Townsville City Council v Hodges
[2023] QCA 136
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Townsville City Council v Hodges[2023] QCA 136
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Townsville City Council v Hodges[2023] QCA 136
Townsville City Council v Hodges[2023] QCA 136
SUPREME COURT OF QUEENSLAND
CITATION: | Townsville City Council v Hodges [2023] QCA 136 |
PARTIES: | TOWNSVILLE CITY COUNCIL (appellant) v BARBARA JOSEPHINE HODGES (respondent) |
FILE NO/S: | Appeal No 16134 of 2022 DC No 252 of 2017 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | District Court at Townsville – [2022] QDC 272 (Coker DCJ) |
DELIVERED ON: | 11 July 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 May 2023 |
JUDGES: | Mullins P, Mitchell AJA and Crow J |
ORDERS: |
|
CATCHWORDS: | TORTS – NEGLIGENCE – OCCUPIERS’ LIABILITY – PUBLIC PLACES – where the respondent attended a park maintained by the appellant – where the respondent fell into a concealed hole causing her to fall and suffer a spiral fracture of her left mid-shaft tibia, distal fibula and medial malleolus – where the respondent was successful at trial and awarded damages – where the primary judge concluded the appellant was liable for the injuries sustained by the respondent and made a finding of negligence in the appellant for its failure to detect the hole by undertaking reasonable inspections required of an occupier TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – where the appellant argues the primary judge erred in finding there was a hole and that the depth of the hole was of little consequence – where the appellant argues the primary judge erred in finding the inspections of the park performed by the appellant were perfunctory and uninstructed – whether the precautions taken by the Council were reasonable in the circumstances – whether the burden of the requirements within ss 9(2)(c) and 9(2)(d) of the Civil Liability Act 2003 (Qld) are too high to be placed on the appellant – whether the appellant was in breach of its duty of care to the respondent pursuant to ss 35 and 36 of the Civil Liability Act 2003 (Qld) Civil Liability Act 2003 (Qld), s 9(1)(a), s 9(1)(b), s 9(2)(c), s 9(2)(d), s 35, s 36 Bartels v Bankstown City Council [1999] NSWCA 129, followed Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29, considered Buckle v Bayswater Road Board (1936) 57 CLR 259; [1936] HCA 65, distinguished Fuller v Logan City Council [2006] QDC 305, distinguished Hodges v Townsville City Council [2022] QDC 272, cited Lanyon v Noosa District Junior Rugby League Football Club Inc [2002] QCA 163, considered Littler v Liverpool Corporation [1968] 2 All ER 343, cited Spencer v The Council of the City of Maryborough [2002] QCA 250, followed Staines v Commonwealth of Australia (1991) Aust Torts Reports 81-106; [1990] FCA 512, followed |
COUNSEL: | D P de Jersey KC, with B Reading, for the appellant J O McClymont and N I Congram for the respondent |
SOLICITORS: | Barry.Nilsson Lawyers for the appellant Rapid Legal Solutions for the respondent |
- [1]THE COURT: On 15 October 2015 the respondent (Ms Hodges) parked her car in the off-street car park adjacent to Love Lane at Sherriff Park, Townsville. Ms Hodges then walked across the grassed area of the park near the car park, where her left foot entered a “hole” causing her to fall. The park is occupied by the appellant (Council). Ms Hodges suffered serious personal injuries including a spiral fracture of her left mid-shaft tibia, distal fibula and medial malleolus. Damages were agreed in the sum of $301,603.23. As liability could not be agreed, the matter proceeded to trial before the primary judge who concluded that the Council was liable for the injuries sustained by Ms Hodges. Council appeals the decision on seven grounds.
Grounds 1 and 2 “The Hole”
- [2]Council argues that the primary judge erred in finding there was a hole, erred in concluding that the depth of the hole was of little consequence and ought to have found that Ms Hodges fell on uneven ground varying approximately 20mm. The primary judge found that there was a “hole” but did not make a finding of the characteristics of the hole as he considered that to be “of little consequence”.[1]
- [3]It is quite apparent that describing something as “a hole” can mean a great deal of different things, from a “pit” to a “depression in the ground.”[2]
- [4]
“Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green.”
