Recent case law under the Civil Liability Amendment (Personal Responsibility) Act 2002

The introduction in December last year of the Civil Liability Amendment (Personal Responsibility) Act 2002 represents the "second wave" of amendments to the law of negligence following the earlier introduction of the Civil Liability Act in June 2002. This together with a number of recent Court of Appeal decisions is contributing to the changing landscape of public liability in NSW.

This bulletin will review three court decisions which broadly follow the High Court decisions of Ghantous and Brodie and the earlier Court of Appeal decision in Lombardi. All of these decisions had the effect of requiring the public to take care for their own safety and obliging them to keep a lookout for obvious dangers.

The 3 decisions handed down on 4 November 2002 were :

• Richmond Valley Council v. Standing,
• RTA v. McGuinness
• Burwood Council v. Byrnes.

All 3 cases involved trip and fall incidents and, in all 3, the plaintiff won in the District Court. The other common feature of the 3 cases was that all the District Court decisions were overturned on appeal.

In Standing, the plaintiff fell at around 1.20 pm on the footpath outside Casino High School. At the point the plaintiff tripped and fell, there were various cracks and the one upon which the plaintiff apparently tripped was between 10 - 15mm in depth compared to the surrounding footpath. The plaintiff had apparently only used the footpath on a couple of prior occasions.

In Standing Justice Heydon, who has now been appointed to the High Court, stated the following:

"So far as there was any hazard it was both not only obvious but insignificant and common. The condition of the pavement was typical of innumerable kilometres of pavements in the cities, suburbs, and towns in the country. The imperfection was of a kind which users of footpaths have from childhood habituated themselves to look out for and avoid, in view of the fact that surfaces which pedestrians use may be uneven, not flat and not smooth. The imperfection was not a danger, a hazard or a trap".

In McGuinness, the plaintiff tripped on the corner of the cover of a manhole in a footpath which protruded about 13 mm above the surrounding pavement. In the District Court, the trial judge found that the RTA knew or ought to have known the manhole was dangerous, based on the inference it often carried out work at or near the intersection. The plaintiff was awarded almost $600,000.

The Court of Appeal found the protruding corner was obvious and the modest height difference did not make the footpath unsafe for a person taking ordinary care. They also held there was no evidence the RTA knew or ought to have known of the protruding corner. In his judgement, Justice Handley states:

"In my judgment the Authority was not liable to this plaintiff for her fall and its consequences. The upstanding corner was obvious. It was not in the nature of a trap and the modest difference in height did not make the footpath unsafe for a person taking ordinary care. There was no evidence that the Authority knew or ought to have known of the upstanding corner. Even if the Authority did become aware of the difference in height, it would not have been obliged to take any action. Judges may be permitted to know that there are a large number of height differences of this order or more in footpaths in built-up areas, and there was nothing to make this one any worse than others".

Also of interest in that case was the fact the plaintiff, who had passed away by the time the appeal was heard, had been diagnosed with multiple sclerosis. Although her illness had been in remission for some years prior to her accident, her legs were weak and she was unable to lift them normally. There was also evidence the plaintiff had used the footpath on numerous prior occasions. Despite her disability, Justice Handley made the following comment:

Query what the position might be, however, if the plaintiff is visually impaired and/or the incident occurs at night. In the absence of any prior knowledge on the part of the relevant public authority of a problem with the particular area, even in those circumstances it appears unlikely a plaintiff would succeed in an action against the relevant authority for personal injury, particularly given the further amendments to the Civil Liability Act.

In Byrnes, the plaintiff tripped over a concrete paver which had sunk relative to other pavers around it, resulting in a height difference of 20mm. The District Court found the condition was discoverable on reasonable inspection and that the defendant Council had been negligent, but also reduced the plaintiff’s damages for contributory negligence.

The Court of Appeal found the Council had not been negligent as the height differential of 20mm was obvious and was not dangerous to a pedestrian taking reasonable care for their own safety.

The leading judgment was, once again, by Justice Handley. His Honour commented that the contrast between the Brodie and Ghantous cases was significant, in that there was nothing Mr Brodie could reasonably have done to protect himself against the risk that the wooden bridge would collapse. On the other hand, the Council in Brodie knew how long the bridge had been there, knew that its timbers would not last forever and it alone had the means of testing its load-bearing capacity. If the bridge was found to be weak or dangerous, and the Council did not have the resources to repair or rebuild it, it could have barred heavy traffic, imposed weight limits, warned drivers of the risk or, as a last resort, closed the bridge.

By way of contrast in Byrnes and, by inference, other trip and fall cases, Justice Handley made the following comment:

"Pedestrians on the other hand are in a position of relative advantage because they can generally protect themselves from uneven surfaces of footpaths and other public areas by keeping a lookout and taking care for their own safety. The position would be otherwise if the surface contains something unusual or unaccepted which creates a real danger for ordinary pedestrians".

Although the legislative amendments introduced by the Civil Liability Amendment (Personal Responsibility) Act 2002 in general only apply to proceedings commenced since 6 December 2002, the recent Court of Appeal decisions have application to all claims. The Courts have made it clear they are now prepared to interpret the long established Common Law principles with the concept of personal responsibility in mind.