The Court of Appeal has now overturned the trial decision of Hodges v Townsville City Council  QDC 272 in favour of the Council.
By way of background, on 15 October 2015, the Plaintiff was in attendance at Sherriff Park in Townsville. The Plaintiff was walking across the grass surface of the park, and as she approached a nearby carpark, her left foot fell into a hole concealed by grass, causing her to fall and sustain injury.
The Trial judge found that the subject hole was not merely a depression, and that the Council failed to undertake adequate inspection of the park to identify the alleged hole. The Trial judge did not consider the existence of the Townsville City Council's duty of care as a local authority, breach, or the relevant defences for public authorities in accordance with ss 35 and 36 of the Civil Liability Act 2003 ('CLA'). The primary decision was ultimately found in favour of the Plaintiff in the sum of $301,603.23.
Court of Appeal Decision
The Court of Appeal considered the characteristics of the hole were of critical consequence to the proper determination of Council's liability. The Court of Appeal found that from an examination of photographic evidence, the width of the hole was approximately 30cm, and the depth at 2 to 5cm.
The Court then turned to determining: "what is required by way of reasonable care by the occupying Council in respect of a concealed hole or depression with the characteristics of being approximately 30cm in diameter and up to 5cm in depth in Sherriff Park, an area of 36,103 square metres". This was considered in mind of ss 35 and 36 CLA, noting the Council owned 12,647,209 square metres of parkland within its local government area.
As the Council did not know of the hole, it may only be liable for the hazard constituted by the hole if it ought to have known of the presence of the hole. The Court of Appeal referenced the Trial Judge's finding that, "even in the circumstances where a person is shown the hole they would still have difficulty discerning it was in fact a hole". In those circumstances where Council employees do not have the benefit of the hole being pointed out to them, it cannot be concluded that those employees and officers were in any way at fault for failing to detect the presence of the concealed hole.
The Court of Appeal determined that, "reasonable inspections of… [Sherriff Park] would not have (and did not) detect the hole in which the Plaintiff fell, which was so shallow and highly concealed that it could only have been detected by a person stepping into it or the wheels of a mower running over the hole".
The Court of Appeal concluded that Council was not in breach of its duty of care to users of the parkland, and therefore it was unnecessary to consider ss 35 or 36 CLA.
The Trial decision burdened local councils with the rigorous exercise of having workers stomp on every inch of the parkland in their local government area to ensure there wasn't a hole beneath the grass. This in turn was a step too far, and subsequently overturned by the Court of Appeal in favour of the Townsville City Council.