Council’s appeal is a hole in one

Jul 2023 | Insurance

Background

The Queensland Court of Appeal recently allowed an appeal by the Townsville City Council (the Council) in Townsville City Council v Hodges [2023] QCA 136.

The case involved a plaintiff (respondent to the appeal) Ms Hodges who was walking across the grassed area of Sherriff Park, Townsville (the park) when she stepped into a hole and fell, suffering personal injuries. The park was occupied and maintained by the Council (the appellant).

The primary judge initially concluded the Council was liable for Ms Hodge’s injuries because it ought to have known of the existence of the hole and taken steps to address that risk. The Council appealed.

In arriving at its decision, the Court of Appeal provided an overview and analysis of many cases in this area, and reviewing this decision provides a good opportunity to reflect on the principles relevant to determining liability when dealing with claims of this nature.

Historical case law

In making its decision, the Court of Appeal referred to a number of prior decisions, including a pivotal quote by Cumming-Bruce J in Litter v Liverpool Corporation¹:

‘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 to be criticised by the standards of a bowling green.’

The other decisions considered, broadly categorised as involving either concealed or non-concealed tripping hazards, include:

Non-concealed holes

In Bartels v Bankstown City Council,² the plaintiff was playing soccer on a suburban Sydney soccer ground when her left foot was caught in a hole (35cm wide and 4cm deep). The Council mowed the playing surface/field weekly and the surrounding surfaces fortnightly. The Council’s system was to fill any holes identified as part of the mowing process. Evidence from a turf consultant was led to the effect the maintenance program in place was within industry standard. The plaintiff’s claim failed as the Council’s system of inspection was found to be reasonable, with Sheppard AJA, with whom Priestley JA and Stein JA agreed, stating at [47]:

‘The duty of the Council in the present case is not an absolute one. The Council does not warrant or guarantee the state of the surface. It must act reasonably in all the circumstances. But no standard of perfection is imposed upon it. If one were to impose such a standard on it, it would probably bring an end to the use of grounds such as the one here for club soccer and other club football games played in the Council’s area. It would have to decide whether it could afford the much more detailed inspections of the grounds than it can apparently afford to carry out at the present moment and weigh the cost factor against the public interest in making the grounds available.’

In Lanyon v Noosa District Junior Rugby League Football Club Inc,³ the plaintiff was coaching a rugby league team and whilst running across the field, his left foot sunk into a depression (38cm long, 24cm wide and 7.6cm deep) causing injury. The primary judge accepted the depression was caused by an exposition on the previous weekend and although not concealed, had not yet been observed. The plaintiff’s claim failed as there was a reasonable system of inspection in place.
In Spencer v Maryborough City Council,⁴ the plaintiff tripped over a lip in the pavement (9 to 10mm differential). In the Court of Appeal decision overturning the primary decision, Holmes J (as her Honour then was) with whom McMurdo P agreed, said at [35] “And what is, with respect, lacking in the learned trial judge’s reasons, is any detail of what the system of inspection required of the Council to meet its duty of care was… Without such identification, it was impossible to say that the failure to implement it was causative of the plaintiff’s injury.” The plaintiff’s claim failed as it was held the duty owed by the Council did not require inspections of such rigour as to have identified and addressed the lip in the pavement on which the plaintiff tripped.

