Australia: Making a public liability claim? Proceed at your own risk

When considering bringing a public liability claim for injuries sustained in public places (or private places open to the public), it's essential to understand the potential challenges and legal risks involved. Not every personal injury claim brought before the court is successful. Evaluating the merits of a potential claim early and carefully is critical to saving time, stress, and money.

It's crucial for potential plaintiffs to recognise situations where an injury occurred due to their own lack of vigilance, the risk of injury being obvious, or simply where it would be unrealistic to expect a defendant to have taken particular action that may have prevented the injury.

Park Safety and Council Responsibilities

In Townsville City Council v Hodges [2023] QCA 136, a plaintiff was injured walking through a council park by stepping into a 5cm deep 'pothole' the size of a dinner plate. The pothole was exceedingly difficult to notice as it was entirely concealed by grass. The plaintiff lost balance and sustained a serious leg and ankle injury.

The initial trial ruled in favour of the plaintiff, stating that the council failed to adequately inspect the park and fill in the hole. However, the Court of Appeal took a different stance, deciding that the council's approach, which involved groundskeeping staff reporting hazards and conducting regular inspections, was a reasonable system of inspection. The court concluded that council couldn't have been expected to have identified the pothole in the circumstances, and that public areas 'should not be judged by the standard of a bowling green' (citing the past case of Littler v Liverpool Corporation). As a result, the plaintiff's claim was dismissed.

This case underscores the importance of assessing the adequacy of a defendant's risk management procedure and reasonableness of their systems of inspection with regard to the relevant circumstances.

Related: A similar principle applies to reasonable systems of cleaning and inspection in public places – Slipped over at a shopping centre? – The 20 Minute Warning

Dangerous Hazard or No Big Deal?

In Ballina Shire Council v Moore [2023] NSWCA 155, a plaintiff collided with a single bollard while riding an e-bike on a council pathway. Previously, two bollards existed on the pathway, but one had been removed.

The plaintiff argued that the remaining single bollard was a hazard and should also have been removed. The trial judge agreed with this position. However, the Court of Appeal overturned the decision, stating that the presence of one bollard did not constitute an unreasonable hazard and the plaintiff's claim was dismissed.

A similar proposition was also considered in Belmont v McDonalds Australia Limited [2020] QDC 319. Here, at night, a plaintiff was walking towards the entry of a McDonalds restaurant in Ipswich and stepped onto a yellow-painted cement tyre stop (with both feet), and then fell, seriously injuring her shoulder. She argued that she fell due to the carpark being poorly lit as some of the carpark lights weren't functioning. Whilst not a claim against a local council, the claim was brought pursuant to public liability legislation all the same.

The court decided that the plaintiff's injuries were not in fact caused by any negligence, or breach of duty, on behalf of McDonalds. Rather, that she sustained the injuries as a consequence of her failing to pay attention as to where she was walking as CCTV footage showed that she was looking inside her handbag at the time of her fall. It was also determined that despite some carpark lights not working, the lighting was still adequate because the footage showed the plaintiff being able to step up onto the tyre stop with ease (and that even if the lighting was inadequate, the fall still would have been caused by the plaintiff's own lack of attention to where she was stepping). Accordingly, the court dismissed the claim.

These two cases emphasise the need to evaluate whether a claimed hazard truly poses an unreasonable risk.

The 'Obvious Risk' Dilemma

In the case of Blue OP Partner Pty Ltd v De Roma [2023] NSWCA 161, a plaintiff tripped over the following rusted steel utility pit lid and frame on a council footpath:

While the plaintiff initially succeeded in their claim, the appeal court determined that the presence of the rusty pit and its surroundings already visually indicated the uneven surface, making it an 'obvious risk'. The court concluded that a reasonable person should have noticed and understood this risk, and that no additional warnings such as painted lines to highlight the trip hazard were necessary.

This case highlights the challenge of establishing negligence when a risk of injury is considered 'obvious'.

What happens when you bring a claim for personal injury and lose?

When contemplating legal action for public liability (such as a claim against the local council), it's crucial to consider the potential consequences of an unsuccessful claim, such as adverse costs orders from the court. An adverse costs order is an order by the court that requires the losing party to pay the legal costs of the winning party. Such orders exist to promote early, fair and reasonable negotiations between the parties without requiring the limited time and resources of the court.

If your claim is deemed frivolous or brought without merit, you may be held responsible for the other side's legal expenses, which can be substantial. Therefore, it is essential to carefully assess the strength of your case and consult with legal professionals before proceeding with legal action