Following an appeal by the Council of the City of Sydney (Council) the NSW Court of Appeal (NSWCA) has set aside a determination of the District Court of NSW (District Court) in finding that there was no breach of duty by the Council in circumstances where the plaintiff failed to take reasonable care for his own safety.

The decision suggests that where the relevant risk or danger can be easily avoided and the plaintiff has failed to look after his or her own safety then there will be no breach of duty by the defendant.

The decision also highlights the weight to be given to contemporaneous medical records in circumstances where the plaintiff’s account of his or her injuries is inconsistent.

Background

Mr Joseph Hunter (plaintiff) alleged that while walking in his neighbourhood, he tripped on the roots of a Morton Bay fig tree growing onto the bitumen footpath of Catherine Street, Glebe. He claimed that as a result of the incident, he suffered an injury to his right knee and an aggravation of prior right hip and lower back injuries.

At the time of the incident, the Council had the care, control and management of the footpath. The plaintiff alleged that the Council breached its duty of care to him by failing to maintain the footpath properly and repair/remove the root damage to the footpath.

The Council disputed that it had breached any duty owed to the plaintiff and contended that the plaintiff did not suffer any injury as a result of the alleged incident.

The decision of the District Court

At first instance, Norton DCJ (primary judge) found that the Council was negligent and after a reduction of 20% for contributory negligence, awarded the plaintiff damages of $97,800.00.

The primary judge held that the Council had a duty to take reasonable care for persons taking reasonable care for their own safety in using the footpath. Her Honour particularised the risk as the risk of a pedestrian who was taking reasonable care for his own safety, tripping on the tree root in question and suffering injury. Her Honour found that this risk was foreseeable and not insignificant.

The primary judge found that the Council had breached its duty to the plaintiff because:

  • it had not cut the roots of the tree;  
  • it had not re-laid the footpath;  
  • the footpath would have been less dangerous if it had taken appropriate action in 2008 following an inspection; and  
  • if an inspection of the footpath in 2011 had been carried out with due care, the defect in the footpath would have been noted and made ‘safe’.

Her Honour accepted that the plaintiff was aware that he was in an area of danger and, if he had inspected the area more carefully, could have avoided the incident. Damages were accordingly reduced by 20%.

The decision of the NSWCA

The Council appealed the District Court’s decision on the grounds that the trial judge had erred in finding that the Council had breached its duty to the plaintiff and in finding that the plaintiff had suffered any injury as a result of the incident as well as in the assessment of damages.

The findings

The NSWCA comprised of Ward JA, Emmett JA and Simpson JA allowed the appeal and delivered a unanimous judgment with a verdict in favour of the Council. In his judgment, Emmett JA found that the Council had not breached any duty owed to the plaintiff and that the plaintiff did not suffer any injury as a result of the incident. The Court found it was unnecessary to consider the method for the trial judge’s assessment of damages.

Breach of duty

The Court found that the Council had not breached any duty of care owed to the plaintiff by failing to repair the bitumen footpath damaged by tree roots. Rather, the Court found that if the plaintiff had tripped and fell as he alleged and sustained injury, it was because he was failing to take reasonable care for his own safety.

The plaintiff’s evidence was that he was aware of the danger posed by the tree roots at the section of the footpath where he tripped. The trial judge found that the plaintiff took that particular route because it was difficult for him to get through parked cars and cross the street to another footpath. The photographic evidence of the area where the incident was alleged to have occurred indicated that there were substantial parts of the footpath that were easily passable by a pedestrian without stepping on the part of the bitumen damaged by tree roots.

The Court found that the evidence in this case indicated that a pedestrian taking reasonable care for himself or herself would have no difficulty at all in walking along the route taken by the plaintiff and avoiding the danger posed by the tree roots. The Court ruled that there was no breach of duty by the Council in failing to repair the bitumen footpath in circumstances where it was clearly open for a pedestrian to pass by without treading on the roots and disrupted bitumen.

The knee injury

The injuries the plaintiff was alleged to have sustained included an injury to his right knee as well as aggravation of a prior right hip and lower back injury. The plaintiff gave evidence that he attended his general practitioner about these injuries several days after the incident.

The records produced by the plaintiff’s doctors made no note of any such injuries until two months after the incident, when the plaintiff attended his general practitioner after suffering a similar injury as a result of jumping a gate. The records showed a history of the plaintiff frequently presenting to his general practitioner for a large range of health complaints and indicated that the plaintiff attended his general practitioner on three separate occasions between the date of the alleged incident and the record of his injuries. The plaintiff’s doctor’s evidence was that if the plaintiff had reported these injuries to her, she would have recorded them.

The Court found that any injury for which the plaintiff had been treated two months after the incident was not related to the incident. It was found that there was no casual connection between the alleged incident and the plaintiff’s injuries.

Key lessons

  • A Council will not be found to have breached its duty of care for failing to repair a footpath in circumstances where the risk or danger could have been avoided and the pedestrian has therefore failed to take reasonable care for their own safety.  
  • This case has broader application and should not just be seen to be limited to claims against councils. Occupiers can equally raise similar arguments particularly where a plaintiff could have avoided a hazard and failed to do so. The Court of Appeal has sent a clear message that plaintiffs need to be taking care for their own safety.  
  • Medical records prepared contemporaneously can hold weight with the Court in determining causation and credibility where the plaintiff’s evidence is inconsistent.