Compensation claims for injuries resulting from a public park fall because of uneven ground usually go nowhere.
If though the “uneven” ground is in fact a hole 5 cm – 6 cm deep concealed by surrounding lawn, such a claim becomes arguable.Consider the case of Barbara Hodges – when joining her daughter for a walk-in Sheriff Park in Townsville – her left foot stepped into what she described as a hole, causing her to fall and suffer a spiral fracture of the left tibia, fibula and malleolus.
She was ambulanced from the scene to Townsville University Hospital for open reduction surgery that required internal metal fixation to retain the limb in place.
Her inevitable injury compensation claim against the Townsville City Council contended that it ought to have discovered and removed the hazard and that its failure to do so rendered it liable her in damages.
Barbara had sworn by declaration that the hazard was 15 cm – 20 cm deep. Her account under cross examination when the matter came before Judge John Coker in Townsville’s District Court conceded that it may have been shallower and she could give no accurate estimation of its depth.
This inconsistency was seized on by the council’s legal team who argued that the height differential was in fact, a mere “indentation” of 20 mm maximum.
The council called numerous members of its landscaping staff in support of that argument and to inform the court they had not observed a hole that met Barbara’s description during the weeks of or following her accident.
Judge Coker however did not take this as evidence that the hole had not been present. He concluded from such evidence that their inspections had not been adequate to detect its presence.
Critical to the ultimate outcome of the case were the events associated with her ambulance treatment at the scene.
Ambulance officer Jodie Byron attested to the fact that the gurney to which Barbara had been strapped began to roll over as it was being wheeled towards the ambulance because one of its wheels descended into a hole.
She recorded the event in her triage notes and even took a photograph of her foot inside the hole to depict its depth.
A senior ambulance officer – called as part of the defendant’s case – subsequently came to the scene as part of a QAS investigation of the mishap and found the hazard which office Byron had reported, describing it as having the diameter of a dinner plate and of a depth of 5 cm – 6 cm.
Officer Ray Hardy swore from the witness box that he in fact requested a nearby council maintenance crew to fill the hole with a “shovelful of crusher dust” from the back of their truck to eliminate the hazard, which they proceeded to do.
His Honour wasn’t perturbed by the plaintiff’s account of the hole having three times the depth that both QAS personnel attributed to it. He was satisfied by reason of the tipping of the ambulance trolley; officer Byron’s concern about the incident; and the concern of officer Hardy, that the depression – however deep it was – constituted a hazard to which the council’s duty extended to make the space as safe for users as reasonable care could make it.
“It was a hole, not a depression or unevenness in that it caused a risk apparent as a result of the plaintiff’s injuries but most obviously as a result of the toppling of the ambulance stretcher,” he observed.
Neither was the court concerned as to how the hole came into existence.
More to the point was that it was concealed by the presence of grass growing from inside that had been mowed to the same level as its surrounding lawn and that it was in a high traffic area for members of the public close to the only off-street car spaces in the park.
The the height of the grass growing from the base of the depression was a sufficient indication that it had been in existence for long enough to allow the council – had its inspections been sufficiently diligent – to have discovered it.
Judge Coker awarded Barbara $302,000 in damages such sum having been agreed between the parties as the appropriate compensation for the serious injury she sustained.
This decision was reversed by the Court of Appeal on 11 July 2023 on the basis that the council could not – by reasonable inspection – have been expected to have been able to detect the concealed hole.