Local Councils owe you a duty of care to exercise reasonable skill and care to avoid the risk of injury to you. This includes, particularly, creating and following a reasonable Road Management Plan to identify and remove hazards to pedestrians within a reasonable period. Therefore, if you have been injured on a public road or footpath, you may be entitled to compensation for your injuries and loss that you have suffered.
What should I do after suffering an injury on a Council Road or Footpath
It is important that you do following at the time of or soon after you are injured:
- focus on your injury
Seek first aid, if necessary: even a minor injury can become a lifelong condition without proper initial medical treatment.
Request for an ambulance to be called or attend an emergency department, if necessary.
At this stage, it is best to forget about any potential compensation claim you may have as a result your incident and concentrate on your health.
- report your incident
You must tell the Local Council where your incident occurred and what caused your incident.
Request that an incident report be completed and request a copy for your records.
The question of who is to blame for your injury is best avoided at this stage. Even if you blame yourself, or if the person you report the incident to blames you for the incident, this does not mean that you do not have a claim for compensation.
- take photos and video of the area of your incident and of what caused your incident
Contemporaneous evidence of the site of the incident location and circumstances that led to your injuries provide invaluable assistance to the preparation of a public liability compensation claim. You can never have too much evidence, and if ever in doubt it is better to take a photo or make a record of it.
– Example
If you tripped on a cracked or uneven section of footpath, take photos of the hazard including ones with a measurement of the size of the hazard, photos showing the direction you were travelling when you tripped and photos of any shadows over the hazard.
- make your own record of the circumstances of your incident as well as of all your symptoms
It is important that you keep an up-to-date list of your all your symptoms, whether on paper, computer, or your smartphone.
Treatment providers do not often record all your symptoms and complaints and often concentrate on what is serious at the time. The passage of time can make what seemed like a minor injury in the initial post incident period a long-term, debilitating condition. If there is no record of such injury or associated symptoms in your treating clinical notes, it will be difficult to attribute this injury to the incident. In the alternative, you can record video footage of you discussing your symptoms.
- go to your general practitioner or hospital
You may have already been to see your general practitioner or received hospital treatment, however, you need to listen to your body and attend on your general practitioner or hospital as many times as you think fit. This is important because, for example, if you only sought medical treatment once, the defendant or insurer to your claim will argue that you do not suffer from any ongoing problems or disabilities.
When will a Local Council be liable in negligence?
Local Councils have control over the construction, inspection, maintenance and repair of roads and footpaths.
In Victoria, the Road Management Act 2004 (VIC) provides Local Councils with certain protections from being successfully sued for injuries sustained due to hazards on local roads and footpaths. In order to be protected from such claims, the Local Council must have a Road Management Plan in place that provides for a system of inspection and repair of roads and footpaths This plan must include details such as:
- how frequent roads and footpaths are to be inspected for hazards.
- the size that a hazard must be before it is required to intervene and fix the hazard.
- a timeframe within which the hazard must be repaired depending on its size.
For a claim against a Local Council to be successful, it must be proved that either:
The Road Management Plan was not reasonable ie the timeframe for inspections were too far apart or the intervention levels required to be met before the hazard would be fixed was unreasonably large;
The Road Management Plan was not followed and, had it been followed, the hazard would have been removed before the injury was sustained; or
The Local Council was aware of the hazard due to a complaint or other notification or due to the inspection routine, that the hazard identified was above the intervention level but not removed within the timeframe specified in the Road Management Plan. Further, it must be proved that the injury would not have been suffered if the hazard was removed within the timeframe specified in the Road Management Plan.
– Example
The most common incident is a trip on an uneven section of a footpath which causes injury.
In such cases, the size of the discrepancy in height, how long the hazard has existed for and what knowledge the Local Council had of the hazard are most important to successfully bringing a claim.
To successfully bring such a claim, it must be shown that the size of the hazard was more than the minimum intervention level provided for in the Council’s Road Management Plan. If the hazard is more than this intervention level, it must be shown that the Council either knew of the hazard or, had it followed its inspection regime, should have known about the hazard, and failed to remove the hazard before the hazard caused the injury sustained.
Successfully bringing a claim against a Local Council is difficult. With our expertise we can advise you of your prospects of success and obtain the best evidence to support a successful claim.
What are examples of preventable incidents on Council-owned property or assets for which I can claim compensation?
Examples of preventable causes of incidents on Council property include:
- trips on cracked, raised or defective footpaths.
- trips on potholes in roads.
- defective or improperly constructed or poorly maintained assets such as playgrounds.
- poor signage and warning about known hazards over which they have control such as shallow waterways.
- and many others.
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