- [5]It seems to us that if roads and footpaths ought not to be judged by standards of bowling greens, then it follows that public areas that are not bowling greens should likewise not be judged by the standard of a bowling green.
- [6]As an occupier’s lawful duty is to take reasonable care, then an occupier is unlikely to be liable if there is not a completely level area of surface or something close to it in an area where a pedestrian falls.[4] As an example, on the facts in Ghantous, the 5cm difference in level between the concrete footpath and the verge was not sufficient to support a finding of negligence against the Hawkesbury City Council.[5] The 5cm difference, however, in Ghantous was not concealed.
- [7]Ms Hodges did not run a case that the Council was negligent for concealing the hole (by regularly mowing over it with the knowledge that there was a hole) but rather, Ms Hodges’ case at trial was put on two alternate bases. The first, which did not succeed, was that the Council created or knew of the hole and did not fill it in.[6] The second basis, which succeeded, was that the Council took inadequate steps to inspect its park and had it done so it would have become aware of the hole and taken steps to remedy the hole by filling it in.
- [8]The lawful obligation of the Council, as occupier, to take reasonable steps to inspect is an easy matter to state in the abstract, however, the content of the duty is all important. That is, practically, in terms of inspections of parks and other public areas in the pursuit of the identification of hazards, what level of depression or hole is such that it ought to have been observable upon inspection and dealt with. There is, of course, a vast difference in the visibility (and danger) posed by a 17 to 20cm hole as opposed to a 2 to 5cm depression.
- [9]The decision of the New South Wales Court of Appeal in Bartels v Bankstown City Council also concerns a non-concealed hole.[7] Ms Bartels was playing soccer on a suburban Sydney soccer ground when her left foot got caught in a hole. The hole was described as being 35cm across and 4cm at its deepest. Ms Bartels did not succeed in her case at trial and nor on appeal. In Bartels’ case, the Council undertook a weekly mowing of the playing surface of the field and fortnightly mowing of the surrounding surfaces. The Council’s system was to fill any holes upon the field or surrounds as located as a part of the mowing process.
- [10]In Bartels the Court was also assisted by the evidence of a turf grass consultant from the Australian Turf Grass Research Institute who provided evidence that grass coverage, weed invasion and large depressions were a normal consequence of the use of playing fields of “this grade and use”. The turf grass consultant gave evidence that the Council’s maintenance program, being mowing with a weekly visual inspection of the playing surface, was within industry standard. In addition to the inspections undertaken whilst mowing, an inspector of the Council would visit each field every two weeks and walk up and down the field at least four times in order to see if there were any holes in the field. The Council inspector conceded at [29] that such a practice did not ensure that all holes were observed as it was possible to miss a hole.
- [11]Sheppard AJA, with whom Priestley JA and Stein JA agreed, said at [47]-[49]:
“[47] The duty of the Council in the present case is not an absolute one. The Council does not warrant or guarantee the state of the surface. It must act reasonably in all the circumstances. But no standard of perfection is imposed upon it. If one were to impose such a standard on it, it would probably bring an end to the use of grounds such as the one here for club soccer and other club football games played in the Council's area. It would have to decide whether it could afford the much more detailed inspections of the grounds than it can apparently afford to carry out at the present moment and weigh the cost factor against the public interest in making the grounds available.
[48] There is, of course, the question whether there is not disclosed here a casual act of negligence consisting of the failure of one of the Council's employees … to observe a hole which should have been observed in the course of the ordinary inspections which were made. One of the great problems about this is that one does not know how long the hole was there before the appellant suffered her injuries. The evidence does not permit one to draw any conclusion about it. … Apparently no-one had seen the hole and no-one had been impeded by it during the course of the play that had occurred down to the time of the appellant's injury.
