Public Liability

Injured on a Footpath

I’ve Been Injured on a Footpath. Can I Claim Compensation?

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 us through our website or ring us at (02) 8280 6900 to arrange a complimentary consultation with a member of our legal team.

What is a Slip and Fall Claim?

Accidents happen, and sometimes those accidents can occur in a public place such as a shopping centre or a footpath. In these cases, if you can prove that the people responsible for that public place were negligent in ensuring your safety, you may be entitled to compensation for any injury you’ve suffered whether physical or psychological.

If you’ve had an accident in a public place, it’s advisable to consult an experienced public liability lawyer as soon as possible as there are a number of steps to be taken within restricted timeframes in order to make a successful claim.

A slip-and-fall scenario

Say you’re visiting the supermarket to do your weekly shop. You’re in the produce section and have nearly worked your way through your list when you slip on a grape that has rolled off the table, slip and injure your elbow in landing.

Perhaps the injury doesn’t seem so serious at first and you say nothing about it. But over the next week it becomes sorer and sorer. You can’t go to work and you need to visit a number of medical professionals in order to be assessed. They determine that you will need surgery on the elbow, requiring more time off work and more medical expenses.

A knowledgeable public liability law firm can help you mount a claim for compensation against the supermarket. Relying on many similar cases that have come before Australian courts, they can show that in most cases those responsible for running public spaces such as supermarkets or public venues have a duty of care to those who visit them. They can also show that the supermarket, in our example, breached its duty of care to you by not cleaning up the grape from the floor within a reasonable time period, and that you have suffered a loss as a result of that breach (time off work, medical expenses, etc.).

What can you claim for?

You may be able to claim compensation for:

  • Pain and suffering – often a lump sum payment payable for the pain and other negative effects that the injury has had on your life, including psychological trauma.
  • Medical and other expenses – an amount to cover any medical treatment or related expenses that have resulted specifically from injury.
  • Economic loss – if your injury has resulted in any loss of income or wages, you may be entitled to claim those amounts back for both past and future loss.
  • Care and assistance – if your injury has required you to recruit domestic assistance (a cleaner or gardener, for example) these expenses can be claimed as a lump sum payment at the settlement of your claim.

No two cases are the same and the amount of compensation you may be able to claim will be related to how dramatically your life has been affected after the accident.

What are the next steps?

If you’ve had a slip and fall, you can certainly aid the process of applying for compensation by – if you have the presence of mind – taking photos of the accident scene and getting the details of any witnesses.

But there are also time limits for making a compensation application and a number of statutory thresholds under the Civil Liability Act to meet in order to prove, for example, pain and suffering as a result of the slip and fall. This is where the advice and guidance of experienced compensation lawyers can prove essential.

BPC Lawyers are specialists in public liability compensation matters, with a number of industry awards for its work in this area. If you’ve had an accident in a public place in which you’ve been injured, let us assess your case and help determine what sort of compensation you might be entitled to. Contact us today on (02) 8280 6900 for a free initial consultation.

Slip and Fall? How Much Compensation Can I Claim in NSW?

Slip and fall incidents can result in serious injuries. Victims often sustain head injuries, broken bones, back and neck injuries, and more. Depending on the severity of their injury, a victim may require extensive medical treatment and face a long recovery. During this time they may be unable to work, compounding financial and emotional stress.

If you were injured in a slip and fall accident stemming from another person’s carelessness, you may be able to make a compensation claim. While it is true that some cases end with substantial settlements or awards, the amount an injured person is entitled to depends on the specific situation and medical evidence obtained. Here’s what you should know in order to manage your expectations.

The case assessment

The first step (after you’ve reported the fall and received medical attention) is to consult a qualified personal injury lawyer. Choose one equipped with the skills and experience to evaluate your circumstances. He or she will assess:

  • the cause of the slip and fall accident;
  • where it happened;
  • the extent of your injuries;
  • the extent of costs incurred for medical treatment, hospitalisation, rehabilitation and so forth;
  • your inability to work (if applicable);
  • financial hardship;
  • any other relevant issues.

