A decision to award a woman just over $300,000 in compensation for an injury sustained in a public park in Townsville has been set aside on appeal.
In December last year, the District Court ordered Townsville City Council to pay $301,603.23 in damages to Barbara Josephine Hodges for a broken leg she sustained after stepping into a concealed hole at Sherriff Park in October 2015.
Ms Hodges had argued the council was negligent because it 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 it.
The council appealed Judge Coker’s findings, including there was a hole in the ground, and the council’s park inspections were perfunctory and uninstructed.
It argued Coker CDJ ought to have found that Ms Hodges fell on uneven ground varying about 20mm, and that “public areas that are not bowling greens should likewise not be judged by the standard of a bowling green”.
Council also argued it conducted weekly park inspections and mowing, and no staff had detected the hole.
In their decision delivered today, Mullins P, Mitchell AJA and Crow agreed with the primary judge’s finding that a hole existed, but stated there was lack of evidence about it, because no one inspected or measured the hole at the time of the incident as to its diameter or its depth, and photos could not accurately show its dimensions.
“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,” they said.
“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 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.”
The judges ordered the original decision be set aside, that Ms Hodges’ claim be dismissed, and she pay the costs of the initial proceeding and appeal.
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