Injured victim awarded $283,000 after she succeeds on appeal in her public liability claim against the Hornsby Shire Council after falling on an uneven playground surface.
Hornsby Shire Council v Salman [2024] NSW CA 155.
The material facts
On 28 February 2021, Ms Salman rolled her ankle after she lost her balance when stepping from an area covered in mulch to a raised artificial surface at Lessing Park in Hornsby NSW. The Park was under the care and control of the Hornsby Shire Council. She fell and suffered serious injuries.
In the 7 months prior to the accident, the Council had received 2 reports from Playfix, playground safety inspector, advising that appropriate steps needed to be taken to mitigate the risk of the height differential. The reports stated that the mulch level was too low and needed to be replenished to eliminate any trip hazards. Accordingly, the Council had actual knowledge of the risk which was posed by the height differential.
Ms Salman conceded that she was not paying full attention at the time as she was distracted by her nephew.
She sued the Council in negligence, alleging that the Council breached its duty of care and failed to take action to prevent her injuries.
District Court Decision at first instance – ruled in the Plaintiff’s favour
The Council sought to raise the defence of ‘obvious risk’ under s5H of the Civil Liability Act 2002 (NSW) (‘the Act’) and ‘contributory negligence’ under s5R of the Act. Under the Act, these provisions can be a complete defence to any claim.
Ms Salman was successful at first instance and was awarded $283,200 in damages plus costs. Abadee DCJ held that:
- The Council was negligent in failing to take reasonable precautions against the risk of harm.
- The risk of harm was not an ‘obvious risk’.
- Ms Salman was contributorily negligent with a 15% reduction to her damages.
The Council appealed the trial judge’s decision to the New South Wales Court of Appeal.
Appeal dismissed by the NSW Court of Appeal
The NSW Court of Appeal majority (White and Adamson JJA, Basten AJA dissenting) dismissed the appeal and ruled in Ms Salman’s favour, for the following reasons:
- Risk of Harm: the risk of harm was correctly identified as the risk of someone walking on a height differential, that is, between the mulch and raised artificial surface and falling and suffering injury.
- Obvious Risk: the height differential between the two surfaces was not readily seen and was therefore not obvious to a reasonable person in Ms Salman’s circumstances. It is not sufficient to conclude that a hazard would be obvious to someone who was playing close attention.
- Actual knowledge of risk and failure to take precautions: the Council failed to act on advice contained in the reports it had received from Playfix. It therefore failed to take reasonable precautions to prevent the risk of harm.
Key takeaways in the Council negligent in playground injury case
This is a welcome decision for injured victims, with the Court of Appeal finding that the Council’s failure to take reasonable precautions to address a foreseeable risk of harm posed by the height differential, amounted to negligence and a breach of duty of care. This was particularly in circumstances where the Council had clear and actual knowledge of the hazard and failed to address it adequately.
Read the full decision here: Hornsby Shire Council v Salman [2024] NSW CA 155
Contact us
Public liability claims against a local council are notoriously difficult and hard fought. This is largely because under the Act, a council is considered a ‘public authority’ which means they have an added layer of protection that other defendants do not enjoy.
Stacks Goudkamp have successfully pursued many claims against local councils. If you have been injured on council property, contact Stacks Goudkamp for advice today for our expert public liability lawyers.