Concealed holes

In Buckle v Bayswater Road Board,⁵ the plaintiff was injured by a hole in the road (two feet long, eight inches wide, eight inches deep) which was concealed by grass. The hole was caused by a broken drain, the defendant’s engineer had been informed the drain was broken and it was found the defendant had a duty to keep the drain in proper order to prevent it becoming a danger to the public. Latham CJ said at p 277: ‘Any proper inspection would have shown at once that the drain was broken, and, if conducted with any reasonable degree of care, inspection would have resulted in the discovery of the hole which was responsible for the injury to the plaintiff.” The plaintiff was successful as there was no proper system of inspection in place.
In Fuller v Logan City Council,⁶ the plaintiff had stepped down from a truck when his left foot went onto the corner of a piece of concrete which had been largely buried in the ground. The grass was about 100mm long and concealed the concrete. McGill DCJ said at [26] “…the hazard posed by the lump of concrete was not an obvious one. For practical purpose it was concealed by the grass, at least unless one was quite close to it or looking for it…” and [27] “the defendant ought to have been aware of it. There was evidence which I accept that, for years prior to this incident, not only was the footpath overgrown, but it had builders’ rubble, such as rocks and bricks and pieces of concrete, on it.” The plaintiff was successful as it was found the Council ought to have been aware of the hazard due to the state of the area where the incident occurred.
In Staines v Commonwealth of Australia,⁷ the plaintiff was walking over a hockey field which was lush and green with a covering of 10cm of grass. She placed her left foot into a concealed hole (10cm deep) and not much bigger than her foot. The grass had been consistently mowed to a height of 10cm above ground level, thus disguising the hole. The primary judge dismissed the plaintiff’s claim finding the Commonwealth would have been liable for filling in the hole had it been aware, but there was no evidence it knew or ought to have known of the existence of the hole. The appeal was allowed with Foster and Higgins JJ stating at page 68,980: “Accepting that the respondent had no knowledge of the existence of the danger, the next question is whether it was negligent of it to have been thus unaware, having regard to its duty to take reasonable care.” No evidence was provided as to the system of inspection, cleaning or mowing. The plaintiff was therefore successful on appeal.

Court of appeal decision

Was the tripping hazard a ‘hole’ and was characterisation of the hole necessary to determine liability?

The Court of Appeal lamented the lack of precise evidence as to the characteristics of the hole. The primary judgment referenced the evidence in relation to the nature of the hole as being as much as 17-20cm deep, and as little as ‘uneven land varying approximately 20mm’. Whilst varying photographs were taken, the Court of Appeal also noted these photographs did not enable definitive findings to be made and, accordingly, ‘this Court then has the same difficulty as the primary judge, that is to attempt to ascertain the characteristics of the hole when the evidence lacked precision’.

This presented challenges as the Court of Appeal expressly rejected the trial judges finding the size of the hole ultimately ‘is of little consequence’ and that, instead, ‘is of critical importance to the proper determination of the appellant’s liability’. This was relevant, predominantly on account of the fact the characteristics of the hole was of fundamental importance in determining whether the hole was best characterised as concealed or non-concealed.

The Court of Appeal ultimately concluded the diameter of the hole in question ‘is more than a foot, that is, greater than 30cm and has a depth somewhere between 2 and 5cm’. The Court also accepted the primary judge’s finding the hole in question was concealed and noted the question which ought to have been asked is what was required by way of reasonable care to identify a hole with such characteristics in Sherriff Park, which it was noted comprised an area of 36,103 square metres. Also relevant to this determination was the Council’s responsibility for all of its park areas, which covered approximately 12,647,209 square metres.

Were the Council’s inspections reasonable?

The primary judge found the Council’s inspections of the park were perfunctory and uninstructed.

The Court of Appeal disagreed with this finding, due to evidence led by both parties including one of the plaintiff’s own witnesses saying ‘you wouldn’t know there was a hole until you fell in it’, and the ambulance officers being unable to detect the ‘hole’, even though they had been alerted to its presence, as they placed the stretcher over it which then subsequently collapsed.

Notably, the Court of Appeal distinguished the current matter from Staines (mentioned above) as the Council led evidence as to an extensive system of inspection and maintenance of the park. This included the following routine inspections which did not identify the hole:

The team leader of the Parks Department performing an inspection of the park on Monday mornings and on Fridays;
The main day for maintenance of the park was then on Thursday when a crew of five workers would attend to perform inspections and maintenance. The crew in fact attended on the same day as the incident (prior to its occurrence);
The person who mowed the park (and had been in that role for more than ten years) said he was trained to look for hazards, and in fact looked for hazards. This person both visually inspected and was able to detect a hole while ride-on mowing because the wheels of the ride-on mower would detect a hole if they fell into it. If he ever detected a hole, he would organise for it to be repaired;
Another crew member also attended on Thursdays and Fridays to perform an inspection; and
The Council’s supervisor also performed ad-hoc inspections.