…
[49] In all those circumstances it is very difficult to infer that the presence of the hole was the result of a casual act of negligence consisting of a failure to find the hole on one of the regular inspections which took place. It could not be correct to infer that the presence of any hole of the size of this one was without more an indication of a breach of a duty of care. If one took that view, one would be effectively imposing on the Council an absolute duty to ensure that there were no holes at all on its grounds. This would impose a standard of perfection which, in my opinion, the law does not require. In a playing field of this quality the best the Council can do is to have in place a system which is likely to result in holes being found. The fact that Mr Keys conceded that holes might escape attention does not itself mean the system which was in place had not been followed or was itself deficient.” [my underlining]
- [12]In Lanyon v Noosa District Junior Rugby League Football Club Inc, Mr Lanyon, while coaching an under 14 rugby league team ran upon a field when his left foot went into a depression and he suffered a serious injury.[8] The depression or hole was about 38cm long, 7.6cm deep and the width of a basketball, i.e. about 24cm. The primary judge accepted that the hole or depression had been caused by an activity related to an exposition which had been held on the field the previous weekend. The hole was not concealed yet had not been observed by any person prior to Mr Lanyon’s fall. Mr Lanyon’s claim failed.
- [13]The hole in the road caused by a drain in Buckle v Bayswater Road Board, was about two feet long, eight inches wide, eight inches deep, and was concealed by a growth of grass.[9] Although the hole was concealed by the grass, the defendant’s engineer had been expressly informed the drain was broken somewhere, and the defendant had a duty to keep the drain in proper order so as to prevent it becoming a danger to the public.[10] Latham CJ said at p 277:
“Any proper inspection would have shown at once that the drain was broken, and, if conducted with any reasonable degree of care, inspection would have resulted in the discovery of the hole which was responsible for the injury to the plaintiff.”
- [14]The primary judge referred to the decision of McGill DCJ in Fuller v Logan City Council.[11] Mr Fuller suffered personal injury when, while stepping down from a truck, his left foot went onto the corner of a piece of concrete which had been largely buried in the ground. Photographs were tendered of the piece of concrete and the surrounding areas, showing grass about 100mm long and concealing the concrete. In finding for Mr Fuller, McGill DCJ said at [26] and [27]:
“[26] The defendant admitted that it was the occupier of the footpath and that it owed the plaintiff a duty of care. The duty was to take reasonable care to avoid a foreseeable risk of injury to persons using the footpath. There are some recent decisions which throw some light on the content of this duty, and which indicate that it does not follow that a local authority is liable just because a person has suffered an injury because of the state of a footpath. One limitation is that the duty does not extend to the removal of obvious hazards, such as uneven paving stones, tree roots or holes. Those decisions are distinguishable, because in the present case the hazard posed by the lump of concrete was not an obvious one. For practical purposes it was concealed by the grass, at least unless one was quite close to it or looking for it. That was the effect of the evidence of the plaintiff and Mr Smith, there was no evidence to the contrary, and it is supported by the photographs in Exhibit 3 apart from those where grass had been cleared away by the plaintiff’s wife to make the lump of concrete more readily visible. The defendant is not assisted by the cases dealing with obvious hazards.
[27] A further limitation appears to be that the local authority is liable only for hazards of which it knows or ought to have known. Although the point is perhaps not entirely clear on the authorities, for present purposes I am prepared to assume that the duty does not extend to a general obligation to examine all footpaths for which a local authority is responsible to locate hazards, or at least hazards which are not obvious. Again, however, the defendant is not assisted by this limitation. Although I accept that this particular hazards was not in fact known to the defendant, in my opinion the defendant ought to have been aware of it. There was evidence which I accept that, for years prior to this incident, not only was the footpath overgrown, but also it had builders’ rubble, such as rocks and bricks and pieces of concrete, on it.” [footnotes omitted]
- [15]In Spencer v Maryborough City Council, the defect in the pavement was a 9 to 10mm lip that caused the elderly plaintiff to trip.[12] The primary judge’s verdict in favour of the plaintiff was reversed by the Court of Appeal. Holmes J (as her Honour then was) with whom McMurdo P agreed, said at [35]:
“[35] And what is, with respect, lacking in the learned trial judge's reasons, is any detail of what the system of inspection required of the Council to meet its duty of care was. It is one thing to assert that the defendant ought to have had an "effective and appropriate risk assessment program" in place. It is quite another to identify what form such a program should have taken; and more, what form it would have had to take in order to prevent the respondent's injury. Without such identification, it was impossible to say that the failure to implement it was causative of the plaintiff's injury. One might say that by failing to have a regular system of inspection – for example, annually – as opposed to reliance on a system of response to complaints, the Council was in breach of its duty of care to pedestrians using its footpaths. But it does not follow, and the evidence is not sufficient to support a conclusion, that such a system of inspection would have prevented existence of the defect in this case.”
