Written by: Olexa Matiouk When Kathie Salman walked toward her nephew playing on swings at Lessing Park in February 2021, she had no reason to expect that a simple step would change her life. Or that her case would establish crucial legal precedent about council obligations to maintain safe public playgrounds.
As counsel for Ms Salman through both the District Court trial and the Court of Appeal, we knew this case was about more than one person’s injuries. It was about establishing clear, enforceable standards that protect every Australian who uses council playgrounds. Parents pushing children on swings, grandparents supervising at play equipment, and children themselves moving between play areas.
Here, I’ll explain why we fought this case to the Court of Appeal, what precedent we established, and why it matters for councils and communities across Australia.
What actually happened
On 28 February 2021, Ms Salman attended a family barbecue at Lessing Park in Hornsby. As she walked toward her five-year-old nephew on the swing set, she stepped from a mulch-covered area onto a blue “wet pour” rubber surface. A spongy safety surfacing common in modern playgrounds.
What she didn’t know, and couldn’t readily see, was that the mulch level had dropped significantly below the wet pour surface, creating a height differential. When her foot landed on the sloped edge of the wet pour surface instead of level ground, her ankle rolled outward. Trying to catch her balance, she placed her left foot down, which also rolled. She fell forward onto the bark surface.
The injuries were severe:
- Fractures to both ankles requiring surgical intervention with plates and screws
- Aggravation of a previous ankle injury
- Back injuries
- Psychological trauma.
At 32 years old, Ms Salman faced multiple surgeries, ongoing pain, and the probability of developing osteoarthritis requiring eventual ankle fusion.
Why this wasn't just another slip and fall case
Councils and their insurers initially treated this as a straightforward “obvious risk” case.
Their position was simple: Ms Salman should have been looking where she was going. The height difference between surfaces was obvious. She was contributorily negligent, and the council owed no duty to protect against risks that people should avoid themselves.
We fundamentally disagreed. And here’s why.
1. The context: Playgrounds aren't ordinary walkways
This wasn’t someone walking down a street who failed to notice a crack in the pavement. This was a children’s playground, an environment specifically designed to attract attention elsewhere.
When you approach playground equipment where children are playing, your attention is naturally, reasonably, and appropriately directed toward those children. You’re watching to ensure they’re safe, timing your approach to push a swing, or simply enjoying watching them play.
Key takeaway
Courts have long recognised that occupiers must account for the realities of how people actually use spaces, not hold them to unrealistic standards of constant vigilance. In a playground context, distraction isn’t negligence, it’s the expected and reasonable behavior of caring adults.
2. The council had actual notice of the problem
This wasn’t a case where councils were being held to impossible standards or punished for unknown hazards.
The council had received two comprehensive safety inspection reports from Playfix—in July 2020 and November 2020—specifically identifying the height differential as a hazard. They recommended that the mulch be replenished to eliminate “trip points.”
The July 2020 report stated, “The undersurface material needs to be built up to the level of the wet pour rubber to eliminate any trip points created by the low level of the undersurfacing material.”
Four months later, in November 2020, the exact same recommendation appeared in the inspection report. The problem hadn’t been fixed.
Three months after that second warning, Ms Salman fell.
3. The Australian standards were clear
This wasn’t about imposing new obligations on councils. Australian Standards AS/NZS 4486.1:1997 and AS 4685.0:2017 explicitly addressed playground surfacing safety:
- On trip hazards: “Surfacing should be free of trip hazards.”
- On loose-fill maintenance: “Loose-fill is extremely susceptible to scuffing and displacement, which may result in material becoming too shallow to provide the required impact attenuation. Loose-fill shall therefore be regularly inspected, and topped up as necessary.”
- On routine inspections: The standards suggested daily inspections might be necessary for loose-fill surfacing.
The council knew these standards existed. They’d commissioned independent safety inspections that referenced them. Yet their maintenance records showed no system for replenishing mulch to address the identified height differential.
