Case note: Hornsby Shire Council v Salman [2024] NSWCA 155
Ms Salman (the Plaintiff and Respondent) sued Hornsby Shire Council (the Defendant and Appellant) for damages for personal injury after falling on a playground surface at Lessing Park on 28 February 2021. This decision is significant in trip and fall case law, insofar as it deals with the obligations owed by local councils to public playground entrants, where there is a known trip hazard.
Background
On the last day of Summer in 2021, Ms Salman attended a family barbecue at a children’s playground in Lessing Park, Hornsby, NSW. When walking towards a swing-set to accompany her nephew using the swing, Ms Salman slipped and fell. This occurred while she was transitioning from the mulched surface (surrounding the swing-set) to the spongy-rubber (wet-pour) surface (directly beneath the swing-set). As a result of her fall, Ms Salman sustained fractures to her right ankle and leg, strain symptoms to her mid and lower back, along with injuries to her left ankle and foot.
In the seven (7) months prior to the accident, the Council had received two (2) reports from Playfix advising it that the mulch area was too low and that it needed to be replenished and built up to the level of the wet-pour area “to eliminate any trip points created by the low level”.
Ms Salman acknowledged that she was not fully attentive to her walking path at the time of the incident as she was focusing on and distracted by her nephew. However, she nevertheless asserted that the unevenness between the mulched and wet-pour area was the primary cause of her loss of balance and subsequent fall. In this regard, she alleged that the Council breached its duty of care and that the actions the Council could have reasonably taken to have prevented her injuries included:
- Extending the wet-pour area across all of the soft-fall section covering the playground.
- Highlighting the height difference between the mulch and the wet-pour.
- Responding to Playfix reports received about the low level of mulch by replenishing the mulch.
Although the Council admitted responsibility for the care, control, inspection, management and maintenance of the Lessing Park playground, it denied liability in nearly every other respect. The Council also raised the defence of obvious risk and alleged contributory negligence on the part of Ms Salman.
Decision at first instance
Ms Salman was successful at first instance with Abadee DCJ finding that:
- The Council was negligent in failing to take reasonable precautions against the risk of harm, causing Ms Salman’s injuries. The reasonable precautions that it should have taken included:
- replenishing the mulch;
- painting the slope part of the spongy surface to warn of the unevenness between the spongy surface and the mulch.
- The risk of harm was not obvious.
- Ms Salman was contributorily negligent and a discount of 15% to the damages was appropriate.
The Council was ordered to pay Ms Salman $283,200 in damages plus costs.
The Council appealed the decision to the New South Wales Court of Appeal.
Key issues on appeal
The key issues for determination in the NSW Court of Appeal with respect to liability concerned:
- The Council’s alleged negligence.
- Characterisation of the ‘risk of harm’ under the Civil Liability Act 2002 (NSW), including whether the risk was ‘obvious’.
- Interpretation of the term ‘trip hazard’ under the Australian Playground Maintenance Standards.
Decision on appeal
The NSW Court of Appeal ruled in Ms Salman’s favour, dismissing the appeal. The leading judgment was written by Adamson JA, with White JA agreeing (and Basten AJA dissenting).
Why the appeal was dismissed
The key reasons the appeal was dismissed are summarised as follows:
- Risk of Harm: The risk of harm was appropriately identified by the trial judge as the risk of someone falling and sustaining injury while walking between the mulch and wet-pour area of the playground. The Court of Appeal accepted this formulation as being neither too broad nor too precise.
- Obvious Risk: The Court of Appeal concluded that the height difference between the playground surface levels was neither obvious nor readily discernible in all the circumstances. While Ms Salman may have noticed the surface level height difference had she been paying closer attention, this alone was insufficient to establish the defence. In disposing of the defence of obvious risk, the Court considered the following factors:
- It was foreseeable that pedestrians approaching a playground would likely be focused on (or distracted by) a child rather than their footing, as Ms Salman was.
- Ms Salman had not visited Lessing Park playground before, and had only been there for approximately one (1) hour prior to her fall.
- Ms Salman’s incident was the first of its kind; there was no evidence of the risk ever materialising in Lessing Park playground or other similarly-designed playgrounds controlled by the Council.
- Playfix’s reports classified the surface level height difference as a “tripping hazard” given it was not obvious and relatively hidden to pedestrians.
- Failure to take Reasonable Precautions: The Court of Appeal affirmed that the Council ought to have taken the precautionary measure of replenishing the mulch, and its failure to do so amounted to negligence. It determined that regular routine inspections of the condition of the mulch should have been conducted, with subsequent replenishment where required to ensure level surfaces. Playfix advised the Council on two (2) occasions in late 2020 that the mulch level at Lessing Park playground was low and needed to be replenished to the level of the wet pour area to eliminate any trip points. Despite this, the Council did not act on such advice. The Court concluded that had the Council followed Playfix’s advice and levelled the surfaces, the risk of harm would have been reduced, potentially preventing Ms Salman’s fall.
- ‘Trip Hazard’ under Playground Standards: The Court of Appeal held that surface unevenness, including height variations, can constitute a ‘trip hazard’ for the purposes of the Australian Playground Maintenance Standards. It found no reason to suggest that the Standards differentiate between tripping in its narrow sense (foot striking an obstacle) and broader application (false stepping). Given this and because the Council failed to challenge Ms Salman’s expert’s opinion that the Standards applied at trial, the Court affirmed that the Council was negligent in failing to maintain the mulch area in accordance with the Standards, as the playground surface was not free from tripping hazards.
- Actions not required: The Court of Appeal did not accept that the Council should have painted the sloped edges of the spongy-rubber area to warn playground entrants of the surface unevenness, because the allegation was raised for the first time in closing submissions at trial, was not a particular of negligence against the Council. Also, there was no evidence as to the practicability of painting the surface. While Ms Salman contended that the Council should have surfaced the entirety of Lessing Park playground with spongy rubber as it had done at other parks in its municipality, the Court of Appeal found that this design choice was not negligent but rather a standard practice in park design.
Conclusion
In short, the inherent nature of the ever-present risk, combined with the Council’s failure to take reasonable precautions to address the tripping hazard, led the Court of Appeal to dismiss the appeal.
Importantly, this case provides clarity on the obligations of local councils with respect to public playground entrants. It emphasises that even seemingly minor hazards, like uneven or low mulch levels in public playgrounds, can result in significant liability if not adequately addressed when reported.
Click here to read a copy of the Court of Appeal’s decision. For more information about what may be considered a trip hazard by a Court in a personal injury claim, see our previous article: What is a trip hazard?
