Kathie Beatrice Salman sued the council after she rolled her ankle on a slight slope in Lessing Park,just north of Hornsby’s CBD,during a family barbecue on the last day of summer in 2021.
Kathie Salman fell over while negotiating the change in surface from mulch/bark to spongy rubber.Supplied
She fell while moving from a mulch or barky area surrounding children’s play equipment onto the spongy,rubbery surface directly beneath the swing set,and successfully argued that the council’s failure to repair the height difference between the two surfaces led to her injury. She sustained fractures in her right leg and ankle,along with injuries to her left leg and back.
Salman agreed during proceedings she was not looking at the ground as she walked,but said she assumed the two surfaces were level. The council argued Salman did not keep a proper lookout,and therefore it was not liable.
District Court judge Alister Abadee last year found the council owed Salman a duty of care to avoid a foreseeable risk of injury,and failed to take reasonable precautions – such as topping up the mulch.
“This was a children’s playground area:an area of fun and perhaps an area for delight,” he found. “The expectation of entrants taking reasonable care for their safety had to be viewed in that context.”
Hornsby Shire Council mayor Philip Ruddock.James Alcock
Salman was awarded $333,000 in damages,reduced to $283,200 because she was deemed to have contributed to her accident by negligence.
It included $166,000 in non-economic losses,such as mood swings and pain associated with her earlier bipolar diagnosis,which she said escalated after the injury and impacted her marriage.
Salman also ascribed significant weight gain to her injury. But during cross-examination,she was presented with evidence her weight had not changed between medical appointments in October 2019 and August 2021. She then told the court she had tried to lose weight,but the accident had “prevented her from pursuing that particular endeavour”.
Hornsby Shire Council appealed on eight grounds. But in a judgment on Thursday,the NSW Court of Appeal ruled two-to-one in Salman’s favour and dismissed the appeal,ordering the council to cover Salman’s costs.
Appeal judge Christine Adamson said while the height difference between the two surfaces may have been noticeable to Salman if she were paying attention,that did not make it “readily discernible”.
“For example,a hole in a floor may be obvious but where it is in an area where people,whether or not familiar with the location,regularly pass,such as a workplace or a shopping centre or public street,allowance must be made for inadvertence,” Adamson found.
“It is not enough to conclude that the hole or other hazard would be obvious to someone paying close attention.”
Dissenting judge John Basten argued the council’s appeal should have been upheld. He found there was a “total absence of evidence” this risk had ever materialised in other playgrounds designed in the same way,and Salman never proved the council had breached a duty of care.
Hornsby Shire Council said:“This 57-page ruling,made at 10.30am this morning,is presently being evaluated by our legal team. We will be prepared to address the matter in detail once we have received further advice.”
The council is also weighing legal action over the state government’s decision to demand repayment of a $36 million grant for a park project. The money came from the previous Coalition government’s controversial Stronger Communities Fund,later the subject of.
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