Trips and slips on outdoor ground surfaces are regularly the subject of personal injuries litigation in Australia. Such surfaces are subject to wear and tear and damage by the elements, creating hazards to entrants. Occupiers should conduct routine inspections of outdoor ground surfaces to identify hazards, but how does an occupier then assess which hazards require rectification?

In this article, Special Counsel Anna Hendry discusses the factors an occupier ought to consider when evaluating the safety of ground surfaces at their premises by reference to recent case law.

In Monash University v Savage and Anor [2018] VSCA 156, the Victorian Supreme Court of Appeal was required to consider the liability of an occupier to an entrant who stepped into a hidden depression on a pedestrian crossing. The Court of Appeal upheld the trial judge’s finding that a reasonable occupier would have replaced the pedestrian crossing surface with either concrete or bitumen before the incident occurred and therefore found the occupier liable for the entrant’s injury.

The facts

The entrant was a security officer who worked at the occupier’s premises (but was employed by a different organisation). She usually parked her car in the occupier’s carpark and walked from the carpark to her office. This involved crossing a two lane carriageway within the occupier’s premises via a designated crossing. The crossing included a median strip area, the surface of which comprised crushed granite (known as a Dromana topping). As the entrant was crossing the median strip, she stepped in a puddle and rolled her ankle. She gave evidence that the puddle concealed an uneven area and that she could not avoid the puddle because the entire median strip was covered in puddles. The entrant was wearing steel cap boots at the time.

The trial judge found:

  • The median strip was a high foot traffic area, with approximately 5,000 to 6,000 pedestrians traversing the area each day.
  • The median strip was one of only three at the premises that had a Dromana topping. This topping was used to allow better access for vegetation roots on the median strip.
  • The Dromana topping could become uneven due to high traffic and rainfall.
  • After heavy rainfall, depressions in the Dromana topping would be concealed by puddles until the water had permeated the soil surface, causing the depressions to be hidden.
  • Within a few weeks of the entrant’s injury, the occupier arranged for the median strip to be concreted at a cost of $2,575, a cost which was found to have been of “no real significance”.
  • There had been a number of tripping or falling incidents on the median strip caused by deficiencies in the surface.

The findings

The occupier attempted to draw an analogy between this case and the matter of Neindorf v Junkovic [2005] HCA 75 in which the High Court of Australia found that a differential in the surface level of a concrete driveway which caused the plaintiff to trip, constituted a hazard of a type which was common and obvious and which would involve unreasonable cost to rectify in the context of a private house.

The trial judge and Court of Appeal rejected that argument, finding instead that a reasonable occupier would have installed bitumen or concrete median strip before the incident, having regard to the following factors:

  • It was a high foot traffic area which, in itself, contributed to the degradation of the median strip surface.
  • The degradation of the surface, followed by rainfall, created an occasional and hidden hazard to pedestrians. The court distinguished this from a permanent and obvious hazard.
  • The hazard and the occurrence of tripping or falling as a result of the hazard was known to the occupier before the incident.
  • The hazard had the potential to cause serious injury including fractures.
  • Although the number of incident reports regarding tripping or falling in that area was low compared to the traffic volume, this data may not have been reliable as not all incidents may have been the subject of a formal report.
  • The cost of rectifying the hazard was insignificant to the occupier.

What can you do?

An occupier who identifies a ground surface hazard should consider the following:

  • Is the hazard unchanging and obvious or is it occasional and hidden?
  • What is the volume of pedestrian traffic in that area?
  • Do pedestrians typically traverse that area in a hurry or while carrying items?
  • Is there sufficient lighting in the area?
  • What steps would eliminate the hazard and what is the cost of those steps in comparison to the budgetary constraints of the occupant?