The legal battle across two courts
The District Court victory
At trial in the NSW District Court, the council deployed multiple defensive strategies:
Obvious risk | They argued the height difference was obvious, which would have exempted them from any duty to warn or take precautions under section 5H of the Civil Liability Act. |
No duty | They argued that Ms Salman’s failure to watch where she was walking meant no duty was owed to her. |
No breach | Even if a duty existed, they argued they’d met it through regular maintenance and the choice to use mulch and wet pour surfacing wasn’t negligent design. |
Causation | They argued that even if they’d been negligent, it didn’t cause her fall, her inattention did. |
Contributory negligence | They argued for a 100% reduction in damages for contributory negligence. |
We systematically dismantled each defence:
Against obvious risk | We proved through photographs, Ms Salman’s credible testimony, and the nature of the surfaces that the height differential wasn’t readily discernible. The mulch crossed over onto the wet pour surface, obscuring where one ended and the other began. The entire wet pour surface was the same blue color, including the sloped edge. Without close scrutiny—which wasn’t reasonable to expect in a playground context—the unevenness wasn’t obvious. |
On duty of care | We established that councils owe duties to people using playgrounds as playgrounds are actually used. That is, with attention on children and equipment, not constant focus on ground surfaces. The law makes allowances for inadvertence and distraction, particularly in recreational settings. |
On breach | We demonstrated that reasonable precautions were both obvious and inexpensive. Our expert testified that regularly replenishing the mulch would cost no more than $300 and could be completed in three hours. The council provided no contrary evidence about costs or why regular replenishment was impractical. |
On causation | We proved that if the mulch had been maintained level with the wet pour surface (as the safety inspections recommended), Ms Salman would have stepped onto level ground rather than the sloped edge, and the fall wouldn’t have occurred. |
On contributory negligence | While we conceded some contributory negligence (Ms Salman acknowledged she should have been watching where she stepped), we successfully argued that the council’s failure to act on known safety reports for nine months represented far greater culpability. |
The District Court agreed that the council breached its duty of care, and damages were reduced by only 15% for contributory negligence. Ms Salman was awarded $283,200.
The Council appealed, and we won again
The council appealed to the NSW Court of Appeal, again arguing that they hadn’t breached their duty and that contributory negligence should have been assessed much higher.
We could have settled to avoid the uncertainty and expense of the Court of Appeal. Many law firms would have. But the principle mattered.
The Court of Appeal, in a 2-1 majority decision, upheld the District Court’s decision of Ms Salman’s $283,200 award (after a 15% reduction for contributory negligence).
The majority judgment established several crucial principles:
Councils must respond to safety inspection reports | When councils commission professional playground safety inspections that identify hazards and recommend remediation, they cannot simply ignore those recommendations without consequence. |
The relevant question is reasonableness | What would a reasonable council do in response to safety reports identifying height differentials as hazards and recommending inexpensive, simple remediation? |
Cost and burden matter | The council provided no evidence that regular mulch replenishment was prohibitively expensive or burdensome. Without such evidence, the court could not conclude that failing to take the recommended precautions was reasonable. |
Australian Standards inform the duty | While not automatically determinative, compliance with Australian Standards for playground safety is highly relevant to assessing whether a council has met its duty of care. |
The precedent we established: What councils must do now
Salman v Hornsby Shire Council establishes enforceable obligations for councils managing public playgrounds throughout Australia.
1. Safety inspections create actionable obligations
When councils commission professional playground safety inspections, they cannot treat the recommendations as mere suggestions. If an inspection identifies hazards and recommends specific, reasonable remediation, councils must either:
- Implement the recommended remediation
- Document and justify why alternative measures adequately address the hazard
- Accept potential liability if someone is injured by the identified hazard.
Simply receiving the report and doing nothing is no longer defensible.
2. Maintenance must be systematic and documented
Councils must implement systematic maintenance programs for playgrounds, particularly for loose-fill surfacing like mulch. “Regular maintenance” isn’t sufficient. There must be:
- Documented inspection schedules
- Records of when loose-fill is replenished
- Systems for ensuring surfaces remain level with adjacent surfaces
- Response protocols when inspections identify problems.
The council in this case claimed they performed “regular maintenance,” but their records didn’t document any mulch replenishment in the nine months between the first safety report and Ms Salman’s fall. That gap proved fatal to their defence.
3. Australian Standards inform the reasonable standard of care
While Australian Standards for playground equipment and surfacing aren’t automatically legally binding on councils, they establish the professional consensus about reasonable safety measures.
Courts will assess council conduct against these standards. When councils deviate from Australian Standards without documented justification, they bear the burden of explaining why their alternative approach was reasonable.
4. Cost-benefit analysis must be evidenced
Councils can argue that certain precautions are unreasonably expensive or burdensome relative to the risk. But they must actually prove this with evidence.
In Salman, the council didn’t call any evidence about:
- The cost of regular mulch replenishment
- Why it was impractical to implement the safety report recommendations
- What alternative measures they’d implemented instead
- Why those alternatives adequately addressed the hazard.
Without that evidence, the court concluded the council had no justification for failing to take simple, inexpensive precautions.
5. Obvious risk defence has limits in playground contexts
The “obvious risk” defence under section 5H of the Civil Liability Act doesn’t automatically apply just because surfaces are visibly different.
In playground contexts, where users’ attention is reasonably directed toward children and equipment, height differentials that aren’t pronounced or clearly marked may not be “obvious” even if someone closely examining the ground would notice them.
Why this matters beyond playgrounds
The principles established in Salman extend beyond playground safety to broader council liability:
- Notice creates obligation: When councils receive specific notice of hazards—through inspections, complaints, or incident reports—they must respond reasonably and document their response.