- [16]The above authorities show that for a concealed hazard a local authority may only be liable for hazards of which it knows or ought to have known. The question of what hazards a local authority ought to be responsible for, as it ought to have known of those hazards, depends upon what is reasonably required of a local authority in terms of a system of inspection in order to locate hazards. It is not sufficient, as Holmes J said at [35] in Spencer, for there to be a broad reference to a necessary, effective and appropriate risk assessment program but more appropriately precisely what form, type and regularity of system of inspection is reasonable.
- [17]It is critical that the characteristics of the hole, depression, or tripping hazard be identified so that an assessment can be made whether the hazard was concealed or unconcealed and if the hazard is concealed then the inquiry must seek to determine what system or inspection would have brought it to the attention of the local authority.
- [18]The primary judge did record that whether the hole was of 17 to 20cm deep as suggested by the plaintiff or the size of a dinner plate and 5 to 6cm in depth as suggested by Mr Hardy “is of little consequence”. This conclusion has several difficulties. Firstly, there is no evidence that the plaintiff suggested the hole was 17 to 20cm deep.[13] Secondly, the depth of the hole cannot be of little consequence but is of critical consequence to the proper determination of the appellant’s liability. Thirdly, the primary judge commented of the hole:
“[48] It was more than an indentation or depression in the surface of the park, as is clear from the various photographs taken not only by members of the Plaintiff’s family but also that showing the ambulance officer, Ms Byron’s foot, in the hole.”[14]
- [19]It is an unfortunate circumstance that although several members of the plaintiff’s family were made aware of the hole and members of the Queensland Ambulance Service observed the hole, and the hole was photographed, no one inspected or measured the hole so as to provide accurate evidence of its diameter nor its depth. Six photographs showing Yunek’s (the plaintiff’s son in-law) left foot in the hole were tendered.
- [20]In each photograph, Yunek was shown wearing thongs. The photographs show the width of the hole to be little more than the width of the left thong in the toe area and in the heel area the depth of the hole did not exceed the depth of the thong and the top of the calcaneus (or heel bone) as that is clearly visible upon the photographs. Again, as no measurements were taken of anything, there can be no precision as to the depth of the hole, however, the photographs of Yunek’s left foot show that the hole would appear to be probably well less than 6cm at its deepest point.
- [21]The other photographs of the hole are even less impressive. Due to the incident with the stretcher, as discussed below, after Ms Hodges was taken to hospital, the attending ambulance officers and their inspector returned to the scene of the incident and attempted to photograph the hole. One photograph of the ambulance officer, Ms Byron, standing in the hole was tendered. It cannot be ascertained which of Ms Byron’s shoes are in the hole by simply looking at the photo.
- [22]In December 2015, photographs were taken showing Ms Mains’ right steel-capped working boot placed in the hole. Ms Mains’ left boot also appears in a photograph.[15]
- [23]The entire sole of Ms Mains’ working boots are visible in the photographs, once again suggesting that the depth of the hole was well less than 6cm. The primary judge’s comments that the hole was “certainly larger than the contents of a coffee cup, both in diameter and depth” are not borne out by the photographic evidence in terms of the depth of the hole, although the diameter plainly is much larger than the circumference of an average coffee cup.
