What happened

In November 2013, the plaintiff fell on the algae-covered drain apron while walking with a friend and their dogs, injuring her right wrist and shoulder. Water at the seaward end made going around it impractical. Sydney Water had known of earlier falls and injuries since 2012, but largely relied on signage while investigating a permanent solution.

The issues

The question was whether reasonable care required an interim walkway, handrail or similar protection even for a pedestrian aware of the danger. The Court distinguished a duty to warn from a duty to take physical precautions, and considered the public authority provisions concerning resources and special statutory powers.

The court's decision

The Court found that Sydney Water should have provided interim slip-resistant access and support, and that its omission caused the injury. Given its knowledge of the danger and previous injuries, the omission also met the demanding unreasonableness test in s 43A. No contributory negligence was found because the plaintiff crossed with reasonable care; judgment and costs were ordered in her favour.

Understanding the figures

The Court calculated historical damages of AUD $114,412: $21,000 for non-economic loss, $15,000 for future earning capacity, $18,000 for past and future expenses, and $60,412 for future paid assistance. The orders allowed the parties to submit an agreed mathematical judgment sum, so the calculation should not be described as a separately verified final entered amount.

What this case shows

An obvious danger does not necessarily dispose of every allegation of negligence. The decision turns on practical interim precautions available to an authority with specific knowledge of repeated injuries while it awaited permanent works.

Why another case may differ

This is a trial decision applying the Civil Liability Act 2002 and Sydney Water Act 1994 to a 2013 accident. Liability rested on the absence of interim measures, not on a failure to remove the drain permanently at an earlier date. Different access options, knowledge of earlier incidents or evidence of the pedestrian's care could change the result.

Applying it to your claim

Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.

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