Some Risks Aren’t So Obvious – Council Held Liable

KEY TAKE-OUTS:

It is important to know whether your injury was caused by obvious risks when making a Public Liability Claim. A recent decision of the court NSW Court of Appeal confirms the elements that need to be established in order for a Public Liability Claim to be successful.

What is an Obvious Risk?

Pursuant to section 5F of the Civil Liability Act, an ‘obvious risk’ is a risk that in the circumstances would have been obvious to a reasonable person in the position of that person who suffered an injury.

Examples of Obvious Risks include:

• The risk of hitting a bollard whilst riding a bicycle in the daylight
• Walking down steps leading to an ice-skating ring whilst wearing ice skates
• A person tripping on a 16 cm raised curb separating the footpath and walkway as there was discernible height and colour difference

Case Summary: Wollongong City Council v Williams [2021] NSWCA 140

Facts:

• On 17 May 2016, Mr Williams fell from the top step of a stepped walkway leading to the toilet amenities at Mount Keira Summit Park
• Mr Williams injured his left elbow and wrist.
• Mr Williams was employed as a disability worker and was supervising a client at the time of the incident.

Primary Judge Decision in District Court:

Duty of Care Issue:

A reasonable person in the position of the Council would have taken the precautions to which would have been found reasonable. Therefore, the Council has breached their duty of care.

Obvious Risk Issue:

The risk was not an obvious risk. It would not have been obvious to a reasonable person that a pathway leading to disabled toilets would involve steps that were not adequately highlighted or have a tactile indicator and a handrail.

Causation:

Causation was made out. If tactile indicators were implemented, or if the steps were brightly painted, the steps would have been apparent and the accident would not have occurred.

Decision:

Judgement was for Mr Williams.

Appeal:

Wollongong Council appealed the decision. The Judges in the second instance found no error in the Primary Judge’s finding and the appeal was dismissed.

The takeaway

Determining whether an injury was caused by ‘obvious risks’ is an important component of a Public Liability Claim. We understand that suffering from an injury can cause a psychological and physical impact on your life. At Coutts, our personal injury team is experienced and is able to assist you with the process of making a Public Liability claim.

Top Tips:

1. Take photos of the scene as soon as possible
2. Obtain details of any witnesses
3. Lodge the claim immediately

ABOUT KARENA NICHOLLS:

Karena is a Partner at Coutts and is the Head of our Injury Compensation (with extensive knowledge in personal injury) and Employment Law teams. She is passionate and dedicated to helping her clients understand their rights and obligations and advising them on the best course of action to achieve their desired outcomes. It is her practical and client-orientated approach that has attributed to her authentic reputation positioning her as a highly regarded compensation and employment lawyer.