John (Jack) Russell v City of Melbourne (2023) VSCA 97

In 2017 Mr. Russell was injured when he fell on the footpath on Lonsdale Street, Melbourne. Mr. Russell commenced proceedings for damages, alleging the fall was caused either by negligence or breach of statutory duty on the part of the City of Melbourne (CoM). At trial, Mr. Russell was self-represented and put his case on the basis that the footpath at the point he fell was defective which had caused him to fall, and CoM’s failure to rectify the footpath constituted a breach of Councils common law or statutory law duties.

The breach of statutory duty was said to have been that the CoM failed to comply with its statutory obligations to inspect, maintain and repair the footpath to the standard specified in the applicable Road Management Plan (RMP) under s 40 of the Road Management Act 2001 (Act). The CoM defended the claim on the basis that the depth of the depression did not meet the intervention standard in the RMP, and it otherwise relied on section 102 of the Act which limits Council’s liability to particular risks within Council’s actual knowledge, the materialisation of which resulted in the harm alleged. As to the negligence claim, the CoM relied on the transcript of evidence given by Mr. Russell at trial, that he tripped in front of the depression in the asphalt instead of having tripped on the depression, such that even if the depression was a particular risk within the actual knowledge of CoM, the harm alleged didn’t arise from tripping upon it.

The trial judge dismissed the breach of statutory duty claim on the basis that Mr. Russell had failed to prove the cause of the fall and therefore could not prove either cause of action. In so concluding, the trial judge did not determine the factual question as to whether the depression met the intervention standard under the RMP but said the statutory claim would still fail because “the Plaintiff, on his version of tripping in front of the depression, cannot implicate the depression as a cause of his fall.”

In respect of the common law claim, the trial judge concluded Mr. Russell was not taking reasonable care by watching where he was going to avoid the trip. The judge so concluded based on matters such as: the depression was obvious and was starkly different in colour to the asphalt footpath, the day was bright and the trial judge relied on a transcript of Mr. Russell’s oral evidence at trial which was inaccurately recorded. The transcript misstated Mr. Russell’s evidence about where on the footpath he said he had fallen, as it recorded that he had fallen in front of the depression rather than he had fallen in the depression. There was other conflicting evidence which the trial judge did not have regard to when considering the transcript, including: Mr. Russell‘s written statement of evidence read to the court in which he stated he tripped upon an unseen depression in the asphalt, and evidence from Protective Safety Officers (PSO’s) who were passing by and assisted Mr. Russell immediately after the fall. One such PSO produced a file note which read, in part, that the PSO “observed Mr. Russell tripped and fell heavily on uneven pavement.” The same PSO produced a photograph which clearly shows a depression in the asphalt.

Justices Kyrou, McLeish and Niall allowed the appeal primarily on the basis of the trial judge having misconstrued Mr. Russell’s evidence about how he tripped over the depression. Whilst the error on the transcript in this regard was not uncovered until the recording of the verbal evidence was listed by the Court of Appeal, the judges held that the trial judge also failed to consider a volume of other, inconsistent evidence, which may have caused the trial judge to find otherwise.

The Court of Appeal further held that because the trial judge proceeded on the basis of a misconstrued understanding of Mr. Russell’s evidence in assessing whether there had been a breach of CoM’s common law duty, the trial judge did not have the benefit of considering the mechanism of the fall without the error, and as a result, did not make factual findings as to the nature and extent of the depression in the pad.

As to the breach of statutory duty argument, because the trial judge held Mr. Russell had not proven causation, the trial judge didn’t make any factual findings as to whether the footpath was defective in the manner alleged by Mr. Russell, nor the state of CoM’s actual knowledge of that matter.

In essence, the Court of Appeal held that the trial judge had not made any factual because he had a misconstrued understanding of Mr. Russell’s evidence about how the trip occurred, and he proceeded to consider all other evidence through that misconstrued lens. As such, the Court of Appeal held the matter needed to be re-heard and re-considered on the basis of the correct interpretation of Mr. Russell’s evidence that he tripped upon the depression, such that factual findings could be made with regard the knowledge that CoM had of the depression and whether it had breached its statutory duty to maintain the footpath or had otherwise breached its common law duty, as alleged by Mr Russell.

Implications for Council

1. The importance of contemporaneous file notes for later use in Court will be of utmost importance in the trial judge’s consideration of the facts. The PSO’s file note and photograph will likely be crucial in considering whether or not the depression in the footpath was unseen as alleged by the Applicant. That factual finding will likely have a large bearing on whether or not the CoM should have been aware of the danger and what it did (or didn’t do) to prevent the risk of injury in response to the danger.
2. This case represents a timely reminder of the ever-present common law duty on Councils to take reasonable steps to avoid foreseeable loss or injury to persons within its municipality. The scope of that duty will be considered in light of the extent to which person are generally required to take responsibility for their own safety. In Ghantous v Hawkesbury City Council (2001) HCA 29, Mrs. Ghantous sued the council after tripping and falling on a concrete footpath within the council’s jurisdiction. The High Court of Australia dismissed the case, finding that there was no negligence on the part of the council in the construction of the footpath, nor in failing to keep the concrete strip and verges level. This was because the Court considered that 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. If the trial judge in Mr. Russell’s case determines on the facts that the depression in the concrete was an obvious hazard, it will be likely this High Court decision is followed in concluding that the CoM had not breached its common law duty. However, this remains to be seen and we will monitor the Court’s decision in this regard.
3. This case also represents a timely reminder about Council’s vast range of statutory duties. In this case, the duties of maintenance and /or repair of footpaths under the RMA. It will be recalled that the High Court of Australia in Pyrenees Shire Council v Day (1998) 192 CLR 330 held that the local government, which possess a statutory power to protect persons and property in its local government area from fires, owed the owners of a house that was destroyed by fire a duty of care to warn them of a defect in the house’s chimney which the Council knew about from prior inspections and warnings issued to prior tenants. The Court held that the duty arose because the Council had statutory powers to protect owners, had inspected the premises and had actual knowledge of a danger and the ability to exercise controls to prevent the fire (by the issue of statutory notices requiring repair work). It will be interesting to see if in this case, the Court concludes that the CoM had actual knowledge of the danger the footpath posed and, given Councils’ statutory powers of repair and maintenance under the Act, whether it will be held that the CoM had a duty to prevent injury arising from the state of the footpath.

Key Takeaways

1. Back to basics: the importance of Council officers maintaining contemporaneous file notes cannot be understated. It appears from this case that the PSO’s file note will be of central importance for the trial judge in determining the state of repair of the footpath and whether the applicant fell as a result of the depression which will impact the determination as to any breach of common law and or statutory duties.
2. Check the transcript: where it is considered there has been an error in the transcript, steps should be taken to remedy the record.
3. Take reasonable steps to mitigate known dangers in the community: this may include conducting regular inspections of facilities and infrastructure and actioning referrals for works.