KEITH’S CORNER
Mixed results for slip and trip victims in Court of Appeal
For some time claims made by pedestrians against Local Councils have been plagued by uncertainty about what is meant by ‘obvious risk’ and more interestingly, the ‘no-liability’ defence offered to public authorities in the Civil Liability Act. 2 recent decisions out of the NSW Supreme Court of Appeal add to this debate:
In Angel v Hawkesbury City Council (25 June 2008) a pedestrian fell over an uneven paver on a pavement in George Street, Sydney. The trial Court dismissed her claim on the basis that the uneven paver would have been obvious to a pedestrian who was watching out for her own safety. She appealed. The Appeal Court upheld her appeal saying that a pedestrian can’t be expected to walk with their eyes glued to the ground. It is not unreasonable to not notice a defect that would only be obvious from a short distance. In addition shadows from trees and buildings and cars obscured the defect. The defect was not common knowledge and certainly not known to the pedestrian and so the defect could not be said to be obvious. Even so the defect was obscured by shadow so she would not have noticed it even though taking care for her own safety. The Council argued that it had no knowledge of the defect and so claimed the protection of the statutory defence in the Civil Liability Act. Interestingly in her evidence the pedestrian had complained to the Council’s receptionist immediately after the accident when the receptionist told her that the pavement had already been booked for repair. The Court held that the receptionists’ knowledge most likely came from a body within the Council who had the power to repair the pavement, and therefore the Council’s defence of no-knowledge failed.
She was awarded $165,000.
In the second matter, Blacktown City Council v Hocking (25 June 2008), a pedestrian stepped onto a lid on a Telstra inspection pit, the lid twisted and the pedestrian fell and suffered injuries. The pedestrian was successful at trial but the Council appealed the decision arguing that it had no knowledge of any problem with the lid so could not be expected to carry out a repair. There was evidence that the Council generally carried out inspections and from that the trial judge held that if the person carrying out the inspection had done a proper job then the defect would have been discovered. However the Appeal Court rejected that reasoning. The Appeal judges held that the pedestrian had not proven when the Council had inspected the lid (or for that matter when the Council should have inspected the lid) therefore the Court was not satisfied that the Council had knowledge of the defect. The pedestrian lost.
The lesson for all potential claimants is that to sue a Council successfully you must prove that there was somebody within the Council with power to repair the defect who had knowledge of that defect before you had your accident. To surmise knowledge is not good enough. The manner in which the relevant person had knowledge must be demonstrated.