This case involves an interesting factual situation whereby a Plaintiff was injured in a children’s playground.

Hornsby Shire Council (the Council) was responsible for the care, control, inspection, management and maintenance of Lessing Playground within Lessing Park in Hornsby. Located in the playground was a swing set, on a blue wet pour surface (the wet pour area) and surrounded by an area covered with mulch and bark pieces (the mulch area).

On 28 February 202, Kathie Salman attended the park and when walking towards the swings where her nephew was swinging, rolled her ankles and fell as she stepped from the mulch area to the wet pour area. She identified that, although she was not paying attention to where she was walking, the ground between the two surfaces was uneven and that was what caused her to fall. Ms Salman sustained injury as a result of the fall.

Ms Salman brought proceedings against the Council in the District Court, alleging it breached the duty of care which it owed her by failing to ensure that the level of mulch did not fall below the level of the wet pour area. In support of her case, she tendered an expert which extracted parts of two Australian playground standards which set out the Council’s maintenance obligations in relation to the playground. The expert opined that the mulch area “was not maintained correctly in accordance with the Australian Standards, creating potential trip/fall hazards”. It is also very relevant that there were two inspection reports which had been commissioned by the Council in relation to the park in 2020 (the Playfix reports) which stated that the mulch was low and needed to be built up to the level of the wet pour rubber to eliminate any trip points. The Council did not take any action in response to the recommendations outlined in the Playfix reports. This essentially meant that the Council were on notice of the problem and did not take steps to rectify it.

Judge Abadeee, who was the primary Judge in the District Court found that the Council had breached its duty of care, causing Ms Salman to suffer injuries. He ordered the Council pay $283,200 in damages (after allowing a discount of 15% for contributory negligence). The Council then appealed to the Court of Appeal.

The Court of Appeal held in favour of Ms Salman and dismissed the Council’s appeal. The Court held that the Council breached the duty of care to Ms Salman by failing to maintain an even level between the wet pour rubber and the mulch area. It was accepted that the height difference between the two areas was not discernible to Ms Salman. Her injury was unfortunately caused by the failure of the Council.

It must be noted that every decision in this area of the law will turn on its precise facts. In the event that you have been injured in a public area or park, feel free to contact our lawyers for an obligation free assessment of your case.