RYDE CITY COUNCIL v SALEH [2004] NSWCA 219

Sheller JA:

7 The next part of Mr Burn’s report, repeated in the amended report, was headed “4.0 Standards and Statutes”. The Council objected to this section of the report. In it Mr Burn referred to an insurance audit undertaken by insurance brokers, Statewide Mutual, of public liability claims received against local government and to a best practice manual prepared in 1997 as an outcome of this work for use by local government “to proactively manage their public liability risk exposure”. Mr Burn said that this guideline was useful in assessing the severity of hazards identified on the footway. Based on this, Mr Burn said that it could be seen that the identified trip step where the plaintiff suffered her misadventure would qualify for a “high risk hazard rating”. There followed reference to a table from the manual recommending an intervention regime for identified hazards, which suggested that the Council should have responded to the high-risk hazard by effecting repairs within 24 hours. This insurance publication was neither a standard nor a statute and was published in 1997 by insurers to reduce their public liability risk exposure. The manual was published before the decisions of the High Court in Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512. Partly because of its source and partly because of its nature, I do not believe that this material could be of any assistance in determining the issues in these proceedings.

8 The standards and statutes part of Mr Burn’s report went on to refer to the Guide Traffic Engineering Practice Part 13 Pedestrians, Austroads/Standards Australia 1995, which pointed out that it was important for many people that surfaces, presumably across which they have to move, should be flat and that this was particularly so for disabled people. The point was made that small ridges and protrusions as low as 6 mm can cause such people to stumble and fall. The guide continued: “Surfaces should not deviate more than 5 mm from a 500 mm long straight-edge layed [sic] anywhere on the surface.” Mr Burn observed that the trip hazard at the site of the plaintiff’s misadventure was more than 5 mm so would be considered a hazard under the guide. I can only say that the suggestion, if there was one, that Councils be universally required to meet that standard on all footpaths under their control is unreal. Again this part of the report is of no value in these proceedings.

9 Under the heading “Foreseeability” Mr Burn said:

“Based on the risk analysis undertaken by Statewide Mutual during the preparation of the best practice manual, and based on the information in the Traffic Engineering Guidelines: part 13 Pedestrians, the trip hazard present on the footpath in Ryde Road Gladesville outside no. 173 is an obvious hazard.”

10 I do not understand why reference to an insurance risk management manual or a standard directed particularly to disabled persons should be considered to replace what a mere glance at the photographs in evidence and the application of commonsense would demonstrate, namely that a 20 mm difference in level between two adjoining concrete slabs making up a footpath is a hazard and an obvious one. But that conclusion hardly advanced the plaintiff’s case if account is taken of what Gaudron, McHugh and Gummow JJ said in Brodie/Ghantous at 581:

“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 of the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J 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.”


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