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South West Sydney pensioner trips over protruding steel pole in carpark is awarded significant damages

Our client was an elderly pensioner who was walking down along a footpath in Bankstown heading to her optometrist for a medical review in January 2014. It was a sunny day and the tree next to a driveway with vehicular access to and from private premises covered the footpath with shade.

Opposite the footpath was a privately owned carpark which was being managed by the defendant. This national company manages carpark sites nationally and had been managing this carpark and were managing agents for the owner for a number of years before the accident.

They allege that they only had to issue infringement notices for people parking illegally and they further alleged that they were under no objection to undertake maintenance or repairs as it was not their carpark.

The carpark management agreement was signed by all parties on or around September, 2010. It was quite a detailed document and in our view, there were a number of causes in the carpark management agreement which placed obligations upon the defendant with respect to the management of the carpark. They included to keep the carpark in a standard of repair required of the agent under the Lease. They needed to make sure that they obey the agent’s reasonable instructions to the beneficial nature of the agent and the owner. They also needed to notify the agent on becoming aware of any required repairs or maintenance of the carpark or of damage to the carpark.

Whilst our client was walking across the driveway tripped over a raised concrete portion of a protruding steel pole and suffered serious injury. It was alleged by our client that the Defendant as occupier of the premises owned our client a duty of care to avoid a foreseeable risk of injury to her and other pedestrians, arising from the physical state of the land it occupied.

The Defendant denied all liability in relation to our client’s claim and in fact, it did not have the care, control and management of the premises at all relevant times. They said that they were under no obligation to undertake maintenance or repairs as it was not their carpark and that if they needed to do any maintenance or repairs they would need to obtain permission from the owners.

The Defendant further stated that they were going to call evidence of what they did at all relevant times and on our part that may have been the case but that is not what the car park management agreement states. In our view the defendant had a duty to report all of these matters to the owners and that they had an obligation to act under the agreement to ensure that that matter was addressed.

Our client suffered a number of serious injuries to her neck, shoulders, hands and lower back as well as psychological sequelae arising from the accident. She did have pre-existing medical conditions but it was alleged that these conditions were severely aggravated by the accident.

In respect of the issue of liability, a liability expert report from a consulting engineer was obtained. Various photographs of the premises were obtained on google going back many years and which clearly showed the presence of the raised concrete/portion of the protruding steel pole had been there for many years without being rectified. In our view it clearly was a hidden trap for walking pedestrians, particularly elderly pedestrians such as our client.

The allegations of negligence included that the risk of injury was foreseeable. It was not insignificant, the harm was likely to be serious, the burden of ensuring that the premises was safe was minimal and the risk of harm should have been avoided by reasonable care on the part of the defendant.

The liability expert report was quite damning of the defendant and found that the trip hazard encountered by our client would have a very high risk classification. Furthermore, the expert’s report stated that the accident could have been prevented by a number of simple measures such as cutting of the bollard so that it was level with the ground and did not form a tripping hazard, restating the bollard for access control to the carpark, painting it with a highly visible colour and using bitumen to bury the protruding bollard remains and cover the surrounding area ramping, the surface to remove the trip step.

The liability expert report provided by the consultant engineer found that the primary cause of our client’s injury was the failure to provide a safe means of access to that area of the carpark where our client tripped and fell and suffered her serious injuries.

We took the view that despite the defendant’s vehement denials of negligence on the liability issue, our liability expert evidence would certainly come through at the end of the day in favour of our client.

In terms of the medical issues, we obtained medical reports from our client’s treating doctors and specialists including her undergoing treatment with various Specialists such as orthopaedic surgeon, psychologists and a neurologist to verify the nature and extent of her injuries and her continuing disabilities.

Our client was medically examined and assessed on behalf of the defendant’s doctors and there were numerous doctors that she attended to for assessment purposes.

On the basis of the medical treatment evidence and the medico-legal assessment evidence, it was our view that our client would receive a substantial award of damages in her favour to compensation her for her injuries, losses and damages.

Her claim was for permanent impairment and pain and suffering, past and future treatment expenses and past and future care. All medical evidence was directed towards addressing each and every head of damage under the claim.

Despite the defendant’s protestations of them not being the correct party, and that there may be other parties involved, we ultimately took the view based upon the evidence and the carpark management agreement that the defendant was the correct defendant and they would be found to be liable at the end of the day with respect to our client’s injuries, losses and damage.

Prior to the matter being listed for hearing, the defendant’s legal representatives approached us for the purposes of having a settlement conference in an effort to settle the claim. After a number of discussions over a period of time, the matter was resolved with our client being awarded a substantial award for damages in respect of her claim.

Conclusion:-

Our client was an elderly lady who was a pedestrian walking along a footpath in Bankstown when she tripped over a raised protruding steel pole which had been on private premises for many years. It had not been removed or rectified so as to reduce and remove the risk of harm to our client.

As a result of tripping and falling over this raised protruding steel pole, our client suffered serious injuries and it was our intention to ensure that she was compensated for her serious injuries, losses and damage arising from the accident. She initially consulted a lawyer in that local area and she did not have the confidence with them to be able to manage her claim. She came to our firm and we pursued the claim vigorously until the end and to ensure that all of the liability and medical evidence was obtained so that she would receive an appropriate award of damages by way of compensation to account for her serious injuries, losses and damages.

If you are a pedestrian either on private or public property and you suffer a slip and fall or a trip as a result of the presence of a dangerous object on the floor and you suffer an injury in the process, you may have a claim in negligence against the owner and occupiers of the premises for their failure to undertake the appropriate care, control and management of the premises at all relevant times.

It is our view that with the benefit of liability and medical expert evidence, you may be able to receive a substantial award for damages to account for your significant injuries, losses and damage.

Please feel free to contact us for advice and discussion of your matter and to review all available legal options that you may wish to consider in respect of the circumstances surrounding your accident.

For a free no obligation consultation, please contact us on our toll free number 1300 768 780 so that an appointment can be arranged for you to attend to protect your legal rights in the matter.

© 2021 
Gerard Malouf & Partners
 — Personal Injury Compensation Lawyers

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