To facilitate this process, when meeting with a lawyer you should bring the following:

  • CCTV footage (if available). Following a slip and fall injury, always make enquiries about whether the incident was captured on CCTV and if so, ask the occupier not to delete the footage;
  • an incident report (if available);
  • clear photographs of the possible causes of the accident and the conditions at the scene depicting the cause of your injury;
  • all medical reports within your possession such as hospital discharge summaries documenting your injuries, treatment and future treatment requirements;
  • copies of medical bills, prescription receipts and so forth;
  • proof of loss of earnings such as pre-injury pay slips showing your regular earnings and post-injury records confirming time required away from employment;
  • witness statements;
  • any other material documenting the time, date, location and cause of the accident.

During this initial stage, your lawyer is likely to ask you about other ways in which your injury has changed your life. For example, you may be asked about your ability (or inability) to perform routine tasks (such as shopping or household chores). Your lawyer may also ask how your injury has affected your ability to do the things you used to enjoy (such as exercising or playing with your kids). Finally, your lawyer may ask about your mental health prior to and after the accident.

With this information in hand, your lawyer can devise a legal strategy and provide tailored advice to you. At this stage, he or she may also provide a rough idea of how much you can claim however this will depend on stabilisation of your injuries and the medical evidence obtained.

How is compensation calculated?

Your lawyer will obtain evidence and proof of your losses to establish the value of your claim. This is then used to determine how much compensation you are likely to receive.

However, you should be aware that there is no set formula for this calculation. This is because no two people, and no two slip and fall cases, are exactly the same. Even if you sustained the same injury or injuries as someone else, your road to recovery will probably be quite different.

So when it comes to compensation, think of it this way. What would your life be like if you had not suffered the injury? What will the future hold as you continue to recover from your injury? In this context, some specific questions should be addressed. One is whether you will be able to keep working (assuming you were working before). Another is whether you will be faced with ongoing expenses associated with your injury.

Remember, the purpose of compensation is to restore you to a position in life where you are likely to have been if the injury had not occurred. Depending on the circumstances of your accident and where the injury occurred, your entitlement to compensation will be governed by legislation however your lawyer will advise you further in this regard during the initial meeting.

Proving your case

Areas and buildings that are accessible to the public must be safe, cleaned regularly and well maintained. This means you may be able to seek compensation if you were injured in a slip and fall accident due to negligence at a:

  • grocery store;
  • rental property;
  • school yard;
  • sporting event;
  • shopping centre;
  • car park;
  • or any other public place or building.

To make a successful claim, however, you must prove that the owner or occupier of the premises is at fault, because he or she:

  1. didn’t identify a potential hazard (such as a damaged step or footpath), or failed to correct and/or failed to warn of the hazard by blocking it off or providing adequate signage;
  2. created the hazard by doing something such as spilling something on the floor that you walked on and fell or constructing an unsafe structure/hazard.

However, determining who was at fault isn’t always easy. Let’s say, for example, that a patron in a hotel bar spilled his or her drink and no one cleaned it up, leading to your slip and fall accident. Or what if a waiter in a restaurant dropped a bowl of soup or ice cream, with the same results? Who should you make your claim against? This is why securing the services of an experienced personal injury/public liability lawyer is so important.

Contributory Negligence

In addition to proving that someone else’s negligence caused your slip and fall, you must also prove there were no mitigating factors in order to be fully compensated. Specifically, you must prove that your own carelessness did not contribute to or cause the accident. This means you must demonstrate that you weren’t distracted, intoxicated, or acting foolishly when you slipped and fell. If there was some fault on your behalf, it is likely that your compensatory damages will be reduced to take into account contributory negligence.

If your personal injury lawyer determines you have a valid claim, you can seek compensation for pain and suffering, past and future loss of earnings, past and future medical expenses and other special losses suffered due to your injury. In many cases, these matters can be settled on an unlitigated basis prior to hearing, so your case may not have to be determined by a Court.

At BPC Lawyers, we have considerable experience and success handling personal injury cases. If you were injured in a slip and fall accident and need legal advice or representation, please contact us today.

Slip and Fall? What Compensation Can You Receive?

Public liability claims for compensation are available to a plaintiff after suffering an injury in a public place. While public places generally adopt appropriate safety measures to help minimise the risk of injuries occurring, accidents do happen every day and sometimes the consequences are very real.

