August 23, 2021

A visitor to a mountain lookout public park who fell on a step while descending a paved path has defeated the local council’s appeal against his $700k damages award.

Bernard Williams – a disability support worker – had in May 2016 been supervising an adult under his charge at the Mount Keira Lookout that overlooks Wollongong NSW.

He misjudged one of three single steps in an access path descending to a toilet block, fell to his left and injured his left elbow and wrist.

Seriously incapacitated, he filed proceedings against the council claiming it was liable for failing to provide a handrail or warnings as to the danger in the access path posed by the steps.

When the matter came before the NSW District Court he argued that the single steps were indistinguishable from the brick paver pathway as they were constructed of the same materials and in the same colour brown.

The council defended contending it had no duty to warn of the risk of harm posed by having to negotiate the three single steps because it was an “obvious risk”.

And had he been looking where he was going – it alleged – Williams would have seen the change in pattern of the brick pavers for the “nosing” at the edge of the step.

Williams testified he had indeed been looking straight ahead and had “continued to monitor” the path but shadows cast from nearby trees disguised the visual cues by which he might otherwise have detected a change in level as he proceeded.

Expert safety consultants Dr John Cooke of UNSW and Neil Adams concurred that “a single step in a pedestrian area is a potential hazard if it is not marked by adequate visual cues”.

Applying that opinion, Judge Matthew Dicker concluded them to be a hazard because the pavers were of the same colour and the differentiation in the “nosing” pattern was “not clearly conspicuous, particularly in the shade”.

That said, the risk they posed was not “obvious” he concluded. Users “would not expect a pathway leading to a disabled toilet …to involve steps that were not clearly delineated with adequate visual cues” and to be without handrails.

His Honour allowed the claim with a 15% deduction for contributory negligence.

He then applied a 10% discount to arrive at past wages and superannuation damages of $316k out of a total award of $700k. There was no claim for loss of future earning capacity as the 66-yr-old Williams had retired by the date of the trial in August 2020.

All three appeal judges dismissed the council’s appeal.

In addressing Williams’ appeal against the finding he had been contributorily negligent, the court recognised the trial judge had faced a conundrum.

“Having accepted that the step was not readily visible to a person who was exercising reasonable care for their own safety,” Justice Lucy McCallum reasoned “it was necessary [for the primary judge] to identify some basis for the conclusion that Mr Williams failed to perceive the step because he wasn’t”.

Her Honour concluded that there was no such evidence.

“His only fault was that he did not happen to look down towards his feet, as opposed to looking ahead in the direction in which he was walking,” which conduct was obviously not negligent.

She – with whom Justice Carolyn Simpson agreed – allowed Williams’ appeal against the finding of contributory negligence.

Those two Justices also agreed that the 10% discount applied to past loss of income had been done so in error because the trial judge had assumed that some discount was required to take into account the chance of the plaintiff retiring before the age of 66. Such assumption was wrong.

The proper course – which the primary judge neglected to follow – was to assess the degree of probability of such early retirement.

Given that all the evidence contradicted any such prospect – for example Williams had continued to work through many adversities in the past – “the discount of 10% was inconsistent,” wrote Justice Simpson.

Williams won on all three points and was awarded the costs of the appeal. The resulting outcome was an approximate $150k increase in his overall award.

Wollongong City Council v Williams [2021] NSWCA 140 McCallum JA Simpson AJA Adamson J, 9 July 2021 Read case

Categories: Park & Public Place injuries

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