The plaintiff was running along a footpath and allegedly tripped over a raised paver. The Court found in favour of the Council, having determined that the plaintiff tripped over a tree root, which the Council was not required to maintain. The Court also determined that the Council could rely upon the defence available to it under section 45 of the Civil Liability Act 2002 (NSW), and that it was otherwise not negligent.
In issue
- Whether the plaintiff fell because he tripped over a raised paver or an adjacent tree root;
- Otherwise, whether the Council could rely upon a defence under section 45 of the Civil Liability Act 2002 (NSW); and
- Whether the Council was negligent.
The background
On 18 July 2019, the plaintiff went for a run when he was confronted with an oncoming cyclist who was travelling on the footpath. The plaintiff said that when he moved to avoid the cyclist, his right foot tripped on a raised paver, causing him to fall to the ground, and sustained an injury to his right leg.
The plaintiff commenced proceedings in the NSW District Court against the Council of the City of Sydney (the Council), which was the relevant authority that had the care and control of the subject footpath. He claimed that the Council was negligent as it failed to warn of the danger and failed to repair the raised paver.
The decision at trial
His Honour Judge Weber SC presided over the trial.
The cause of the plaintiff’s fall was a serious issue in contention during the trial. The debate centred on whether he tripped over the paver, or an adjacent tree root to the right of the paver. Whilst the plaintiff claimed that he tripped on the raised paver with his right leg, he conceded that this was a reconstruction of what occurred, rather than his actual recollection.
Accordingly, the Court was left to speculate as to how the plaintiff fell. Given the plaintiff’s more consistent evidence that he moved to the right in order to avoid the cyclist, the Court inferred that his right foot would have been in closer proximity to the tree root, and that this was the cause of the fall rather than the raised paver. The Court was therefore not satisfied, on the balance of probabilities, that the plaintiff tripped over the paver, and concluded that his claim failed at its first evidentiary hurdle.
Whilst this conclusion rendered it unnecessary for the Court to consider the other aspects of the proceedings, it nonetheless went on to consider the application of section 45 under the Civil Liability Act 2002 (NSW) (the CLA) and whether the Council was otherwise negligent.
The Council submitted that as a road authority, it was protected under section 45 of the CLA. The purpose of that section is to limit the liability of road authorities for liability arising from omissions, unless the Council possessed 'actual knowledge of the particular risks the materialisation of which resulted in the harm'.
The plaintiff’s case was that the Council had actual knowledge of and was aware of the raised paver and had been so aware from as early as May 2018, but despite this, the Council had failed to rectify the raised paver. However, the Council tendered evidence which demonstrated that it had rectified the paver, and there was no identified ‘particular risk’ which remained. As a result, the Court found that the Council could rely upon the defence under section 45 of the CLA, and that the plaintiff’s case would fail on that basis also.
The Court also considered whether the Council could be found liable to the plaintiff in negligence. His Honour accepted that the raised paver was obvious to a reasonable person such as the plaintiff, but further added that the Council’s 'failure to warn' of the raised paver (as claimed by the plaintiff) did not give rise to liability.
His Honour agreed with the Council’s submission that in accordance with section 5B(1) of the CLA the risk of harm, being the risk of a pedestrian injuring oneself by tripping on the paver height difference of about 25mm or even 50mm, was not foreseeable and not significant.
The Court further agreed with the Council’s submission that was no legal obligation to mark or repair the difference in paver heights because it was an obvious risk of a kind which was not concealed, was open to view by pedestrians, and did not constitute a ‘trap’.1 Also, the plaintiff was unable to prove that the Council’s failure to repair or warn of such a slight difference in paver height was so unreasonable that no reasonable road authority would have failed to take either of those steps.
In light of its findings, the Court entered judgment in favour of the Council.
Implications for you
This decision demonstrates the well-accepted principle that all cases are to be decided on the facts and circumstances of the particular case, especially in relation to public liability claims. The decision also underscores the importance of paying critical attention to a plaintiff’s recounting of how an incident occurred, and whether that recounting is a reconstruction or actual recollection.
This case illustrates how authorities in control of roads, pavers, and land do not have to warn pedestrians of risks which are obvious to the reasonable person, as every reasonable person should understand that 'not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land'.2 Thus, a failure by a person to take due care for their own safety, will not automatically qualify as negligence of another party.
Lee v The Council of the City of Sydney [2024] NSWDC 69
1 Brodie v Singleton Shire Council 206 CLR 512.
2 Ibid.
