Author: Chad Farah
Judgment Date: 28 June 2019
Citation: Council of the City of Sydney v Bishop  NSWCA 157
Jurisdiction: NSW Court of Appeal 1
On that particular evening, the Plaintiff attempted to mount a footpath that was separated from a walkway by a kerb with a gradual height of 16 cm at the highest point before eventually becoming flush with the walkway. The point in the kerb on which the plaintiff tripped was estimated to be around 4 to 5 cm in height.
The plaintiff sued that Council, as the sole defendant in the District Court of NSW, for damages arising from a broken hip. She argued that the Council ought to have provided a reflective yellow strip to delineate the edge of the kerb.
His Honour Curtis ADCJ found in favour of the plaintiff in the first instance and awarded her $977,864 in damages which was later amended to $750,000 in line with the District Court's jurisdictional limit.
The Council appealed on the issues of the duty to warn under Section 5H of the CLA, the breach of any such duty under Section 5B of the CLA and the causation of plaintiff's injuries under Section 5D of the CLA.
With reference to that photograph, his Honour rejected the plaintiff's argument that the edge of the kerb was not obvious. His Honour further rejected the notion that the risk was concealed due to dim lighting during the evening hours, instead stating that the plaintiff ought to have exercised 'increased vigilance' by virtue of that very fact. His Honour summarised the position at paragraph 29 of the judgment:
'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.'For the same reasons, his Honour also found that the risk that a person exercising reasonable care for their safety would trip on the kerb was sufficiently low such that the defendant had not breached its duty of care by not taking precautions against the risk.
His Honour emphasised the importance of s 5C(b) of the CLA: The fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done.
His Honour then turned to the issue of causation. Reference was made to the plaintiff's evidence during the trial where she said that she was looking forward, not down, before the accident, and that she had attempted to mount the kerb to her right (which she knew existed from prior experience) to avoid people on the walkway ahead 'socialising, drinking and whatnot'. His Honour consequently rejected the proposition that the plaintiff would have noticed the kerb and successfully mounted it even if that kerb was delineated in yellow. It followed that any breach on the part of the defendant in that regard, which the Court had found was not committed, was not causative of the plaintiff's injuries.
His Honour Basten JA was critical of the plaintiff's pleadings, in which it was alleged, inter alia, that the Council was the 'occupier' of the 'premises' (with reference to the adjacent footpath and walkway). His Honour held that the plaintiff, during the trial, did not establish that the kerb was situated on Council's land, as opposed to a developer's land, such that there was occupancy or ownership giving rise to a duty of care within the meaning of the pleadings. Accordingly, the plaintiff had not established the underlying facts that are necessary for a finding that a duty of care was owed to her by the Council. His Honour ultimately held that the proceedings in the District Court ought to have been dismissed for that reason alone, and otherwise agreed with the judgment of Macfarlan JA.
In a dissenting judgment, Brereton JA held that the risk was not obvious and that it required the Council to install a yellow reflective strip along the length of the kerb to delineate it. His Honour further held that the plaintiff would have been in a better position to notice the kerb if a yellow strip had been implemented along its eight-metre length.
Cases concerning whether the risk of tripping on an object was an 'obvious risk' fall squarely in this category, particularly where contemporaneous photographic evidence of the risk is available for the inspection of the judiciary. It is perhaps for this reason that the majority judgment in this case is predicated on a photograph.
This case also serves as a reminder that the 'obvious risk' defence can defeat a claim in negligence entirely, not just the allegation that a duty to warn existed. The 'obvious risk' defence, if successful, will have a flow on effect that will determine whether that risk was significant enough such that a reasonable person in the defendant's position would have taken precautions in respect of that risk pursuant to Section 5B(1)(c) of the CLA.
1 Basten JA, Macfarlan JA and Brereton AJA.