking more or less parallel to it for at least several steps previously, if not from the point at which she entered Llankelly Place. A yellow reflective strip along the top of the kerb up to the point where there ceased to be a kerb would have been on her immediate right, and projecting to her front, for about eight metres from her entry into Llankelly Place until the point where the kerb petered out and the walkway became flush with the footpath. Such a line, to her immediate right, would have emphasised the existence of the danger, and the point to which it extended – which the indiscriminate contrasting colours of the kerb and its surrounds did not (indiscriminate, because it did not differentiate between where there was and was not any kerb). In my view, in the presence of a yellow reflective strip along the kerb to the point where the walkway and the footpath became flush, the plaintiff – walking immediately adjacent and parallel to it – could not have avoided seeing it, and would have been reminded of the existence of the kerb extending beyond the point where she attempted to cross to the footpath. So reminded, she would either have not attempted to cross until the kerb ceased after another couple of steps, or would have used additional care if she were to attempt to cross it where she did.

5. [82]

   Accordingly, on the facts found by his Honour, I would not disturb the finding of causation.

6. [83]

   However, the appellant points to evidence said to demonstrate that Ms Bishop was not inadvertent to the presence of the kerb when she endeavoured to cross it, but tripped in deliberately endeavouring to cross it. If that is correct, then the presence of a yellow reflective strip would have made no difference.

7. [84]

   In her evidence-in-chief, Ms Bishop said that as she progressed south along the walkway she observed 10 or 20 people congregated outside one of the bars, and decided that rather than negotiate her way through them she would turn to her right, “and that’s where I tripped on that edge”. She explained that she turned “probably ten paces” before the congregation outside the bar, took a step to the right and immediately tripped and went down. She was asked (emphasis added):

8. [85]

   Thus in chief, it was her evidence that she did not notice the kerb before she tripped on it, and was not looking “down” so as to observe it.

9. [86]

   In cross-examination, she was questioned, at considerable length, about her historical use of Llankelly Place as a thoroughfare, and she agreed that she had used it many times, and as a result – including of having on occasion stepped up onto it – was aware, in a general kind of way, of the existence of the kerb:

10. [87]

    The cross-examination then proceeded:

11. [88]

    The question to which her assent was obtained was one which contained multiple elements. Read literally, it involved an admission that she had caught her toe and tripped on a number of previous occasions, which was presumably not intended. Her answer does not to my mind necessarily involve that, on the occasion in question, she adverted to the presence of the ledge and was deliberately attempting to ascend it; it involves no more than that she was endeavouring to step from the walkway to the footpath, which (with the benefit of hindsight) she may have appreciated involved a step “up”.

12. [89]

    Presumably because the cross-examiner appreciated the risk that this was so, she was then asked:

13. [90]

    However, those questions were asked in a context where the cross-examiner had established, at some length, that Ms Bishop had walked up and down Llankelly Place many times, and was aware that there was a kerb there. Her acceptance that she “knew the ledge was there”, and was “in the process of attempting to step over the ledge”, in that context, does not necessarily involve acceptance that she adverted to its presence and was deliberately attempting to ascend it when she fell.

14. [91]

    Dissatisfied with those answers, the cross-examiner returned to the point the following morning. The following ensued (emphasis added):

15. [92]

    For the most part, the concessions were that the plaintiff knew that the kerb – or ledge – existed. That had been repeatedly established. What the cross-examination did not establish is that she adverted to its existence at the time that she endeavoured to step from the walkway to the footpath. Indeed, when her attention was focussed on the point, as in the passages emphasised above, her answers suggest otherwise. The high point for the cross-examiner was the last question set out above. However, the question involves multiple concepts, and the answer may have intended no more than acceptance that (with the benefit of hindsight) she was endeavouring to ascend the kerb. The cross-examiner never distinctly put to the plaintiff that immediately prior to tripping she was conscious of the existence of the kerb, and that she tripped not because she was inadvertent to its existence but because she mis-stepped in endeavouring to cross it.

