Can You Sue the Council for Tripping on a Footpath or Pothole in Queensland?

Who is responsible for the footpath or road?

The first step is working out who owns or controls the spot where you fell.

• Local roads and footpaths: your local council.
• State-controlled roads: the Department of Transport and Main Roads. The QLDTraffic Road Lookup service shows who owns a road.
• Driveway crossings: in Brisbane, property owners must build and maintain their driveways, including the section that crosses the footpath.
• Pits and covers: a service pit may belong to a utility, such as a water or telecommunications provider, rather than the council.
• Private land: shopping centres, car parks and forecourts are usually the occupier’s responsibility, not the council’s.

More than one party can be responsible, for example a council and a contractor that was working on the footpath.

The special rules that protect councils

The actual-knowledge rule

Section 37 of the Civil Liability Act 2003 (Qld) says a road authority is not liable for failing to repair a road, or for failing to inspect it to decide whether it needs repair, unless it had actual knowledge of the particular risk that caused the harm at the time.

That means it is not enough to show the council should have found the defect. You need evidence that it knew. In Goondiwindi Regional Council v Tait [2020] QCA 119, the council had put up “rough surface” warning signs that were not weighed down and blew over, and a motorcyclist hit a pothole. The Court of Appeal held that the risk the council knew about was potholes developing or worsening and injuring road users. That was the risk that caused the crash, so the council had actual knowledge and section 37 did not protect it.

A “road” takes its meaning from Queensland’s road transport law and includes land dedicated to public use as a road. A footpath inside the road reserve may be treated as part of the road, but whether a particular path counts can be argued.

Budgets and priorities

Councils are also judged on the resources they reasonably have, and their general decisions about how to spend them cannot be challenged (section 35). In claims about how a council exercised or failed to exercise its functions, a council is liable only if what it did or failed to do was so unreasonable that no council with those functions could properly consider it reasonable (section 36).

In Dennison v Brisbane City Council [2026] QSC 83, a cyclist suffered serious eye and brain injuries when a metal stake on a mesh barricade, left by the council around newly laid concrete on a footpath, pierced his eye. The court said the council would otherwise have breached its duty of care. However, it held that section 36 applies to negligence claims against councils, not only to breach of statutory duty claims. It found the council’s conduct was not so unreasonable that no council could consider it reasonable, so the claim failed. This was a trial decision, and the law in this area may change if it is reviewed on appeal.

What makes a claim against a council stronger

• Earlier complaints. Reports of the same defect, by you or anyone else, before your fall.
• The council’s own records. Inspection reports, work orders and repair requests showing it knew.
• Warning signs or cones. Signs, paint marks or barricades show the council had identified the hazard.
• Council works. If the council’s own work created the hazard, such as equipment left on the path, you may be able to argue that the claim is about something the council did, not a failure to repair. Courts have read section 37 broadly, though, and the council’s other protections can still apply.
• The size of the defect. A large, hard-to-see lip or hole in a busy area is more likely to be treated as unreasonable than a small, visible crack.

Much of this evidence is held by the council. A lawyer can ask for it as part of the pre-court process.

Obvious risks and your own care

The law also looks at your own conduct. An obvious risk is one that would be obvious to a reasonable person in your position, and there is generally no duty to warn of it (sections 13 and 15). If a council argues you voluntarily accepted an obvious risk, you are presumed to have been aware of it unless you prove otherwise (section 14). A risk is not treated as obvious if it came from a failure to maintain or care for something, unless that failure was itself obvious.

If you were not taking reasonable care for your own safety, for example running, looking at your phone or walking in the dark where you knew the path was broken, your damages can be reduced. In an extreme case a court can reduce them by 100%, which defeats the claim (section 24).

How to claim against a council for an injury

Injury claims against a council follow the Personal Injuries Proceedings Act 2002 (Qld).

1. Step 1 Give Part 1 of a notice of claim to the council within nine months of the fall (or of symptoms first appearing), or within one month after you first instruct a lawyer and the council is identified as the party responsible, whichever is earlier. A late notice needs a reasonable excuse.
2. Step 2 The council must respond within one month, and within six months of a complying notice say whether it admits liability.
3. Step 3 Both sides exchange documents and evidence, including the council’s records about the defect.
4. Step 4 A compulsory conference is held to try to settle the claim.
5. Step 5 If it does not settle, court proceedings must generally start within three years of the fall.

Notice9 months (or 1 month after instructing a lawyer) Court3 years

Pothole damage to your car

A claim for damage to your car, with no injury, is a property claim made directly to the road owner.

• Brisbane City Council: lodge a Notice of Injury, Loss or Damage online. You need evidence that the council did something wrong that caused the damage and that it is liable to pay.
• State-controlled roads: use the Department of Transport and Main Roads claim form (F5110) with photos and repair receipts. The department says its liability depends on whether it knew or should have known about the hazard, the funding available and whether other work took priority. It does not normally accept claims for extreme weather events, ordinary road debris, criminal acts, other people’s actions, or damage already covered by your insurance.
• Other councils: most have their own claim form on their website.

If you have comprehensive insurance, your insurer may pay and then pursue the road owner itself.

What to do after a fall on a footpath

1. Step 1 Get medical treatment, and tell the doctor how you fell.
2. Step 2 Photograph the defect close up, with something for scale such as a coin or your shoe, and from further back so the exact location can be found.
3. Step 3 Note the lighting, the weather and anything that blocked your view.
4. Step 4 Report the defect to the council in your own name and keep the reference number. Anonymous reports get no reference number.
5. Step 5 Take the names and numbers of anyone who saw the fall or knows the path, including neighbours who may have complained before.
6. Step 6 Keep the shoes you were wearing, and your receipts for treatment and expenses.
7. Step 7 Get legal advice well before the nine-month notice deadline.

What you can claim

• General damages for pain and suffering, assessed on Queensland’s injury scale.
• Past and future lost earnings and superannuation.
• Medical, rehabilitation and travel costs.
• Paid care, and unpaid care from family if it is necessary because of the injury and provided for at least 6 hours a week for at least 6 months.

Our claim estimator explains how Queensland damages are made up.