The inherent difficulty of ‘footpath cases’
One of the unfortunate realities of life is that accidents can, and do happen. Sometimes, these accidents happen because someone else was negligent, but in other cases, accidents happen simply as a result of an unfortunate set of circumstances.
For example, people often trip over and hurt themselves as a result of what they consider to be a defect in the footpath they are walking on.
As Gleeson CJ said in the case of Ghantous v Hawkesbury City Council:
“… The courts insisted that an injured plaintiff had to show that the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was an unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land.”
His Honour makes the sensible observation that people regularly walk in areas which do not have the benefit of smoothly laid concrete footpaths. This might be through a park, your front garden, or on the beach. It could even be along a suburban street where there is no paved footpath.
Whilst we might expect that a footpath would be well-maintained and level, in the same case Gleeson CJ quoted a well-known passage from an English judge, who remarked that:
“Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not be to criticised by the standards of a bowling green”[emphasis added]
The comparison His Honour drew between a footpath and a bowling green is a very good analogy.
Bowling clubs spend tens, if not hundreds of thousands of dollars each year to ensure that a bowling green stays perfectly level. That’s because having a flat grassy surface, free of any depressions or divots, is essential for the sport of lawn bowls.
Compare the size of a bowling green to the many thousands of kilometres of footpath in your suburb or city. Quite honestly, there is no comparison.
Furthermore, a footpath doesn’t need to be perfectly level (in the same way as a bowling green does) for it to be useful. An uneven concrete footpath might still keep your feet and shoes free of mud or direct you around puddles in the rain, or perhaps direct you the correct way through a large open area.
As always, it’s important to look out for your own safety. If you are walking on a footpath you should realise that there could be depressions, raised concrete slabs, cracks in the concrete, manhole covers and other defects which might cause you to trip. You should exercise proper hazard perception to identify these possible defects, especially if the defect might be hidden in poor weather or at night time..
If you have been injured because you have tripped and fallen down whilst walking along a footpath, make sure you take some photographs of the damaged footpath. You should take a photograph with a second object sitting beside the depression or raised section (to give depth perception to your photograph) and you should immediately contact the responsible council and provide an incident report.
If you or somebody you care about has had a fall due to a defect in a footpath that created a significant danger, such as a large hole, you may be entitled to compensation. To arrange a free, no-obligation assessment of your claim, call Stacks Goudkamp on 1800 25 1800, or alternatively make an online enquiry.
Written by Brett Watts.
Brett Watts is an Associate in Tom Goudkamp and Ruth Hudson’s Practice Group. Brett represents people who have been injured in a variety of accidents including motor vehicle claims and public liability claims.