16. [93]

    In re-examination, admittedly allowed over objection, she was asked:

17. [94]

    Although I confess that my initial impression was otherwise, on close examination of the cross-examination I do not think his Honour erred in finding that it left open ambiguity as to just what it was that the plaintiff was conceding. In any event, no ground of appeal challenges the allowance of the re-examination.

18. [95]

    The appellant also referred to the history attributed to Ms Bishop by Dr Rosenthal in his report of 6 December 2016, following an examination on 5 December 2016, in which he recorded:

19. [96]

    The doctor’s contemporaneous notes of the consultation were somewhat more ambivalent:

20. [97]

    The plaintiff’s chronology at trial reveals that she had seen many other health professionals, some for treatment, some for medico-legal purposes at the request of her solicitors, and some at the request of the appellants’ lawyers. It can be deduced from the transcript that at least some of those reports were in evidence at trial, although they have not been reproduced in the appeal books. It would be surprising if many did not obtain histories from the plaintiff, and his Honour’s observation that “the history taken by Dr Rosenthal is the only medical history in which that version of events occurs” is unchallenged. [25]

21. [98]

    His Honour attributed Dr Rosenthal’s record to the plaintiff’s limited communication skills, the probability that the doctor misunderstood her, and his acceptance of her evidence-in-chief and re-examination as truthful and reliable. To those considerations might be added that the doctor would not have been concerned to elicit a full account of the incident; what was of interest to him was the mechanism of the injury.

22. [99]

    His Honour saw and believed the plaintiff, who when asked the question directly, in chief and in re-examination, twice said that she did not notice the ledge before she tripped on it and fell. The cross-examination never secured a distinct admission that when she stepped to the right to cross to the footpath she then noticed or adverted to the existence at that point of the ledge. His Honour characterised her concessions in cross-examination as “retrospective reconstruction”, and referred also to the circumstance that “not being well educated she had some difficulty in understanding and responding to conceptual and at times ambiguous questions”. In the context of the often multi-faceted questions and answers to which I have referred above, the trial judge enjoyed a very considerable position of advantage in making an assessment and evaluation of just what the plaintiff should be taken to be acknowledging and accepting, and on what basis. His Honour’s conclusion was therefore plainly founded on his observations of the plaintiff as a witness, as is manifest from his Honour’s observations about her education, her communication skills, and her difficulty in dealing with conceptual and ambiguous questions.

23. [100]

    Insufficient basis has been shown for disturbing what amounts to his Honour’s assessment of the plaintiff’s credibility as a witness. To his Honour’s reasons might be added the objective probability that pedestrians are much more likely to trip because they do not advert to a trip hazard, than because they are endeavouring to ascend a trip hazard to which they have adverted.

24. [101]

    It follows that his Honour was entitled to prefer the plaintiff’s version of events, as related in chief and confirmed in re-examination, to the version which Dr Rosenthal had attributed to her.

25. [102]

    Ground of Appeal 5, which challenges his Honour’s acceptance that failure to install a yellow reflective strip was a necessary condition of the harm suffered the plaintiff, therefore fails.

Conclusion

1. [103]

   My conclusions may be summarised as follows:

   1. (1)

      The risk of harm posed by the kerb, particularly towards its southern extremity where it became progressively less noticeable, was not obvious in the circumstances in which the plaintiff was on the evening of 31 January 2013.

   2. (2)

      Given the particular nature and user of Llankelly Place, the lighting, and most especially the circumstance that the kerb while a noticeable 16 centimetres at the northern end reduced to becoming flush eight metres to the south, a reasonable person in the Council’s position would have installed or required installation of a yellow reflective strip along the length of the kerb.

   3. (3)

      The trial judge was entitled to accept the plaintiff’s evidence that she did not advert to or notice the kerb when endeavouring to move across to the footpath.

   4. (4)

      Had there been a yellow reflective strip along the length of the kerb, she would have been walking alongside it and could not have avoided seeing it for its eight metre length, and either would not have crossed until a point after it (and the kerb) had ceased, or if she crossed it earlier would have adverted to the existence of the kerb, and in either case not tripped and fallen.

2. [104]

   In my opinion, therefore, the appeal should be dismissed with costs.