Trips and falls on council footpaths are common. A person may fall because of broken concrete, an uneven slab, a raised tree root, a pothole, loose paving or a hidden dip in the path.
At first, it may seem obvious that the council should be responsible. After all, the footpath is council property. But these compensation claims are not always straightforward.
In NSW, a successful claim usually depends on more than proving that the footpath was uneven. The injured person often needs to show that the council knew about the specific hazard and failed to deal with it within a reasonable time.
The Hazard Alone Is Usually Not Enough
A cracked or uneven footpath does not automatically mean the council is legally responsible.
Councils manage large areas of public infrastructure. They are not expected to keep every footpath perfect at all times. Minor cracks, small height differences and ordinary wear may not be enough to support a claim. The stronger cases usually involve a defect that is serious enough to create a real trip risk.
For example, a small surface crack may be treated very differently from a raised concrete slab that creates a clear lip in a busy pedestrian area.
The legal question is not simply: was the footpath damaged?
The better question is: was the hazard serious enough, known and left long enough that the council should reasonably have acted?
Council Compensation Claims Have an Extra Legal Hurdle
Most personal injury claims in NSW look at whether the risk was foreseeable, whether it was significant enough to require precautions, and whether a reasonable person would have taken steps to prevent the harm. That general test comes from the Civil Liability Act 2002 (NSW).
Council footpath claims can involve an extra hurdle.
Section 45 of the Civil Liability Act gives roads authorities, including councils in many footpath cases, special protection. In simple terms, a roads authority is generally not liable for failing to carry out road work unless it had actual knowledge of the particular risk that caused the injury.
It is usually not enough to say, “The council should have known the footpath was unsafe.” The claim may need evidence that the council actually knew about the specific defect before the fall happened.
What Does “Actual Knowledge” Mean?
Actual knowledge means the council was aware of the particular risk that later caused the injury.
For example, a compensation claim may be stronger if there was evidence that:
- a resident had already complained about the raised slab
- council workers had inspected the exact area
- the defect was recorded in council maintenance records
- the council had photographs of the problem
- a repair request had already been created
- another person had previously tripped in the same spot
- the defect had been listed for repair but not fixed
A general maintenance program may not be enough. A broad complaint about “bad footpaths in the area” may also be less helpful than a complaint identifying the exact location and defect.
For example, a note saying “footpath uneven near 10 Smith Street, raised slab outside driveway” is more useful than a general comment saying “paths in this suburb are dangerous”.
Practical Examples
A weak claim may involve a small crack that the council had never been told about, in an area with no previous complaints or inspection records.
A stronger claim may involve a raised slab outside a school, medical centre or shopping strip where council had already received complaints, inspected the site, or scheduled repairs before the fall happened.
Another example is a tree root lifting a footpath. If the raised section developed suddenly and there was no evidence the council knew about it, the claim may be difficult. But if local residents had reported the same raised section months earlier and nothing was done, the claim may be much stronger.
Obvious Risk Arguments Can Make Claims Harder
Councils and insurers may argue that the hazard was obvious. Under the Civil Liability Act, an obvious risk is one that would have been obvious to a reasonable person keeping a proper lookout in the same position. The law also says there is generally no duty to warn people about an obvious risk.
That can make a claim harder, especially if the defect was clearly visible in daylight. But an obvious risk argument does not automatically defeat a claim.For example, a raised slab may look obvious in a close-up photograph taken after the accident. But it may not have been obvious to someone walking normally, carrying bags, looking ahead, moving through a crowd, or walking in poor lighting.
Evidence Can Make or Break the Claim
Footpath claims rely on the collection of detailed evidence. The sooner evidence is collected, the better.
Useful evidence may include:
- photos of the hazard from different angles
- close-up photos and wider photos showing the location
- measurements of the height difference or defect
- lighting and weather conditions
- details of footwear
- witness statements
- medical records
- ambulance or hospital notes
- reports made to council after the incident
- earlier complaints from residents or businesses
- council inspection or maintenance records
Photographs are especially important. A close-up image may show the defect, but a wider image can show how the hazard appeared to someone walking along the path.
Measurements can also help. A visible height difference, broken edge or uneven surface may be easier to assess when the evidence shows its actual size.
Medical Evidence Matters
Even where the council’s responsibility is arguable, the injury still needs to be proven.
Medical evidence helps show what injury was caused by the fall, how serious it was, what treatment was needed, and how the injury affected the person’s work, mobility and daily life.
This can be especially important in claims involving fractures, shoulder injuries, wrist injuries, knee injuries, spinal aggravation, head injuries or ongoing pain.
A compensation claim is stronger when the medical records clearly link the injury to the fall and show the ongoing impact.
What Makes a Strong Public Liability Claim?
Stronger council footpath public liability claims usually have several things in common.
The defect is more than a minor imperfection. The injured person can explain clearly how the fall happened. The injury is supported by medical evidence. Most importantly, there is evidence that the council knew about the specific hazard before the incident and did not take reasonable steps to fix or manage it.
For example, a claim may be persuasive where a council received multiple complaints about the same raised section of concrete, inspected it, marked it for repair, but left it unrepaired for months before someone fell.
Getting Advice Early Can Help
If you fall on a council footpath, the key issue is rarely just whether the pavement was uneven.
The real questions are:
- How serious was the defect?
- Did the council know about it?
- How long had it been there?
- Was it reasonable for the council to act sooner?
- Did the defect actually cause the fall?
- What injury and losses resulted?
These questions can be difficult to answer without obtaining council records, photographs, witness evidence and medical material.
Law Advice can assess whether you may have a public liability claim, help identify the evidence needed to prove council knowledge, and explain whether the facts are strong enough to pursue compensation.
If you have been injured in a fall on council property, Law Advice’s public liability lawyers can help review what happened and advise you on your options.