Lisa Maclean v Richmond Valley Council

2025/00208187

PERSONAL INJURY – the applicant seeks to appeal a final judgment dismissing a claim for personal injury damages following a fall on a public footpath on 8 March 2023. The applicant alleged that the Council breached its duty of care by failing to rectify a known trip hazard - a raised lip in the concrete footpath measuring approximately 23mm. The applicant claimed the Council was aware of the hazard since 2017 when it was characterised as a "medium" priority under its inspection policy, but failed to take reasonable steps to remediate it. She argued that this fall caused significant injuries, which led to the need for bilateral knee replacement surgery. The primary judge found that the applicant failed to exercise reasonable care for her own safety, having traversed the same footpath thousands of times without incident and not looking at the ground when she fell. His Honour held that the 23mm lip was an obvious risk, discernible to a pedestrian taking reasonable care, and that the Council's internal policy did not create a legal obligation to remediate the hazard within a fixed timeframe. Even if a duty of care was breached, his Honour found that the Council's conduct was not so unreasonable to excludes 43A of the Civil Liability Act 2002 (NSW) (defence for public authorities exercising special statutory powers) and assessed contributory negligence at 50%. Had liability been established, total damages would have been assessed at $92,762. The applicant contends that the primary judge erred in (i) finding that she was not exercising reasonable care for her own safety, (ii) considering her asymptomatic bilateral knee arthritis, and (iii) applying a deduction of 30% for vicissitudes rather than the usual 15%. The Council argues that the primary judge considered and applied relevant principles, and gave detailed reasons on each of the sub-issues identified by the applicant.

Maclean v Richmond Valley Council [2025] NSWDC 189