Public liability win for Councils

Two judgments handed down on 3 October highlight the risks of bringing speculative suits against local Councils for injuries sustained when using public recreation equipment, leading insurance law firm Phillips Fox said. According to Phillips Fox partner, Michael Down, who acted for the Councils in both matters, the cases prove that it is inappropriate to place the liability for all public recreation equipment injuries on local Councils.

“It is simply wrong to assume Councils are automatically responsible for all injuries on their public recreation equipment,” Michael Down said. “These cases demonstrate the courts are rejecting claims where there is no credible evidence of Councils’ negligence causing injury. Sympathy for plaintiffs is not enough.”

In John Davis v. Wagga Wagga City Council, the Council was sued after a boy broke his arm when he fell from a swing. The boy’s shorts allegedly became caught, causing him to fall awkwardly when he attempted to jump off the swing. The plaintiff claimed that he had to jump from the swing because it was shaking. However, Justice Dunford of the NSW Supreme Court held that the plaintiff’s case contained a number of inconsistencies and found that the Council had not done anything negligent to cause the plaintiff’s injuries.

The second case decided, Greater Taree Council v. Craig Peck, involved a young man who was injured when he fell from his skateboard at a skateboard park in the Greater Taree Council area. The plaintiff argued that the ramp he was using was an irregular design and had caused him to fall. Three judges of the NSW Court of Appeal held unanimously there was insufficient evidence to establish that the fall was a result of the design of the mound.

“The Court found that it was not possible to conclude that the accident was the result of any negligence by the Council,” Michael Down said. “Each plaintiff was ordered to pay Councils’ legal costs, which were substantial.”