“Watch your step – Council not liable”: Salamastrakis -v- Rockdale City Council [2005] NSWCA 313

Author: Nicholas Gordon

Judgement Date: 19th September, 2005

Citation: Salamastrakis -v- Rockdale City Council [2005] NSWCA 313

Jurisdiction: NSW Court of Appeal[1]

In Brief

This case involved whether or not a council was liable for injuries arising from a fall involving an alleged defective footpath.


Background Circumstances

  • On 17 February 2001, at approximately 9.30 pm, the appellant (“the plaintiff”) was walking home when the front of her shoe struck an irregularity in the footpath, causing her to fall and suffer significant injuries.
  • The plaintiff returned to the scene about a week later and saw that, at the point at which she had fallen, one block of the concrete footpath was 2 to 3 inches higher than the adjoining block.  The plaintiff also saw evidence of an earlier repair to the concrete footpath, being a small piece of concrete acting as a “bridge” between those two blocks.  Photographs tendered in evidence showed that most of the “bridge” on the left side of the concrete footpath had broken away.
  • The plaintiff sued Rockdale City Council (“the defendant”) alleging that:

The defendant was the relevant road authority;

Before the plaintiff fell, the difference in level between the two concrete sections of the footpath had been repaired;

The repair work had been undertaken by the defendant;

The repair work had been done negligently;

The repair was of longstanding and had deteriorated over time; and

The defendant had either not instituted a proper system of inspection of footpaths or had negligently failed to discover the state of the footpath on inspection.

  • The plaintiff relied on the evidence of Mr Adams, an ergonomist.  Mr Adams was of the view that the initial attempt to repair the fault was clearly ineffectual, as the change in level remained in the path, and was re-exposed when the repair failed.

District Court Decision

  • Judge Balla noted that the plaintiff’s primary submission was that the defendant “having the relevant care and control of the footpath”, breached its duty of care to the plaintiff.  
  • Judge Balla noted the allegations of negligence made against the defendant, but held that there was very little evidence in relation to the issues.  Her Honour rejected the allegation that the concrete used for the “bridge” was thin and accordingly was more likely to fail.  Her Honour also stated that:

“I decline to infer that the initial repair that had been undertaken by the defendant, that the initial repair work had been done negligently, that, at the time of the plaintiff’s fall, the earlier repair had been effected a considerable time beforehand, or that the defendant had either not instituted a proper system of inspection of footpaths or had negligently failed to discover the state of the footpath on inspection.”

  • Counsel for the plaintiff referred her Honour to the case of Newcastle City Council -v- Mason [2004] NSWCA 108.  In respect of this decision her Honour commented as follows:

“ I am not satisfied that that case is authority for the proposition that the plaintiff is relieved of the necessity of adducing evidence simply because the material circumstances are within the knowledge of the defendant which does not call evidence. “

  • Judge Balla stated she was not satisfied that the plaintiff had shown that the defendant had breached its duty of care to her and therefore found in favour of the defendant.

Decision

  • Campbell AJA, who wrote the majority decision, noted that the plaintiff sought to rely on the cases of Ghantous -v- Hawkesbury City Council [2001] HCA 29 and Brodie -v- Singleton Shire Council (2001) 206 CLR 512 to allege that if there was a reasonably foreseeable risk of injury to the plaintiff, and the plaintiff is injured, then liability follows.  His Honour dismissed this assertion stating that “these cases do not purport to absolve a plaintiff in such circumstances from the necessity to prove a lack of reasonable care on the part of the alleged tort feasor and relevant causation”.
  • Campbell AJA agreed with Judge Balla’s views on Newcastle Shire Council -v- Mason [2004] NSWCA 108, and also distinguished the case on the basis that in that case there was evidence which supported the inference other than the mere failure of the defendant to call evidence.  His Honour quoted from the case of Shoeys Pty Limited -v- Allan (1991) Aust. Torts Reports 81-104 where Handley JA stated “the plaintiff must firstly establish a prima facie case of negligence before the defendant can be called upon for an explanation as to how the accident occurred or might have occurred consistently with the absence of negligence on its part.”
  • Campbell AJA also noted that the plaintiff alleged that the trial Judge failed to give proper consideration to the report of Mr Adams.  His Honour also rejected this ground of appeal stating that “the report contained very little material relating to the matters at issue between the parties.  To my mind it is tolerably clear that her Honour took that material into account in reaching findings which were open to her.”
  • Campbell AJA stated that had the trial Judge fallen into error it would have been for the Court of Appeal to reach its own conclusion as to the appropriate outcome of the case.  In this regard, his Honour noted that the strongest aspect of the plaintiff’s case was the allegation of failure to detect the breakdown of the original repair or, if it were detected, to repair it or erect suitable warnings.  However, his Honour stated that the plaintiff would have had to have established that the breakdown occurred a sufficient time before the fall for a reasonable regime of inspection to have detected it, and that the plaintiff had not done so.  
  • To support this position Campbell AJA quoted McHugh JA, as he then was, in the case of Brady -v- Girvan Bros Pty Limited (1986) 7 NSWLR 241, who stated that:

“It is no comfort to the plaintiff to show that the defendant did not have a proper system unless she can show that the existence of a proper system would have avoided her injury.  That is to say, the critical issue is causation.” 

  • His Honour stated that the plaintiff had not shown that the breakdown occurred a sufficient time before her accident for it to be established that, more probably than not, a proper system would have observed the defect and repaired or guarded it.
  • Accordingly the plaintiff’s appeal failed on all grounds.

Implications

  • This decision demonstrates the necessity of plaintiffs having to prove that defendants’ actions, even when on the face of it they appear to have breached the duty of care, actually caused the loss in question.
  • The decision also reaffirms that the onus is on the plaintiff to first establish a prima facie case of negligence, before any onus shifts to the defendant to challenge that allegation.
  • The decision is another example of the Courts criticising experts’ reports, in this case for not focusing on the critical issues between the parties.

[1]    Mason P:  Beasley JA:  Campbell AJA