The plaintiff sustained a broken hip, pelvis and a fractured back after he walked through a Council reserve at night and tripped on a stormwater pit. The plaintiff brought a claim against the Shepparton City Council in the Supreme Court of Victoria.

The Shepparton City Council denied that the plaintiff had suffered any injuries as a result of the fall. Further, it argued that even if he did sustain an injury, he must have been jogging (rather than walking) in the dark and that this would have contributed to his injuries. Ultimately, the Court accepted the plaintiff’s medical evidence and found that he did suffer an injury in the manner alleged. The Court agreed that the plaintiff probably did jog through the park, and did not take reasonable care for his own safety, but concluded that even if he had walked, he would not have been in a position to see the stormwater pit in the dark and avoid it.

The Council also argued that the presence of the stormwater pit should have been obvious to the plaintiff and that even if it was not visible to him, it would have been obvious to a reasonable person traversing an unlit reserve in the dark. Justice Keogh dismissed that argument and found that neither the probability nor the magnitude of the risk were obvious to pedestrians crossing the reserve at night. He found that it was the defendant’s responsibility to take reasonable care to eliminate or reduce hazards, which a pedestrian taking reasonable care for his own safety would not necessarily see and be in a position to avoid.

Justice Keogh found that the Council failed to warn of the existence of the stormwater pit and should have erected a warning sign and a barrier to ensure the pit was made visible to pedestrians. Had any of those precautions been taken, the Court found that the plaintiff’s fall and subsequent injuries would have been avoided. The Court also noted that the Council had failed to produce any evidence to show that taking precautions to avoid the risk would be burdensome.

An occupier’s obligation to eliminate hazards outweighs the obligation on entrants to avoid them. In this case, a person jogging through an unlit reserve at night was only 15% to blame when he tripped on a storm water pit.