QCA Dismisses Hodges’ Appeal in Townsville City Park Injury Case

The Queensland Court of Appeal has recently allowed an appeal by the Townsville City Council (‘the Appellant) against a decision of the Queensland District Court that it was liable in damages for the injuries sustained by a member of the public (‘the Respondent’) injured at a park maintained by the Council.  

Background 

On 15 October 2015, the Respondent to the appeal, Barbara Josephine Hodges, sustained lower-limb spiral fractures when she fell into a concealed hole at a park maintained by the Appellant. 

It was the Respondent’s allegation that the Council had been negligent on account of its failure to undertake adequate inspections of the park. Had these inspections taken place, the hole would have been identified and remedied, in the Respondent’s view. The Appellant alleged that describing the accident site as a ‘hole’ was a mischaracterisation of its physical characteristics, and it was no more than “a slight depression or unevenness.” It further disputed that it failed to adequately undertake inspections of the park. Whilst liability was in dispute between the parties, they had reached agreement on quantum in the sum of $301,603.23.  

The primary judge found in favour of the Respondent. Whilst no findings were made in respect of the size or depth of the hole, the primary judge was satisfied that it nevertheless presented a foreseeable risk of injury.  

Decision on Appeal 

The Appellant appealed the decision on seven grounds, pertaining to the primary judge’s conclusions about the hole, as well as inspections that took place at the park.  

The Hole 

The Appellant submitted that the primary judge erred in finding that there was a ‘hole’, erred in opining that the depth of that hole was of little consequence, and ought to have instead found that the Respondent fell on uneven ground, rather than in a hole.  

The court considered the relevant case law that is enlivened in claims of a similar nature. In particular, the court cited Cumming-Bruce J in Littler v Liverpool Corporation, whom opined 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 to be criticised by the standards of a bowling green.” 

Upon review of relevant authorities, the court concluded that in circumstances of a concealed hazard, a local authority may only be liable for those hazards that it knows exist, or ought to have known. As to which hazards a local authority ought to be aware of, the court cited Spencer and stated that it is insufficient for an injured person to refer broadly to a “necessary, effective and appropriate risk assessment program”, but must instead point “precisely to what form, type and regularity of system of inspection is reasonable.” In the court’s view, a proper identification of the characteristics of the hazard is required in order to determine what system or inspection would have been reasonable in the circumstances.  

For this reason, the court concluded that the Council was correct to contend that the primary judge erred in concluding that the depth of the hole was of little consequence. However, it was not satisfied that the primary judge had fallen into error in concluding that a hole was present, given the evidence that was available to the primary judge in support of such a conclusion. The Court of Appeals’ own assessment of the hole was that it was more than a foot in diameter, and a depth of somewhere between two and five centimeters.  

Inspections 

The primary judge opined that inspections undertaken by employees of the Appellant prior to the subject incident were “perfunctory and uninstructed”. The Appellant submitted that the primary judge had fallen into error by making such a conclusion.  

With reference to the evidence of the Appellant’s employees, the court opined that the primary judge’s description of the pre-incident inspections must be set aside, as every witness familiar with the park had unable to identify the hole prior to the incident.  

The court noted that, as the Appellant did not know of the hole, it could only be liable for the hazard it created if it ought to have known of the presence of the hole. The court then referred again to its conclusions as to the characteristics of the hole. The court opined that the steps the Appellant had taken in respect of the risk of people tripping in a hole of alike as the subject hole were reasonable, namely, having persons tasked with mowing the lawns inspect the park and report any hazards.  

As the court was satisfied that the Appellant had discharged its duty to take reasonable steps to avoid a risk of injury to parkgoers caused by tripping in a hole, the appeal was allowed and the Respondent’s claim was dismissed. 

This article was written by Sugath Wijedoru  of Littles Lawyers. If you have any queries regarding the article, please contact via Free Claim Checker or email us.”