A pothole or pivot injury? Mersal v Georges River Council [2021] NSWDC 395

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By Michael Down, Partner, and Melanie Fayad, Lawyer

Georges River Council, represented by Mills Oakley, successfully defended proceedings commenced in the District Court of NSW by the plaintiff, Hope Amal Mersal, in a personal injury claim arising out of a school touch football match held at Peakhurst Park, Peakhurst.

Judgment was delivered on 13 August 2021 by District Court Judge Coleman SC and can be accessed here.

Facts and matters in issue

The plaintiff was a student of MLC School Burwood. On the morning of Saturday, 29 October 2016, she attended the Park to play for MLC in an inter-school touch football competition.

The plaintiff alleged, during the course of a touch football match, she was running and attempted to sidestep a player when her foot got stuck in what she said was a pothole or depression in the playing surface. The plaintiff ruptured her anterior cruciate ligament, which later required surgical repair.

The park was maintained by the council. The inter‑school touch football competition was organised and run by the Association of Heads of Independent Girls Schools in New South Wales (AHIGS) through its sports arm, the Independent Girls School Sports Association (IGSSA).

The plaintiff commenced proceedings against council and MLC claiming damages as a result of their alleged negligence in failing to take reasonable precautions to avoid the risk of injury posed by the alleged hole or depression. MLC issued cross-claims for contribution and indemnity against the council and AHIGS.

Before any real consideration of duty of care, breach of duty, causation and the application of statutory defences (including with respect to a risk warning issued pursuant to section 5M of the Civil Liability Act 2002), the primary threshold question for his Honour’s consideration was:

Whether the plaintiff has proved on the balance of probabilities that there was a hole or depression in the playing surface of the field that she stepped into at the time she sustained her injury.

The decision at trial

In short, his Honour’s answer to the primary threshold question above was in the negative and, hence, the claim failed at this juncture.

Having analysed all of the evidence with respect to the condition of the playing field, the circumstances of the plaintiff’s injury and her subsequent treatment on the day of the accident, his Honour concluded at [82]:

“there is actually no direct reference of anyone, including the plaintiff, seeing a pothole on the playing field before, at the time of, or after the plaintiff fell and was injured. The plaintiff describes a sensation of what she believes to have been her stepping into a hole with there being a significant difference in the height of the ground…. She accepted that she did not look for, or see, a pothole in the ground at the time of or after her accident, nor did anyone else.”

His Honour went on to say that, even if there was a pothole, there was no evidence as to how long any such pothole may have been in existence on the playing field. His Honour commented that the fact that such a hole, if it existed, could be missed (given that no player, referee, venue convener or the coach noticed it) did not of itself sound in negligence.

Although unnecessary to delve further into matters of negligence, his Honour addressed in a general sense the plaintiff’s submission a metre by metre inspection of the park was required and would have identified the pothole. To this, his Honour found there was no basis to conclude this standard of inspection was “reasonable, proportionate or appropriate in the circumstances” (at [101]) or that such inspection, if undertaken, would have discovered the pothole.

With respect to the council, his Honour made specific reference to the evidence of the council’s system of inspection of the park, which included:

  • Attendance by a maintenance team of three council workers twice a week. That team would walk the park and playing field and remove rubbish and other foreign objects. There was also stockpile of soil/dirt which could be used to fill any pothole or depressions on the grass surface of the park.
  • Mowing of the playing fields once a week and of the perimeters of the park once every two to three weeks.
  • A requirement that others using the fields at Peakhurst Park, such as local sporting associations, to inspect the fields and report any defects to it.

His Honour considered this system was reasonable in the circumstances, commenting at [103]:

Council was responsible for many other parks and fields. It is a public authority… In my opinion, it would have been impractical (and unreasonable) for Council to inspect, metre by metre, every playing surface with indefinite frequency.”

Takeaways

While it may go without saying, this case is a reminder of the standard of proof plaintiffs must satisfy in proving matters of fact before matters of law can be addressed by a Court. If the plaintiff’s evidence is not sufficient to meet this standard (being, on the balance of probabilities), the plaintiff’s claim is bound to fail.

Although his Honour did not address the more substantive issues of negligence, his comments are also affirmative of what comprises an acceptable system of parks maintenance for a public authority.

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