AN 83-year-old woman won’t receive a penny of compensation to cover the out-of-pocket expenses that resulted from a bad fall she suffered while walking on an uneven section of a busy Busselton footpath.
Busselton resident Wendy Vincent tripped on a section of pavement outside a Prince Street cafe in February, suffering a broken wrist and fractured eye-socket, for which she required specialist care at Fremantle Hospital.
Wendy could recoup the medical fees, but was left $700 out of pocket from the fall – the cost of replacing her glasses that smashed on impact, plus the fuel to and from Perth for treatment.
Wendy lodged a claim to recover these expenses, feeling that the fall would not have occurred if the pavement had been in good repair.
At the time of the incident, representatives from the city spoke with the Mail, expressing sympathy for Wendy, and advising her and others in the same position to make a claim to the city for any damages that resulted such injury.
Busselton’s director of engineering and works services, Oliver Darby, was quoted in the Mail at the time saying that there were existing work orders on that area of pavement.
Yet in spite of these statements made in the public sphere, when it came to responding to Wendy’s insurance claim to the Local Government Insurance Services (LGIS), the city professed it was unaware of any danger in that area of pavement.
As such, the insurer ruled in favour of the city, citing the Civil Liability Act:
“A person may not recover damages from a local government authority in Western Australia for any accident on a public thoroughfare under their control in circumstances where the authority had no prior knowledge of the hazard.”
The Mail sought clarification on this response, which seemed to contradict the city’s public statements.
“The declaration the city made on their application form regarding this claim indicated that they were not aware of this hazard at the time of the incident,” LGIS CEO, Leon Lawrence, said.
“From our information the shire had no knowledge of there being a risk.
“And I understand the council fixed the issue as soon as it came to their attention,” Mr Lawrence said.
This last point does hold true – the area of pavement in question being torn up soon after Wendy reported the fall.
Mr Lawrence expressed his sympathy for the injuries Wendy suffered, but stood by the decision made by LGIS.
“People aren’t always to blame for accidents,” he said.
“Somewhere along the line a council or city has to draw the line, as to what activity and what response times make an organisation liable for a claim.”
But Wendy and her husband, Peter, dispute that the council could be unaware of any danger in the area.
“So many people have fallen there, there must have been someone that had reported it to the city before us,” Wendy said.
When asked if there were existing work orders on the area, City CEO Mike Archer made the following statement to the Mail: “The documents relating to this particular claim were referred by the city to the Local Government Insurance Services and no further correspondence between the city or the Insurers has been entered into regarding to this claim since.”
“This is now a matter between the claimant and LGIS, and the claimant has been provided with a contact number at LGIS if they wish to pursue it further,” Mr Archer said.
“The city provided all the relevant information relating to this particular incident at this particular location as required by the insurance agent.”
When questioned further about the work orders in place at the time of Wendy’s fall, Mr Lawrence said: “I have checked with the shire (city), there is a continuing works order placed on there, because of the trees, to maintain the area.
“This is a general maintenance order, rather than a specific complaint. I don’t really see anything in this information that could make us change our mind.
“There would have to be a specific complaint about a specific area of pavement for action to be taken.”
Wendy’s husband, Peter, feels the city is neglecting its responsibility.
“What we are claiming is probably less than what it cost to send him (the insurance assessor) down,” he said.
“It just means that once you leave your front yard, you’re on your own.
“Once you step on to the road, there’s no comeback on to the city.”
So others don’t find themselves in a similar situation, Peter has suggested that if they see any faults in the footpath they write to the shire and have it noted that there is a problem.