- [24]The primary judge stated that the photographs showed that “…a man’s foot could be placed in the hole, to around ankle depth. This is much more than an unevenness or a depression, but more significantly, the Defendant’s own witness, Mr Hardy, estimated the hole at 5 – 6 centimetres deep.”[16]
- [25]The phrase “ankle depth” is apt to mislead as there are seven bones in the ankle. In any event, the photographic evidence shows three person’s ankles well out of the hole. The primary judge’s finding that a “man’s foot could be placed in the hole to around ankle depth” must be set aside as it is contrary to the photographic evidence. Ms Mains’ evidence of the hole being about ankle deep was based upon her interpretation of the photograph, but it is not borne out by the photographs.
- [26]The primary judge dismissed the Council’s argument that the hole or depression existed for an insufficient period of time, such that the Council ought to have noticed it and filled it in so as to prevent creating the hazard, reasoning that “I would dismiss any such argument noting the depth of the hole and the fact that it was grassed and therefore concealed, recognising the time needed for that to occur and the regular attendances at Sherriff Park for mowing and maintenance.”[17]
- [27]An important plank in the primary judge’s rejection of the Council’s argument at trial that the Council was not negligent was “the depth of the hole”, yet the primary judge expressly refrained from making any factual finding as to the depth of the hole. The error in the primary judge’s reasons therefore was to fail to make findings as to the characteristics of the hole.
- [28]In terms of ground two of the appeal, the primary judge has not erred in finding that the hole was “more than an indentation or depression in the surface of the park” as, within the broad definition of the meaning of the word “hole”, an indentation or depression of as little as several millimetres may be a “hole”. As discussed above, it is the depth of the indentation or depression which is a critical parameter to be considered with other parameters, such as the circumference of the hole and its edge characteristics.
- [29]By paragraph 2(a) of its grounds of appeal, the Council urges that the primary judge ought to have found that the hole “was uneven land varying approximately 20mm, such as might ordinarily be expected in a suburban park, on a typical suburban nature strip…”.
- [30]Given that there was a lack of evidence as to measurements taken with respect of the hole by any witness, the primary judge was not in error in failing to find that the hole was uneven land varying to approximately 20mm. The primary judge rejected that proposition and photographic evidence supported the primary judge’s rejection of the depth of the hole at a level of approximately 20mm. The ambulance inspector Hardy did identify the hole as a hazard[18] but said of it, “There was a divot in the ground, I suppose, about a dinner plate in diameter, probably about five, six centimetres deep …”[19].
- [31]Ms Mains, the respondent’s daughter, who was with Ms Hodges at the time of the accident, conceded she did not measure the hole and when asked to describe the hole, Ms Mains indicated that the circumference of the hole was the “Size of a basketball in diameter, I guess. You know, 30 centimetres, 20 centimetres. About that.”
- [32]Importantly, Ms Mains described the hole as being overgrown with grass such that “… you wouldn’t know that there was a hole there until you fell in it.”
- [33]This Court then has the same difficulty as the primary judge, that is to attempt to ascertain the characteristics of the hole when the evidence lacked precision.[20] The hole may have had a diameter of a basketball or dinner plate at 20 to 30cm and may have a depth of up to 5cm, however, the hole is perhaps best described with reference to the photographic evidence. Yunek’s left foot was photographed but not his right foot so it is difficult to glean much from the six photographs of Yunek’s left foot.
- [34]An examination of the photographs show that the diameter of the hole is more than a foot, that is, greater than 30cm and has a depth somewhere between 2 and 5cm. In terms of primary liability therefore, the question which ought to have been asked is what is required by way of reasonable care by the occupying Council in respect of a concealed hole or depression with the characteristics of being approximately 30cm in diameter and up to 5cm in depth in Sherriff Park, an area of 36,103 square metres.[21]
- [35]Additionally, in terms of ss 35 and 36 of the Civil Liability Act 2003 (Qld) the question was whether the failure to detect such a hole or depression constituted a lack of reasonable care having regard to the Council’s responsibilities for all of its park areas, which cover some 12,647,209 square metres.[22]
- [36]Council’s appeal against the primary judge’s finding that there was a hole cannot succeed as there is a great deal of evidence supporting the primary judge’s factual finding. Council is, however, correct to contend that the primary judge has fallen into error in concluding that the depth of the hole was of little consequence. A review of the caselaw shows that judges have been careful to describe the characteristics of an object or hole which causes a pedestrian to fall. The cases also show the differences in approach to determination of the issue of liability where pedestrians fall as a result of a concealed hole or hazard as opposed to an unconcealed hole or hazard. If the hole or tripping hazard is not concealed, the depth of the hole or height of the tripping hazard has been considered critical in determination of liability, e.g. Ghantous as discussed in paragraph [6] above. As discussed below, the depth of a hole is also a critical determinant of liability where the hole is concealed.
