Generally speaking, a claim for compensation for the injuries sustained in a trip and fall accident in a public place, such as a footpath or open urban space, involves a against a public authority such as a local government or council. The current law states that to support a claim against such a body for injury due to the lack of repair or maintenance of such public space or footpath, it is necessary to show that the authority knew or ought reasonably to have known of the particular risk. Uneven paving, gaps or a hole in a pathway can cause serious injury, but in the absence of clear negligence by the public authority, the burden of proof shifts to members of the public to keep a look out as to where they are walking in a public place.
In a recent ACT Supreme Court case, the Court held that a public authority, the ACT Government, was primarily responsible for Mrs Grierson’s injuries sustained on a footpath, but it reduced the damages on the ground of her contributory negligence in not keeping a proper lookout for her own safety. (See Rosina Grierson v Australian Capital Territory  ACTSC 113 (15 July 2011)
Mrs Grierson was an elderly lady in her late seventies, who had moved from Adelaide to Canberra with her husband. At the time of the accident, she was assisting the removalists around her new residence. She tripped and fell on the gap in the footpath just between the nature strip and her house, which was constructed of square concrete pavers. A substantial gap existed at the point where two of the pavers met and the edge of one paver was 40 to 50 mm higher than the edge of the other. She suffered facial injuries and injuries to the right side of her body, including the right arm, and right shoulder.
The footpath was maintained by the ACT Government, which denied liability and pleaded that Mrs Grierson contributed to her injuries having failed to keep a proper lookout, as she did not see the gap in the footpath.
The Court held that the ACT Government was in breach of a duty of care owed to the users of the footpath. It said the ACT Government ought to have known the particular risk that the gap in the footpath created, as Mrs Grierson was able to establish that there were some other incidents reported with regards to the gap, and some temporary repair had been undertaken to fill the gap in the past.
The judge stated that the fact that Mrs Grieson did not see the gap was insufficient by itself to satisfy him that she was not keeping a proper lookout or she was not taking adequate care for her own safety to defeat her claim altogehter. Nevertheless, the Court reduced her damages by 20% as she was sufficiently careless to amount to contributory negligence of modest degree.
The case demonstrates the shift away from the traditional rule that protects public authorities from liability arising from responsibility for the maintenance of public areas. As long as it can be shown that the public authority was aware or would have been aware of the risks arising from the particular defect in a pathway, the injured person can be entitled to compensation. Nevertheless, the members of public still have the burden to be careful of their actions in a public place to avoid injuries.
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