Aspirational guidelines do not set the standard of care for Councils: inattentiveness vs inadvertence in contributory negligence

On 8 March 2023, Ms MacLean tripped and fell on a concrete footpath near her home in Casino, New South Wales, while returning from her regular early-morning walk at about 5:45am.

She described the lighting conditions as ‘partial light’ or ‘maybe dark turning light’ when she was returning home and that she could see up the street where the accident occurred to the next intersection as the sun was rising. ^[8] There was no evidence of other light sources, such as streetlights 

Ms MacLean alleged that her foot caught on the raised lip between conjoining concrete slabs. At the point where the accident occurred, the height differential approximately 23mm ^[9] ,and gave evidence that before the accident, she was looking straight ahead rather than at the ground. ^[10] Despite regularly using the footpath over many years, Ms MacLean alleged that she had not previously noticed the raised lip. ^[11]

The accident was said to have aggravated a pre-existing but asymptomatic bilateral patella-femoral arthritic condition. Medical evidence was relied on to support that the trauma caused the condition to become symptomatic and that a double knee replacement surgery would be required. ^[12]

Proceedings were commenced against Richmond Valley Council in the District Court, alleging a failure to address the raised lip. Reliance was placed on:

• a Council Footpath Trip Hazard Inspection Report dated 21 March 2017, which recorded a 15 to 20mm height differential at the same location, classified as a medium-priority, and the action required was to grind the raised lip of concrete to remove the height differential ^[13] ;and
• the Council’s internal policy document, ‘Operational Policy for Council Inspection, Assessment and Maintenance of Footpaths and Cycleways (Ex E )’. 

The policy set out guidelines aimed at reducing the risk of injury to the public and exposure to claims in respect of footpaths and cycleways it managed. It provided for hazard evaluation, intervention level, risk rating determination for risk action priority and control mechanism determination. It also set out several potential responses to risk and included risk action response times determined based on priority and the Council’s ability to respond. The policy provided that medium priority risks were to be programmed into maintenance works as resources permit but within three months. ^[14]  

After the District Court dismissed the claim, Ms MacLean sought leave to appeal under section 127(2) of the District Court Act 1973  (NSW) ^[15] and an extension of time for filing her appeal.  
 

Leave to appeal 

The court determined that leave to appeal and an extension of time should be granted because the damages notionally assessed by the primary judge were close to the statutory monetary threshold and the proposed appeal raised issues of principle. ^[16]  

Ground 3 - duty of care

The court found that the primary judge erred by conflating the finding on the alleged duty of care, expressed as a duty to pedestrians exercising reasonable care for their own safety, with the finding on contributory negligence. However, nothing turned on that error because the primary judge was not in error in the findings on breach. ^[17]  

Grounds 4 and 6 - breach of the duty of care 

The court made the following findings: 

• in response to the complaint that the Council did not comply with the requirements or timeframes set out in the internal policy and inspection report, the policy was a self-imposed guideline and did not determine the legal standard of reasonable care in relation to any trip hazard. It was aspirational rather than obligatory; ^[18]
• the principles in Ghantous ^[19] are instructive. ^[20] The expectation that persons take sufficient care to observe where they are walking and avoid obvious hazards must inform the assessment of whether there was any breach of a duty of care arising from the failure to remedy the height differential before the fall; ^[21]  
• there was no failure to take reasonable care when weighing the risk of harm against the burden of taking precautions to prevent that risk. The height differential was relatively minor and constituted a type of hazard that pedestrians should expect when walking along public footpaths; ^[22]  and
• nothing turned on the complaint that the primary judge was in error by considering the operation of section 42 of the Civil Liability Act 2002 (NSW) (CLA)  ^[23] ,because the primary judge had already found that there was no breach of the duty of care. ^[24]  

Ground 5 - obvious risk  

The court made the following findings: 

• the primary judge’s finding that the height differential constituted a risk hazard to be expected, and an obvious risk, was not in error; ^[25] and
• in response to the complaint that the primary judge impermissibly required the Applicant to establish that the hazard was not easily discernible, the primary judge was not in error, in concluding that a raised lip on a footpath is an everyday minor hazard that pedestrians are to expect. ^[26]  

Grounds 1, 2, 7 and 8 - contributory negligence 

The court made the following findings: 

• the primary judge was not in error in taking into account Ms MacLean’s evidence that she was not paying attention to the surface of the footpath.  ^[27]
• there was no error in the finding of contributory negligence, nor in the findings on which that conclusion was based. ^[28]  
• the primary judge did not reverse the onus of proof in relation to contributory negligence but instead assessed the level of care expected of a person in Ms MacLean’s position to maintain a lookout for potential hazards. Actual knowledge of the hazard was not required, as inattentiveness could be sufficient to support a finding of contributory negligence. ^[29]  
• this may be distinguished from the mere inadvertence test stated in McLean v Tedman (1984) 155 CLR 306 at [315]. ^[30] This test was considered in Manhattan Homes Pty Ltd v Burnett [2024] NSWCA 219 at [5]:

‘It is to be borne in mind that the word “mere” does a deal of work in that encapsulation. It is necessary when applying that test to bear in mind that inadvertent conduct by a plaintiff may or may not amount to contributory negligence, and the real question is as Mason J put the issue at 573 in Ruprecht, whether [the] omission was incompatible with the conduct of a reasonable and prudent man. The issue is unavoidably factual and draws upon the proposition that especially in the case of tedious repetitive work, inadvertence is foreseeable. ^[31] 

• there was no error established in the 50 per cent discount notionally adopted by the primary judge for contributory negligence. ^[32]  

Ground 9 - section 43A Civil Liability Act  

The court determined that nothing turned on the complaint that section 43A of the CLA ^[33] was inapplicable to Ms MacLean’s claim, because it was not determinative of the finding that there was no breach of the duty of care. ^[34]

Grounds 10 to 14 - quantum and the contingent assessment of vicissitudes; non-economic loss; future out-of-pocket expenses; future domestic assistance and future economic loss 

The court made the following findings: 

• no error has been shown in the allowance to be made by way of vicissitudes; ^[34]  
• the calculation of damages for non-economic loss, future of out-of-pocket expenses, future domestic assistance and future economic loss does not suggest error; ^[36]  
• the minor arithmetical error in the calculation of future out-of-pocket expenses would require correction if the substantive appeal succeeded and damages were awarded; ^[37] and
• as to the complaint made in various of the grounds about the adequacy of reasons given by the primary judge for the conclusions reached, his Honour may be excused for not entering into a detailed exposition of his reasoning where this was a contingent assessment of damages. ^[38]