Footpath trips: do you have a claim?

Whether it be walking to school, work, or the dog around the block – walking on public footpaths is part of our daily lives. But what happens if you trip on one and injure yourself? What should you do? Do you have a claim against the local council?

Unfortunately, the answers to these questions are not simple and will depend on various factors.

Generally, to bring a successful public liability claim against the Council, you must be able to prove that the Council was negligent and that you sustained a significant and permanent injury.

I have tripped on a footpath – what should I do?

If you trip on a public footpath and injure yourself, seek medical attention immediately.

While waiting for assistance, if you or someone you’re with can, take photos of the defect in the footpath that caused you to trip. If possible, it is best to get a range of pictures of the defect – some close-up photos that capture the details of the defect, such as height, texture, and colour, and some photos further back that show the defect from the direction you approached it and the general surroundings. Try to take them at a similar time and light conditions of your incident.

If you are unable to take photos at the time of the incident and are alone, ask a friend or family member to take these photos for you as soon as possible. It’s important that you have an accurate record of the footpath defect that caused the incident and your injuries.

It is also essential that you report your incident to the local Council within 30 days of the incident occurring. If you do bring a claim against the Council, the Court can take the failure to report the incident in the required timeframe into account when considering evidence about the condition of the footpath at the time of your incident.

If the section of the footpath where you tripped is repaired or replaced following your incident, you should take photos to document this change. While this is not an admission of liability by the Council, it is still important evidence for any potential claim. 

What are Road Management Plans?

All property owners pay rates to the Council for services, including maintaining public footpaths. However, this does not mean that each Council is under a duty to prevent or eliminate all dangers in footpaths.

In Ghantous v Hawkesbury City Council, Mrs Ghantous tripped and fell while walking along a concrete footpath within Hawkesbury City Council. Mrs Ghantous lost her case, with the High Court noting that: “The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this.”

At a basic level, Councils have a duty to ensure that public footpaths are safe for pedestrians exercising reasonable care for their own safety.  

The Road Management Act 2004 (Vic) permits each Council to have a Road Management Plan (RMP) in place. An RMP identifies the Council’s responsibilities, maintenance standards and inspection regimes for all the road assets under its control, which includes public footpaths. Each Council’s RMP will outline how often a public footpath must be inspected and when a defect must be fixed.

It is important to note that each Council’s RMP requirements differ. You can download your Council’s RMP for free from their website.

The frequency with which a public footpath will need to be inspected will depend on the usual foot traffic for that footpath. If the footpath is in front of a busy shopping area, it will need to be inspected more often than if it’s a footpath in a quiet suburban street.

The RMP will also outline when the Council is required to fix a defect for scenarios such as the difference in height between two pieces of pavement, the depth of a pothole or the size of cracks over a section of footpath. This is called the intervention level. Having close-up photos taken at the time of or shortly after the incident can be very helpful in assessing whether the Council has complied with the intervention-level requirements under the RMP.

A Freedom of Information Application can be made to the relevant Council to request documentation regarding the inspection and maintenance of the footpath where you tripped.

If the Council has complied with the RMP, it is unlikely that the defect that caused your incident will be considered unsafe, and it will be very difficult to bring a claim against the Council.

On the other hand, if the Council has not complied with the RMP, there are further factors that will need to be considered before bringing a claim. 

Was the footpath defect obvious?

Courts throughout Australia have handed down decisions against pedestrians who sustained injuries as a result of the state of a footpath.

In Boroondara City Council, Ms. Cattanach went for a run near her home with her parents’ two dogs when she tripped on a section of footpath that was cracked and uneven. The court held that Ms. Cattanach was not able to establish that she had kept a proper lookout. The Council’s duty of care did not change because Ms. Cattanach was a jogger, nor was it under an obligation to maintain footpaths to the standard of running tracks.

In Greater Shepparton City Council v Davis, Ms. Davis was pregnant with her second child when she tripped and fell due to a footpath defect. At the time of her fall, she had been speaking with her aunt after visiting her at her home and was walking across the footpath to her car. The court held that the defect in the footpath was obvious and the type of defect that was “commonly found in pavements which ordinary pedestrians would be expected to observe whether walking along the path or coming from adjoining premises to cross it in order to get to the roadway”.

The prevailing view in these case examples is that if the defect that caused the person to trip and injure themselves is obvious to the ordinary pedestrian taking reasonable care for their own safety and watching where they’re going, then the Council cannot be held liable.

Do you have a significant and permanent injury?

Even if you can establish that the Council was liable for your incident, you must prove that you have sustained a significant and permanent injury as a result of the incident. To do this, you will need to see a medical specialist who will assess your injury. Your lawyer will arrange this on your behalf. If the assessment determines that you have sustained injuries that are more than 5% whole-person impairment, you may be able to obtain compensation for things like:

• medical costs (including past and future costs)
• lost income (including past and future)
• pain, suffering and loss of enjoyment of life
• care and assistance provided to you at home.

If you do not have a significant and permanent injury, we will be unable to assist with a claim.

Real world case examples

Tripping on footpaths is not uncommon; we receive many enquiries regarding this each week. Typically, we will request photos of the footpath so that one of our lawyers can assess the prospects of a claim. Often, the defect in the footpath is very small and, therefore, would fall below the Council’s intervention level or, alternatively, it is an obvious defect that a reasonable person would have been able to see and avoid, which means that unfortunately, we would not be able to assist with a claim.

While claims against Councils are difficult, we have had success.

We recently ran a case for a client who had tripped on a section of cracked and uneven footpath next to a Council reserve with a number of large trees that the local Council had planted. The tree roots were significant and had caused major damage to the footpath over several years.

Our client had been unable to see the cracks in the footpath due to the shadows created by the tree’s canopy and the dark colour of the asphalt, which made it hard to see changes in the surface. These factors created a “hidden trap” that our client could not see or avoid. Our client sustained significant and permanent injuries resulting from his fall.

We obtained documentation by way of a Freedom of Information request, which showed the Council was aware of the poor condition of the footpath due to the tree roots but had failed to take reasonable steps to repair the footpath.

If you have suffered an injury because of tripping on a footpath defect, you should speak to a lawyer. Our public liability lawyers can help you learn if you may be entitled to compensation and what you need to do next.

Contact us today to find out how we can help you.