The court was required to determine whether occupiers of a footpath were liable to a plaintiff who tripped over a metal utility pit cover. The court was also required to consider the defence of obvious risk and issues of contributory negligence. Based on the available evidence, the court found the fourth defendant liable and awarded damages in the amount of $283,314.
In issue
- The relevant issue for determination was the extent of the duties owed by each defendant and whether they had been breached, and whether section 5F of the Civil Liability Act 2002 (NSW) (CLA) applied as a defence to the claim.
The background
The plaintiff suffered personal injuries when she tripped and fell whilst walking over a metal utility pit cover that was embedded within a footpath. The plaintiff was hurriedly walking to a bus stop to board a bus when she tripped over the sunken metal utility pit cover that sat lower than the surrounding footpath.
The plaintiff issued proceedings against the Inner West Council (the first defendant) and a partnership of five entities trading as Ausgrid Operator Partnership (the fourth defendant). The claimant alleged the first defendant and fourth defendant were the occupiers responsible for the inspection, maintenance and safety of the pit cover and footpath.
The decision at trial
The court ultimately found in favour of the plaintiff against the fourth defendant only.
The first and fourth defendants were both relevant occupiers and owed duties to the plaintiff to take reasonable care with regard to the maintenance and repair of defects on the surface of the footpath, where such defects posed a foreseeable risk of injury that could be avoided by the exercise of reasonable care.
The fourth defendant had a system of inspection in place to detect maintenance and safety issues and had previously inspected the subject pit at least once. The first defendant’s evidence did not disclose whether they had a system for regular inspection to determine if any maintenance repairs were required. No one from the first defendant was called to give evidence on this point.
The court found that although the pit lid and frame was already established when the fourth defendant became an occupier, if its inspections had been carried out properly the fourth defendant ought to have identified and been aware of the difference in surface heights, and taken steps. . This same conclusion was said to apply to the first defendant as an occupier of the footpath, assuming that a prior inspection had been carried out by the first defendant. However, no evidence was led regarding inspections by the first defendant.
The first defendant’s duty was said to have been dependent upon what it must be taken to have known about the condition of the pit. The first defendant had no knowledge of the height differential in question and no evidence was presented by the plaintiff demonstrating that the first defendant knew of the risk. In the absence of this evidence, the claim was not made out against the first defendant.
The fourth defendant unsuccessfully attempted to raise an obvious risk defence. The court found that there was a height difference of up to 10mm between the pit lid cover and the footpath that would not have been an obvious risk to an ordinary reasonable person (walking quickly towards a bus) as outlined in s5F of the CLA.
The court reduced the damages awarded to the plaintiff by 20% for contributory negligence as the plaintiff had seen the pit cover on her approach however failed to observe the height discrepancy of the pit lid and its surrounding frame. As a result, the damages awarded were reduced from $354,142.38 to $283,314.
Implications for you
This decision highlights the need for maintenance and safety inspections to be carried out diligently and for occupiers to adequately identify potential risks. Failure to do so may result in findings of negligence even where risk management systems are in place, if those systems aren’t rigorous, or effective.
