In brief: The Queensland Court of Appeal recently considered occupiers' liability in public places and the standard of care in Townsville City Council v Hodges  QCA 136, a claim made for injuries following a fall into a concealed hole at a park.
The respondent, Barbara Josephine Hodges, attended Sheriff Park which was owned by Townsville City Council (appellant). On 15 October 2015, the respondent stepped into a hole that was obscured by grass. This ultimately caused her to suffer spiral fractures in her ankle. Issues were raised with respect to the lack of evidence provided regarding the inspection and measurement of the subject hole.
Decision at first instance
This case was heard before His Honour Judge John Coker of the District Court in February 2022 and a decision was handed down on 7 December 2022.
In summary, the respondent argued that the appellant had been negligent due to the inadequate inspections of Sheriff Park. It was argued that if a thorough inspection had been conducted, then it would have been likely that the appellant would have been made aware of the hole, and remedied it.
His Honour found that the although the subject hole was obscured by grass, there was an obvious risk of injury due to the severity of the respondent's injuries and that the ambulance crew had also fallen in the hole when attempting to carry the respondent in a stretcher.
His Honour ordered that the appellant was to pay the respondent damages of $301,603.00 which was a sum that was agreed upon by both of the parties.
Issues on appeal
The decision was appealed by the appellant. The appeal decision of Mullins P, Mitchell AJA, Crow J was handed down on 11 July 2023. The grounds of appeal and findings are as follows:
Ground 1 and 2: "The Hole"
The appellant argued that the primary judge erred in finding that the depth of the hole had little consequence and that instead, the respondent merely fell on uneven ground that was approximately 20mm.
The primary judge concluded that there was a "hole", but was unable to provide any findings in regard to the precise characteristics of the hole which confirmed it to be "of little consequence." This served as an issue as "a hole" has a fairly broad definition and can be considered as either a small "pit" or a "depression in the ground."
The members of the respondent's family and employees of the Queensland Ambulance Service were able to validate that the subject hole existed. However, the hole was not photographed or inspected, so insufficient evidence was provided regarding the hole's diameter and depth.
The primary judge had described the hole as being of "ankle depth". However, "ankle depth" could easily be misinterpreted due to the broad nature of the term, as there are seven bones in the ankle. The photographic evidence obtained also contradicted this statement, as it showed the hole was large enough to fit three person's ankles.
The respondent argued that the appellant was not negligent for concealing the hole, but rather took inadequate steps when conducting inspections of the park. It was argued that if adequate inspections had been conducted, then the appellant would have been made aware of the hole and would have taken steps to rectify the hole.
However, the question arose as to whether a local authority is liable for concealed hazards or if they are merely liable for known hazards. It was stated that liability for hazards is completely dependent on what is reasonably required of the local authority, including the inspection systems used to locate these hazards.
The terms as stated in sections 35 and 36 of the Civil Liability Act 2003 (Qld) concerned whether failure in detecting the subject hole could be considered a lack of reasonable care as the appellant was responsible for the whole park.
The Court of Appeal held that the primary judge erred in his findings in regard to his conclusion that the depth of the hole was of little consequence.
If the hole had not been obscured or concealed, the depth of the hole would have played a large part in determining liability.
Ground 3 to 7: Inspections and sections 35 and 36 of the Civil Liability Act 2003 (Qld)
The appellant argued that the primary judge erred in his determination that the appellant was negligent for its inadequate inspections in detecting the hole.
The primary evidence produced to the primary judge was a statement from the respondent's daughter, Ms Mains, who stated that "[Y]ou wouldn't know that there was a hole until you fell in it."
The primary judge made a finding that the ambulance officers on the scene were unable to detect the subject hole despite being alerted of its presence.
Mr Radcliffe, the team leader in the Parks Department of the Townsville City Council, confirmed that he inspected Sheriff Park on Monday mornings and Fridays. The maintenance day was on Thursday when approximately five workers would conduct inspections.
The crew had attended Sheriff Park on the day of the incident. Mr Radcliffe stated that on the day of the incident, and the days on which he conducted inspections, he had never noticed the hole.
Mr Frank Thompson, the mower of Sheriff Park, stated that he would spend approximately four and a half to five hours on Thursdays conducting his mowing duties. Mr Thompson stated that if he had noticed a hole, he would have had it remedied.
An employee of the appellant, Ms Collier, attended the park on Thursdays and Fridays to conduct inspections and stated she had not seen the hole. Ms Miller who conducted ad-hoc inspections of the park also did not observe the subject hole.
The evidence supported that it would have been difficult to discern the presence of the hole. The question arose as to whether the appellant will be found liable.
The Court of Appeal held that the employees and officers involved in the park inspections and park maintenance duties would not be at fault because they were unable to detect the presence of the hole despite reasonable inspections.
Outcome and implications
This decision is important when determining what constitutes a reasonable inspection to identify a hazard. In this case, the appellant was required to demonstrate that it undertook reasonable inspections and such inspections would not have, and did not, identify the concealed hole in the ground.
This decision reinforced that although a local authority or occupier is responsible for consistent inspections and adequate maintenance of public areas, local authorities or occupiers will likely not be held liable for hazards that are concealed, provided the inspections are adequate and reasonable.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2023.