Introduction
At Page Seager Lawyers, we investigate, handle and advise upon a large number of differing types of claims and disputes for our corporate client base. As a result, we are experienced at cost-effectively assessing our clients’ risks and providing the appropriate advice. No two claims are identical. There is no failproof recipe for success.
One of the most basic types of claim unfortunately experienced by many of our corporate clients is the infamous trip’n’fall or trip’n’slip. Such claims form the very essence of occupier’s liability law because an entrant trips or slips at our client’s premises and seeks to recover damages from our client.
Claims involving occupier’s liability provide a simplified example of how any claim or dispute should be investigated and, if necessary, defended to trial. The lessons learnt from an occupier’s liability claim can easily be applied to other claims, be they worker’s compensation, professional negligence, compulsory third party or medical negligence.
Most recently, the Queensland Court of Appeal considered an occupier’s liability claim which, to some legal commentators, may have seemed to be a lay down misere for the injured person. That ultimately was not the case.
We highlight this decision to our corporate clients, especially the local authorities for whom we act, in terms of what should be done, and can be done, to properly investigate and handle a claim, and perhaps even defeat such a claim at trial, or preferably beforehand.
Townsville City Council v Hodges [2023] QCA 136
Facts
The Plaintiff parked her car in an off-street car park. She then walked across the grassed area of the park near the car park. Whilst doing so, her left foot entered a “hole” causing her to fall and sustain injury.
The park was occupied by the Council, the Defendant.
Damages were agreed between the parties at $301,603.23 and the matter proceeded to trial solely as to liability.
District Court Trial
The Plaintiff did not run a case that the Council was negligent for concealing the hole (e.g. by regularly mowing over it with the knowledge that there was a hole).
Rather, the Plaintiff’s case at trial was put on the following two grounds:
- the Council created or knew of the hole and did not fill it in; and
- the Council took inadequate steps to inspect its park and, had the Council done so, it would have become aware of the hole and taken steps to remedy the hole by filling it in.
The Plaintiff succeeded at trial, but solely on the second ground.
The Council appealed.
Court of Appeal
The Council succeeded on appeal.
The Court was critical of the Judge because, at the trial, the Judge determined that the size or depth of the hole was of little consequence. The Court disagreed.
The Court made reference to the evidence presented at trial before the Judge and considered what judgment could have been made based upon that evidence. By way of example, and insofar as the hole was concerned, the Court’s commentary surrounding the Plaintiff’s lawyers’ evidence of the alleged hole is amusing, and perhaps disturbing:
“Six photographs showing the plaintiff’s son in-law’s left foot in the hole were tendered. In each photograph, he was shown wearing thongs. The photographs show the width of the hole to be little more than the width of the left thong in the toe area and in the heel area the depth of the hole did not exceed the depth of the thong …”
Ultimately, the Court considered that the size and depth of the hole was of great consequence. This is more so the case given that the lawful obligation of an occupier is to take reasonable steps in respect of a risk. If the size and depth of the hole is not known, then what risk does it pose and what reasonable steps are required?
The authorities pertaining to occupier’s liability demonstrate that for a concealed hazard, a local authority may only be liable for hazards of which the local authority knows or ought to have known. That depends upon what is reasonably required of a local authority in terms of a system of inspection in order to locate hazards.
The Council’s legal team led evidence at trial to address the necessary system of inspection required by the Council’s responsibilities for all of its park areas, which covered some 12,647,209 square metres. That evidence showed it was an onerous task.
The Council also led evidence about the system of inspection, maintenance and mowing undertaken at the park. That evidence showed that at no time was the Council or its employees made aware of the hole.
Ultimately, the Court found that most persons would have had difficulty discerning that there was a hole where the Plaintiff allegedly fell. As stated by the Court:
“As the Council did not know of the hole, it may only be liable for the hazard constituted by the hole if it ought to have known of the presence of the hole. That question can only be answered with respect to the characteristics of the hole …”
Take Aways
The Court’s decision highlights that claims must be properly investigated. Such investigations allow our clients to understand the risks they face and how best to respond to any claim. The advice we give, and the strategy implemented with our clients’ approval, stems from the facts uncovered by proper investigations.
The appeal result also demonstrates that sound evidence must be collated and presented to a court. In the absence of doing so, a party runs the risk of not proving its allegations and failing. Once again, a proper understanding of the facts is required in order to present the best evidence.
Yes, this was just another trip’n’fall claim … but it was litigation which ended up at trial and then was appealed to a higher court. The parties incurred legal costs. Therefore, for any claim, at Page Seager we endeavour to promptly and properly investigate a matter so that we may provide sound advice at an early stage and collate the necessary evidence to protect our clients’ interests.
More information
If you have any queries or would like further information about this article, please contact:
David Giacomantonio
Consultant
M: 0418 154 138
E: dgiacomantonio@pageseager.com.au
Published: 2 August 2023