Potential compensation claims can arise out of the following examples:

  • A slip and fall in a supermarket, shopping centre, retail centres and on footpaths;
  • accidents that occur at private residences;
  • accidents that occur at schools, in parks or on playgrounds;
  • injuries that occur due to a defective or faulty product;
  • animal attacks:
  • boat accidents; or
  • food poisoning.

Steps to establishing the grounds for negligence

In order to file a successful compensation claim, negligence must be proven. At the simplest level, to prove negligence it must be established that:

  1. A duty of care was owed; and
  2. the duty of care owed was breached; and
  3. the loss you have suffered was the result of this breach.

Negligence can be established if it’s proved that the person or business who owed the duty of care should have foreseen that an injury could possibly occur if the necessary precautions were not taken, or they did not make the public aware of the ‘danger’.

With regards to a slip and fall in a shopping centre, for example, if the shopping centre had failed to place a wet floor sign adjacent to a slippery floor prior to the slip, this is an example of negligence. The shopping centre, therefore, would have breached their duty of care.

What is claimable?

There are various entitlements that are claimable by a plaintiff when negligence is proven. These can include:

  • Medical expenses and rehabilitation treatment, which can include past or future costs for things such as pharmaceutical expenses, rehabilitation treatment and the costs of travelling to and from medical appointments;
  • domestic assistance, such as during care and home assistance. This sort of compensation is only awarded if the court is satisfied that the care is necessary for the injury sustained;
  • compensation for loss of income and earning capacity if the plaintiff is unable to return to work.

In cases specific to work, where a plaintiff suffers from an injury either on the way to work, on the way home from work, or during the course of their work, workers’ compensation benefits may be available. In the scenario where a plaintiff becomes permanently disabled as a result from the injury, they are also able to claim an early release of their superannuation funds, as well as a payout under a Total and Permanent Disability claim (TPD), if their superannuation fund provides this coverage and a medical professional certifies that the plaintiff is unlikely to work again.

Steps for making a personal injury claim

There are a standard set of steps that should be followed if you sustain an injury following an accident in a public place. These include:

  1. Reporting the incident and the injury you have suffered to the appropriate person. This person will usually be the owner of the business where the accident occurred.
  2. Lodging a claim either with the owner of the business or its insurance company.
  3. Seeking legal advice to ensure you are made aware of your legal rights and entitlements.

The next steps

Seeking legal advice is recommended if you find yourself involved in an accident in a public place which causes you to suffer an injury or injuries you believe were caused by negligence on the owner or business’ part. A legal expert can help you assess the amount of compensation potentially available to you, as well as help you through the process of filing a claim.

Should You Settle or Go to Court After an Accident?

In the unfortunate instance that you have an accident in a public place that causes injury, compensation may be available. If you choose to pursue compensation, this is referred to as a public liability claim. Each individual situation is different, and the amount of compensation possibly claimable will differ depending on the specific circumstances of your accident.

Some of the most common locations where public injuries occur leading to public liability claims include:

  • supermarkets;
  • recreational activities;
  • sporting events;
  • schoolyards;
  • shopping centres;
  • car parks.

Following an accident, basic everyday living tasks that were once simple may become difficult to perform, and the more arduous tasks such as work may become almost impossible. In most cases, the negligent party will offer a monetary settlement if they acknowledge liability and believe that their defence will not succeed in court. You can accept this settlement or, if you believe the amount to be less than you should receive, embark on the alternative – a course through the various stages of litigation. If you find yourself in a similar situation and are debating this decision, there are a few factors that should be considered.

The size of the settlement and the strength of the case

If you’re unable to convince a judge of the merits of your claim in litigation proceedings, there is the possibility of incurring significantly high legal expenses. This is often the reason settlements are considered a preferable option.

But if you feel that a duty of care owed to you was breached, and that the opposing party has offered an insufficient amount of compensation, then litigation to secure an appropriate amount might be a better option.

It is crucial you ask yourself important questions such as whether or not your actions might have contributed to the injuries you suffered. Continuing through to litigation also requires a high degree of patience as proceedings can be quite lengthy. During this time, when you may be unable to work, you will obviously continue to incur medical bills, which may be reflected in the final compensation amount should you be successful. But cases can take 18 months or even longer to process.

