Opinion
Case summary: Hornsby Shire Council v Salman [2024] NSWCA 155
![Case summary: Hornsby Shire Council v Salman [2024] NSWCA 155](/sb_cache/blog/id/1430/f/Opinion 18.07.24 (1).png)
29th Aug 2024
Hornsby Shire Council v Salman [2024] NSWCA 155
White JA, Adamson JA and Basten AJA, decision delivered 27 June 2024
Facts
Ms Salman sustained injury when she fell in a children’s playground in Lessing Park on 28 February 2021. This playground was under the control of the Hornsby Shire Council (Council). Under the swings in the playground was a blue wet pour surface which created an artificial spongy surface area. This blue wet pour area sloped down on the edges. The area surrounding the blue wet pour area was filled with mulch/bark. Ms Salman was walking towards swings where her nephew was playing when she fell stepping from the mulch area to the blue wet pour area. Ms Salman’s right ankle rolled outwards. To recover her balance, she put her left foot down, with the consequence that her left ankle rolled as well and she lost her balance, falling forward. There was a height differential between the two surfaces that she was unaware of. At trial she conceded that if she had a proper look, she would have seen the height differential between the two surfaces.
At first instance, the primary judge found in favour of the respondent and awarded the sum of $283,200.00. The plaintiff was found to be contributorily negligent, resulting in a 15% reduction in damages.
Decision
- Dismiss the appeal.
- Order the appellant to pay the respondent’s costs of the appeal.
Ratio
Council appealed the primary judgment on several grounds. The appeal is limited to liability. There is no appeal against either the discount for contributory negligence or the quantum of damages.
Council submitted that the primary judge erred in:
- identifying the relevant identification of the risk of harm;
- finding the Australian Standards addressed the relevant risk;
- finding the height differential was not readily discernible;
- failing to find that risk was obvious; and
- concluding that there was a causal relationship between the level of the mulch/bark and the respondent’s injury.
The majority (White JA and Adamson JA) held the following grounds for appeal were not established:
Relevant identification of the risk of harm
The risk of harm as identified by the primary judge was the risk of someone, in the course of walking between the mulch/bark surfaced area and the artificial (‘spongy’) surface area in the playground, falling and sustaining injury. On appeal, Council attempted to reformulate the risk of harm differently than what was presented at trial. Council submitted the true risk of harm, was the risk associated with a person rolling their ankle on a sloping surface and, as such, the bark/mulch is irrelevant to this risk and to what happened. Notwithstanding that it is not open to the Council to formulate the risk of harm differently on appeal, the majority held that this ground must also fail because the risk formulated by the Council on appeal was too specific as it incorporated the precise mechanism of the fall.
Application of Australian Standards
Ms Salman led expert evidence of Mr Cauduro who concluded that the area was unsafe, posed a risk of trip/fall and was not maintained in accordance with the Australian Standards. In addition to Mr Cauduro’s evidence, the Council had commissioned two reports prior to the incident from Playfix. Both reports relied on the Australian Standards for playgrounds and identified that the mulch/bark area needed to be built up to be level with the blue wet pour area. The relevant standards that apply to children’s playgrounds say that the level of the mulch area and the level of the blue wet pour should be even to avoid trip hazards. The Council submitted that, as Ms Salman did not trip, the standards referred to by Playfix and Mr Cauduro were inapplicable. The majority concluded that by hiring Playfix to inspect the playground and report on the results, it can be inferred that the Council acknowledged the applicability of the Standards.
Discernibility of height differential
The primary judge, having seen and heard the respondent’s testimony (as the sole witness to the condition of the playground at the time of her fall) and considering photographic evidence taken later, accepted her account that the height differential was not easily noticeable. The majority held that it would be improper to overturn this finding based solely on the later photographic evidence.
Obvious risk
The majority held that whether a risk is obvious must be assessed in light of all the circumstances. The primary judge had the discretion to determine that the risk was not obvious, considering it was foreseeable that pedestrians approaching the playground would be focused on a child, as the respondent was. Allowance must be made by the Council for inadvertence of people using a children’s playground.
Causal relationship between the level of the mulch/bark and the respondent’s injury
In relation to factual causation, the primary judge found that, had the Council taken the recommended precautions detailed within the reports of Playfix, Ms Salman would not have lost her balance. The majority held that if Council followed the advice from Playfix, they would have reduced the risk of ‘tripping’ (in the narrow sense) and also mitigated the broader risk of harm as identified by the primary judge.
Basten AJA (in dissent) held that the change in surface was obvious and that different levels in adjoining surfaces in a playground does not give rise to a risk against which precautions ought to be made.
The ALA thanks Beth Rolton for this contribution.
Beth Rolton is a Partner at Travis Schultz & Partners and leads the team in Cairns. Beth is a Queensland Law Society Accredited Specialist in Personal Injury Law who brings a high degree of integrity and personal drive to supporting all her clients. She has significant experience in several fields including motor vehicle accident claims, dependency claims and workers’ compensation claims, and is devoted to working with injured people and ensuring they receive the compensation they deserve. Beth has been a long-standing board member of the ARC Disability Services and also generously volunteers her time to Rosies – Friends on the Streets.
This is an edited version of an article first published by Travis Schultz & Partners.
The views and opinions expressed in this article are the author’s and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
CONTACT DETAILS
SEND ENQUIRY