The Supreme Court of Victoria recently found in favour of a Plaintiff, Mr Clarke, who suffered hip injury when he fell over a raised stormwater pit in a public park.

Background

On 14 September 2008, at approximately 8.00pm, Mr Clarke was half walking, half jogging across a reserve located in Shepparton in Victoria. Mr Clarke was on his way to buy fish and chips for dinner when he tripped and fell on a raised stormwater pit. He injured his hip, requiring surgical repair, as well as his left knee and back. Aged 61, Mr Clarke requires a walking stick and wears a back brace and knee brace. He faces a full hip replacement and potential knee reconstruction. Greater Shepparton City Council (the Council ) was the responsible authority in relation to the road and also the responsible infrastructure manager in relation to the stormwater pit. Mr Clarke commenced proceedings against the Council in negligence and sought damages for his pain and suffering, past and future medical expenses and care services. The Council denied liability and argued that Mr Clarke had failed to prove that he suffered his injuries after tripping on the stormwater pit. The Council also argued that even if the Court found that Mr Clarke did suffer the injury as a result of the stormwater pit, he had failed to exercise reasonable care for his own safety when crossing the reserve in the dark. The Council denied any breach of their common law duty, and argued that it would have been obvious to a reasonable person that there were trip hazards that needed to be avoided.

Findings

His Honour Keogh J determined that the Council was in breach of its common law and statutory duties. He found that the stormwater pit represented a foreseeable hazard to a pedestrian who might encounter it at night. The Council, having knowledge of the hazard, should have foreseen the likelihood of a pedestrian such as Mr Clarke tripping and suffering a serious injury. The Council failed to take precautions in response to the hazard caused by the raised stormwater pit. Acting reasonably, the Council should have built up the earth surrounding the pit to remove the hazard or warned pedestrians of the risk by painting the stormwater pit and erecting warning signs. The Judge ultimately awarded Mr Clarke over $300,000 in damages for his pain and suffering, past and future medical expenses and care services. However, he also found Mr Clarke was partly responsible for his accident and accordingly reduced his damages by 15% for contributory negligence. For details of the case see Clarke v Greater Shepparton City Council [2016] VSC 542. 

If you would like further information about your eligibility to claim for an injury suffered in a public place, contact one of our friendly members of our legal team at Redlich's Work Injury Lawyers at 03 9321 9988.