The pay-out and time limits

The total amount of compensation will be made up of both economic and non-economic losses that are a result of the accident. These can include:

  • loss of income and superannuation payments;
  • medical and hospital costs;
  • past and future care arrangements;
  • pain and suffering.

Even quite minor injuries can result in high compensation payments, some in the tens of thousands of dollars, whereas more serious injuries can result in payments of hundreds of thousands of dollars or more.

Usually, ‘no-win, no-fee’ lawyers are the best option for public liability cases so that legal costs don’t need to be repaid until after the claim is successfully resolved. Most often, there is a time limit of three years after an accident to claim compensation for the injury incurred. Cases might require the testimony of a witness to help establish the factual circumstances of the case, another reason to kick start the claim as soon as possible.

Legal advice

Legal advice is always recommended. A legal expert can provide impartial, third party advice and make sensible decisions on behalf of clients based on the facts. A legal professional can also take a client through the potentially long and tiring process, as well as help to identify how much compensation might actually be achievable. If you find yourself in a situation where you might be eligible to make a public liability claim, contact an experienced legal professional today.

compensation lawyers sydney

How Long do Public Liability Claims Take to Resolve in NSW?

Let’s face it, we live in an age of instant gratification. Thanks to the Internet, we’ve grown accustomed to having immediate access to just about everything we could possibly want or need. So if you’ve been injured in a slip and fall accident, or similar circumstances in which someone else is to blame, chances are that you want the matter resolved quickly and to your complete satisfaction.

If you’re not careful, however, this impatience may jeopardize your chances of getting the compensation you deserve. That’s why it’s important to work with an experienced Sydney personal injury lawyer who can not only manage your expectations, but also fight for optimal results.

During your first meeting, a qualified lawyer will gather certain information and interview you about what happened to determine whether you have a viable public liability claim. You can usually make this type of claim if you’ve been badly hurt on public or private property, but only in certain circumstances.

For example, you may have a viable claim if someone assaulted and hurt you in a car park with inadequate lighting and security. You may also have a viable claim if you were hurt when you slipped and fell on a wet floor at the movie theatre, or even if a dog bit you at the park.

This is because New South Wales law mandates that business owners and other organisations do everything possible to make sure that people are not in danger while on the premises.  In other words, they must make sure their properties are well maintained, that their employees have adequate training and that other measures are in place to ensure public safety. Any failure to fulfill these obligations which results in personal injury is legally classified as negligence.

Although it sounds like a cliché, one of the first things your lawyer will probably tell you is that every personal injury case is different. It’s therefore impossible to say exactly how long it will take to resolve your public liability claim in NSW. Some of the factors taken into consideration include:

  • The extent of your injury or injuries;
  • the extent of your treatment;
  • how long it takes to assess your long-term needs and what they are;
  • how long it takes the responsible party’s insurance provider to make a settlement offer (if at all).

If the insurer doesn’t make a reasonable settlement offer, or refuses to make any offer whatsoever, your only recourse will be to take the matter to court. If you and your lawyer agree to pursue this option, the court’s schedule will dictate how quickly (or slowly) the case goes forward. In general it can take 12 to 18 months until the case is actually heard.

Even if the case goes to court, there’s no guarantee you’ll win. In one documented case, for example, the court awarded $90,000 in compensation to a woman who brought a public liability claim against the Coles supermarket where she was injured when she slipped on a grape. In this particular case, the woman argued that the supermarket was negligent because it hadn’t removed a hazard (the grape) or done anything to make customers aware of it, and had been negligent for not clearing the floor of grapes and not warning customers of the slip danger. In response, the supermarket employed a legal defence called ‘obvious risk’.  Specifically, it argued that the presence of grapes on the floor constituted an ‘obvious risk’, and consequently it wasn’t legally obligated to warn customers. The court disagreed, ruling that the supermarket breached its duty of care, and awarded damages accordingly.

In another case, a woman brought a public liability claim against the owners of a shopping mall after she was hurt when she tripped over a kerb in an underground car park. The plaintiff here claimed that she couldn’t see the kerb due to fading paint and inadequate lighting. Unconvinced, the court sided with the defendants and ruled that kerbing was an ‘obvious risk’ for a trip injury. The Court also ruled that the woman’s distraction caused her fall, that there was sufficient lighting, and that the failure to refresh the paint on the kerb did not constitute an act of negligence.

