Boroondara City Council v Ellen Cattanach (2004) H&FLR 2015-17

Court of Appeal (Victoria)

20 August 2004

Coram: Winneke P, Chernov JA and Bongiorno AJA

Appearing for the Appellant: Messrs A.G. Uren Q.C. and G.J. Moloney (instructed by Hunt & Hunt)
Appearing for the Respondent: Messrs D.A. Kendall Q.C. and David Martin (instructed by Hounslow & Associates)

Catchwords: Victoria – runner – defective pavement – trip and fall – injury – negligence

Facts: On the morning of 12 December 2000 the plaintiff was running recreationally along a footpath in the defendant’s municipality.  She ran with two small dogs which were at the end of a leash which she was holding.  As she passed in front of 39 Gordon Street, Balwyn, she tripped on an uneven section of footpath and fell, suffering significant injuries.

The occupant of 39 Gordon Street, Balwyn, had alerted the defendant to the damage to the footpath in 1995 and 1996.  In 1997 the defendant had removed a tree adjacent to the defect but took no steps to repair the footpath..  Within two weeks of the plaintiff’s fall repairs were effected; it was common ground that the repairs were inexpensive.

The plaintiff successfully sued the municipality for negligently failing to make repairs and was awarded damages:  Cattanach v Boroondara City Council (County Ct. of Vic., Judge Bourke, 20 June 2003, unreported).  The defendant appealed.

Held: Per curiam, allowing the appeal and dismissing the claim, that

1. A municipality is not under a duty to prevent or eliminate all dangers in footpaths.  In most cases, where a municipality knows or ought to know of such a danger, it is obliged to remedy it only if the danger would not be obvious to an ordinary, reasonable pedestrian taking proper care for their own safety.  The onus is on the plaintiff to establish that the hazard was not one which could have been avoided with the exercise of reasonable care.

Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Newcastle City Council v Lindsay (NSW Ct App., Giles and Tobias JJA, McLellan AJA, 22 June 2004, unreported); and Temora Shire Council v Stein (2004) 134 LGERA 407, considered.

2. Whether a defect in a footpath causes a reasonable foreseeability of harm, and whether the hazard is obvious, must be considered from the perspective of the ordinary, reasonable pedestrian keeping a proper lookout.  That is, from the perspective of a person walking.  Persons who are not walking but (for example) running, skating, cycling are required to pay greater attention to the state of the path given the greater difficulty in observing hazards when moving faster than a walk.  These users should not expect councils to maintain footpaths to a higher standard than that required for safe walking.

Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512

Judgment

The Court’s judgment is available here.

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