Grounds 3 to 7 - Inspections and ss 35 and 36 of the Civil Liability Act 2003 (Qld)
- [37]Council attacks the primary judge’s finding that inspections of the park as performed by employees of the Council were perfunctory and uninstructed. The conundrum in this case is the finding by the primary judge of negligence in the Council for its failure to detect the hole by undertaking reasonable inspections required of an occupier when the direct evidence before the primary judge was that, as Ms Mains said, “[Y]ou wouldn’t know that there was a hole there until you fell in it.”[23] The primary judge found that the attending ambulance officers were unable to detect the “hole” even though they “were alerted to its presence” as they placed the stretcher over it which subsequently collapsed.[24]
- [38]As is demonstrated by the decision of the Full Court of the Federal Court of Australia in Staines v Commonwealth of Australia particular problems arise when a hazard or a hole is concealed as opposed to a hazard being unconcealed and/or obvious.[25] The plaintiff, Ms Staines, was walking over a hockey field which was lush and green with a covering of 10cm of grass. Ms Staines placed her left foot into a concealed hole. The hole was covered in grass and not visible. The hole was about 10cm deep (measured to ground level) and not much bigger than Ms Staines’ left foot. The grass had been mowed by the defendant occupier to a constant height of 10cm above ground level, thus disguising the hole. The primary judge dismissed Ms Staines’ case, finding that the Commonwealth would have been liable for failing to fill the hole if it were aware of the hole, but that there was no evidence capable of supporting the fact that the Commonwealth ought to have known of the existence of the hole.
- [39]The appeal was allowed by the majority comprising Foster and Higgins JJ. Foster and Higgins JJ said at page 68,980:
“Accepting that the respondent had no knowledge of the existence of the danger, the next question is whether it was negligent of it to have been thus unaware, having regard to its duty to take reasonable care.”
- [40]Ms Staines’ case is unusual because the occupier did not provide any evidence as to its system of inspection, cleaning, or mowing of the park area. The Court reasoned on the basis of common knowledge[26] and judicial notice[27] that occupiers of sporting ovals and their associated facilities commonly employ groundsmen charged with the duty of carrying out maintenance on the oval which included reasonable inspection and mowing of the oval. The majority relied heavily on the characteristics of the hole being 10cm deep, commenting that the depth of the hole was “of significance” as it meant that it was likely at some point bare of grass and a lengthy period of time would have been required to have grown the 10cm from the bottom of the hole to the rim of the hole and a further 10cm to the height of the surrounding grass.[28]
- [41]The majority reasoned that during this considerable period of time:
“… in our view, the height difference should have been reasonably observable, as a danger signal, to the employee charged with the duty of keeping a watch out for such matters during mowing. It would have been the more readily observable by an employee charged with the duty of inspecting and cleaning up at any other time.”[29]
- [42]The type of inferences which may be drawn by a Court in cases such as Staines cannot be drawn in a case such as the present where there is considerable and uncontested evidence as to the system of inspection and maintenance of Sherriff Park. Mr Radcliffe, team leader in the Parks Department of the Townsville City Council, gave evidence that he would perform an inspection of the park on Monday mornings and also on Friday. The main day for maintenance of Sherriff Park was on a Thursday when a crew of five workers would attend each week at Sherriff Park to perform inspections and maintenance. The crew in fact attended on the day of the accident, 15 October 2015, prior to the accident occurring, commencing work at 6.00 am. Mr Radcliffe’s evidence was on the day of the incident and for each the Mondays, Thursdays and Fridays prior to the incident, he had not observed the hole.
