Eileen Joan Garvan v Australian Capital Territory

The appeal concerned a personal injury claim brought by Eileen Joan Garvan against the Australian Capital Territory following a fall on a footpath. The appellant tripped on a raised concrete irregularity, which was the remnant of a bollard, in the Garema Place pedestrian precinct. The Master of the Supreme Court of the Australian Capital Territory had dismissed the claim, finding that the respondent was not responsible for the hazard.

The Court of Appeal was required to determine whether the Master erred in finding that the Australian Capital Territory was not responsible for the hazard that caused the appellant's fall. This involved considering the duty of care owed by a public authority for hazards on public pathways, the principles established in High Court decisions such as *Brodie v Singleton Shire Council* and *Ghantous v Hawkesbury City Council*, and whether the evidence established that the respondent had created, authorised, or negligently failed to remedy the hazard.

The Court of Appeal reasoned that while the Master correctly identified the need for proof of responsibility for the hazard, the evidence in this case did permit inferences to be drawn regarding the respondent's responsibility. The Court noted that the bollards were removed deliberately to provide access to a building site, and leaving a raised concrete base constituted an unacceptable hazard in a well-trafficked walkway. The Court found that the respondent's evidence, particularly that of Mr Mercieca, did not adequately address the respondent's responsibility for the removal of the bollards and the subsequent creation of the hazard, even if the respondent was not directly aware of the specific irregularity prior to the accident. The Court distinguished the present case from those where the hazard arose from natural deterioration or was entirely unknown.

The Court of Appeal upheld the appeal, set aside the verdict for the defendant, and remitted the matter to the Master for further findings of fact.