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‘Bad’ slip & fall claims: Examples of ‘losing’ injury claims

When considering bringing a public liability claim for injuries sustained in public places or at work, it’s essential to understand the potential challenges and legal risks involved. Not every claim for personal injury brought before the court is successful. Evaluating the merits of your potential claim early and carefully is critical to knowing whether or not you should make the claim, or whether you’d be better off not taking the risk – saving time, stress, and money.

Slip and fall injury claims can fail due to:

  • a person’s own lack of vigilance causing the injury,
  • the risk of injury being obvious to a ‘reasonable person’ in the circumstances, or
  • where it would be unrealistic to expect a defendant to have taken particular action that could have prevented the injury.

Read on for real life case examples (with photos) where plaintiffs filed public liability claims but lost at trial due to being unable to establish negligence.

Park Safety and Council Responsibilities

In Townsville City Council v Hodges [2023] QCA 136, a plaintiff was injured walking through a council park by stepping into a 5cm deep ‘pothole’ the size of a dinner plate. The pothole was exceedingly difficult to notice as it was entirely concealed by grass. The plaintiff lost balance and sustained a serious leg and ankle injury.

A view from the street of Sherriff Park in Townsville.
Source: Google Street.

The initial trial ruled in favour of the plaintiff, stating that the council failed to adequately inspect the park and fill in the hole. However, the Court of Appeal took a different stance, deciding that the council’s approach, which involved groundskeeping staff reporting hazards and conducting regular inspections, was a reasonable system of inspection. The court concluded that council couldn’t have been expected to have identified the pothole in the circumstances, and that public areas ‘should not be judged by the standard of a bowling green’ (citing the past case of Littler v Liverpool Corporation). As a result, the plaintiff’s claim was dismissed.

This case underscores the importance of assessing the adequacy of a defendant’s risk management procedure and reasonableness of their systems of inspection with regard to the relevant circumstances.

Related: A similar principle applies to reasonable systems of cleaning and inspection in public places – Slipped over at a shopping centre? – The 20 Minute Warning

Dangerous Hazard or No Big Deal?

In Ballina Shire Council v Moore [2023] NSWCA 155, a plaintiff collided with a single bollard while riding an e-bike on a council pathway. Previously, two bollards existed on the pathway, but one had been removed.

Source: Google Images.

The plaintiff argued that the remaining single bollard was a hazard and should also have been removed. The trial judge agreed with this position. However, the Court of Appeal overturned the decision, stating that the presence of one bollard did not constitute an unreasonable hazard and the plaintiff’s claim was dismissed.

A similar proposition was also considered in Belmont v McDonalds Australia Limited [2020] QDC 319. Here, at night, a plaintiff was walking towards the entry of a McDonalds restaurant in Ipswich and stepped onto a yellow-painted cement tyre stop (with both feet), and then fell, seriously injuring her shoulder. She argued that she fell due to the carpark being poorly lit as some of the carpark lights weren’t functioning. Whilst not a claim against a local council, the claim was brought pursuant to public liability legislation all the same.

Source: Google Images.

The court decided that the plaintiff’s injuries were not in fact caused by any negligence, or breach of duty, on behalf of McDonalds. Rather, that she sustained the injuries as a consequence of her failing to pay attention as to where she was walking as CCTV footage showed that she was looking inside her handbag at the time of her fall. It was also determined that despite some carpark lights not working, the lighting was still adequate because the footage showed the plaintiff being able to step up onto the tyre stop with ease (and that even if the lighting was inadequate, the fall still would have been caused by the plaintiff’s own lack of attention to where she was stepping). Accordingly, the court dismissed the claim.

These two cases emphasise the need to evaluate whether a claimed hazard truly poses an unreasonable risk.

The ‘Obvious Risk’ Dilemma

In the case of Blue OP Partner Pty Ltd v De Roma [2023] NSWCA 161, a plaintiff tripped over the following rusted steel utility pit lid and frame on a council footpath:

Checkerplate steel pit lid in concrete path, tripped on by De Roma
Source: Court of Appeal, Supreme Court, New South Wales.

While the plaintiff initially succeeded in their claim, the appeal court determined that the presence of the rusty pit and its surroundings already visually indicated the uneven surface, making it an ‘obvious risk’. The court concluded that a reasonable person should have noticed and understood this risk, and that no additional warnings such as painted lines to highlight the trip hazard were necessary.

This case highlights the challenge of establishing negligence when a risk of injury is considered ‘obvious’.

Relevantly, in Queensland, Division 3 of the Civil Liability Act 2003 sets out that there is no proactive duty to warn of obvious risks, and that anyone injured by such an obvious risk is presumed to have been aware of it. There cannot be a breach of duty in such circumstances.

Failing to Establish a Breach of Duty of Care

In the case of Morris v Evolution Traffic Control Pty Ltd & Anor [2023] QDC 195, a worker lost a trip and fall case when he suffered elbow fractures after tripping over a raised section of roadway while carrying traffic cones at a worksite. He brought a joint common law claim against his employer under the Workers’ Compensation and Rehabilitation Act and against the Department of Transport and Main Roads (TMR) under public liability legislation, i.e. the Personal Injuries Proceedings Act.

Logan and Compton Road - raised bitumen
Source: Google Street (3 years after the incident).

The judge rejected the plaintiff’s argument that the raised section of roadway should’ve been highlighted by fluroscent paint and stated that “the worksite was one where workers expected (and indeed were warned) of different undulations, rises and falls. I am also not persuaded that the precise location where Mr Morris fell warranted fluorescent paint given the scope of the worksite.” The judge was also not convinced that the height of raised section of the roadway constituted a trip hazard at the time of injury because the plaintiff’s liability expert didn’t measure the affected area until about 3 years after the incident. Incidentally, this highlights the need for appropriate and timely liability evidence such as photographs, videos, or otherwise seeking legal advice urgently about how to obtain and protect the necessary evidence.

The court found that the employer was not liable for the injuries as they had taken reasonable steps to ensure workplace safety, including holding pre-start meetings and providing instructions to workers regarding hazards. Additionally, the court determined that the principal contractor, the TMR, was not liable as they had also fulfilled their duty of care to minimise risks.

The case highlights that while employers and principal contractors have a responsibility to provide a safe work environment, their duty does not extend to eliminating all dangers, and they are not liable if they act reasonably in ensuring workplace safety.

What happens when you bring a claim for personal injury and lose?

When contemplating legal action for public liability (such as a claim against the local council), it’s crucial to consider the potential consequences of an unsuccessful claim, such as adverse costs orders from the court. An adverse costs order is an order by the court that requires the losing party to pay the legal costs of the winning party. Such orders exist to promote early, fair and reasonable negotiations between the parties without requiring the limited time and resources of the court.

If your claim is deemed frivolous or brought without merit, you may be held responsible for the other side’s legal expenses, which can be substantial. Therefore, it is essential to carefully assess the strength of your case and consult with legal professionals before proceeding with legal action.

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This commentary is published by Roche Legal for general information purposes only and should not be relied on as specific advice. The content relates to Queensland law only and is subject to change over time. You should seek legal advice for any question, or for any specific situation or proposal, before making any decision.