Written by Peter CarterJune 27, 2016
A local authority that received numerous complaints of water leaking over a sidewalk and causing several pedestrians falls has claimed it had no responsibility to rectify the problem more than 15 months after the first complaint.
Michael McLeod slipped and fell on a patch of water on a “slimy” concrete footpath in Harbour Drive, Coffs Harbour in an early evening Monday in August 2010.
His thonged left foot slipped out completely bringing him down on his right leg and then forward over his foot landing on his forearm and wrist.
Whilst at times of heavy rainwater collected at the area, it would also seep up from underneath. A conclusive cause could not be found.
The property owner whose home the deficient footpath lay beyond – Clare Sprogis – reported to her sightings of an elderly lady, a middle-aged man and “a few children” falling there with a warning that “if the council did not hurry up and do something, they would have a lawsuit on their hands”.
That was in May 2009. Evidence produced to the District Court in McLeod’s injury compensation ask revealed three other complaints about the same issue having been made to council up to 12 months earlier.
McLeod contended the council should have installed a subsoil drainage system and until it was rectified, installed barricades and appropriate warning lights at night.
The council defended on the basis it had civil liability immunity and no knowledge of the problem. The complaints, it argued “could not be attributed to the wet area on the footpath”.
That contention was rejected with the court finding the council had breached its duty in that “knowing there was a risk of a slip as at present it did nothing to obviate it”.
When damages of nearly $100k were awarded, the council appealed on the grounds that the judge had placed too much significance on the prior complaints and that the risk of harm had been overstated.
“The water was only an intermittent problem” not present at the time of McLeod’s fall, it argued.
The appeal judges rejected its arguments ruling it was beyond doubt that it was made aware of the water problem by the homeowner’s complaints.
Coffs Harbour City Council v McLeod  NSWCA 94 Gleeson Simpson JJA Sackville AJA 03/05/2016