Clearly there’s a lot to consider when you are deciding whether to make a public liability claim. At BPC lawyers, we have the knowledge and experience necessary to help you through every step of the process. Based on evaluation of your unique circumstances, we will determine whether you have a viable claim. If so, we will then work to ensure you receive the compensation you deserve through a settlement or court hearing. Contact us to learn more about how we can help you today.

call us for public liability claims

How to Make a Public Liability Claim in NSW?

What is a Public Liability Claim

A public liability claim refers to a claim made for injuries sustained in public places in accidents caused by the negligence (failure to exercise reasonable care and skill) of a person or organisation.

For instance, let’s say you’re walking through a shopping centre and you slip and fall as a result of a spilt liquid on the floor causing an injury to you. The owner of the shopping centre possibly could have prevented the unfortunate incident by ensuring that their cleaning staff better maintained the centre’s floor.

Compensatory damages are available under the Civil Liability Act NSW 2002 as follows:

  • Past and future medical expenses;
  • Pain and suffering (past and future);
  • Past and future loss of earnings, including loss of superannuation contributions;
  • Cost of other assistance (domestic assistance, personal care provided by friends, family or professional organisations for the past and future).

Public liability claims derive from numerous accident types. Here are some examples:

  • Assault-related injuries;
  • Animal attacks (most commonly dog bites);
  • Injuries due to defective machinery;
  • A slip and fall in public spaces and facilities;
  • Food poisoning;
  • Sporting, recreational  injuries;
  • Physical assaults;
  • Sexual assaults;
  • Schools and playground injuries;
  • Aviation (planes, helicopters) injuries;
  • Maritime (boats, ships) injuries;
  • Hotels and other venues injuries;
  • Injury at a construction site;
  • School yard injuries;
  • Amusement venue injuries;  and
  • Injuries in rental premises (e.g. landlord/tenant).

Public liability insurance

In most cases, business (private or public) have public liability insurance for these types of incidents,  which essentially means that in making a claim against the business, you’re in fact making a claim against their insurer. Some people can wrongly assume they are pursuing legal action against the business and for that reason, do not follow through with a public liability claim, despite incurring significant inconvenience and financial hardship.

Notwithstanding this, it is not uncommon for people who have an accident in a public place to initially suffer from only a little pain and discomfort, choosing not to pursue a claim, only to later find that the injuries sustained were serious, requiring surgery. For this reason, it is often wise to seek medical attention regardless of the injuries sustained.

Proving a Public Liability Claim

In a public liability claim, the evidence of the incident is vitally important, because your lawyer will need to be able to demonstrate that:

  • The person or company at fault owed you a duty of care.
  • The person or company breached that duty of care.
  • As a consequence, you were injured and suffered loss.

Practically speaking, following an injury in a public place if you’re able, the following should be attended to.

  • The first thing you should do, when injured in a public place is to let the owner/manager of the business know.
  • Ensure pictures are taken of everything, the injury itself, the establishment, the object causing the injury.
  • Witnesses are very important, take notes of their names and phone numbers
  • Access any surveillance camera footage
  • Make a video recalling what happened right away
  • Seek medical assistance as soon as possible.
  • Seek advice from a specialised lawyer in personal injury claims.
  • Save all medical evidence, bills, receipts, doctor’s records and anything else proving you sustained an injury.
  • Financial documents are also important to prove a loss of income resulting from the accident.

Getting Help

Public liability claims can be difficult to prove, hence the need to ensure you collect as much evidence as possible as promptly as possible and seek legal advice.

These matters have very strict time limits that apply.

What Goes On At BPC

What Goes On At BPC

I thought it might be a good time to acquaint some of our readers with the type of work that we are doing here at BPC.

When people talk about compensation Lawyers Sydney they think injuries at work and on the road. We are certainly a major law firm in compensation claims of those types.

