Publish date: 21 July 2023

When appellate courts hand down three decisions in one week and they fall three-zero in favour of the ‘black hats’, insurers rub their hands together with glee, while intending claimants break out in a cold sweat. But is this a mortal wound or, to quote Monty Python, a mere ‘flesh wound’?  

Of these decisions handed down last week, two were by the New South Wales Court of Appeal and one the Queensland Court of Appeal. An simplistic summary of the cases is as follows: 

Ballina Shire Council v Moore [2023] NSWCA 155 

The plaintiff was riding an e-bike and struck a bollard on a Council pathway. There had previously been two bollards, but one had been damaged and removed. A report by independent consultants, commissioned by the Council before the accident, suggested that the single bollard was of no utility and posed a medium risk to cyclists. A Council officer gave evidence that it adds notification to users of the path network that there is a change in characteristics. The trial judge found that it was a hazard that ought to have been removed but the Court of Appeal thought that even on the assumption that two bollards had social utility, but one bollard did not, it did not follow that one bollard constituted an unreasonable ‘hazard’ – such that reasonable care required its removal. The claim was dismissed. 

Blue OP Partner Pty Ltd v De Roma [2023] NSWCA 161 

The plaintiff was walking quickly along a Council footpath to catch a bus. There was a rusted steel utility pit lid and frame in the footpath which had a small height differential of only about 1 cm. The plaintiff tripped on it and fell. At trial she succeeded on the basis that the defendant partnership (which was responsible for the inspection and maintenance of the pit) was negligent in failing to warn by painting or applying lines to draw attention to the trip hazard. On appeal, Meagher JA (with whom the rest of the Court agreed) thought that the presence of the rusty pit and its surrounds in the footpath itself was enough of a visual cue to warn of the fact that there was or might be an uneven surface ahead – and that a reasonable person taking care for their own safety would have seen and appreciated that. In the circumstances it was an obvious risk, and no warning was required. 

Townsville City Council v Hodges [2023] QCA 136 

The plaintiff fell and injured herself when walking in a Council park adjacent to a carpark. The hole in which her left foot entered (and which caused the fall) had not been measured but was shown in some photographs. It was perhaps the size of a dinner plate and 5 to 6 cms deep. The trial judge found in favour of the plaintiff on the basis that the Council took inadequate steps to inspect its park, and had it done so, it would have become aware of the hole and taken steps to fill it in. The Court of Appeal however, found that the Council’s risk management system was adequate and that a reasonable person in Council’s position would have done no more than they did. The Council’s approach was to have its staff engaged in mowing lawns, look out for and report hazards, including holes, and have an officer undertake regular inspections for hazards, including holes, and simply fill in any that they identified. An appeal was allowed and the claim dismissed. 

While there is little doubt that these three decisions will do wonders for the defendants’ strike rate in public liability matters, I’m not sure that it’s time to call the undertaker for public liability cases involving trips and falls. 

Each of these decisions is unremarkable – and admittedly with the benefit of hindsight – would probably fail the ‘pub test’. You can almost read the headlines: ‘Cyclist sues after running into a bollard in broad daylight’ or ‘Commuter sues after rushing to catch a bus and tripping on a 1 cm high pit cover casing’ or ‘Park user sues Council for stepping in small, concealed hole in the grass’.  

In my near 20 years of keeping statistics in public liability cases, the strike rate for plaintiff is in fact better than 50%. At least these three decisions will help would-be claimants know when they should hold ‘em, and when they should fold ‘em. 

As published in Lawyers Weekly and Australian Lawyers Alliance.

Travis Schultz
Travis Schultz
Managing Partner
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