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Case summary: Hornsby Shire Council v Salman [2024] NSWCA 155 – personal injury in a council playground

Published on October 11, 2024 by Tim Gauci

The New South Wales Court of Appeal, comprising White JA, Adamson JA, and Basten AJA, delivered its decision in Hornsby Shire Council v Salman [2024] NSWCA 155, a case involving a personal injury sustained in a playground, addressing key issues around council liability, compliance with Australian safety standards, and the application of the “obvious risk” defence under the Civil Liability Act 2002 (NSW).

Background

On 28 February 2021, Ms Salman sustained injuries after falling in a children’s playground located in Lessing Park, managed by Hornsby Shire Council (the Council). The injuries she sustained included injury to her ankles and feet, including fractures in both legs, as well as a strain in her back, and psychological sequela.

The playground featured a blue wet pour surface beneath the swings, designed to create a cushioned area. This blue surface had sloping edges and was surrounded by mulch or bark.

As Ms Salman approached the swings where her nephew was playing, she stepped from the mulch onto the blue surface. In doing so, her right ankle twisted outward. To stabilise herself, she shifted her weight, causing her left ankle to roll as well, and ultimately, she fell forward.

Importantly, the Council had received two reports in the seven months prior to Ms Salman’s accident, which highlighted that the height difference between the mulch and wet pour surface was too large and that the mulch needed to be raised to match the height of the wet pour.

Ms Salman commenced proceedings against the Council in the District Court of New South Wales alleging that the Council breached its duty of care and was negligent for failing to ensure the change of surface was clearly demarcated and levelled.

Decision in the first instance

The Council denied liability maintaining that there was no duty of care owed to Ms Salman. The Council asserted in the alternative that the risk of suffering injury if proper care was not taken when walking across an area of change in surface was obvious, and as such, there was no need to warn Ms Salman of the risk [1].

Ms Salman did admit that had she been paying closer attention, she may have noticed the height difference between the two surfaces.

Ms Salman relied on an expert report from Denis Cauduro – Ergonomist that referenced Australian playground standards which prescribed Council maintenance obligations, as well as the two reports issued to the Council by Playfix prior to the subject accident.

Judge Abadee ultimately found that the Council had breached its duty of care and acted negligently by failing to take reasonable precautions against the risk of harm posed by the uneven surface. The court found that the Council should have topped up the mulch to bring it to the level of the wet pour surface, carried out regular inspections of the area, and/or displayed warning notices. Ms Salman was awarded $283,200 in damages which included a reduction of 15% for her contributory negligence.

The court rejected the argument put forward by the Council that the risk of harm posed by the step down was an ‘obvious risk’ for the purpose of section 5H of the Civil Liability Act 2002 (NSW).

Decision on appeal

The Council appealed the trial judge’s decision, challenging the finding of liability, but not disputing the contributory negligence or the amount of damages awarded.

Key issues on appeal

The Council’s appeal raised several key arguments, which were rejected by the majority judges, White JA and Adamson JA:

• Identifying the risk of harm

The Council argued that the primary judge misunderstood the nature of the risk, asserting that the true risk involved a person rolling their ankle on a sloping surface, unrelated to the mulch or bark. The Court of Appeal rejected this argument, noting that the Council could not reformulate the risk on appeal. Additionally, the majority held that the risk defined by the Council was overly specific and focused too narrowly on the mechanics of the fall.

• Australian standards

The reports by Playfix received by the Council prior to the high difference between the mulch and wet pour expressed that they were prepared in accordance with the applicable standards to the playground. The trial judge held that the Council, by commissioning these reports, accepted these standards applied to the playground.

• Height differential visibility

The trial judge accepted Ms Salman’s testimony that the height difference between the two surfaces was not readily noticeable. Despite photographic evidence presented by the Council, the Court of Appeal ruled that it was inappropriate to overturn the trial judge’s finding based on these photographs, as the judge had the advantage of seeing and hearing her firsthand account.

• Obvious risk

The Council contended that the risk should have been obvious to Ms Salman. However, the Court found that this argument ignored the practical realities of the situation—namely, that individuals using playgrounds may be distracted, especially when supervising children, as was the case here. The Court held that the Council needed to account for such distractions in maintaining the playground.

• Causation

The primary judge found that the Council’s failure to follow the recommendations from Playfix directly contributed to Ms Salman’s fall. If the Council had ensured the surfaces were level, the risk of her injury would have been significantly reduced. The majority of the Court of Appeal upheld this finding, agreeing that the Council’s inaction was a contributing factor to the incident.

In dissent, Basten AJA argued that the difference in surface levels was an obvious condition, and there was no requirement for the Council to take steps to remedy the height variation between the two surfaces in the playground.

The Court of Appeal dismissed the Council’s appeal, affirming the trial judge’s finding of negligence. The Council was ordered to pay Ms Salman’s costs for the appeal.

Key takeaways

This case highlights the importance of properly framing the risk of harm in negligence claims. It also reinforces the importance of relevant expert evidence when arguing that a public authority has breached its duty of care.

The case also demonstrates that defence of obvious risk may be limited, especially in public spaces where distractions, like supervising children, are expected. This arguably opens avenues for challenging defendants who rely on this defence, arguing that users may not be fully aware of potential hazards.

Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you.

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Civil Liability Act 2002 (NSW), s5H.