The height of insignificance

09 August 2021

The NSW District Court held a 5 – 10mm footpath height differential posed an insignificant risk within the meaning of section 5B(1)(b) of the Civil Liability Act 2002 (NSW).

In Issue

  • Footpath trip and fall – Whether a minor height differential posed a significant risk under the Civil Liability Act 2002 (NSW) – Relevance of footpath condition in general vicinity in the absence of evidence about precise fall location

The background

The 74-year-old plaintiff was injured when she tripped and fell on a footpath controlled and managed by the Council. The plaintiff was familiar with the footpath and walked along it a few times a week.

The footpath was constructed of concrete or pebblecrete slabs separated by pavers. The Council became aware of height differentials in the footpath some 7 months prior to the incident through its system of inspection.

The footpath included height differentials of up to 23mm in the general vicinity of the plaintiff’s fall, but the plaintiff did not lead evidence about precisely where she tripped.

The decision at trial

The court found that the plaintiff tripped in an area of footpath with a height discrepancy of 5 – 10mm. This posed an insignificant risk within the meaning of section 5B(1)(b) of the Civil Liability Act 2002 (NSW).

The Council was not liable because a reasonable person in the position of the Council would not have taken precautions against such a risk.

The court also held that larger nearby height differentials were irrelevant. The court specifically rejected the plaintiff’s submission that the footpath condition as a whole should be considered in determining the risk of harm.

Implications for you

This case confirms that minor footpath height differentials do not necessarily give rise to a duty to repair on the part of controlling authorities, including where the authority has actual knowledge of the footpath condition.

It also underlines the importance of thoroughly considering the factual and evidential basis of a case when running a trial. The plaintiff’s lack of evidence about the precise location of her fall meant her case failed for want of proof, and the fact that the Council had knowledge of larger height differentials in the general vicinity of the plaintiff’s fall was not relevant in the absence of such evidence.

Greentree v Blacktown City Council [2021] NSWDC 318

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