Court of Appeal (2:1 majority) upholds decision at first instance in favour of the Plaintiff against a Local Council following an incident at a playground.
In issue
- The issue here was the scope of the duty of care owed by the local Council to playground entrants.
The background
Kathie Salman (age 32 at time of incident) attended Lessing Park in Hornsby, NSW (the Park) for a family barbecue in late February 2021. The Park was situated in the district of Hornsby Shire Council (the Council). Within the Park was a children’s playground situated on a wet pour rubber surface that was surrounded by mulch. As Ms Salman approached the swing-set in the playground, she rolled both ankles when her right foot landed on a change of surface, being where the mulch met the wet pour, (the Incident). Ms Salman sustained injuries to her ankles and feet, including fractures in both legs, as well as a strain in her back, and psychological sequela.
Importantly, the Council had received two reports in the seven months prior to the Incident, which highlighted that the height difference between the mulch and wet pour surface was too large and that the mulch needed to be raised to match the height of the wet pour.
Ms Salman brought a claim against the Council in the NSW District Court (as the sole defendant) alleging that the Council breached its duty of care and was negligent for failing to ensure the change of surface was clearly demarcated and levelled.
Relevant to the issue of breach, was the fact that the Council had received two reports in the seven months prior to the Incident, which highlighted that the height difference between the mulch and wet pour surface was too large and that the mulch needed to be raised to match the height of the wet pour.
The decision at trial
The Council denied liability maintaining that there was no duty of care owed to Ms Salman. In the alternative, Council asserted that the risk of suffering injury if proper care was not taken when walking across an area of change in surface was obvious, and as such, there was no need to warn Ms Salman of the risk.
Ms Salman relied on an expert report from Denis Cauduro (Ergonomist), that discussed the Australian playground standards which prescribed the Council maintenance obligations, as well as the two reports issued to the Council prior to the Incident. The Council reports, with particularly reference to the height differential and maintenance works, were critical to Court’s findings and an area of contention between the parties.
Ultimately at first instance, Judge Abadee found that the Council had breached its duty of care and acted negligently by failing to take reasonable precautions against the risk of harm posed by the uneven surface. The Court found that the Council should have topped up the mulch to bring it to the level of the wet pour surface, carried out regular inspections of the area, and/or displayed warning notices. His Honour found that the risk of harm was both foreseeable and not insignificant, and found that the defence of obvious risk pursuant to the relevant sections of the Civil Liability Act 2002 (NSW) (CLA) was not made out.
The Council was ordered to pay $283,200 in damages (noting a 15% reduction had been applied for contributory negligence).
On appeal
The Council appealed the decision on multiple grounds (key issues outlined below) with respect to liability. There was no appeal with respect to damages or the discount applied for contributory negligence.
Their Honours, Adamson JA and White JA dismissed the Appeal and ordered the Council to pay Ms Salman’s costs, with his Honour Justice Basten dissenting.
Risk of harm (ground 1)
The Council argued at trial that the risk of harm was that pedestrians walking within the park might fall on uneven ground near the playground. On Appeal, Adamson JA and White JA upheld the decision of the trial judge, being that the risk of harm was that a person may fall and suffer injury whilst traversing the wet pour surface.
Application of the Australian playground standards and height differential (grounds 2 and 3)
The reports received by the Council prior to the Incident relating to the height differential between the mulch and wet pour expressed that they were prepared in accordance with the applicable standards to the playground. The trial judge held that the Council, by commissioning the reports, accepted that those standards applied to the playground. This finding was upheld on appeal.
The risk of harm was obvious and not readily discernable (grounds 4 and 8)
At trial, Ms Salman had admitted that she was not focused on her walking path as she approached the playground because her focus was on her nephew sitting in the swing set. This was a contentious issue both at trial and on appeal with the Court finding that the obviousness of a risk must be considered in the full circumstances of the event. The trial judge held that the risk of suffering injury when walking across a surface of differing heights was not obvious, as it was foreseeable that pedestrians approaching the playground would be focused on a child.
Having regard to the evidence (lay and witness), her Honour Adamson JA held that the Council had breached its duty of care, and no error was made at trial.
Response to risk of harm, precautions and causation (grounds 6, 7 and 9)
It was upheld that a reasonable person in the position of the Council would have acted on the reports detailing the height differential as a trip hazard. The reports contained advice regarding how to alleviate the hazard which the Council did not act on. The Council was unable to produce evidence explaining their inaction. The Appeal Court also held that the costs of taking precautions were not unduly burdensome and were reasonable.
In dissent, Justice Basten found that grounds 1, 3, 7 and 8 should be upheld. His Honour found that the risk of a surface change was obvious and the primary judge’s findings as to the Council’s requirements to take certain precautions were problematic. His Honour was also critical of Ms Salman’s pleadings, which among other things included 35 particulars of negligence, and discouraged the scattergun approach adopted and lack of specificity in the pleadings.
Implications for you
The Judgment on appeal highlights the following:
- The Court’s determination of an obvious risk (section 5F of the CLA), a plaintiff’s awareness of such a risk (section 5F of the CLA) and the reliance by defendants on a defence relating to obvious risk (under section 5H of the CLA), remains elusive, with the finding of obviousness turning on specific facts;
- Prior knowledge of a hazard or hazards can impact a finding of negligence;
- The duty of councils to ensure adequate inspection and maintenance of local parks, and that records are kept of such activities;
- The requirement for height differences in surfaces to be clearly demarcated/highlighted and/or warning notices erected; and
- Plaintiffs may not escape a finding of contributory negligence, even if a risk is not held to be an obvious one. There remains a duty on plaintiffs to exercise reasonable care for their own safety and the Court will apply a reduction where appropriate in line with sections 5S and 5R of the CLA.
