On 12 April 2011 the plaintiff and her partner were walking in an easterly direction along Coward Street, Botany on a northern footpath. The footpath surface was comprised of brick pavers. The plaintiff tripped and fell heavily, fracturing her right wrist, chipping her tooth and bruising her face.
The plaintiff alleges that the paves in the area and where she slipped were raised and not flushed with each other. The fact that there were raised and uneven pavers was ought to be have known by the defendant, Council, and that her loss and damage was caused by the defendant’s negligence and not correcting their irregular pavers.
The footpath in the area of the north eastern corner at the intersection of Coward Street and Botany Road comprised bricks or brick pavers. At intervals there were trees in the footpath around which brick pavers had been laid.
The plaintiff took photographs after the incident confirming that there was a line or lines of yellow paint on the pavers around the tree nearest to that intersection. It was common ground that the yellow paint existed at the date of accident.
After the incident barriers were placed around the tree by the Botany Bay City Council and subsequently the Council have repaved that area.
There were numerous letters prior to this incident and emails off complaint made to the Council about the state of the footpath in various places on Coward Street. None of the emails nominated the precise area where the plaintiff fell, but all have a common thing that the footpath in numerous places were uneven and potentially dangerous to walk on in ranging dates from 2004 until 2010.
The fact that other falls had been reported is relevant to the issue of the breach of duty of care and the reasonable forcibility of injury.
It appears both from these complaints and the various photographs that were tendered to the court, that areas of broken or damaged footpath occurred in the vicinity of large street trees which lie on the edge of the footpath and that the roots of these trees can cause deflections and the footpath was known to Council.
The plaintiff’s solicitor obtained a report from a consultant which confirmed that several pavers had been lifted by a notable amount by the tree roots.
The defendant here relied on section 45 of the Civil Liability Act which in effect required the Council to have actual knowledge of the particular risk and the materialisation in which resulted in the harm. The court found that the Council was negligent because of their failure to expect or observe the raised pavers.
However the Council argued that section 45 of the Civil Liability Act requires proof that not only was there knowledge in the relevant officer that a tree root was causing a problem, but the person must also have known that the pavers were not flush with each other. The defendant went so far as to say that “actual knowledge” meant that the relevant person had to have knowledge of the precise paver upon which the plaintiff tripped.
The court found that in order for the Council to fall outside the protection forwarded by Section 45, it has to have “actual knowledge” of the particular risk and the materialisation of which resulted in the harm that arose from either the failure to construct a footpath appropriately or to carry out inspections of the footpath.
The court found that in the present case that the turning point is whether the Council had actual knowledge of the risk which resulted in harm that materialised. The risk was that by constructing the footpath as it was, with large street trees in a hard paved path, areas of paving would be lifted and moved as a result of the growth of tree roots and by not regularly inspecting a footpath for uneven pavers and carrying out time to repair, the person such as the plaintiff might trip and be injured.
In this case the court found that the Council knew from a series of the continuous complaints that there were problems with the footpath in Coward Street.
The court found that there were problems with the footpath as a general matter they also knew that large street trees caused problems on the footpath by the growth of their roots. To the extent that the construction of the foot path in Coward Street in the vicinity of the complaints closest to the side of the plaintiff’s fall included large trees and pavers, in my view they ought to have known of the risk.
The court also found that the Council did not have regular inspections nor a programme of maintenance.
The court rejected the defendant’s contention that the relevant officer of Council had to have actual knowledge of the precise paver on which the plaintiff tripped. To interpret the section in that way unreasonably narrows its operation and it could not have been intended.
The crucial finding here is that the court found that it would not be unreasonable to define the area around a street tree which has a radius measured as a distance between the tree or nearest building or boundary, applied in a semi circle.
The court found that in the vicinity of the area identified by the plaintiff as the area where she tripped, there was a paver or pavers that did not sit flush with each other. The court found that the Council had received many complaints of lifted pavers in Coward Street in the years before the plaintiff’s accident and that it knew, or ought to have known, that a particular hazard was a risk of occurring.
The court inferred that the Council knew that the tree roots in Coward Street were presenting an actual problem to the hard paved foot path and, in particular, the presence of yellow paint around the tree adjacent to the place where the plaintiff fell, tendered to reinforce the courts view that the Council had actual knowledge of the particular risk and the materialisation of which resulted in the harm.
This trip fall public liability case created new law and it expanded the definition of knowledge not to be so specific and narrow as to a particular Council officer and to a particular paver but to the area in general.
As a result of the efforts of Leslie Abboud, Senior Solicitor, we were able to obtain a Judgment for the plaintiff in the sum of $87,167.84 plus costs. This Judgement will have significant implications for Council’s in NSW and to the question of knowledge.
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