Taking a fall on a footpath is never a laughing matter. In a best-case scenario, you’ll just end up with painful but minor injuries. In a worst-case scenario, you may suffer broken bones, or serious head or back injuries. To make matters even worse, the latter may make it difficult or impossible to work. In either case, your friends and family may urge you to sue the responsible party. But depending on the circumstances, claiming compensation can be tricky.
Establishing negligence
Negligence is legally defined as careless or reckless conduct that violates applicable standards. To claim compensation you must be able to prove: 1) that someone else was negligent; and 2) their negligence caused or contributed to the accident in which you were hurt.
Proving negligence, however, isn’t always easy, especially in a footpath injury case. This is because a local council or government is usually tasked with footpath maintenance and related matters, and these bodies are afforded significant protection under the law.
This generally means that the council or government’s negligence must be blatant for an injured party to make a successful compensation claim. Because footpaths are classified as public areas, it also means there is a legal expectation that people take extra care while walking there. Finally, it means that any contributory negligence is taken into account. Contributory negligence is any careless or reckless behavior/conduct that the injured party engaged in that helped cause their injury.
In addition to these generic concerns, specific sections in the Civil Liability Act 2002 (NSW) provide protection for councils in certain circumstances. In particular, these provisions limit an injured party’s ability to claim compensation based on the council’s supposed failure to address hazards (including broken footpaths) within its purview.
A case in point
The 2015 case of Nightingale v Blacktown City Council demonstrates the difficulties of claiming compensation if you were hurt on a footpath in a council’s jurisdiction. In this particular matter, a man got hurt when he tripped and fell on an irregular surface on a council pathway. The irregularity apparently occurred where the pathway sunk at the join, causing a trip hazard. The injured man alleged the council was negligent because it didn’t make the necessary repairs or provide sufficient lighting at night.
However, the District Court of NSW determined otherwise. Specifically, it ruled that the Council was not negligent because the people within the Council who were responsible for ensuring the maintenance and repair of the footpath didn’t know about any hazard that needed to be addressed. The decision reflected language in the Civil Liability Act stipulating that council workers responsible for upkeep of applicable public areas cannot be held liable for injuries occurring in said areas if they are unaware of the defect(s).
Upon appeal, the Court of Appeal also dismissed the case. In delivering its decision, the court stated that the council could only be found negligent if the injured party had proven that a relevant person within it had “actual knowledge” of the issue and failed to act.
The importance of getting the correct legal advice
Because the council or government usually has the law on its side, it is important to consult a qualified lawyer as soon as possible. At BPC Lawyers, we have the skills and experience needed to assess the circumstances of your case and act accordingly.
Specifically, we can take certain steps to determine whether a relevant person within a council had “actual knowledge” as required by law. This includes requesting information under the GIPA Act (Government Information Public Access). Once it receives this request, the council must provide us with the information we’ve asked for. The response will help us determine whether we can help you pursue legal recourse.
To determine whether you have a viable claim, we also need:
- photographs documenting what caused the accident and the conditions of the site;
- all relevant medical reports on any injuries, immediate and ongoing treatment;
- all relevant medical bills and invoices;
- past pay slips and other proof of loss of earnings;
- proof of your dependence on someone killed in the accident (if applicable);
- witness statements about how you got hurt and your injuries;
- any records pertaining to when and where the accident occurred.
Different rules apply altogether if the pathway or surface is not on council controlled property. Private land owners do not get the same protection against being sued.
At BPC Lawyers, we have a proven track record of helping people get the compensation they deserve so don’t leave anything to chance. As soon as you have this information in hand contact our personal injury lawyers through our website or ring us at (02) 8280 6900 to arrange a complimentary consultation with a member of our legal team.