Hornsby Shire Council v Salman [2024] NSWCA 155
Background
Ms Kathie Salman rolled her ankles and fell as she stepped from the mulch area to the wet pour area at Lessing Playground within Lessing Park in Hornsby. Hornsby Shire Council is responsible for the care, control, inspection, management and maintenance of the playground.
Ms Salman brought proceedings against the Council in the District Court, alleging it breached the duty of care which it owed her. The primary judge found the Council had breached its duty of care and ordered Council to pay $283,200 in damages. The Council appealed.
Expert witness evidence
Ms Salman relied on expert evidence of Mr DC, who opined that the mulch area "was not maintained correctly in accordance with the Australian Standards, creating potential trip/fall hazards".
Mr DC's cross-examination elicited that he had not only visited but had also built playgrounds and that the majority of his work since 2016 had been providing expert forensic reports. Mr DC's expertise was challenged by the Council.
Through Mr DC's opinion, Ms Salman claimed the Council knew about the height difference in the playground surface from a prior inspection report. The key issue is whether the Council had a duty to level the mulch with the blue spongy surface to prevent accidents. The plaintiff argued that the playground surface violated Australian standards, which require surfaces to be free of trip hazards. The Council countered that the plaintiff's injury, caused by rolling her ankles on the spongy surface, was different from a trip. It also argued that the height difference was obvious and did not require special precautions from the Council.
The case was compared to Ghantous v Hawkesbury City Council, where it was stated:
In my opinion the application should fail at the outset. ... I would conclude that there was no failure in that regard because the footpath was not, despite what the expert witness was allowed to say, unsafe. The case of the applicant in negligence was that a differential in height between the concreted part of the footpath and the earthen part of it created a dangerous situation. A court is not obliged to accept an expert, especially when his or her evidence is evidence purportedly resolving and concluding an issue of the kind which arose here. A court is not bound to accept that a matter of ordinary observation such as the readily apparent state of the footpath is a matter calling for expert opinion. But in any event the expert's opinion (uncontradicted as it was) did not go so far as to say that the 'poor maintenance' which caused the 'hazard' actually caused one of such a nature that to leave it unrectified was negligent.
Basten AJA held that the opinion of the expert in Ghantous, as here, was open to be disregarded. [148] It was ruled that the court is obligated to use its own experience and common sense to assess the straightforward facts presented by the evidence, and if, upon rehearing, it is determined that common sense suggests a different outcome, the appeal should be granted.[152]
In his report, Mr DC extracted parts of AS 4685.0:2017 Playground equipment and surfacing, and AS/NZS 4486.1:1997 Playgrounds and playground equipment. The full text of the Standard was not in evidence. Using these extracted parts, Mr DC established that the Council did not maintain the playground area in accordance with Australian Standards.
However, the court held that the Standard should be interpreted with the safety of young children, not adults, in mind. Terms like "impact-attenuating surfaces" and "impact-attenuation" clearly refer to use by children. This is evident in requirements such as removing "litter, sticks, syringes, or other potential hazards" (par 7.3.1) and ensuring loose-fill materials are "free of sharp materials" (7.1.2) and not treated with hazardous chemicals (7.1.3). Thus, the term "trip hazard" in the document should primarily concern the safety of young children, therefore inapplicable to Ms Salman.[158]
Ultimately, the court ruled that Ms Salman failed to prove a breach of duty. Here, the court stated that "expert evidence has proved, not merely otiose, but a distraction".[181]
Key Takeaways:
- The court is not obliged to accept expert opinions, especially when the issue can be assessed through common sense and ordinary observation.
- The court can disregard expert testimony if it deems it unnecessary or unconvincing.
- Experts should make sure that resources used, such as Australian Standards, are applicable to the matter.
Read the full decision here.
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