The NSW Court of Appeal considers whether steps in a public park is an obvious risk?

In the recent case of Wollongong City Council v Williams [2021] NSWCA 140, the NSW Court of Appeal considered the duty of a Council to entrants of a public park.

Principles


  • An occupier of a park owes a duty to take reasonable care to avoid the foreseeable risk of harm to a lawful entrant who is using reasonable care for his or her own safety.
  • The determination of whether a person has been guilty of contributory negligence is to be assessed objectively. This is to be assessed by determining whether the plaintiff has taken a degree of care for his or her safety that an ordinary reasonable person would have taken.
  • A finding that a plaintiff exercised reasonable care for his or her own safety does not exclude a finding of contributory negligence if he or she had been more diligent.

Background

Bernard Williams (the plaintiff) commenced proceedings in the District Court of NSW against Wollongong City Council (the defendant) claiming damages for alleged negligence as owner and occupier of the park.

On 17 May 2016 the plaintiff fell on the first of three steps on a stepped pathway in Mt Keira Summit Park. At the time of the incident, the plaintiff was employed as a disability worker with the "House with No Steps", and was accompanying one of his male clients to the toilets.

The plaintiff gave evidence that he simply did not see or perceive the first step as he approached the toilets from the carpark, which was accepted by the primary judge. The plaintiff also provided expert evidence which opined that “there were not sufficient visual cues in existence as to the steps on the day of the accident to provide a reasonable indication of them to users who were exercising reasonable care for their safety”. Accordingly, the primary judge found the defendant to have been negligent.

The primary judge also found that the defendant had established contributory negligence on the part of the plaintiff, that is, the plaintiff was aware of the steps and other uneven surfaces in the park by his own evidence. The primary judge accepted the defendant's submissions that the plaintiff did not do what a reasonable person would do, which was “to continue to monitor, not look at your feet only, not stare fixedly at the ground, but as you're moving off the asphalt on to the pavers, to continue looking”. Contributory negligence was assessed at 15%.

The primary judge also applied a discount of 10% in respect of the plaintiff's claim for economic loss to reflect his comorbidities and his family's health issues that he may have retired early.

The defendant appealed the primary judge's findings on liability. The plaintiff cross-appealed the primary judge's findings on the reduction of damages on account for contributory negligence and reduction of past economic loss.

Decision

The Court of Appeal upheld the primary judge's decision and found that a reasonable person in the defendant's position would have taken precautions which had been outlined by both Dr Cooke (defendant's expert) and Mr Adams (plaintiff's expert) to improve the visual cues of the presence of the steps, i.e. yellow paint on the nosing of the steps.

Although the court noted that it was not probable that falls would occur if the precautions had not been taken, the defendant ought to have been aware that risk of injury was still foreseeable having regard to the nature and location of the pathway. Furthermore, the risk posed by the stepped pathway was not a risk that would have been obvious to a reasonable person in the position of the plaintiff at the time of the accident, who had not used that pathway before.

In dismissing the Appeal, the court turned to the cross-appeal on whether the primary judge erred in finding that the respondent's damages ought to be reduced by 15% for contributory negligence and 10% for past economic loss.

McCallum JA and Simpson AJA disagreed with Adamson J and found the evidence did not support that the plaintiff had failed to take precautions that a reasonable person in his position would have taken. The majority of the court also did not accept the finding that the plaintiff would have retired early irrespective of the incident due to his comorbidities.

Why this case is important

This case is important as it reminds us what is required by an occupier of a park is not a duty to keep the path safe in all circumstances for entrants but rather, to take reasonable steps to ensure the path is safe for users exercising reasonable care for their own safety.

This case also reaffirms that the plaintiff's knowledge of the risk is relevant in determining contributory negligence, pursuant to s 5R of the CLA applying the principles in s 5B of the CLA.

It is important to remember that in assessing damages for economic loss the court has to take into account the degree of probability of events occurring.

Contributors

Jessica Guindi Lawyer