We do however act in a wide variety of matters and I thought it might be useful to give readers a note of some of the cases we are currently involved in:-

  • We are acting for a lady who suffered severe injuries when she fell on a boat whilst whale watching in the Great Barrier Reef.
  • We are acting for the family of a baby suffering from Cerebral Palsy which we argue was caused due to asphyxia during the birth process which could have been prevented had the doctors paid greater attention.
  • We are acting for a young man who unfortunately lost one of his limbs after an explosion of a keg on licensed premises.
  • We are acting for a client who suffered injury when she was directed by her personal trainer to undergo a type of fitness training that was beyond her capacity resulting in her suffering a very significant hip injury.
  • We are acting for a lady who suffered a leg injury when she slipped and fell on Council premises which had become very slippery as a result of patrons bringing wet umbrellas and shoes through the entrance. The Council employees did not provide any warning signs or matting to provide a safe floor surface.
  • We are acting for an English gentleman who was riding on a donut behind a speed boat off an island in Queensland when he was thrown outside of the wake and became entangled in the donut causing him injury.
  • We are acting for a young lady who was playing in an indoor netball competition. The court had previously been used a gymnastics organisation who had left chalk on the floor causing her to slip and suffer an injury to her knee which required surgery.
  • We are acting for a well known performer who suffered a bowel perforation following a simple hospital procedure. It was not recognised in time leading to her getting sepsis which has had serious consequences to her overall health.

These examples are given to illustrate that there are wide ranging circumstances in which a client may have an entitlement to compensation. We are experienced in all areas of public liability and medical negligence and would be happy to deal with any enquiry on the usual “no win, no fee” basis.

Courtenay Poulden

24 March 2017

Man Falls Down Stairs at Ice Skating Rink

A Gentleman Falls Down Flight of Stairs at Ice-Skating Rink Suffering Serious Injuries

Catholic Club Ltd [2013] NSWDC 93

Falls Down Flight of Stairs at Ice-Skating Rink

At about 3.45pm on Wednesday 14 January 2009, the plaintiff, Christopher Moor, was injured at the premises of the defendant, Liverpool Catholic Club Ltd. He sustained a fracture to his right ankle after losing his footing, slipping and falling whilst descending a set of stairs. At that time, he was wearing ice skating boots. He was descending the stairs in order to access an ice skating rink on the premises.

When the plaintiff fell on the stairs, he suffered a very painful fracture with swelling to his right ankle. This was later defined by an x-ray examination to involve an oblique fracture of the distal right fibula with some dorsal displacement of a major distal fragment, with the fracture line extending a few centimetres above the ankle joint, with some ligament disruption, evidenced by the x-ray findings of widening of the ankle joint.

Expert engineer for the plaintiff
The plaintiff relied upon 3 reports from Mr Ian Burn, a consulting civil engineer. His reports were respectively dated 23 April 2012, 13 September 2012 and 12 November 2012. The most recent report of Mr Burn commented upon a report dated 19 September 2012 from the defendant’s expert, Dr John Cooke, a consultant architect.

On 20 April 2012, Mr Burn had inspected and made measurements of the stairs where the plaintiff had fallen. He observed that including the landing, the seven steps comprised a discrepant pattern of measurements of the goings, or treads and the risers.

Mr Burn pointed to a lack of consistency within the measurements of the treads and the risers on the flight of stairs. In his view, this meant that persons using the stairs would have no assurance when placing a foot on each step.

His Honour Justice Levy SC of the District Court of New South Wales was of the view that:

“When a person of the plaintiff’s height was descending the stairs, those discrepancies would not have been obvious when looking down the flight of stairs.”

Expert engineer for the defendant
The defendant relied upon a report dated 19 September 2012 from Dr Cooke. He surveyed the regulatory framework for the premises and concluded that the stairs were compliant with Ordinance 70, and that otherwise, no relevant Australian Standard applied at the time of the accident. However, he made tests which adopted the test procedures specified in AS/NZS 4663:2004 and he proceeded to attempt measurements of the co-efficient of friction between a piece of polished metal plate he assumed simulated the surface of an ice skate blade, and the nosing on the stairs.

Conclusions on utility of the expert evidence
His Honour, having considered the respective reports of the Plaintiff’s experts, concluded that Mr Burn’s analysis of the mechanics of the plaintiff’s fall was more reliable when compared to the opinions of Dr Cooke for the defendant.

Whether an obvious risk was present
The defendant pleaded a defence of obvious risk, pursuant to s 5F, s 5G and s 5L of the CL Act. The questions for decision in connection with that defence is whether the activity of walking down stairs whilst wearing ice skates at an ice rink, involves an obvious risk within the meaning of s 5F(1) of the CL Act, and whether such argued obvious risk in fact materialised and caused injury to the plaintiff.

