- Whether a reserve was properly classified as 'roadside' or a 'pathway' for the purposes of the Road Management Act 2004 (VIC).
- Whether the Council had properly identified the stormwater pit as a hazard posing a risk to pedestrians using the reserve at night.
At approximately 8pm on 14 September 2008, the plaintiff was walking along a footpath in suburban Shepparton to purchase dinner when he decided to cut across a reserve which was part of a series of parkland areas under the control of and maintained by the defendant council. The plaintiff jogged across the road prior to entering the reserve in order to avoid an oncoming car and subsequently slowed to a walk.
About 9 metres in from the edge of the reserve was a stormwater pit which protruded 120-130 millimetres above ground level. There was no lighting in the reserve. The plaintiff tripped over the stormwater pit and suffered injuries.
The Decision at Trial
The court rejected the defendant’s statutory defence under section 107 of the Road Management Act 2004 (Vic) that it did not owe the plaintiff a duty in circumstances where the reserve was defined as a ‘roadside’ as opposed to a ‘pathway’. It was held section 107 did nothing to restrict the duty owed by the defendant as the infrastructure manager of the stormwater system.
The court held that it was clearly foreseeable that pedestrians would cross the reserve at night, that the risk of the stormwater pit was not obvious based on an objective standard, the risk of tripping and suffering serious injury was foreseeable and that the stormwater pit represented a hazard to pedestrians at night, both in probability and magnitude of risk. The defendant failed to produce any evidence to suggest taking precautions to avoid the risk would be burdensome. The court determined that precautions such as grading the surrounding land around the stormwater pit or painting the lid to provide contrast with its surroundings making it more visible could have been easily and economically implemented.
The defendant was found to have been aware of the hazard, in control of the hazard and should have foreseen the risk of injury which might ensue. Responsibility was apportioned at 85% to the defendant and 15% to the plaintiff (because he had jogged into the area). Damages of $422,710.00 were awarded to the plaintiff.
Where a local authority knows, or ought to know, of an impediment on land it controls and maintains, it owes a duty to users of the land to render that impediment harmless where a danger is not obvious to an ordinary, reasonable person exercising proper care for their own safety. Courts will look at what precautions could easily have been taken to reduce hazards and it is for the authority to provide evidence as to why those precautions were not taken.
Clarke v Greater Shepparton City Council  VSC 542