Posted on October 7, 2021 by Anzer Khan and Sue Puckeridge

Risk management of public land and demonstrating a reasonable risk management system

In a recent matter in the District Court of NSW, the Court considered a claim of negligence brought against Georges River Council (Council), amongst other parties.

The case, while not establishing new law, highlights the importance of integrating risk management into the day to day operational management of public places so that the ongoing monitoring and reporting of risks can be demonstrated. A Court is more likely to consider such a system reasonable, with the result that the public authority is more likely to limit liability under the Civil Liability Act 2002, even if the system is not so comprehensive as to demonstrate that every part of the land is thoroughly checked for risks.

Background

The plaintiff was a high school student participating in a Saturday inter-school touch football competition on a sports field maintained and owned by the Council.

During the game, the plaintiff fell to the ground in severe pain alleging her foot got stuck in a hole or depression in the playing surface of the field causing her injury which consequently required surgery. She subsequently brought proceedings against Council and her school, alleging negligence.

In order to succeed in her claim, the plaintiff needed to firstly prove on the balance of probabilities that there was a hole or depression in the playing surface of the field that she stepped into at the time she sustained her injury.

The plaintiff could not say that she saw the hole and was ultimately unable to establish that she fell into one so as to cause the injury to her knee.

Evidence of the risk management system in place to protect against the injury

The evidence showed that Council permitted use of the sports fields by entities such as local touch football associations.  Permits were issued to such entities to allow them to play on the sports field. A condition of those permits was that the entity had to inspect the playing fields and surrounding areas prior to play for hazards and defects in the surface of the fields, including potholes.  Any identified risks had to be fixed or managed before play commenced and reported to the Council.

At the time of the plaintiff’s injury, the fields were also being used by two touch football associations. Under their permits, those associations were obliged to inspect the playing field before each match and report any defects. There was no evidence of any reports or defects in the playing surface from these associations or otherwise leading up to the date of the plaintiff’s injury.

Although the Council did not apply the same conditions to the use of the sports fields by schools (they were allowed to book the fields free of charge with different conditions), there was no direct evidence of anyone on the day observing a depression or a pothole. The venue convener could demonstrate that her usual practice was to inspect playing fields for risks.  This was supported by the completed checklist prepared for that day which did not identify any pothole.  The referees for the school game also checked the field and did not report any holes or depressions.  Further, a player who also gave evidence did not notice anything unusual with the field.

Additionally, Council had a system of maintenance of the park within which the sport fields were located. This included:

  • a maintenance team of three workers attending the ground two times per week to remove rubbish and other objects from the park and playing fields. This involved the workers checking, fixing and reporting of any noticeable defects.
  • weekly mowing of the playing fields, which would make any hole or depression plainly visible.

There was no evidence that the maintenance teams had lodged any reports of any holes or depressions requiring repair of any part of the park in which the sport fields were located prior to the plaintiff’s injury.

Decision

The Court found that Council’s system of weekly maintenance, and its requirement, as part of its permit system, for others to inspect, manage and report defects was reasonable in the circumstances.

The Court did not accept the plaintiff’s argument that a metre by metre inspection by persons walking the fields, rather than just a visual inspection, was required for the Council to demonstrate that reasonable precautions to prevent injury had been taken. Such a system was not considered to be reasonably proportionate or appropriate in the circumstances. The Council was responsible for many other parks and it would have been ‘impractical (and unreasonable) for Council to inspect, metre by metre, every playing surface with indefinite frequency’ (at [103]).

The case demonstrates that implementing systems within the day to day management of public places which provide for the documentation and reporting of identified risks will allow public authorities to manage risk in a reasonable way.

A link to the decision can be found here: Mersal v Georges River Council [2021] NSWDC 395

If you would like to discuss this blog, please contact Sue Puckeridge or Anzer Khan.