In Council of the City of Sydney v Bishop  NSWCA, the New South Wales Court of Appeal overturned a $750,000 award in favour of a plaintiff in a footpath trip and fall case. The case highlights the difficulties plaintiffs continue to face in footpath claims against public authorities.
In January 2013, the plaintiff was walking along a walkway that was next to a footpath separated by a kerb on her way to Kings Cross Station. The height between the footpath and the kerb decreased from 16 cm at one end to be flush at the other. The plaintiff turned right to go up onto the footpath to avoid some patrons at a bar and tripped on the kerb at a point where it was 4 to 5 cm in height. She fractured her hip.
Liability experts were called on behalf of both parties who agreed that there was a contrast in the colour of the kerb and the walkway. However, the plaintiff's expert thought the contrast was insufficient and that the Council should have insisted upon a bright yellow strip being installed along the kerbing. (A question as to the admissibility of such evidence arose, presumably because it related to matters potentially of common knowledge.)
Importantly, Justices Macfarlan and Basten found that the plaintiff had conceded in her evidence that she was aware of the hazard anyway as she said she was trying to step up onto the kerb.
The majority, consisting of Justices Basten and Macfarlan, found for the Council based on the following findings:
- The risk of a person tripping on the kerb was obvious for the purposes of section 5H of Civil Liability Act 2002 (NSW) (the equivalent of section 15 of the Civil Liability Act 2002 (Qld)) and therefore the Council did not owe a duty to warn of it.
- The risk was sufficiently obvious such that the Council was entitled to assume that someone exercising reasonable care for their own safety would have avoided the risk and thus not take any action in response to the risk.
- Given the plaintiff had conceded that she was aware of the hazard because she was trying to step up onto the kerb, the presence of a bright yellow strip would not have made any difference because it would not have made her more aware of the hazard.
The laneway was constructed by a developer and did not breach any Australian Standards. On this basis, Justice Basten was not even satisfied that the Council owed the plaintiff a duty of care given all it did was consent to the plans.
In allowing the appeal, the Court drew heavily on the leading High Court case of Ghantous v Hawkesbury City Council. Justice Macfarlan cited with approval the statement that:
[T]he world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this.
Bishop is a reminder that, at least as far as claims against public authorities are concerned, these principles of personal responsibility remain alive and well.
While Bishop will be a welcome result for public authorities, it remains the case that higher standards are required for occupiers of commercial premises and for employers. These will sometimes result in judgments in favour of injured plaintiffs, despite a hazard being prominent.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
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