The case concerns a personal injury claim brought by Lisa Marie MacLean against Richmond Valley Council (the Council) after she tripped on the raised lip of a paved concrete footpath in Casino, New South Wales, on 8 March 2023.
The NSW Court of Appeal dismissed Ms MacLean’s appeal, confirming that councils are not liable for failing to remediate minor, obvious hazards, even where internal policies suggest earlier action should have been taken.
Ms MacLean tripped on a raised concrete “lip”, measuring approximately 23mm, while walking on a public footpath in low light conditions in Casino, NSW. The fall aggravated her pre-existing asymptomatic arthritic condition (bilateral patellofemoral arthritis), which ultimately became symptomatic, leading to her needing bilateral knee replacements.
The Council had identified the hazard in its 2017 Footpath Trip Hazard Inspection Report (2017 Inspection Report) and categorised it as a “medium” risk. According to the Council’s internal policy, hazards identified as a “medium risk” should be addressed “as resources permit but within 3 months”. However, no remediation occurred in the 6 years before the incident.
Ms MacLean alleged the Council was negligent for failing to address the hazard within the timeframe provided for by the Council’s internal policy (Operational Policy for Inspection, Assessment and Maintenance of Footpaths and Cycleways).
The primary judge dismissed the claim, finding no duty of care owed or breached by the Council, and made contingent findings assessing Ms MacLean’s contributory negligence at 50%.
The Court of Appeal granted Ms MacLean leave to appeal, but ultimately dismissed the appeal with costs.
The Court considered the following issues on appeal.
Ms Maclean alleged that the Council owed a duty to take reasonable care to avoid foreseeable risks of injury to pedestrians using the footpath for usual or permissible purposes.,
The primary judge disagreed, finding that the Council owed a duty of care to pedestrians exercising reasonable care for their own safety.
On appeal, the Court agreed with Ms Maclean that the primary judge’s characterisation of duty was in error insofar as the duty was only owed to people exercising reasonable care. If this was the case, then contributory negligence would have no work to do. However this did not affect the overall outcome of the appeal because the Court ultimately agreed with the primary judge’s findings on breach.
The central finding was that the Council did not fail to take reasonable precautions. The raised lip, measuring 23mm, was considered an obvious hazard that pedestrians should reasonably expect on public footpaths.
The Council’s failure to address the hazard within its policy’s recommended timeframe was not deemed unreasonable. The fact that the Council ground down the lip immediately after the plaintiff reported her hazard, also did not establish there was a failure to take reasonable care. Even though it suggests there was no resourcing issue and the Council was able to grind down the footpath without delay or huge expense, this told the Court nothing about whether it was a reasonable or necessary precaution in the circumstances of the case.
The Court of Appeal emphasised:
Importantly, the Court of Appeal held that internal policies are “self-imposed” and “aspirational”’’, and do not set the legal standard of care.
The raised lip was classified as an obvious risk under the Civil Liability Act 2002 (NSW).
The Court of Appeal found no error in the primary judge’s conclusion that the hazard was visible and discernible, and it was a type of hazard that pedestrians should anticipate, even in low-light conditions.
This finding did not completely exonerate the Council, but it did mean that the Council did not owe a duty to warn of the risk and the plaintiff was presumed to have been aware of the risk.
Contributory Negligence
The Court upheld the primary judge’s finding that Ms MacLean failed to exercise reasonable care for her own safety by not paying adequate attention to the footpath surface.
Her hypothetical contributory negligence was assessed at 50%. This was deemed appropriate given her familiarity with the area (she was close to her home, and walked the route daily), the conditions at the time of the fall and her failure to look where she was walking, particularly in low light, all of which justified a substantial reduction.
This decision reinforces several critical principles, which we summarise below:
1. Obvious Risks and Duty of Care: Public authorities are not required to eliminate all hazards on public footpaths, particularly those considered obvious risks.
Pedestrians are expected to exercise reasonable care for their own safety.
Everyday hazards such as minor height differentials will often fall within the “obvious risk” framework, particularly where visibility is not materially obstructed. This decision reinforces the merits of pleading ‘obvious risk’ to reduce potential liability exposure.
Even with actual knowledge of a hazard, liability will not arise unless the risk warrants intervention under the applicable principles to determine breach. Minor, everyday risks often fall below the threshold requiring action.
2. Internal Policies: Internal maintenance policies, while useful for risk management and might be evidence of what reasonable precautions can be taken or what a reasonable system of care might look like, they are simply evidence and do not establish the legal standard of care. They do not determine what reasonable care requires. The real question remains: Would a reasonable public authority have taken precautions in the circumstances?
Authorities should ensure that policies are realistic and not overly aspirational to avoid potential liability claims if they fail to follow those timeframes. However, failure to follow internal maintenance timeframes does not always equate to negligence. Liability is likely to be limited where resource allocation issues exist.
Public authorities should still maintain clear records of monitoring and responding to identified hazards. While lack of evidence of proactive measures may weaken their defence in negligence claims, knowledge of a hazard does not automatically equal liability. Resource allocation and practicality remain central considerations in determining breach.
3. Contributory Negligence: Courts are willing to make substantial reductions (and significantly reduce damages) where plaintiffs fail to take basic care, especially in low visibility conditions.
Insurers should assess the claimant’s conduct and familiarity with the area when evaluating liability.
4. Claims defensibility: This decision supports a robust defence strategy in footpath trip claims, particularly where:
This case underscores the importance of balancing risk management with practical resource allocation for public authorities while highlighting the role of contributory negligence in reducing liability claims exposure.
Insurers and claims professionals should reassess how internal maintenance policies are used in liability assessments. While relevant, they should not be treated as setting the legal standard of care. Greater weight should be placed on the nature of the hazard, visibility, and pedestrian responsibility.
For further guidance on defending public liability claims involving trip hazards, contact Rosie Blakey-Scholes and Erica Thuijs in our Insurance team.