A recent case involving the Shire of Denmark and a tourist turned on whether pea gravel at the bottom of some stairs was an obvious risk and what is the extent of a local government's duty of care in relation to obvious risks.

This case is also a reminder for members to have a strong system in place for inspecting and maintaining premises, as well as addressing any complaints. Good record-keeping practices are crucial to defending a claim and demonstrating that reasonable steps are made to meet your duty of care.

The incident

A woman in her 60s slipped on a sloped gravel landing area at the base of stairs, which were maintained by the Shire of Denmark. As a result, she suffered a dislocated and fractured ankle and held the Shire liable for the injury and loss suffered.

The plaintiff claimed for damages arising from personal injuries suffered by her, which occurred while she was descending access steps leading to Black Hole Rock in the Shire of Denmark.

She claimed that her injuries were caused by the negligence and/or breach of duty of care of the Shire to maintain these stairs. The claimant alleged that the Shire of Denmark was negligent as it did not reduce the foreseeable risk of slipping on the sloping gravel area.

She argued that the Shire breached their duty of care by:

• not installing signage warning users of the risk of slipping on the gravel;
• allowing gravel to be in the landing area;
• failing to take adequate precautions to inspect and maintain the stairs; and
• exposing claimants to a danger that was reasonably foreseeable.

LGIS findings

The matter was taken to court and LGIS' solicitors were engaged to defend the matter. During the investigation, it was discovered that the Shire was not responsible for the initial construction of the stairs. Instead, it was believed that a local community group had installed them in the past to provide a smoother and safer transition from the carpark to the rocky edges. However, the Shire still conducted regular inspections of the staircase and addressed any maintenance needs. Additionally, it was noted that should anything appear to need repair or attention, ranger services would report this back immediately to the Shire. 

The Shire kept all historical records which would have identified any previous reports of slips, falls and other injuries from this staircase and noted that since 2010 when this system was implemented, they had received no such reports.

The outcome

The judge found the Shire was not negligent in circumstances where:

• The risk of slipping on the gravel on the sloping landing area was obvious to a reasonable person. Consequently, there was no duty on the Shire to warn users of this obvious risk.
• The precautions alleged by the claimant that should have been taken by the Shire (inspect for pea gravel daily, prevent pea gravel on landing) were not reasonable or practicable and would've been entirely inconsistent with the natural beauty of the area and the purpose for which access to Black Rock Role has been provided. The burden of taking such precautions would outweigh the relatively low risk of harm to a person taking reasonable care for their own safety in stepping down from the last step onto the gravel stones on the landing area.    The actions taken by the Shire in terms of regular and documented inspection and maintenance mitigated against an adverse finding. 

Therefore, a reasonable person in the Shire's position would not have taken precautions against the risk that a person might slip on the gravel at the base of the stairs.

The judge was quite clear that there is no duty upon shires to take precautions against obvious risks in remote, natural areas as the burden to take these precautions greatly outweigh the little risk of harm they pose.

Lessons from the case:

Although LGIS' solicitors were able to successfully defend the Shire in this particular claim, there are important lessons to be learned from the judgment in order to enhance the protection of local governments in similar situations.

• Regarding obvious risks, it is not necessary for members of the public to be warned about risks that are readily apparent. However, it is crucial to effectively manage risks that may not be obvious to the public in order to provide adequate warning or protection against potential injury or damage.
• In terms of record keeping, it is essential for local governments to ensure that all activities, including inspections and maintenance, are thoroughly documented. These records should be easily accessible and relevant, and it is important for employees to be trained on proper work processes and incident reporting procedures. This will help facilitate effective management and oversight of operations.

For more information on how LGIS can support members in identifying and managing their liability exposures contact the Liability Risk team.