Barry.Nilsson. recently successfully defended a claim against Brisbane City Council by establishing that the plaintiff's injury was not, as alleged by her, sustained when her foot became entrapped by a protruding object in a park.
- Whether the plaintiff’s injuries were sustained in the manner alleged.
Helen McAllister (the plaintiff) sought damages for personal injuries that she sustained as a result of an incident at the Forest Lake Parklands on 17 September 2012. The plaintiff alleged that she was at the parklands with her three-year old daughter when her daughter lost control of the bicycle she was riding, left the footpath and began to travel downhill towards the lake. The plaintiff ran after her daughter. She alleged that as she stepped off the path her right foot became wedged, causing her to lurch forward. The plaintiff alleged she sustained spiral fractures of her left tibia and fibula as a result of the incident.
The plaintiff conceded under cross-examination that she did not see at the time what caused her foot to become trapped. She testified that when she next returned to the parklands some 9 months later, she saw the top of a wooden post protruding above surrounding soil near the side edge of the footpath. She deduced at that time that her foot had become trapped between the top of that post and the edge of the path. The plaintiff alleged that Council was negligent in failing to identify the presence of and remove the wooden post.
Council denied the plaintiff’s version of events and submitted that the injury was instead sustained whilst the plaintiff was attempting to retrieve her daughter from the lake. Council relied on contemporaneous medical records and witness evidence from the paramedic and emergency department nurse who tended to the plaintiff following the incident, which suggested that the injury was sustained when the plaintiff fell into the lake. Council also adduced expert evidence from an orthopaedic surgeon that it was extremely unlikely that the plaintiff could have continued to ambulate towards the lake over a rough 10 metre decline after sustaining spiral fractures to her tibia and fibula. Council also adduced evidence from a soil erosion expert that it was highly unlikely that the wooden post was exposed at the time of the incident. In his opinion, that post was exposed by erosion during the above-average wet season which commenced two months after the plaintiff’s injury was sustained.
Council also, in the alternative, denied that it had breached its duty of care on the basis that no reasonable inspection would have identified the presence of the timber post.
Decision at trial
The trial judge was not satisfied that the wooden post played some role in causing the plaintiff’s injuries, nor was he satisfied that the top of that post was exposed at the relevant time. Based upon the evidence before the court, the trial judge found that it was more probable that the plaintiff sustained the injury whilst entering the lake.
The plaintiff’s claim was dismissed.
Implications for you
The onus is on the plaintiff to satisfy the court as to the truth of its allegations. Defendants should endeavour to introduce doubt wherever possible, as a well coordinated attack on the plaintiff’s version of events can be sufficient to derail a claim.