NSW Court of Appeal Upholds Decision Against Road Authority Over Hazardous Barrier

The Court of Appeal refused leave to appeal and dismissed the summons with costs, affirming the District Court's decision that the road authority was negligent for failing to remove a hazardous barrier on a public footpath.

[ADDRESS] of Appeal

CITATION : Gosford City Council v [NAME] [2003] NSWCA 144 HEARING DATE(S) : JUDGMENT DATE : 5 June 2003

JUDGMENT OF : [NAME] at 16; Ipp JA at 1; [NAME] at 17 DECISION : (1) Application for leave to appeal refused (2) Summons dismissed with costs.

CATCHWORDS : LEAVE TO APPEAL - NEGLIGENCE - Whether the presence of a transverse bar across the footpath at shin height was an obvious hazard - Leave to appeal refused. ND CASES CITED : [NAME] v Singleton Shire Council (2001) 206 CLR 512 PARTIES : Gosford City Council (Claimant) [NAME] ([NAME]) FILE NUMBER(S) : CA 40963/02 COUNSEL : [redacted] G B Hall QC/[NAME] ([NAME]) SOLICITORS : [redacted] [NAME] ([NAME])

LOWER COURT District Court JURISDICTION : LOWER COURT DC 4247/01 FILE NUMBER(S) : LOWER COURT Hungerford ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40963/02 DC 4247/01

[NAME] JA [NAME], 5 June 2003 GOSFORD CITY COUNCIL v [NAME] Judgment 1 IPP JA: This is an application for leave to appeal and appeal heard concurrently. The matter arises out of an action heard in the District Court where [NAME] claimed damages for personal injuries from the claimant. The injuries were incurred when [NAME] fell over the lower crossbar of a bus shelter situated in [ADDRESS], Umina. 2 It is common ground that the claimant is the road authority which has control over the bus shelter. 3 At about 9.10 am on 2 February, 2001 [NAME] was walking along [ADDRESS] together with the father of her young baby. They were on their way to a celebrant to have the baby named, the baby being pushed in a pram by the father. They were walking on the footpath along the opposite side of the road to where the shelter was situated. The father crossed the road, pushing the pram, and [NAME] followed him. They commenced walking along the footpath on the bus shelter side of the road. They were talking to each other with the father pushing the pram ahead of [NAME]. The bus shelter was ahead of them. 4 The footpath was made of concrete and was in good condition. It was frequently used by pedestrians. 5 The lower crossbar of the frame nearest to the walking couple and their child constituted a barrier across the entire footpath. 6 The purpose of the bar was to brace the vertical metal framework of the bus shelter. Ordinarily the framework contained a sheet of glass which would be quite obvious to all. It was not transparent glass but had an opaque white colouring. That pane had been removed by [NAME] so there was an open gap across the entire width of the footpath save for the barrier constituted by the lower transverse bar. 7 The other side of the bus shelter extended only halfway across the footpath and was constituted by opaque glass of the kind I have mentioned. There was an open space from the edge of that glass to the side of the road. 8 The effect of the vandal's action was that, as pedestrians walked along the footpath, they were able to walk directly past the front of the bus shelter without having to make a detour to pass the shelter, provided they stepped over the bar on the side of the shelter nearest them. 9 There was no indication to pedestrians that the bar constituted a barrier. It was painted green and was quite obvious to anyone who noticed it. The problem was that not everybody did notice it, and indeed prior to the particular accident involving [NAME], an old lady had, in similar circumstances, fallen over the bar and injured herself. 10 This had been noticed by [NAME] who was the occupier of the house in front of which the bus shelter stood. She telephoned the claimant and informed it of what had occurred. The claimant replaced the missing frame. [NAME] then kicked the frame out, once more. [NAME], in the belief that it was dangerous, again telephoned the claimant and warned it of what had happened. By the time the accident occurred, the claimant had taken no action. [NAME]'s second telephone call was found by the trial judge to have taken place before Christmas, at least some six weeks before the accident occurred. 11 In addition, on the evidence of the father of the child, he would not have seen the bar as he was pushing the pram but for the fact that he looked down to look at the baby who had cried out. He lifted the hood of the pram to get the sun off the child's head and, as he looked down, for the first time saw the bar. He was able to then swerve around the back of the shelter and avoid the bar. 12 In the claimant's written submissions, reliance was placed on [NAME] v Singleton Shire Council (2001) 206 CLR 512 at paragraph 163, page 581 where Gaudron, [NAME] JJ said: "The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous , the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As [NAME] points out in his reasons in Ghantous , persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence." 13 In my opinion, the hazard constituted by this bar cannot be compared to the imperfections in the road surface discussed by their Honours in [NAME]. As their Honours pointed out in that case, pedestrians are expected to perceive and avoid obvious hazards such as uneven paving, stones or holes. Those are the kinds of hazards which pedestrians should expect in the course of walking along a public street in an urban area. But pedestrians do not expect to find on a smooth concrete pavement a bar across the footpath at shin height. Such a barrier constitutes a trap for pedestrians. They are, in effect, invited to walk along the footpath. They are expected to take care where there are differences in the levels of the ground, but I think it is going too far to expect them to be aware, in the ordinary course, of the presence of a transverse bar, low on the ground, as existed in the particular circumstances that existed in this case. The difficulties of noticing such a hazard are manifest from the prior accident and near accident which I have described. 14 The trial judge relied on the evidence of [NAME] who asserted that while the bar was quite obvious from photographs looked at after the event, it was not obvious to her as she was walking along. In my opinion, he was entitled to accept that evidence, and in all the circumstances, to accept that it was unreasonable for the claimant not to have taken steps to remove the hazard within a short time after having being been informed of its existence by [NAME]. 15 Accordingly, I would refuse leave to appeal and I would dismiss the summons with costs. 16 [NAME]: I agree. 17 [NAME]: I agree. 18 [NAME]: Those are the orders of the Court. **********

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