Former Minister Kim Mayes sues council over ‘serious injury’ from tripping over e-scooter
A former SA minister is suing the Adelaide council claiming he was seriously injured when he tripped over a Beam e-scooter lying on a footpath in a case that could set statewide precedent
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Former Labor minister Kym Mayes has launched legal action against the Adelaide City Council after tripping over two e-scooters and severely injuring his leg – in a case that could set a legal precedent for councils statewide.
Although Mr Mayes’ civil claim against the council – the first involving an e-scooter incident – was dismissed in Adelaide Magistrates Court in May, he has appealed the decision to the District Court.
A Labor minister between 1985 and 1993, Mr Mayes suffered serious leg injuries when he tripped on the Beam scooters that were obstructing the footpath in front of the Sir Samuel Way building in Victoria Square last September.
He lodged the civil claim against the council and Beam Holdings Ltd in February, seeking $2375 to cover medical costs, loss of income and pain and suffering. In his claim, Mr Mayes says he saw the scooters, but while attempting to step over one, caught his foot and fell, fracturing his tibia.
The council, through Wallmans lawyers, denied liability, claiming it had not been negligent because it did not leave the scooters on the footpath and that it was absolved of any liability under Section 42 of the Civil Liability Act.
In his judgment dismissing the claim, Magistrate Simon Milazzo states the immunity created by the Act “clearly applies’’.
He said “in any event’’ he did not think the council had been negligent because “the bailee of one particular scooter left it lying on the ground’’.
“There are numerous hazards on the ground, they are not hidden hazards. They are things such as guttering, posts and other hazards,’’ he said.
“People do occasionally, through their own inadvertence, injure themselves by tripping on guttering and running into posts. That is not the fault of the council.’’
Mr Milazzo said Mr Mayes’ argument was that the council “should have some system for collecting these scooters’’ but he did not think that was practical and he did not “know what the system would be”.
“Leaving aside Section 42, the proximate cause of Mr Mayes’ injuries was his failure to safely negotiate a hazard on the footpath which he saw,’’ he said. “The hazard was not created by the council and council was under no liability to remove it.’’
In his notice of review, Mr Mayes, who is representing himself, seeks to have Mr Milazzo’s decision overturned.
Mr Mayes states the ruling that Section 42 absolves council from responsibility “is wrong’’.
“A proper reading of this section clearly demonstrates its inapplicability to this situation,’’ he states.
“The section deals with the failure to ‘maintain, repair or renew a road’ which includes a footpath. The contract for the provision of bikes does not fall within any of these categories.’’
He said Mr Milazzo had also declined to view CCTV video of the incident.
“The evidence was available and could have been viewed in a matter of minutes,’’ Mr Mayes states.
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In response, lawyers for the city council state a condition of Beam’s permit to operate the scooters was that the scooter company fully indemnified the council “from any and all liability in anyway arising from or in connection with the permitted activity’’, including any injury claim.
“The appellant’s case appears to turn on an implied assertion that a novel duty of care was owed to the appellant by the respondent which, if proven, could have potentially significant impacts on the local government sector,’’ it states.
In a District Court hearing last Friday, Judge Jane Schammer pointed out to Mr Mayes there were restrictions for some damages under the Civil Liability Act.
She said damages would not be awarded for pain and suffering or non-economic loss unless an individual could prove their ability to lead a normal life was “significantly impaired’’ for at least seven days or unless they had exceeded the prescribed amount of medical expenses.
She said as far as she was aware that amount was $2750 in 2002 “so I don’t think you’ve actually got the prescribed minimum amount of medical expenses’’.
Judge Schammer also warned Mr Mayes that if his appeal was successful and the matter sent back to the magistrates court for another hearing “there would be some costs’’ if he lost.
In the hearing ACC legal services consultant Brett Kahland said the fact Mr Mayes saw the scooters before the incident “suggests the scooters did not pose any hidden or unusual hazard.’’
“Whilst the appellant has my sympathy and the City of Adelaide and I wish him well in recovering from any injuries he sustained as a result of the alleged incident, in my submission, it is an incident which arose as a result of his failure to exercise reasonable care for his own safety,’’ he said.
“Accordingly, there is no duty owed by the City of Adelaide …”
He said if Judge Schammer did find the ACC owed a duty, which was denied, there is no basis for finding the council was in breach of that duty as the Beam Holdings permit “included specific terms to ensure the scheme was carried out in a safe and responsible manner.’’
He said the immunity granted by Section 42 responds “in circumstances where the appellant alleges the ACC should have taken steps to remove the scooters as part of maintenance.’’
Judge Schammer has reserved her judgment.