The New South Wales District Court has found that Richmond Valley Council (the defendant) was not liable for the trip and fall of Lisa Maclean (the plaintiff) whilst on her early morning walk.
In issue
- The court was asked to determine the liability of the defendant following a trip and fall incident that occurred as a result of a 23mm height differential between two concrete pavers on its pedestrian footpath.
The background
The plaintiff alleged that she tripped and fell at approximately 5:45am on the morning of 8 March 2023. The incident occurred whilst the plaintiff was on her daily morning walk at approximately 31 Colche Street, Casino, NSW. The plaintiff resided three properties down the street from the incident location.
The plaintiff claimed that as she traversed the footpath, her left foot got caught on a raised section of footpath, causing her to fall and sustain injuries. The plaintiff measured the height differential at approximately 23mm.
The plaintiff reported the incident to the defendant, an officer of whom attended the incident site and applied yellow paint to the height differential. Repairs were undertaken the day after the incident to remove the height differential.
Of particular note was the fact that the defendant had identified the alleged defect during an inspection of its footpath on 21 March 2017 (some 6yrs prior to the incident). The defect was classified as 'medium', and no proactive repair works were performed prior to the incident.
The decision at trial
The defendant submitted that it owed a duty of care to the plaintiff only if she was exercising reasonable care for her own safety, but that it did not otherwise owe a duty of care. The court accepted this submission, finding that the defendant did not owe a duty of care to the plaintiff (and therefore was not liable) because she, herself, was not taking reasonable care for her own safety.
The court stated that pedestrians are not entitled to expect that the surface will be smooth and ought to take reasonable care for their own safety. The plaintiff gave evidence that, at the time of the incident, she was looking straight ahead of her, and not at the footpath. The court found that the law required the plaintiff to pay attention to the ground she was traversing, and given the early morning light, ought to have paid special care to the footpath.
Cautiously, the court went on to consider other matters of liability, and found that:
- the risk (which was categorised as the risk of a pedestrian tripping on the raised lip of the concrete section and falling onto the concrete footpath) was an obvious risk despite the plaintiff's submission that, on account of the time of day, the lighting was poor,
- the defendant's internal policies with respect to inspection and maintenance were not determinative of liability (nor set the scope of any duty owed), but compliance with same was beneficial to the defence of the claim, and
- the defendant would not have otherwise breached its duty of care by failing to repair the alleged defect (despite being on notice of its existence since 2017) primarily because, in the context of no previous complaints, it was not unreasonable for the defendant to have not repaired the footpath defect. The court also found that to require rectification of a 23mm height differential, is outside of the scope of the duty owed by public authorities as reflected in previous case law.
Although liability had been determined in the defendant's favour, the court went on to assess contributory negligence at 50%.
Implications for you
There is now a substantial body of authorities, from many jurisdictions around Australia,1 that all arrive at a similar conclusion: that a defendant council's scope of liability will not extend to an injured plaintiff for footpath defects that are common and ought to be expected by the plaintiff. The courts have settled that height differentials in the order of 20-30mm will likely fall within this category.
However, what has been critical in these cases is a clear factual finding of the height differential - therefore it would appear imperative that accurate measurements are taken following the reporting of an incident to support the defence of potential claims.
Maclean v Richmond Valley Council [2025] NSWDC 541
Footnote
1 See, for example, Ghantous v Hawkesbury City Council; Brodie v Singleton Shire Council (2001) 206 CLR 512; Council of the City of Sydney v Bishop [2019] NSWCA 157; Bathurst City Council v Cheeseman [2004] NSWCA 308; Lombardi v Holroyd City Council [2002] NSWCA 252; Nightingale v Blacktown City Council (2015) 91 NSWLR 556; Lee v The Council of the City of Sydney [2024] NSWDC 69; Rankilor v City of Perth [2016] WASCA 29; Ellis v Uniting Church in Australia Property Trust (Qld) [2008] QSC 074.
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