In June 2011, the plaintiff tripped and fell while crossing an intersection in Rosebery, NSW. She sought to recover damages from the City of Botany Bay Council (Council) due to its alleged negligence in failing to adequately maintain the road where she fell. The Council relied on section 45 of the Civil Liability Act (CLA).

The negligence with which the plaintiff’s claim was concerned related to the Council’s failure to repair the road in which she fell, the Council having control of that part of the road and, as a result, owing her a duty of care. Her Honour (Justice Schmidt) was satisfied that the Council had control of the road where the plaintiff fell and, accordingly, was entitled to rely on section 45 of the CLA.

The plaintiff’s evidence was that the road in 2011 was in a dangerous state of disrepair. Her Honour was not convinced that the plaintiff had met the onus which was imposed on her. According to her Honour, the plaintiff’s fall alone could not establish either that where she fell was dangerous or that the Council had breached its duty to her. Her Honour stated that:

‘not every trip and fall is the result of someone else’s negligence, let alone the result of a danger in the surface on which the fall occurred’.

Ultimately, her Honour was not satisfied that the evidence established that the road was dangerous or that it was the state of the road, rather than a misstep, which caused the plaintiff to fall as she did.

In addition, her Honour considered that the evidence did not establish that the Council breached its duty of care to the plaintiff. According to her Honour, the risk posed by the uneven road surface was physically obvious to pedestrians such as the plaintiff. The fact that pedestrians had to keep an eye out for cars crossing the intersection did not alter that fact. In that regard, the Council had no duty to warn pedestrians who crossed the intersection of its obvious state. Her Honour also considered the absence of any complaint to the Council regarding the state of the road until 2014 as powerful evidence that the Council was not in breach of its duty of care to the plaintiff in 2011.

Her Honour ultimately concluded that the fall was either the result of the plaintiff’s failure to take reasonable care of her own safety, or mischance for which no one was responsible. Her Honour considered that even if the plaintiff had established that there had been a breach of the duty of care the Council owed to her, then the application of section 45 of the CLA would have resulted in the plaintiff’s claim failing. Her Honour held that it was for the plaintiff to establish that the Council had actual knowledge of the particular risk which materialized in 2011 and her Honour did not consider that the plaintiff had established this.

In terms of contributory negligence, her Honour noted that if the plaintiff had succeeded against the Council, her Honour would have assessed contributory negligence at 80% on the basis that she failed to take care for her own safety.