A recent decision of the New South Wales Court of Appeal, Hornsby Shire Council v Salman,  dismissed an appeal by a Local Council to overturn the decision that they were negligent and liable in damages to the Plaintiff.

The Court of Appeal upheld the District Court’s decision to award damages to a woman who attended a local park with her nephew and, upon going to push him on the swings, fell and rolled her ankle, sustaining injuries due to the uneven surface.

The District Court awarded the woman $283,200 in damages after applying a 15% discount for contributory negligence.

In this article, our team of Personal Injury Lawyers summarises the decision and highlight the intricacies of the Council’s public liability and how confirmed principles apply to other personal injury claims.

The Facts – Public Liability 

On the 28^th of February 2021, the plaintiff – Ms Salman, fell at a children’s playground in Lessing Park, suffering injuries after rolling her ankle. The accident occurred when Ms Salman stepped from a mulched area surrounding the playground equipment onto the blue spongy rubberised base that was immediately under and surrounding the equipment. She had been accompanying her nephew to a swing-set. The mulch was not level with the wet rubber, resulting in an uneven surface. As a result of the incident, Ms Salman sustained injuries including fractures to her right ankle and right leg, the aggravation of a tendon injury to her right ankle and foot; injuries to her left ankle and foot and to her mid and lower back, as well as consequent psychological distress.

Records confirmed that in the months prior to the incident, the Council had received two complaints regarding the level of the mulch. However, as of the date of Ms Salman’s incident, they had not remedied this issue.

Ms Salman commenced proceedings in the District Court of New South Wales against Hornsby Shire Council (‘the Council’), which was responsible for the playground. Ms Salman brought a public liability claim, instituting proceedings in negligence against the Council.

The District Court held that the Council had breached its duty of care to Ms Salman by failing to ensure that the level of mulch in the playground did not fall below the level of the blue wet pour surface. The primary judge found that the risk was not obvious and that the Council’s breach of its duty to Ms Salman by failing to replenish the mulch caused her fall and resulting injuries.

The Appeal

Discontent with the lower court’s findings, the Council appealed the District Court’s decision on the following nine grounds – alleging that the District Court:

1. erred in identifying of the risk of harm
2. erred in finding the Australian Standard addressed a relevant risk having regard to the circumstances in which Ms Salman was injured.
3. erred in finding the height differential between the two areas of the soft fall section was not readily discernible, contrary to Ms Salman’s evidence.
4. erred in failing to find the risk of harm would have been obvious to a reasonable person in the position of Ms Salman.
5. did not give adequate or proper reasons and the reasons are internally inconsistent.
6. erred in concluding there was a causal relationship between the level of soft fall bark material and Ms Salman’s injury.
7. erred in failing to find that a reasonable person in the position of Ms Salman would have considered the risk of harm, when correctly identified, did not require a response.
8. should have found the Council was not in breach of the duty of care it owed Ms Salman.
9. reversed the onus of proof by imposing the burden on the Council of proving the cost of response.

The Court of Appeal found that the District Court judge did not err in identifying the risk of harm, or in applying the Australian Standards.

In a 2:1 decision, the Court of Appeal found in favour of Ms Salman – dismissing the Council’s appeal against the lower Court’s decision.

Their Honours agreed with the District Court Judge that because the Council held the Playfix reports, which identified the height differential as a trip hazard under Australian Standards, and confirmed that the mulch and bark were low and needed to be replenished to eliminate trip points. Their Honours held that a reasonable person in the position of the Council would have acted on that advice.

Their Honours further found that the risk of tripping which resulted in Ms Salman’s injuries was not so different to the risk of tripping on uneven playground surfaces, which was considered in the Playfix reports, and that the causal chain was not broken.

Their Honours further found that the District Court had not made error in determining that the height difference of the two surfaces was not discernible or obvious to a reasonable person focusing on a child on playground equipment. Their Honours accepted Ms Salman’s evidence given at the District Court Hearing regarding her recognition of the uneven surfaces.

The Court considered an expert’s report, which confirmed that the costs of maintaining and repairing the playground surface could have been undertaken for a nominal amount and completed within a very short period. The expert was of the view that the area could and should have been barricaded off to prevent persons from using it until the playground was made safe and rectified to Australian Standards.

The court affirmed that the duty, to take reasonable precautions to avoid the risk of harm, was owed to Ms Salman. That duty was owed, notwithstanding that she could have exercised better care for her own safety. As such, the Court of Appeal held that the Council had breached their duty of care to Ms Salman and were liable to her in negligence pursuant to the Civil Liability Act 2002 (NSW).

Ms Salman was awarded $283,200 in damages, following a discount of 15% for contributory negligence.

Key Takeaways Regarding Public Liability

This decision provides helpful insight into the duties and obligations upon public authorities, especially local councils, to inspect, manage and maintain public spaces to ensure they do not pose a risk of harm to the general public. This case further serves as a reminder to public authorities that regular inspection is material in ensuring the maintenance and safety of these areas.

The decision also confirms that relevant Australian Standards, if applicable, are to be considered in such matters.

As the plaintiff in this case fell in the playground as a result of a hazard that the Council were aware of, there was actual or constructive knowledge of the hazard. By way of the Playfix report, the Council was effectively on notice of the risk and by not rectifying it, when the cost and time burdens were minimal, was negligent in their inaction. The lack of action taken established a breach of their duty of care.

This decision also emphasises the positive impact that expert reports can have in regard to establishing and characterising the risk in negligence cases, as well as the steps and action that should have been taken to prevent the risk.

This case also confirms that different heights in surfaces may not meet the threshold required for an ‘obvious risk’. In this case, their Honours in the Court of Appeal, as well as the District Court, found that just because a risk is discernible, that does not make it readily discernible, much less obvious, even to a person paying close attention. The surrounding circumstances must be taken into account. This reasoning can be applied to other situations in which a person becomes injured from uneven surfaces in public areas. However, as mentioned in the District Court hearing of this matter, other factors can be applied to establish contributory negligence on the part of the injured person if they were not taking reasonable care for their own safety.

How We Can Assist You In Making a Public Liability Claim If You Have Been Injured in a Public Space

If you have suffered an injury in a public space, our Personal Injury Lawyers can provide you with important advice about your rights and potential entitlement to compensation, at no up-front cost.

Contact our team for an obligation-free consultation.