What happened
On 28 February 2021, the respondent was walking towards her nephew at a swing when she stepped from a mulch area onto blue rubber surfacing, rolled both ankles and fell. Two Playfix inspection reports commissioned by the council in 2020 had said the mulch was low and should be built up to the level of the rubber to eliminate trip points. The trial judge found the council’s failure to take that precaution caused the accident and allowed a 15% reduction for contributory negligence.
The issues
The appeal concerned the proper formulation of the risk, whether the height differential was obvious, the significance of the playground standards and inspection reports, and whether replenishing the mulch would actually have prevented the accident. It also raised the forensic limit on advancing a materially different case on appeal from the case conducted at trial.
The court's decision
White JA and Adamson JA formed the majority, dismissing the appeal and ordering the council to pay the respondent’s appeal costs. They held that the council had specific prior notice of the hazard, should have taken the inexpensive precaution of replenishing the mulch to create a relatively level transition, and that doing so would have prevented the fall. Basten AJA dissented, considering the change in surface and level commonplace and obvious and the evidence insufficient to establish breach.
Understanding the figures
The trial judgment was AUD 283,200 after a 15% reduction for contributory negligence. Quantum and the reduction were not challenged; the liability appeal was dismissed with appeal costs.
What this case shows
The decision shows that liability for a modest surface differential turns on more than the mere existence of a change in level: specific prior notice, the burden of the proposed precaution and its likely effectiveness were central. It also illustrates that obviousness is a factor rather than an automatic answer to breach, and that the way evidence and issues were handled at trial can constrain an appeal.
Why another case may differ
The result depended heavily on the council having two pre-accident reports about this particular location and on expert propositions that were not squarely challenged at trial. It does not establish that every playground transition or minor public-space level change is negligent; the substantial dissent stressed the commonplace nature of the condition, the absence of prior incidents and weaknesses in proof of causation.
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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