The plaintiff, Ms De Roma, alleged that on 2 February 2017 she was walking along the northern footpath of Parramatta Road, Ashfield, east of the intersection of Bland Street, when she tripped and fell on a raised edge of footpath adjacent to a metal pit lid that was not sitting properly on the pit. She originally commenced proceedings against Council, Transport for NSW (formerly the Roads & Maritime Services), Telstra and Ausgrid.

By the time the matter proceeded to Hearing in District Court, Sydney, before His Honour, Levy J, in August 2022, the only remaining defendants were Council, as the local authority responsible for the footpath, and Ausgrid, as the owner of the pit lid.

Implications from this case for Councils and Public Authorities

Council was not liable in this matter because there was no differential between the lid frame and the surrounding concrete, and the plaintiff did not properly interrogate Council’s system of inspection.

His Honour’s finding that Ausgrid’s system of inspection records were insufficient reiterates the need for councils and public authorities to know their area of responsibility. If a system of inspection is in place, councils and authorities should properly and consistently document the system and their compliance with the system.

Ausgrid has filed an appeal seeking to overturn His Honour’s liability findings. No doubt many will watch the progress of that appeal with interest.

Details of the case

The Plaintiff’s Expert

The plaintiff’s expert, a Consultant Architect, conducted an inspection of the accident location on 7 September 2020. The expert noted that the lid was not flush with the surrounding frame, with a vertical lip of 8-10 millimetres between the lid and the frame, but with no measurable difference between the frame and the concrete.

Ausgrid’s Evidence

At the hearing, Ausgrid called one of its employees, an Electrical Engineer and Portfolio Manager to explain Ausgrid’s inspection and maintenance records. The witness confirmed that the pit lids were required to be level with the surrounding concrete surface, and if this was not the case, Ausgrid would take steps to arrange repair, either by Council or its own contractors.

The witness explained that information about Ausgrid’s assets were contained in a SAP system. The SAP system recorded scheduled inspections every five years, and recorded that one was carried out on 27 January 2016, finding no defect or differential. However, the identity of the inspector was not recorded in SAP and no evidence was called from that inspector.

His Honour was not persuaded that the inspection occurred, nor as to its findings. In particular, His Honour was not satisfied with the witness’s explanation that an absence of recorded defects at that inspection indicated no defect or concerns at the site.

Council’s Evidence

Council’s evidence did not disclose whether the Council had a system for regular inspection of the footpath in determining whether any maintenance or repair was required. Further, there was no evidence to show that Council was aware of any problems of any kind at that location. The plaintiff had not sought discovery, subpoena or interrogatories in this regard. As such, His Honour could not find any inadequacy in Council’s system (or lack thereof).

Scope of Duty

• Levy J found that both Council and Ausgrid were occupiers of the subject footpath and owed a duty to take reasonable care for the safety of pedestrians.
• Levy J noted that Ausgrid had inherited the pit in its location within the surface of the footpath, and that there was nothing about the structure of the pit or lid that required repair.
• His Honour also noted that the difference in height between the frame and lid was not created by Ausgrid and was of ‘longstanding origin’. Nonetheless, Levy J found that Ausgrid should have identified the differential during inspections.
• His Honour noted that the same conclusion would have been drawn about Council, however it had not been proven that there was any earlier inspection.
• His Honour formulated the duty as follows, “…the duty on the occupier, being cognisant of the existence of that height differential, was to take reasonable common-sense precautionary steps to warn pedestrians of the risk of harm from tripping posed by that height differential.”

Breach of Duty of Care

In respect of Council, His Honour found:

• The plaintiff’s case against Council had an evidentiary flaw, in that there was no answer to the question of what, if anything, Council knew or ought to have known of the existence of the subject trip hazard.
• Whilst Council was the occupier of the footpath, it was not responsible for the location, positioning, design or manner of construction of the pit lid and frame. Council’s duty was therefore dependant on its knowledge of the differential.

In respect of Ausgrid, His Honour found:

• The claim of negligence had been satisfactorily demonstrated, namely that Ausgrid’s failure to warn of the presence of the trip hazard was a negligent omission.
• Accordingly, His Honour stepped through the factors under section 5B(2) of the Civil Liability Act 2002 (NSW), finding that:
  • The probability of the occurrence was variable depending on time of day and week. Ausgrid was required to take into account those variable circumstances, including the proximity of the pit to a bus stop.
  • The likely seriousness varied from minor bruising or grazes through to disabling head or spinal injury.
  • The burden of taking precautions was relatively small to an organisation of Ausgrid’s size. His Honour considered inspectors ought to be provided with ‘paint pots and brushes or spray cans’.
  • The social utility of providing the electrical network with strategically placed inspection pits is ‘of high importance and value’. However, His Honour found that “there is no social utility in permitting the continued un-remediated existence of trip hazards that expose pedestrians to injury on account of the social need to distribute electricity”.

Quantum

The plaintiff’s primary injuries were to her teeth, jaw and ruptures to her bilateral breast implants. Following the accident, she was also diagnosed with breast cancer, which was unrelated to the injuries sustained in the subject accident. The damages awarded totalled $283,314 (after a reduction of 20% for contributory negligence).

Costs

In a subsequent Hearing, His Honour Levy J found that the plaintiff was required to pay Council’s costs on an ordinary basis up to 30 March 2020 and an indemnity basis from 31 March 2020, being the day after Council’s first Offer of Compromise to the plaintiff.

The Offer of Compromise invited the plaintiff to accept a judgment for Council with no order as to costs. His Honour recognised the legitimacy of this offer without it needing to be reopened or re-agitated in any way.

His Honour awarded indemnity costs on the basis that the evidence did not support there being any ‘real prospect of [Council] being found liable’.

The plaintiff argued against indemnity costs on the basis that she was justified in refusing all three of Council’s Offers, because she had an arguable case against Council and Ausgrid. His Honour described this argument as ‘untenable’ and noted that acceptance of Council’s Offer did not require the participation of Ausgrid.

Further information / assistance regarding the issues raised in this article is available from the authors, Matt Huckerby, Partner, and Amber O’Brien, Law Graduate, or your usual contact at Moray & Agnew.