Woman loses civil liability fall case against Botany Council

Date: Oct 19, 2017

A woman has failed in her compensation case against the Botany Bay Council for perceived negligence in failing to maintain a road under the council’s care.

In June 2011, the woman tripped and fell at an intersection in the Botany area, injuring her elbow and back in the process. She consequently brought legal action against the council for negligent maintenance of the road, which she felt caused her fall. The Botany Bay Council denied that the fall caused her subsequent serious back pain, and also strongly denied any negligence in road maintenance or sign posting.

What is the Botany Bay Council’s duty of care?

Bound under the NSW Roads Act (1993) and the Civil Liability Act (2002), the council is charged with the proper maintenance and sign posting of the area’s roads and transport networks. This includes regular maintenance of these networks to ensure safe driver and pedestrian access, as well as a duty of care to adequately make all users aware of any ongoing changes or maintenance.

Why did the woman claim negligence in the council’s duty of care?

When the women tripped and fell, she claimed that she did so because the road was in a dangerous state of disrepair. She also claimed that there was no attempt made to indicate the apparent state of disrepair. It is the council’s duty of care to ensure that the woman has safe access on road networks, or if not possible, to adequately warn her about hazards that may affect her movements.

Why did the woman fail to gain any compensation?

In making her case for compensation for her injured back, the woman had to prove that the road was too dangerous for access. However, a prior case of accused negligence in road maintenance states this ‘does not mean merely that it could possibly be an occasion of harm.’ This covers a range of factors, like uneven surfaces or slopes.

Additionally, the Botany Council were able to prove that they were protected by Section 45 of the Civil Liability Act (2002). This covers defendants from civil liability claims when pertaining to roadworks that might have needed to be but weren’t carried out – unless the defendant had prior knowledge of a definite hazard that could occur as a result of failing to perform maintenance.

Because the council were able to prove that the perceived lack of maintenance didn’t create inherently dangerous conditions, the woman’s claims were rejected.

Just because this woman was ultimately unsuccessful in her case, that doesn’t mean you should accept that individuals don’t stand a chance in court. Negligence and civil liability is a complicated area of NSW legislation, and requires an experienced hand guiding you through. If you feel you have been the victim of negligence or injury, please contact Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers for a free consultation.

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