The fortunes of those pursuing footpath claims take another tumble29 February 2016 | Public & Product Liability
The Western Australian Court of Appeal has recently upheld the dismissal of a plaintiff’s claim for damages as a result of a trip and fall on a footpath.
The decision is another in a consistent line of authority to confirm that these matters remain difficult for plaintiffs to win, and that local authorities have recourse to the civil liability legislation in Australia (as it varies between the states) as a complete defence to claims.
In Rankilor v City of South Perth  WASCA 29, the plaintiff alleged that she tripped on a raised edge of a paver in a footpath and fell. It was alleged that the paver was displaced due to the presence of tree roots, and that a tree cast a shadow across the footpath. The plaintiff sustained multiple soft tissue injuries and ‘emotional distress’.
The plaintiff had been walking with a friend, who did not witness the fall. The friend had been walking in front of the plaintiff, heard a noise, and turned to see her lying on the ground. He noticed that one of the paving slabs was raised about an inch above the adjoining slab.
The plaintiff was unsuccessful at trial.
The trial judge found that the paver was protruding 20mm to 25mm higher than the adjoining paver due to tree roots, that there was shade on the footpath, and that the weather was fine at the time of the incident.
The defendant Council owed a duty to keep the footpath reasonably safe for ordinary use and to avoid foreseeable risk of injury to pedestrians such as the plaintiff. The scope of the duty did not extend to ensuring the safety of pedestrians in all circumstances, or to providing a perfectly even footpath.
There was no evidence that Council had knowledge of the ‘defect’ in the footpath. Council’s inspection and maintenance regime was found to be reasonable. Failure to repair the defect was not unreasonable when the evidence established that Council was not aware of it.
The plaintiff failed to establish breach of duty on the part of Council. Relevant factors in that finding included the obviousness of the uneven paver, the low probability of a person falling and minimal seriousness of harm from a fall, the burden on Council of inspecting and maintaining significant amounts of footpaths and tree roots, and the lack of evidence of an alternate system of such inspection that would reduce the risk.
The trial judge found that the path was reasonably safe for ordinary use, and that the plaintiff failed to establish that a reasonable person in Council’s position was required to do anything in circumstances were they had no notice of the particular defect. In light of the finding that Council was not aware of the defect, Council was also therefore able to rely on section 5Z of the Civil Liability Act 2002 (WA) in defence of the claim.
Section 5Z provides that a road authority is not liable in proceedings for harm arising from a failure by the authority to maintain or inspect a road, unless the authority had actual knowledge of the defect. It was accepted that the footpath fell within the definition of a road. As the trial judge found no such knowledge, the defence available in section 5Z was triggered.
The risk posed by the uneven paver was also found to be obvious, and the plaintiff should have known that the surface may be uneven, with this being a common occurrence on footpaths. The Council was entitled to expect that pedestrians will use reasonable care by looking where they are walking. This resulted in a finding of 50% contributory negligence that would have applied in the event liability had been established.
There were a number of grounds of appeal. These included challenges to the acceptance of Council’s evidence about its inspection regime and the finding that Council did not have actual knowledge of the defect. The grounds said to be at the ‘heart’ of the appeal were that the trial judge erred in finding that the uneven paver was obvious to a person taking reasonable care, and the rejection of the evidence that the unevenness was not visible due to the shade cast by adjacent trees.
The plaintiff failed on each ground. Council defended its inspection regime as reasonable. From an evidentiary point of view, the Court of Appeal found that the trial judge was entitled to accept the oral evidence of Council officers regarding inspections, without supporting documentation. That evidence had been that inspections had occurred 12 to 14 months prior to the incident and no defects requiring action were noted.
The Court of Appeal did not find it necessary to consider the trial judge’s findings in relation to section 5Z or contributory negligence.
Local authorities in different states might carry out their responsibilities for infrastructure such as footpaths in a variety of ways. This matter provides another example of a local authority establishing the reasonableness of its actions and a finding of no breach of duty. Where lack of inspection or repair is in issue, the complete defences for road authorities in the civil liability legislation provide a further barrier to a successful claim. In each state, the definition of ‘road’ and associated terms for the purposes of the civil liability legislation will differ. The trial judge was satisfied in this instance that section 5Z was triggered.
It is again a timely reminder that ‘the world is not a level playing field'.
 Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council  HCA 29