Court dismisses plaintiff’s public liability claim over misleading evidence

Date: Nov 22, 2018

Public falls are a common theme of liability cases in the NSW court of law – however, not all outcomes are those desired by the applicant. As the below case shows, plaintiffs must fact check completely and have a diligent lawyer on hand to increase chances of success. 

Background of the case

On 16 April 2014, the plaintiff fell over outside his house. He alleged he put his foot onto the curb after stepping over a protruding tree root, which caused him to fall forward and land on the path. He later sued Sydney Council, claiming the fall was caused by a failure to take precautions against the risk of harm.

As part of the plaintiff's claim, an engineer was introduced to assess the curb and tree root. Photographs taken by the engineer featured the exact site where the accident occurred – all of which were directed by the plaintiff himself. 

Assessing the evidence

While the plaintiff claimed he fell on the ridge of the root, all photographs and reports suggest he fell north of the ridge which had no contact with the tree root.

Additionally, all reports and photographs were solicited by the plaintiff and his team, and at no point during assessment did they correct any potential errors. The plaintiff was also involved in an interview where on several occasions he confirmed he had correctly told his versions of events.

Findings on liability and duty of care

After reviewing all evidence, the court rejected the plaintiff's oral evidence on the grounds that his story didn't make logical sense. The photograph errors also helped form this decision.

However, in liability cases like these, the court must refer to the Civil Liability Act 2002 (NSW) to determine duty of care and breach of duty of care. 

While the plaintiff's version of events were questioned, he did fall – leaving the court to address whether the defendant breached its duty of care. While the council has a degree of duty of care towards pedestrians, individuals are also responsible for their own safety and should be on the lookout for imperfections on a walking surface.

After confirming that the width of the curb was at the standard measurements, the area had never previously been a problem to other pedestrians, and there was no significant risk of injury, the submission was rejected.

As the plaintiff failed in his negligence claim against the defendant, the case was dismissed, and the plaintiff ordered to pay the defendant's costs. 

If you're in the midst of a public liability battle, enlist the help of the experts. Get in touch with the team at Gerard Malouf & Partners to see how we can help submit a claim for compensation.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.