The question of whether there was an obvious risk present pursuant to s 5G of the CL Act involves an objective determination of whether the plaintiff’s conduct involved a risk of harm that would have been obvious to a person in the position of the plaintiff: Jaber v Rockdale City Council [2008] NSWCA 98, at [27]-[28]; Lalouach v Ibrahim [2011] NSWCA 402, per Giles JA, at [79]. The question of obviousness of the probability of the occurrence of harm in the circumstances is dependent upon what is, or is not, readily apparent to a reasonable person in the position of the plaintiff: Jaber v Rockdale City Council, at [35], per Giles JA.

His Honour stated firstly that:

“The defendant had not shown that the activity in which the plaintiff was engaged, namely descending down the stairs wearing skate boots, was a dangerous recreational activity within the meaning of s 5L of the CL Act, namely an activity that carried with it a significant risk of harm”: Lormine Pty Ltd v Xuereb [2006] NSWCA 200, per Mason P, at [31].

Secondly his Honour stated that, the description of the plaintiff’s descent down the stairs and the CCTV footage showing the course of his descent did not demonstrate any unreasonable conduct on the plaintiff’s behalf. His Honour concluded that-

“On the evidence adduced in this case, the defendant has not established the allegation that the plaintiff had descended the stairs in a manner that was oblivious to the risk of him falling.”

Thirdly, his Honour was of the view that, the defendant had not established that the plaintiff had either actual or constructive knowledge that descent of the stairs whilst wearing skate boots involved an obvious risk.

Whether there was inherent risk
The defendant also pleaded a defence of inherent risk, pursuant to s 5I and s 5K of the CL Act. There is no liability in negligence if the harm complained of is as a result of the materialisation of an inherent risk: s 5I(1) of the CL Act.

An inherent risk is defined as an occurrence that cannot be avoided with the exercise of reasonable care and skill: s 5I(2) of the CL Act. The exclusionary effect of s 5I does not operate where there is a duty to warn of the existence of a risk: s 5I(3) of the CL Act.

His Honour was of the view that the plaintiff was entitled to a warning that the stairs had incorporated within their structure of the treads, goings and risers, an uneven pattern of lineal and vertical dimensions. Similarly, the plaintiff was also entitled to a warning that the nosing edges of the stairs were slippery when wet in the moist conditions that were evident at the ice rink premises.

His Honour further stated that, the actions involved in descending the stairs wearing skate boots, as distinct from ice skating, did not constitute a dangerous recreational activity within the meaning of s 5K of the CL Act.

Duty of care and scope of that duty
The plaintiff claimed that as the occupier of the ice rink, the defendant owed him, as a customer entrant onto the premises, a general duty of care to take reasonable care to avoid a foreseeable risk of injury: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (198) 162 CLR 479, at pp 487 to 488, [11] to [12].

The duty of an occupier of premises extends not only to a static condition of premises, but also to activities conducted upon the premises: Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 at [26]. Relevant to this case, this must be taken to be a reference to the state of the stairs and the manner in which the stairs were used by the defendant’s patrons.

His Honour was of the view that, it was appropriate on the facts of the case, to apply the simple “but for” test of factual causation required by s 5D of the CL Act. His Honour consider that it was more probable than not, that the plaintiff’s injury would have been avoided if he had been informed of the need for special precautions to be adopted for descending the stairs due to their dimensions and likely wetness. His Honour was also satisfied that it was unlikely the plaintiff would have sustained the injury he did if the instructed and supervised practice at the ice rink was to ensure patrons refrained from putting on their ice skating boots until after they had descended the stairs in question: Strong v Woolworths [2012] HCA 5, at [18] to [20].

Conclusions on negligence and causation
His Honour concluded that the defendant was negligent as alleged, and that such negligence was the cause of the plaintiff’s injury.


  1. Verdict and judgment for the plaintiff in the amount of $148,343;
  2. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis unless otherwise ordered;
  3. The exhibits may be returned;
  4. Liberty to apply on 7 days notice if further orders are required.


About Beilby Poulden Costello: Beilby Poulden Costello offers legal services such as workers compensation, motor accident compensation and claims for public liability. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.