- [43]Mr Frank Thompson had been mowing Sherriff Park for more than ten years, and said that he would typically spend four and half to five hours on a Thursday at Sherriff Park performing mowing duties. Mr Thompson was trained to look for hazards, in fact looked for hazards, and did not see the hole. Importantly, Mr Thompson’s evidence was that apart from visually inspecting, an experienced ride-on mower operator, such as himself, could detect a hole because the wheels of the mower itself or the jockey wheels on the deck of the mower would detect a hole as they fell into the hole. Mr Thompson’s evidence was that if he detected a hole, he would organise for any hole to be repaired.
- [44]Another crew member, Ms Collier, also would attend at Sherriff Park on Thursdays and Friday to perform an inspection and park maintenance and did not see the hole. In addition, the Council’s supervisor, Ms Miller who performed ad-hoc inspections of the park area, did not observe the hole.
- [45]The evidence at trial strongly supports the primary judge’s conclusion that, “I am also satisfied that the hole was concealed. The photographs tendered in evidence clearly example the difficulties in discerning a hole, even when its presence was known. This is shown again as obvious when the ambulance officers, knowing of the hole and its position, still had the stretcher topple over when a leg went into the hole.”[30]
- [46]As the Council did not know of the hole, it may only be liable for the hazard constituted by the hole if it ought to have known of the presence of the hole. That question can only be answered with respect to the characteristics of the hole, namely that it was shallow, perhaps about 5cm deep, 30cm in diameter and it was highly concealed such that, as the primary judge found, when it is pointed out to an observer that a hole is present, most persons would have difficulty in discerning that there was a hole.
- [47]It cannot be negligent of a person inspecting for hazards to fail to discern a hole when, as the primary judge postulated, even in the circumstances where a person is shown the hole they would still have difficulty discerning it was in fact a hole. In those circumstances where Council employees do not have the benefit of the hole being pointed out to them, it cannot be concluded that those employees and officers were in any way at fault for failing to detect the presence of the concealed hole. This case therefore differs from Staines where the majority concluded, in absence of evidence from the occupier, that a person keeping a reasonable lookout would have observed the hazard.
- [48]The primary judge’s description of the Council workers’ inspections for hazards as being “perfunctory and uninstructed” must be set aside when, prior to the fall, every witness who was familiar with the park said they were unable to see the hole and, as Ms Mains frankly said, “you wouldn’t know there was a hole until you fell into it.”
- [49]Indeed, the photographic evidence supports the evidence of Ms Mains’ view that if a person were not standing in the hole, you would not know there was a hole present. The primary judge found as a fact that the hole was concealed.[31] The actions of the Council therefore need to be examined in terms of a factual basis that the park with an area of some 36,103m2 contained a hole about 30cm in diameter and up to 5cm in depth which was entirely concealed with grass cover such that it could not be detected, unless a person stood in it.
- [50]The primary judge did not address the issues of the existence of a duty of care nor its breach, nor a ss 35 and 36 of the Civil Liability Act 2003 (Qld) defence with reference to the characteristics of the hole. The primary judge placed great significance on the ambulance “stretcher” toppling over as one leg of the stretcher fell into or struck the “hole”.[32] As is quite apparent from the ambulance officer’s evidence, the ambulance officers, like Ms Mains, were unable to see the hole and accordingly placed the stretcher above it, prior to lifting the Ms Hodges onto the stretcher. The significance of the stretcher toppling over is that it underlines the finding that the hole could not be seen, by reasonable inspection.
- [51]It was common ground that the Council owed a duty to persons such as the Ms Hodges to exercise reasonable care so that parks such as Sherriff Park were reasonably safe for people to use. We accept that the risk of people using the park suffering physical injury due to tripping in a hole which might develop in the park is a foreseeable and not insignificant risk in terms of s 9(1)(a) and (b) of the Civil Liability Act 2003 (Qld). The critical issue then becomes what precautions a reasonable person in the position of the Council would have taken in the circumstances. In our view, a reasonable person in the Council's position would have taken the steps which the Council took in this case, namely having persons engaged in mowing the lawns look out for and report hazards including holes and having an officer undertake regular inspections for hazards including holes, and filling holes which are identified. The Council did not fail to take these steps.
