In light of the recent ACT Court of Appeal judgment relating to a ‘slip and fall’ accident in the ACT and our article covering that judgment, this article discusses a ‘trip and fall’ accident which occurred in NSW. Although the facts and mechanism of the accident are different in the NSW case, both cases turned on the rules of negligence.
In this case, the claimant slipped on the first of three steps on a stepped pathway in a park in NSW. At the time of the accident, he was working as a disability worker accompanying one of his clients. The path was straight and led directly down a hill to a toilet block, and included three separate, single steps each with a rise of 16cm. The claimant brought negligence proceedings against the respondent, the local council, in the NSW District Court. The matter proceeded to trial and the District Court was tasked with determining, among other things:
[W]hether there were sufficient visual or other cues provided to alert a pedestrian who was taking reasonable care for his or her own safety to the presence of a single step when descending the stepped pathway from the carpark to the toilet block on a day when the path was shaded.
The District Court found that a reasonable person in the position of the respondent council would have taken precautions to improve the visual cues of the presence of the steps. By way of example, the respondent council had in fact painted the nosing of the steps yellow after the accident. The District Court also found that there was a ‘real risk of falls having regard to the nature and location of the pathway’. Therefore, the District Court held that the respondent council was negligent in these circumstances.
The District Court also held that the claimant’s own negligence contributed to the accident, and made a deduction of 15% for contributory negligence.
The claimant was awarded $619,910.51 in damages.
Appeal to the NSW Court of Appeal
The respondent council later appealed to the NSW Court of Appeal. In essence, it argued that the respondent council had not been negligent. The claimant also appealed to the NSW Court of Appeal, arguing that the District Court should not have deducted 15% for contributory negligence.
The Court of Appeal was comprised of three Judges, who each delivered separate judgments. Ultimately, the Court of Appeal dismissed the respondent council’s appeal and upheld the claimant’s appeal. The Judges all agreed that the appeal by the respondent council should be dismissed, and in particular stated in relation to the outcome of the case, it was significant that:
- the trial judge found the [claimant] to be a witness of credit who maintained that he was taking care when descending from the carpark to the toilet block and was not distracted by his client; and
- the experts agreed that single steps presented a particular hazard because they could be missed by pedestrians who were adjusting both their gait and the regularity with which they monitored the surface of the ground beneath their feet after reviewing the scene generally.
However, the Judges were split 2-1 in upholding the claimant’s appeal in respect of contributory negligence.
McCallum JA, who is now the Chief Justice of the ACT Supreme Court, delivered a judgment with which Simpson AJA agreed. In particular, her Honour stated that if it was accepted that the step was not readily visible to a person who was exercising reasonable care for their own safety, it was necessary to identify some basis for the conclusion that the claimant failed to perceive the step because he wasn’t exercising reasonable care. Relevantly, her Honour stated that a person is not negligent in failing to take precautions against a risk of harm unless, among other things, a reasonable person in the position of the claimant would have taken those precautions. Her Honour found that the evidence did not in fact support a finding that the claimant failed to take a precaution that a reasonable person in his position would have taken. For example, he:
- was not running or looking sideways;
- was not distracted by his client;
- had made a visual assessment of the nature of the surface on approach; and
- was walking straight ahead with the perception that he was walking down a path with no steps.
The outcome as a result of the appeals in these two respects was that:
- the finding of negligence on the part of the respondent council was maintained; and
- the claimant was not held to have been contributorily negligent so there was no 15% deduction to the claimant’s damages.
Although this accident occurred in NSW and the Court of Appeal applied NSW legislation, many of the applicable legal principles are similar or the same as those applied in the ACT.
How can we help?
Slips, trips and falls are very common and it can be difficult to understand your rights to compensation in circumstances such as those outlined in this article. Fortunately, the personal injury team at Snedden Hall & Gallop Lawyers can advise on negligence and other personal injury claims.
If you have been injured and you would like to discuss your entitlements, get in touch with the team at 02 6285 8000 or by email.
 The claimant appealed on a further issue relating to the law of vicissitudes and a discount applied to economic loss, but this is not addressed in this article.
 This article does not consider Adamson J’s dissenting judgment on this issue.