Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson [2012] NSWCA 340

Background

The plaintiff suffered serious injuries when he fell whilst descending the steps of a Victorian era rotunda, located in Machatti Park, Bathurst. This rotunda was a pivotal feature of the park which was heritage-listed, built in 1980 and used by ‘many people’ including two concert bands.

The rotunda was raised and had four entrances, each with four concrete steps. The respondent and his two colleagues had left via a different staircase to the one they used to enter. The top step on the subject staircase was 190-200mm narrower than the corresponding step which the respondent had entered the rotunda on and the platform only supported 56-58% of his boot length (with the ball of the foot and toes hanging over the edge). There was no signage located around/in the rotunda warning of the narrowness, no handrails available for use and no anti-slip strips on the nosings of the steps.

At first instance the trial judge found the council negligent saying that the fall would have been prevented by either:

  1. a warning sign;
  2. a going which had been at least the same width as the corresponding step on the entrance side or ;
  3. a going which had been the same width as the steps further down on the exiting side that were visible from the top of the rotunda (on which the respondent’s perception of the first step was formed).

The trial judge said that without evidence being led by the council, he would reject the submission that ‘many people’ used the rotunda and that no evidence of accidents meant he should infer no previous accidents had occurred.

The council appealed his decision.

The Law

The Court of Appeal agreed with the primary judge’s distinction between (a) no evidence of complaints or previous injuries and (b) evidence to the effect that there had been no complaints or previous injuries. Hoeben JA said:

“The absence of evidence on the subject means that there could have been complaints or previous injuries, but there was simply no evidence either way.

His Honour correctly concluded that a lack of evidence on the subject did not assist either party and that not only was he not required to draw the inference sought by the appellant, but it was not open to him to do so.

If any inference were to be drawn, it would have been an inference adverse to the [council]. It was the party in the best position to provide evidence of whether there had been complaints or previous injuries, but it declined to do so. It was open to his Honour to draw an inference, had he so wished, that such evidence would not have assisted the appellant.”

As to the stairs’ level which had been modified 10-15 years previously, Hoeben JA found that:

“Although there may not have been a plan prepared in relation to the work, the overwhelming inference is that someone from the appellant’s organisation would have checked the work before payment was authorised. It should have been obvious to that person that the alterations to the rotunda had narrowed the width of the top step thereby creating a real and foreseeable risk of injury”.

Furthermore Hoeben JA put weight on the expert witness testimony of Mr Burn who had created a report after visiting the rotunda in April 2011. At trial he gave the following evidence:

“On completion of this work and at regular intervals, risk assessment inspections ought to have been undertaken to reveal hazards caused by the work or due to wear and tear. Had this procedure been undertaken, the hazard would have been identified and could have been remedied.”

It was on this basis that the Council was held to have known/ought to have know of the narrowness of the top step as a risk.

The council had also argued that the evidence suggested by Mr Burn of a warning sign or other alterations would have been contrary to the heritage listing of the rotunda. Hoeben JA dismissed this ground of appeal on the basis that the Council did not adduce evidence as to the content of the heritage listing and any conditions applicable to the rotunda.

Implications

The result in this case serves as a reminder that whilst the plaintiff had the burden of proof in establishing negligence, if a defendant wishes to make assertions in support of its defence, those assertions must be supported by evidence. It seems the Court of Appeal were critical of council here in:

  1. not calling evidence by way of accident register or other documentation as to the lack of accidents at the rotunda; and
  2. not calling evidence as to the extent of the obligations created by the rotundas heritage listing.
  3. not performing any risk assessment after modifications to the rotunda were made.

Whilst you might have some sympathy for the Council’s position regarding people being able to avoid injury by exercising reasonable care for their own safety on a heritage listed rotunda, it seems the trial judge and consequently the Court of Appeal were ultimately swayed by photographic evidence which suggested that the steps were deceptive in that they appeared uniform from the perspective of a person standing at the top preparing to descend and a risk assessment should have alerted the Council to the problem of the top step being very narrow.