The Queensland Court of Appeal has recently refused the appeal of Ms Noela Anderson to challenge the findings of the Magistrates and District Court of Queensland that found no breach of duty by a local Council in failing to ensure that a service pit cover was flush with the surrounding ground after the plaintiff sustained personal injury arising from a trip and fall in October 2000.

The facts

The plaintiff tripped and fell on the lid of a service pit, located adjacent to a concrete path.  The lid of the pit was raised approximately 2.5cm above the ground. The accident occurred in daylight with nothing obscuring the protrusion.  It was plain for her to see.  She had personal knowledge of the area.

At first instance and on appeal to the District Court

Although it was accepted that the sole cause of Ms Anderson’s fall was the exposed lid; there was no duty to protect her from the minor and obvious risk it posed to pedestrians.  Even if a duty existed the plaintiff was unable to convince either Court that the duty had been breached.

The Court of Appeal

The Council had a reasonable inspection regime.  The plaintiff was unable to show that local authorities should be required to find and fix every example of unevenness in every footpath within a rigorous timeframe.  To insist on this kind of system would not be reasonable either in terms of the cost to ratepayers or the authorities’ priorities for the expenditure of public moneys.

It is well established by the decision of the High Court that a local authority is not duty bound to eradicate mundane risks which persons exercising ordinary care can be expected to observe and avoid – see Brodie v Singleton SC (2001) 206 CLR 512.

Appeal dismissed

Although the Civil Liability Act 2003 had no application in this instance we do not believe the result would have been different in such circumstances.

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