A Council owes pedestrians walking in public spaces a duty. The standard of that duty acknowledges that people walking outdoors should keep a proper lookout to detect and avoid imperfections in a surface. The standard of care acknowledges that it is in the nature of walking outdoors that the ground may not be as even, flat or smooth as other surfaces. Pedestrians are ordinarily required to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards such as uneven paving, stones, tree roots or holes.
The New South Wales Court of Appeal recently heard an Appeal in a claim for damages brought by a pedestrian against a large Council. The injured person was employed as a disability support worker. He was with one of his clients who wanted to use a public toilet. He fell on the first of three steps on a stepped pathway that lead down to the public toilet building. The trial Judge found that the risk of injury posed by the stepped pathway was not one that would have been obvious to a reasonable person. The trial judge had regard to the fact that the pathway led to a toilet block that included a disabled toilet and a reasonable person would not expect such a pathway to involve steps that were not otherwise clearly delineated. The trial Judge also had regard to shading that was present over the steps, and the absence of indicators that were present in other areas of the park to alert a person to the presence of the steps.
The Council appealed. On appeal, Council argued that the injured person was negligent because, rather than looking down as he approached the step, he made an assumption that the path had no steps. Council argued that the injured person looked at the path, kept walking towards it and then began to look at the public toilet building. He didn’t look at the pavers once he got close enough to discern the steps. It was argued by Council on that basis that the injured person’s own evidence demonstrated that he did not do what a reasonable person would do, which was “to continue to monitor, not look at your feet only, not stare fixedly at the ground, but as you’re moving off the asphalt on to the pavers, to continue looking”.
The Court of Appeal rejected Council’s arguments and determined that while the steps were not invisible, they were sufficiently conspicuous in the overall circumstances to generate a high probability of them not being seen by people who were not aware of them and not actively looking for them. The Court of Appeal accepted that once the steps were brought to the attention of a person, they were obvious, but until then, particularly on a downward sloping path leading to a disabled public toilet, they were not.
If you have sustained an injury, Toby Tancred and Melissa Arndell can help. They can provide you with legal advice, investigate your matter and represent you if you need to commence legal proceedings. Toby Tancred is a Law Society Personal Injury Accredited Specialist and has been recognised by Doyle’s Guide as a Recommended Work Injury Compensation Lawyer for two years running. Doyle’s Guide has also named Toby Tancred Solicitor as a Recommended Asbestos & Dust Diseases Compensation Law Firm. Toby Tancred and Melissa Arndell have the experience, knowledge and ability to help all injured people in difficult times.