Playground Injuries: When Is A Council Liable?

Playgrounds are designed to encourage activity, exploration and play. Inevitably, that comes with some risk of injury, and accidents will happen. But when will councils be liable?

Under the Civil Liability Act 2002 (NSW) (CLA), the answer depends on more than whether an injury occurred. Courts look at the nature of the risk, whether it was foreseeable, what reasonable precautions could have been taken and, importantly, who was exposed to the risk.

For councils, playground liability is as much about good risk management, inspection and record keeping as it is about the playground equipment itself.

• Foreseeability must reflect who uses the space. Children cannot necessarily be expected to recognise risks in the same way as adults.
• Not every foreseeable risk requires a precaution. Courts consider the probability and seriousness of harm, the burden of precautions and the social utility of the activity.
• Obvious risk is not a universal defence. Whether a risk is obvious is assessed from the perspective of a reasonable person in the plaintiff’s position, including their age and experience.
• Council resources matter. The CLA recognises the financial and other resources reasonably available to public authorities and the broad range of functions they perform.

Inspect, maintain and document. A documented inspection program, appropriate responses to identified hazards and strong records remain important practical risk-management measures.

A council owes a duty of care to people who may foreseeably be injured by its acts or omissions, including children using public playgrounds.

Under section 5B of the CLA, failing to take precautions against a risk will not amount to negligence unless the risk was foreseeable, was not insignificant and, in the circumstances, a reasonable person would have taken those precautions.

In deciding what a reasonable person would have done, a court considers matters including the probability and likely seriousness of the harm, the burden of taking precautions and the social utility of the activity creating the risk.

The critical point is that an accident does not, by itself, establish negligence. The question is whether reasonable precautions should have been taken against the particular risk.

Assessing risks involving children requires particular care.

In Holroyd City Council v Zaiter [2014] NSWCA 109, a nine-year-old rode a bicycle down a grassy slope in a council park and into an unfenced concrete drainage channel, sustaining serious injuries.

The NSW Court of Appeal upheld the finding that the council was liable. The risk was foreseeable because children, considered as a class, could be expected to ride bicycles down the slope. Fencing was found to be a reasonable and proportionate precaution. The Court also rejected the argument that the risk was obvious to a reasonable nine-year-old.

The decision highlights an important distinction for councils: a risk that seems obvious to an adult may not be obvious to a child.

The CLA assesses obvious risk from the perspective of a reasonable person in the plaintiff’s position. Age and experience can therefore be significant. While the CLA provides that there is generally no proactive duty to warn of an obvious risk, a risk that would not be obvious to a child of the plaintiff’s age may fall outside that protection altogether.

The courts do not require public authorities to eliminate every conceivable risk.

The High Court’s decision in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 illustrates the point. A 14-year-old dived from a bridge into shallow water despite signs prohibiting diving and jumping and suffered catastrophic spinal injuries.

The High Court found the Roads and Traffic Authority had not breached its duty. The warning signs constituted reasonable precautions, the risk was obvious and the burden of an additional precaution, fencing the entire bridge, was disproportionate.

The practical question for councils is therefore not simply “Could someone be hurt?” It is whether the identified risk warranted further precautions when assessed against the statutory factors.

Risks do not have to involve dramatic playground equipment.

In Hornsby Shire Council v Salman [2024] NSWCA 155, an adult approaching a swing set where her nephew was playing rolled her ankles when stepping from a mulched area onto a wet pour surface, where the mulch had dropped below the level of the wet pour. The council had received two inspection reports identifying the height differential before the accident. The Court of Appeal dismissed the council’s appeal on liability, leaving in place the trial award of $283,200 in damages, which reflected a 15% reduction for contributory negligence.

For councils, the case is a useful reminder that attention should not be confined to the equipment itself. The surrounding environment and surfaces may also be relevant when assessing risks.

Importantly for local government, the CLA recognises that councils operate with finite resources and competing responsibilities.

Section 42 provides that the functions required of an authority are limited by the financial and other resources reasonably available to it. The authority’s general allocation of those resources is not open to challenge, and its functions are considered by reference to the broad range of its activities, rather than only the particular issue before the court.

The legislation also allows an authority to rely on evidence that it complied with its general procedures and applicable standards as evidence of the proper exercise of its functions.

This makes well-designed systems particularly important. The issue is not whether a council can prevent every accident, but whether its approach to managing risk can be supported by its procedures, standards and records.

1. Inspect. Implement and follow a documented, scheduled inspection program across council playgrounds.
2. Maintain. Respond appropriately when hazards are identified and ensure necessary maintenance is undertaken.
3. Document. Keep clear records of inspections, identified hazards and responses. Photographs can provide valuable evidence of playground conditions and the action taken.
4. Realism. Ensure that systems for inspection (frequency, nature of inspection, details of reports kept) and maintenance (timing and nature of responses, etc) are realistic, consistently followed and clearly documented.

Playgrounds do not have to be risk-free. But councils need to be able to demonstrate that foreseeable risks have been considered through a reasonable and defensible risk-management framework.

When an incident occurs, the quality of the council’s inspection, maintenance and documentation processes may be just as important as the condition of the playground on the day.

This article was co-authored with contributions from Lachlan Apps, Associate.