What happened
In March 2023, Ms MacLean tripped on a footpath lip while returning from an early morning walk in Casino, aggravating previously asymptomatic knee arthritis. A 2017 inspection had recorded the location as a medium-priority hazard. The council's policy contemplated a response as resources permitted but within three months.
The issues
The appeal questioned whether the policy and prior knowledge established negligent non-repair, and how visibility in partial morning light should be assessed. It also challenged the trial judge's treatment of the plaintiff's own care, contributory negligence and contingent damages.
The court's decision
The Court corrected the suggestion that the plaintiff's lack of care eliminated the duty itself, but upheld the finding of no breach. It considered the relatively minor, unobscured lip, the actual light conditions and the absence of earlier complaints or incidents. Leave and an extension of time were granted, but the appeal was dismissed with costs; special leave to the High Court was refused on 10 September 2026.
What this case shows
An authority's internal risk-management targets do not determine the legal standard of reasonable care. The case also shows why the existence of a duty must be kept separate from the injured person's contributory negligence.
Why another case may differ
The decision does not establish that every 23 mm defect is acceptable or that internal policies are irrelevant. It applies the Civil Liability Act 2002 to this evidence of visibility, site conditions and incident history. The 50% contributory negligence assessment and damages findings were contingent; identifying an arithmetic error did not produce an award.
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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