The short answer is, you can try, but you may not succeed.
With the introduction of the Civil Liability Act 2003 (Qld), following the collapse of FAI & HIH Insurance, and the events of 11 September 2001, the Government effectively granted a high level of immunity to local authorities such as the Council and the Department of Main Roads.
The Government took the view that local authorities due to limited financial resources, can’t be expected for example, to have every footpath in perfect condition and free of cracks and hazards.
Nor can Main Roads be expected to have every road free of pot holes at any given time.
There is also the onus on the pedestrian to keep a lookout for their own safety, and to be aware of any “obvious risk”.
What does this mean?
It’s no longer possible to sue a local authority if you have a simple accident such as tripping on a cracked or uneven pathway.
To successfully sue a local authority, you need to be able to prove that the authority was aware of, or should have been aware of, the hazard or risk.
Secondly, that the authority failed to act within a reasonable time to remove or rectify the hazard.
In one of our cases our client was injured at the public botanical gardens, when she slipped and fell on a slate pathway which was covered in debris and bird droppings. We successfully argued that not only was the pathway sloping and on the decline, but the surface changed from cement to slate, meaning there was a variance in friction between the two surfaces. We argued that the pathway surface should have been consistent, and with the slate surface being far more slippery than the cement surface, it was “reasonably foreseeable” that an accident like that of our client’s, would occur.
In other words, the local authority should have considered the surface and decline of the pathway, when deciding on how it should be repaired.
In addition, we argued that a simple and cost-effective solution to minimise the presence of the debris and bird droppings, would have been to install a covered walkway over the affected section of the pathway.
Public liability claims against local authorities are perhaps one of the most difficult claims to pursue, and you should rely on the advice and representation of experienced lawyers.
Call Hunter Solicitors for an obligation free consultation to discuss your rights.
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