The Court of Appeal accepted the evidence clearly demonstrated the Council did not have actual knowledge of the hole. It would consequently only be liable if it ought to have known of the hole's presence. The Court of Appeal found ‘it cannot be negligent of a person inspecting for hazards to fail to discern a hole when, as the primary judge postulated, even in the circumstances where a person is shown the hole they would still have difficulty discerning it was in fact a hole. In those circumstances where Council employees do not have the benefit of the hole being pointed out to them, it cannot be concluded that those employees and officers were in any way at fault for failing to detect the presence of the concealed hole.’

The Court of Appeal said the critical issue is what precautions a reasonable person in the position of the Council would have taken. It found the steps taken by the Council, as referenced above, were reasonable in the circumstances. It must be remembered that a duty to act reasonably does not necessarily guarantee the hazard will be identified and addressed. As noted by the Court of Appeal, ‘the difficulty is that reasonable inspections of the park of the kind we have just described would not have (and did not) detect the hole in which Ms Hodges fell, which was so shallow and highly concealed that it could only have been detected by a person stepping into it or the wheels of a mower running over the hole’.

The Court of Appeal further noted, in terms of s 9(2)(c) and (d) of the Civil Liability Act 2003 (Qld), the burden of a Council staff member stepping over every part of the park and other parks in the Townsville Local Government Area in order to detect holes, is too high a duty to be placed on the Council, particularly when there is great social utility (s 9(2)(d)) in having parks made available for the use of members of the public.

Accordingly, the Court of Appeal concluded the Council did not breach its duty of care. The appeal was allowed and the plaintiff’s claim dismissed.

Conclusion

While each matter will of course turn on its own facts, some broad principles emerge from consideration of the matter discussed, and the cases to which it refers. These include:

Evidence as to the precise characteristics of the hazard in question is critical and will be relevant to the determination of whether the hazard in question is categorised as concealed, or non-concealed;
Whether a hazard is concealed, or non-concealed, is highly relevant to the liability equation. In this regard, for concealed hazards, the plaintiff will have the added obligation of proving the hazard is one of which the defendant ought to have known;
Whether the hazard is concealed, or non-concealed, the plaintiff also bears the onus of proving it is the type of hazard which the standard of reasonable care requires be addressed. The obligation is always to act reasonably, not to guarantee safety and, as such, it does not necessarily follow that all imperfections which could correctly be described as hazardous, are required to be addressed;
Relevant to the last point, while each matter will turn on its own facts, issues regarding the location of the hazard and its patronage will be highly relevant. Many of the cases referenced relate to incidents on Council property, where it is acknowledged there are finite resources and, often, considerable areas to monitor which, importantly, the general public knows will not meet the standard of the often referenced bowling green. To state the obvious, the standard expected by the exercise of reasonable care with reference to an actual bowling green, will be much higher; and
Evidence as to the cause of the hazard, if it exists, will also be relevant. Whilst very much a footnote in the Court of Appeal judgment, it was noted in the matter under consideration that the plaintiff had also pled and argued a misfeasance type of case on the basis the hole in question was caused by the Council removing a tree. While ultimately it was noted the evidence adduced simply could not support such a finding being made, if it could have been established the Council was responsible for the hole, we suggest the outcome would have been much different.

1 [1968] 2 All ER 343.

2 [1999] NSWCA 129.

3 [2002] QCA 163.

4 [2002] QCA 250.

5 (1936) 57 CLR 259.

6 [2006] QDC 305.

7 (1991) Aug Torts Reports 81-106.

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The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.