- Standards matter: Industry and professional standards inform what’s “reasonable” even when they’re not legally mandatory.
- Context affects “obviousness”: Whether risks are “obvious” depends on how spaces are actually used, not idealised assumptions about constant vigilance.
- Inaction requires justification: Councils can’t simply ignore identified problems and claim fiscal constraints without actually proving those constraints with evidence.
The social utility consideration: Is this too onerous on councils?
Some commentators have worried that Salman creates unreasonably burdensome obligations on councils. From a social utility perspective, should councils really be required to maintain mulch surfaces perfectly level with adjacent surfaces?
I understand the concern, but here’s why it misses the point:
1. We're not requiring perfection
The standard isn’t perfect leveling at all times. It’s reasonable systems for inspection and maintenance, with documented responses to identified problems.
2. The precautions were minimal
This wasn’t a case requiring expensive redesigns. It was periodic mulch replenishment costing a few hundred dollars.
3. Councils can manage costs
Councils collect rates, receive state and federal funding, and carry insurance precisely to manage public safety obligations. A few hundred dollars every few months for playground maintenance is well within reasonable expectations.
4. The alternative is unacceptable
The alternative—councils can ignore their own safety inspections without consequence—creates perverse incentives. Why commission safety inspections if you can simply file them away and claim ignorance when someone is injured?
5. Children and families rely on playground safety
Playgrounds are community assets where children—inherently vulnerable users—engage in activities with injury risks. Higher safety standards for these spaces aren’t unreasonable; they’re essential.
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What this means if you're injured at a council playground
If you or your child are injured at a council playground, Salman v Hornsby has clarified your rights and what you need to establish, including the evidence you should gather to strengthen your claim.
Evidence that strengthens your case
Type | What and how it supports your claim |
Safety inspection reports | Request any playground safety inspection reports under Freedom of Information. If inspections identified the hazard that injured you, this dramatically strengthens your case. |
Maintenance records | Council maintenance records that show gaps in upkeep or no systematic program for addressing the type of hazard you encountered support breach arguments. |
Photographs | Take detailed photographs of the hazard from multiple angles, including showing how it appears from the approach direction you were using. |
Australian Standards | Expert evidence about whether the playground complied with Australian Standards is highly relevant. |
Witness accounts | Evidence from others who use the playground about whether the hazard was obvious or commonly noticed. |
What weakens council defence
After Salman, councils can no longer successfully argue:
- “No one complained before” as a complete defence
- “The risk was obvious” without proving users would readily perceive it in the context of how the space is actually used
- “Maintenance would be expensive” without evidence of actual costs
- “We do regular maintenance” without documented proof of systematic programs.
Contributory negligence considerations
You may still be found partially at fault if:
- You weren’t keeping any lookout at all
- The hazard would have been obvious with reasonable attention
- You were using the playground in unusual or unreasonable ways.
But in playground contexts, courts now recognise that:
- Distraction by watching children is reasonable and expected
- Assuming surfaces will be reasonably maintained is not negligent
- Momentary inadvertence doesn’t negate council obligations.
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The broader principle: Accountability through transparency
At its core, Salman v Hornsby is about accountability through transparency.
Councils that commission safety inspections, maintain proper records, and systematically respond to identified hazards will be protected, because they can demonstrate they met reasonable standards of care.
Councils that collect safety reports and do nothing, that claim “regular maintenance” without documentation, or that ignore inexpensive precautions for identified hazards, will face liability.
This is how the system should work. It incentivises good practices, creates accountability for negligence, and protects the public who rely on council-maintained infrastructure.
Why this case represents the best of personal injury law
Some view personal injury law cynically, but Salman v Hornsby shows its true purpose. It holds powerful entities like councils accountable when they ignore known safety risks. It sets standards that make public spaces, like playgrounds, safer for everyone. It also ensures fair compensation for real harm: Ms Salman suffered serious, life-changing injuries caused by preventable negligence.
Importantly, the case has driven broader change. Councils across Australia are now improving maintenance and safety practices, protecting countless people.
This is personal injury law at its best: delivering justice for the individual while making the community safer.
Final thoughts: Precedent that protects all Australians
At GMP Law, we’re proud to have fought this case through two court levels to establish these protections. Personal injury law isn’t just about individual compensation. It’s about using the legal system to create safer communities and hold powerful entities accountable to reasonable standards.
Every child playing safely on well-maintained playground equipment, every parent pushing a swing without hidden hazards, every grandparent supervising grandchildren in properly inspected playgrounds, they all benefit from the precedent we established in Salman.
That’s why we do this work. That’s why precedent matters. And that’s why we’ll continue fighting for individual clients whose cases can create systemic change that protects all Australians.
