Public liability cases, such as trip and falls, which occur in areas under the care of Local Council's come with additional challenges because of the protections available under section 45 of the Civil Liability Act 2002 (NSW). Under the Act, the liability of public authorities (Local Council), is limited in personal injury cases unless it can be shown that they had actual knowledge of the particular risk prior to the incident.
This was recently decided by the Court of Appeal in the case of Hornsby Shire Council v Salman [2024].
Background
In this case, the Plaintiff, Ms Salman was walking with her nephew in a children's playground in the Hornsby Shire Council area. She was walking over ground covered in mulch around a rubber surface that you would commonly see around a playground.
Ms Salman fell as she was walking from an area of mulch onto the rubber surface. She sustained fractures to her right leg and ankle, and injuries to her back, left leg and foot.
Ms Salman commenced Court proceedings on the basis that the Council had failed to properly maintain the playground area to ensure that the level of the mulch did not fall below the level of the rubber surface, which would result in a height difference and potential tripping hazard.
Ms Salman also obtained report from a liability expert who provided his opinion that the mulch area was not properly maintained and failed to comply with Australian Standards for playgrounds.
During the Court proceedings, it was noted that in the 12-month period before Ms Salman's accident, the Council had received two (2) reports from Playfix that the mulch was too low and that it needed to be replenished so that any trip hazards could be eliminated.
Ms Salman did admit that she was not looking where she was going at the time, and was focused on her nephew at the playground. However, it was her case that the unevenness of the surfaces was the primary cause of her fall and injuries.
Ms Salman was initially successful, although the Court considered that Ms Salman was contributorily negligent as she was distracted at the time. This resulted in a 15% reduction in her damages. The Court ultimately found that the Council had breached its duty of care to Ms Salman and awarded her $283,200 in damages.
The appeal
The Council appealed the decision at the Court of Appeal, raising new issues on liability. Ultimately, the appeal was dismissed, with the Court of Appeal emphasising the below, amongst other things:
- The two Playfix report obtained by the Council prior to the incident which showed that the mulch was too low relied on the Australian Standards for playgrounds. The expert report obtained by Ms Salman also relied on these Standards which state that the level of the mulch area and the level of the rubber surface should be even to avoid 'trip' hazards. One of the Council's appeal points was that Ms Salman did not trip, but fell, and so the Australian Standards were not applicable. The Court of Appeal did not agree to this rigid definition of 'trip'.
- Ms Salman was the only witness to the condition of the playground at the time of her fall, and gave evidence about the height difference between the two materials not being easy to notice. On Appeal, the Council did not agree with Ms Salman's impression of the height difference, and did not agree that it was not easily noticeable.
- Whilst people using a playground should have some regard to where they are walking, they are also likely to be distracted and focussed on other things, such as children in their care. This was important in Ms Salman's case and the Court of Appeal found that the test of whether something is an 'obvious risk' should be considered in the context of a children's playground. The Court of Appeal gave allowance for Ms Salman being distracted in the circumstances.
- The Court of Appeal held that if the Council had followed the advice in the two prior reports of Playfix and replenished the mulch, the risk of harm would have been reduced and potentially prevented Ms Salman's fall and injury.
This case outlines the elements required to form a case against a Local Council, who have specific protections under the Act. In this case, the inherent risk that a person could fall as a result of the height differentiation between the two surfaces and the fact that the Local Council was made aware of the potential hazard and failed to take reasonable precautions to address it, resulted in the Court of Appeal dismissing the Council's appeal.
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