The NSW Court of Appeal affirmed a decision that a local Council was liable for injuries sustained by the respondent after falling on steps located on a stepped pathway. A cross appeal as to reductions for contributory negligence and past economic loss was successful.
- The extent of Council’s duty of care to members of the public to detect and remove potential hazards;
- Whether the respondent was contributorily negligent and should have been more diligent and taken more care for his safety;
- Whether the appropriate discount was applied to the award for past economic loss, and if not whether any discount ought apply.
On 17 May 2016 Bernard Williams (the respondent) fell on the first of three steps of a stepped pathway in the Mt Keira Summit Park. He was employed as a disability worker with the “House with No Steps” and was accompanying one of his male clients, who had expressed a wish to use the toilets to which the stepped pathway led. He commenced proceedings in the District Court against Wollongong City Council claiming damages for negligence.
The decision on appeal
The Court of Appeal upheld the primary judge’s decision and noted that the risk posed by the stepped pathway was not a risk that would have been obvious to a reasonable person in the position of the respondent at the time of the accident. This finding was supported by several factors, including; that the destination (the pathway led to a toilet block which included a disabled toilet) was such that a reasonable person would not expect a pathway, which was the most direct route, to involve steps which were not clearly delineated; the shading over the steps at particular times of the day; the presence of tactile indicators at other locations in the park; the variation in the pattern of the bricks (between the soldier pattern on the edges and the steps and the herringbone on the landings) was not “clearly conspicuous, particularly in the shade”; and that a reasonable person surveying the path ahead from the carpark would not appreciate that the pathway was stepped.
It was further considered that had the nosings of the steps been painted with a bright colour, or had tactile indicators or a hand-rail been installed before the first step, the accident would not have occurred because the respondent would have been alerted to the presence of steps.
The majority of the Court of Appeal allowed the respondent’s cross appeal regarding contributory negligence and determined that the respondent did not fail to take reasonable precautions in the circumstances.
Implications for you
The decision reinforces that the court takes into consideration what action could readily have been taken by the occupier to avert or diminish the risk that actually materialised to the entrant. However, that does not necessarily establish a breach of duty of care. The duty of care owed recognises that users of the venue will exercise reasonable care for their own safety.
An application by the Council for special leave to appeal was refused by the High Court of Australia in November 2021.