By Matthew Skelly, Senior Associate
On 16 July 2021, Judge Wilson of the District Court of NSW gave judgment hinging on the significance of a risk which materialised while Mrs Greentree was negotiating an uneven section of footpath.
Judge Wilson held the reasonableness of Council’s actions was to be assessed based on the hazard which caused the risk to materialise and the poor state of a footpath in general was, for the most part, irrelevant.
On 24 September 2019, Pamela Greentree, 74 years of age, was walking along a footpath in Blacktown City Council’s Local Government Area “constructed of concrete or pebblecrete slabs separated by pavers”. On the evidence at trial, the footpath was in poor condition with the pavers having sunk with some sections becoming lower than the adjacent concrete panels. Relevant to the claim, one such paver had sunk to expose a raised edge of up to 23 millimetres, as measured by Mrs Greentree’s expert.
To the misfortune of Mrs Greentree, as she carefully negotiated the area, she caught her right shoe on the raised edge of the concrete panel on the eastern side, causing her to lose balance and fall.
At trial, Mrs Greentree’s evidence was imprecise, she did not identify the point on the footpath where she fell, nor had she personally measured the height of the potential hazard. Instead Mrs Greentree agreed the hazard upon which she tripped was between 5 and 10 millimetres, which was less than the paver measured by the expert. As a result, the Court discounted the expert evidence as relating to a different hazard to the one upon which Mrs Greentree tripped.
Judge Wilson found in favour of Council on the basis Mrs Greentree had not established negligence under section 5B of the Civil Liability Act 2002. The Court held a reasonable person in the position of the Council would not have taken precautions against the insignificant risk of harm which confronted Mrs Greentree.
Judge Wilson concluded Mrs Greentree had failed to establish there was any apparent irregularity beyond that which might be expected on an unexceptional footpath in a suburban street. Therefore, it was not unreasonable for Council not to have taken precautions to eliminate the hazard which posed the risk to Mrs Greentree.
Judge Wilson held:
The absence of evidence on the essential topic of the location and height of the hazard from Mrs Greentree “created an evidentiary lacuna in the plaintiff’s case” and “Without knowing precisely where the plaintiff fell, an assessment cannot be made as to whether the defendant ought to have performed the work before Mrs Greentree was injured”.
Though a Court may draw inference from the evidence available to it in the absence of direct evidence as to a hazard, the inferences drawn must be “reasonable and definite”, which was not so in this case.
Mrs Greentree’s evidence at trial indicated the incident occurred along the footpath where the risk of harm was close to being at its lowest and was minimal.
The fundamental principles of relevance and causation makes it necessary to ascertain, with precision, the point where the injured party fell, and a Court is not to consider the pavement as a whole when determining the risk of harm.
Greentree v Blacktown City Council confirms the Courts’ position the world is not a hazard free place and it is incumbent on the person to take reasonable care for their own safety. Judge Wilson also affirmed the findings of Adamson J in Botany Bay City Council v Latham  NSWCA 363 that footpaths are not smooth surfaces and it is not reasonable for a Council to maintain the walking surface to eliminate the risk of tripping.
Though it may seem obvious, Greentree v Blacktown City Council also reaffirms Courts are forums of evidence. When faced with a lack of evidence a Court must rely on the plaintiff to provide sufficient, and consistent, evidence to answer the threshold elements of negligence. If the plaintiff’s evidence is not sufficient, a plaintiff’s claim ought to fail.
Evidentiary lacunas, of varying kinds, were suffered by the plaintiffs in:
Andrew Bartko v Hornsby Shire Council NSWDC  (unreported) in which the Court was unable to draw an inference, on the evidence of Mr Bartko (who was legally blind), he slipped on a drainage grate at the bottom of stairs on the basis he had assumed the cause of the accident after having returned to the incident site and searched for the hazard; and
El-Kak v Canterbury-Bankstown Council  NSWDC 768 in which photographic evidence of a defect in a footpath was not sufficient evidence to establish a risk was not insignificant.
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