Ambiguous inspection report notation creates liability risk

Author: Emma Logan, LGM Liability Claims Consultant, JLT Public Sector

A Court places great weight on contemporaneous council notes and records when considering if council has breached their duty of care.  The passage of time can distort witness recollection of  events that transpired, whereas notes taken at the time of an inspection prior to an accident provides compelling evidence.

A recent case example provides a good example of how clear council records can assist LGM in defending a claim.

How did the accident occur?

A lady was walking on her way to pick her children up from school when she tripped over an uneven section of footpath and sustained personal injuries. The particular defect was a small chip in the concrete paver that left a height differential or lip of approximately 30mm. 

The footpath was owned and maintained by the council and inspections of the footpath occurred every six months.  The hazard in question had previously been identified and filled in by the council using asphalt filler.  This filler was applied at least 4 years prior to the incident, although no records could be produced to confirm exactly when.  The use of filler is usually a short term ‘make safe’ measure prior to full repairs being then undertaken. 

During one of the regular inspections of the footpath in the year prior to the incident, council’s Inspector circled on a diagram the hazard in question and made a notation on the inspection report indicating that the earlier repair required attention.  However, it was not detailed how urgently these works needed to occur nor how bad the hazard had become.  No further action had been taken by council in the months prior to the claimant’s incident. 

Following the accident, council attended the site and installed additional asphalt to make the area safe.

What were the liability considerations? 

At the time of the council’s inspection a year prior to the incident, the hazard in question may well have been classified as a ‘medium defect’ within the council’s footpath maintenance guide.  But the inspection report notation that the old repair required attention did not sufficiently identify the nature or severity of the hazard, nor its propensity to stay the same or worsen.  This left it open to a court to interpret that at the time of inspection the hazard was outside the council’s own maintenance intervention levels and required more urgent and prioritised attention by the council.

Under the statutory defences contained in the Civil Liability Act 2003 (Qld), it could be argued that council’s budgetary and resource constraints prevented them from responding to the hazard as the council only had the resources to focus its maintenance work on extreme and high level defects.  To succeed in this argument, it was important the inspection report included a clear notation that while the hazard had been in place for some time, it was not deteriorating rapidly and was not an extreme or high defect (if that was indeed the case).  The notation on this report did flag the age of the hazard which raised questions about whether it needed more urgent repair.  The claimant was able to point to the fact that the lack of repair did create a hazard which was the cause of her accident and injury.

On that basis, the claimant was able to successfully argue that the council ought to have attended to repair the hazard in a shorter period that would have prevented her accident.

What can councils do?

This case study highlights the importance of recording clear and accurate notes during the course of inspections.  The notes should include the:

1. exact nature and severity of any hazards identified; and 

2. particular actions required to make safe or rectify any identified hazard.

Incidents such as this one can be defended to some extent on the basis the claimant failed to exercise due care for their own safety.  But Courts are still sympathetic to claimants and where an avenue exists for a Court to find in favour of a claimant, it will usually do so.  

Improvement in the inspection record notation could have allowed a full defence of the claim. 

Another important consideration is for council to implement footpath maintenance guidelines that are consistent with the council’s financial limitations and resources.  The assessment of footpath defects during regular inspections should be objectively considered against those guidelines.  Where a defect or hazard is identified that falls outside those guidelines, the council should take particular care to ensure the action or defect treatment decided upon is reasonable bearing in mind the level of risk posed and that a proper record is maintained.