Townsville City Council v Hodges [2023] QCA 136
On 15 October 2015, Ms Hodges walked across land maintained by the Townsville City Council when her left foot entered a hole causing her to fall. Ms Hodges suffered serious injuries including a spiral fracture of her left mid-shaft tibia, distal fibula and medial malleolus.
The ‘hole’
This trial considered in depth the meaning of a ‘hole’. Given that previous case law has considered that a hole can range from a ‘pit’ to a mere ‘depression in the ground’, the Court considered an extract from Litter v Liverpool Corporation, where it was discussed that;
- ‘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.’
The Judge found that if roads and footpaths are not to be judged by the 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. Thus, it is to be presumed that there will likely be uneven surfaces dispersed throughout public areas that may cause occupiers to lose balance. Therefore, while the owners of a public area do have a duty to ensure that their premise is safe for pedestrians to walk on, they are unlikely to be liable for the injuries sustained to a pedestrian who falls on an area which is only slightly uneven.
Issues at trial
The ground which Ms Hodges succeeded in at first instance against the Townsville City Council was that the Council took inadequate steps to inspect its park – and had it done so, would have become aware of the hole and taken steps to remedy the hole by filling it in.
The obligation of the Council to take reasonable steps to inspect its park was easily established, however, the extent to which this duty applies is uncertain. Particularly in this instance, the Court considered;
‘…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’
In considering various case law, it was determined that the owner of a public area may only be liable for hazards of which is knows or ought to have known. The question of what hazards a local authority ought to be responsible for depends upon what is reasonably required of a local authority when inspecting their area for hazards.
When the owner of a public area is inspecting for hazards, they will not be negligent in circumstances where a person is shown a hole and there is still difficulty in discerning that it was in fact a hole i.e. where the hole is concealed (in some circumstances) or not of sufficient depth. In this case, while it was found that the Council workers’ inspections for hazards where ‘perfunctory and uninstructed’, every witness who was familiar with the park said that they were unable to see the hole ‘unless you fell in it’.
Based on these facts, the Judge found that the hole was concealed. The actions of the Council therefore needed to be examined in terms of a factual basis that the park with an area of 36,103 square meters contained a hole about 30 cm in diameter and 5 cm in depth which was entirely concealed unless a person stood in it.
Given that the Council had an established duty of care to maintain its grounds, the Court then considered what precautions the Council ought to have reasonably taken. Evidence at trial demonstrated that the Council regularly mowed the lawns, reported hazards, and had an officer undertake regular inspections. The Judge was satisfied that the Council fulfilled its duty of care.
Therefore, the Council did not breach its duty of care and Ms Hodges claim did not succeed.