Know your hazards! Local Government found liable for failing to provide adequate visual clues marking the potential hazard

Readers may find the case of Williams v Wollongong City Council [2020] NSWDC 564 to be quite ironic.

In 2016, Bernard Williams worked in disability support for an organisation, then known as House with No Steps, which offered a range of disability services. During the course of his employment, he fell from the top step of a stepped walkway (but not a staircase) and injured his left elbow and wrist. He had been injured when taking a client with an acquired brain injury to the Mount Kiera Summit Park to enjoy the view and to have a picnic. Wollongong City Council was the controller, manager and owner of the Park. When he and his client arrived at the Park, they walked to the viewing area. There were steps in the area marked with tactile ground surface indicators and with handrails. They sat and had lunch at a picnic table. Nearby, and visible from where they were sitting, was an amenity block with a disabled toilet. Mr Williams’ client stood up and quickly headed off to the amenity block. The judgment indicates there were at least two ways to go; one by a path straight to the door of the disabled toilet and the other via semi-circular ramp. Both routes sloped down to the amenity block. It is unclear which way Mr Williams’ client went but it was necessary however, for Mr Williams to re-direct his client away from the ladies toilet to the disabled toilet. Having done so he then set off down the path straight to the disabled toilet. However, he did not see the first step, fell and injured his left arm and wrist. At the time of the accident, he was 62.  He subsequently had 5 operations to repair the injury, but was left with ongoing pain, restriction and swelling. He could not continue working and so resigned.

The walkway in question was brick paved and consisted of 3 single widely spaced steps, each separated by a landing. There was no hand rail. There was vegetation, trees and a pergola near the walkway to the disabled toilet. There was evidence that at around the time of the accident, the nearby vegetation, trees and pergola would have substantially or entirely shadowed the stepped walkway. The Court found that improvements to the Park between 2004 and 2006, relating to the area in question, had included the installation of ramps, railings and tactile indicators, designed to address safety issues and provide disabled access.  The defendant was therefore aware of the need, as a matter of good practice, to provide adequate visual clues to entrants to the Park to the presence of steps and ramps.

Experts for both parties disagreed on the applicability of some Australian Standards, but did agree, and the Court accepted, that regardless of the Australian Standards or the Building Code of Australia, it was good practice in relation to single steps and stairways to ensure adequate visual cues and lighting were in place to alert users. This was due to a single step in a pedestrian area being a potential hazard, if not marked by adequate visual clues. The Court found that at least the leading edge of each step should have been highlighted or, in the alternative (and the Court’s preferred option), tactile indicators and hand rails should have been installed as they had been elsewhere in the Park. In the Courts view, these additional precautions would have made the steps so apparent that the accident would not have happened. The Court found the defendant had failed in its duty of care to take precautions to mark the hazard presented by the stepped walkway.

One might think that with the words “mount” or “summit” in the name, you might expect to encounter steps, sloping surfaces, or other uneven surfaces, and that in a natural environment like the Park you might pass from sunlight into shade. However, the Court refused to make a finding that the step was an “obvious risk” as defined in s.5F of the Civil Liability Act 2002 (NSW).  This was, in part, due to the fact the stepped path lead directly to the disabled toilet and there was signage in the area directing users to the disabled toilet.  Further, the Court considered that one would expect there to be some consistency in the use of tactile indicators and handrails throughout the park. Rather than make a finding of “obvious risk”, the Court made a finding of contributory negligence, as some caution should have been exercised in these circumstances.

Mr Williams was awarded over $600,000 in damages.  Had he been younger at the time of the accident, damages would have been higher, as there was no claim or award for future loss of wages or superannuation.

The case now puts Local Governments on notice to carry out appropriate hazard identification and risk assessments in relation to facilities and parks under their care, control, management or ownership.  Local Governments should now also have regard to the Australian Standards and the Building Code of Australia with respect to steps, stairs and stairways so as to ensure that adequate visual cues are in place as to their location.

Unfortunately for Mr Williams, the Mount Kiera Summit Park was not a Park with No Steps.









Photo credit.

For further information, please contact Carol Hamilton or Stephen Williams.

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