On 27 February 2016, a woman accompanied by her son was traveling on a footpath outside 2-14 Meredith Street in Bankstown, New South Wales, and sustained a fall. The plaintiff filed a claim of negligence against Canterbury-Bankston Council, alleging a Telstra pit had a crack or gap around the pit and surrounding concrete, causing her to trip and fall. NSW District Court only recently ruled on the matter, with results some might find surprising.
The plaintiff pleaded that the defendant was the owner, manager and controller of said pit, and as such had the duty of care to ensure the pit and its surroundings were maintained properly, so as to ensure there would be no hazard for pedestrians walking in the area.
The defendant denied that it was the owner, manager and controller of the pit and as such denied duty of care, but admitted to having the care and control of the footpath. However, the Council claimed that the duty owed to the plaintiff was to assume reasonable precautions against a risk of harm that might cause foreseeable injury, subject to the plaintiff taking reasonable care for her own safety.
The claim was dismissed in a ruling announced 20 December, as the court found that the evidence submitted by the plaintiff was insufficient: There was no clear proof that there was clear risk of which the defendant knew or ought to have known, and the court determined any risk connected to the pit was insignificant.
Additionally, the court was not satisfied that a reasonable person in the defendant’s position would have taken any precautions against a risk of harm, and found that the probability that harm would occur if care were not taken was significantly low, minimising real likelihood of the plaintiff sustaining serious bodily injury.
The court noted that if a risk had been found and it could be proven the defendant was aware and could have mitigated it, and that the hazard was significant (with a chance of severe bodily injury), an award of around $45,000 could have potentially been made. The plaintiff would have had to do a more thorough job of documenting the incident, or find other witnesses who had also suffered falls due to the pit. As it stood, the court found for the defendant and the plaintiff was ordered to pay all court costs.
For any public liability claim, it’s best to seek legal counsel. If you believe you might have such a claim, contact the legal experts at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers.