Holy Moley: Local Council not liable for hole obscured by grass at a park

12 July 2023

The respondent stepped in a hole, obscured by grass, at Sherriff Park and sued the appellant, Townsville City Council, for its negligent failure to identify and fill the hole. The Queensland Court of Appeal found that the Townsville City Council was not negligent.

In issue

  • Whether there was a hole, as alleged by the respondent plaintiff; or uneven ground, as contended by the appellant Council.
  • Whether reasonable precautions had been taken by the appellant in discharge of its duty of care.

The background

Barbara Hodges (the respondent) brought a claim for damages against the appellant, Townsville City Council, after suffering personal injury when she stepped in a concealed hole in a grassed area adjacent to a car park at Sherriff Park (the park) on the 15th of October 2015. The plaintiff alleged that the hole was substantial in size and concealed by grass.

In the aftermath of the incident the hole caused an ambulance stretcher to topple over whilst the respondent was being attended to by paramedics. A Queensland Ambulance Service supervisor (the QAS supervisor) attended the site and arranged for the hole to be filled with cracker dust. The QAS supervisor described the hole as 'a divot in the ground' which was about the diameter of a dinner plate and 5 to 6 cm deep.

The respondent and each of her witnesses gave evidence that the lawns at the park were well maintained and that the presence of the hole was concealed and unexpected.

The appellant’s park maintenance staff gave evidence that they keep an eye out for hazards at the park and that if they had observed the hole, they would have either fixed it or reported its existence. Two of the maintenance staff further said that they would have reported observing a hole filled with cracker dust as it would constitute a hazard and ought to be removed. Both of those witnesses denied seeing the hole filled with cracker dust after the incident.

The decision at trial

The primary judge was satisfied that there was a hole and that it was a hazard because it managed to destabilise the QAS stretcher in the aftermath of the incident. The primary judge found that destabilisation of the QAS stretcher would not have occurred unless the hole was substantial. There were no findings about the size of the hole, albeit the primary judge found that various photographs made it clear that there was a hole and that it was more than an indentation or depression.

The primary judge found that the position of the hole, in close proximity to the car park, gave rise to a foreseeable hazard as users of the park used the grassed area to access their vehicles.

The hole was concealed and was not obvious to those taking reasonable care for their own safety, which the primary judge noted was evident by virtue of the stretcher incident involving QAS officers who had been alerted to the presence of the hole.

The primary judge held that the concealed hole constituted a risk, for which the appellant was required to take precautions and did not. He found that inspections by the appellant’s maintenance staff in relation to the ground were perfunctory and uninstructed. The primary judge held that none of the appellant’s employees gave any evidence that they, or anyone else, had responsibility for thorough or comprehensive inspections of the grassed areas near the carpark, bollards, paths and trees. Albeit, they did give evidence that when working in those areas, they would take steps to remedy a hazard, such as a hole, if they came upon one. The primary judge found that the failure of the appellant’s staff to observe the hole filled with cracker dust (after the incident) further supported a finding that there was a lack of any real or serious observation of the ground surface.

Although there was no finding as to what caused the hole, the primary judge was satisfied it had existed for a sufficient period to be detected by the appellant. That was by virtue of the appellant’s regular attendances at the park and the fact that grass had grown to conceal the hole.

The issues on appeal

The appellant contended that the primary judge erred in finding that:

  • There was a hole.
  • The depth of the hole was of little consequence.
  • The appellant’s inspections of the park were perfunctory and uninstructed.

The decision on appeal

The Court of Appeal allowed the appeal and found that the appellant was not negligent for failing to detect and fill the hole. In so finding, it held that public areas should not be judged by the standard of a bowling green.

Whilst the Court of Appeal was content that there was a 'hole' as opposed to uneven ground, it found that the characteristics of the hole, particularly its depth, were of critical importance. Findings in relation to the characteristics of the hole were necessary so that an assessment could be made as to what system would have brought it to the attention of the local authority.

As no measurements had been taken of the hole, the Court of Appeal reviewed the photographs and lay evidence and found that the diameter of the hole was greater than 30 cm and it had a depth of somewhere between 2 and 5 cm. It followed that the relevant question for determination of the appellant’s liability was: what the appellant should have done in respect of a concealed hole of those dimensions in Sherriff Park, which comprises an area of 36,103 square meters.

The Court of Appeal set aside the primary judge’s finding that the appellant’s inspections were perfunctory and uninstructed. In doing so, it noted that every witness who was familiar with the park had said they were unable to see the hole. That included evidence of the respondent’s daughter who said: 'You wouldn’t know that there was a hole there until you fell in it'. The Court of Appeal further noted that QAS officers were unable to detect the hole even though they had been alerted to its presence. That evidence was significant because it demonstrated that the hole could not be seen by reasonable inspection.

The Court of Appeal noted that there was considerable and uncontested evidence given by the appellant regarding the system of inspection and maintenance of Sherriff Park. Noting that the hole was concealed, the Court of Appeal found that the appellant may only be liable for the hazard constituted by the hole if it ought to have known of its presence. Here, the hole was shallow, perhaps about 5 cm deep and 30 cm in diameter. It was highly concealed, such that (as the primary judge found) when it was pointed out to an observer that the hole was present, most persons would have difficulty discerning it. That being so, the Court of Appeal held that it could not be negligent for a person inspecting hazards to fail to discern the hole. The appellant’s employees did not have the benefit of the hole being pointed out to them, and it could not be concluded that they were in any way at fault for failing to detect the presence of the concealed hole.

The appellant discharged its duty of care by having persons engaged in mowing the lawns and undertaking inspections, during which they would look out for hazards, including holes. Discharge of the appellant’s duty of care did not require it to arrange for a person to step on every part of Sherriff Park and the other parks in the Townsville Local Government Area to detect holes. The imposition of such a burden would be too high, particularly when having regard to the social utility in having parks made available for public use.

Implications for you

This case provides a helpful overview of how a public authority’s liability will be assessed with respect to concealed hazards. It also reinforces that public authorities responsible for maintaining public areas like roads, footpaths and parks, will not be judged by the standard of a bowling green.

Townsville City Council v Hodges [2023] QCA 136

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