- [52]When the characteristics of the hole are properly discerned from the evidence at trial, it is apparent that Ms Hodges cannot succeed in her case.
- [53]The difficulty is that reasonable inspections of the park of the kind we have just described would not have (and did not) detect the hole in which Ms Hodges fell, which was so shallow and highly concealed that it could only have been detected by a person stepping into it or the wheels of a mower running over the hole. It cannot be concluded that a person in the position of the Council ought to have arranged for a person to step on every part of Sherriff Park and the other parks in the Townsville Local Government Area in order to detect holes. In terms of s 9(2)(c) and (d) of the Civil Liability Act 2003 (Qld), the burden of that requirement could only be concluded to be too high a burden to be placed upon a Council, particularly when there is great social utility (s 9(2)(d)) in having parks made available by occupying Councils for the use of members of the public.
- [54]In our view, in light of the facts that ought to have been found, the appellant Council is not in breach of its duty of care. It is unnecessary to consider ss 35 or 36 of the Civil Liability Act 2003 (Qld).
- [55]At trial, Ms Hodges had pled and argued a misfeasance type case that the Council had caused the hole to come into existence by removing a tree from the area of ground and had failed to properly rectify the hole created by the removal of the tree. The primary judge failed to make findings as to how the hole came into existence, stating that “the means by which the hole came into existence is not as significant as the fact that there was, I find, a hole.”[33]
- [56]The primary judge had described the submission that the Council had created the hole as “not certain by any means.”[34] A review of the evidence before the primary judge supports the primary judge’s conclusion that on balance it cannot be concluded that the Council did cause the hole to come into existence.
Conclusion
- [57]The appeal ought to be allowed. Judgment for the appellant ought to be entered against the respondent.
- [58]The formal orders should be:
- Appeal allowed.
- Orders 1 and 2 made by the primary judge on 7 December 2022 are set aside.
- The respondent’s claim is dismissed.
- The respondent must pay the appellant’s costs of the proceeding below and the appeal.
Footnotes
[1]Hodges v Townsville City Council [2022] QDC 272 at [47] and [48] “more than an indentation or depression in the surface of the park” and at [64] “a concealed hole, not a slight depression, an unevenness is the grassed area or a minor imperfection”.
[2]According to the Oxford English Dictionary, when used as a noun the word “hole” may be defined in many ways including “A hollow place or cavity in a solid body; a pit; an excavation made in the ground for an animal to live in; a hollow in the surface of the body…”.
[3][1968] 2 All ER 343 at p 345, as referred to by Jerrard JA in Spencer v The Council of the City of Maryborough [2002] QCA 250 and by Gleeson CJ in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 at pp 525 – 526 and Ellis v Uniting Church of Australia Property Trust (Q) [2008] QSC 74; [2008] QCA 388.
[4]Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.
[5]Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29.
[6][2022] QDC 272 at [48].
[7][1999] NSWCA 129.
[8][2002] QCA 163.
[9](1936) 57 CLR 259 at p 266.
[10](1936) 57 CLR 259 at p 276.
[11][2006] QDC 305.
[12][2002] QCA 250.
[13]ARB 278.
[14][2022] QDC 272 at [48].
[15]ARB 314 and ARB 247.
[16][2022] QDC 272 at [54].
[17][2022] QDC 272 at [66].
[18]ARB 337.
[19]ARB 337, line 6.
[20][2022] QDC 272 at [54] which it is required to conduct a rehearing under r 766 of the Uniform Civil Procedure Rules 1999 (Qld).
[21]ARB 110.
[22]ARB 114.
[23]ARB 299, line 29-30.
[24][2022] QDC 272 at [59].
[25](1991) Aust Torts Reports 81-106.
[26]At page 68,981.
[27]At page 68,983.
[28]At page 68,983.
[29]At page 68,983.
[30][2022] QDC 272 at [51].
[31][2022] QDC 272 at [49].
[32][2022] QDC 272 at [11].
[33][2022] QDC 272 at [45] – [47].
[34][2022] QDC 272 at [45].