A simple fix, a foreseeable risk and a $15 million lesson

In the recent decision of Woolnough v Whittlesea City Council [2026] VSC 190, Judge Gorton of the Supreme Court of Victoria awarded judgment for the Plaintiff against Whittlesea City Council (Council) and ordered damages in the sum of $15.2 million to be paid to the Plaintiff.

Background

The Plaintiff, a 23-year-old self-employed carpenter sustained serious spinal injuries resulting in him becoming wheelchair-dependent after attempting to climb over a boundary fence separating a cricket oval from nearby cricket nets.

The fence was approximately one meter high and there was no pedestrian gate in place directly connecting the oval and the cricket nets. Consequently, most players routinely jumped over the fence as opposed to walking to the nearest pedestrian gate which was approximately 95 meters away.

Council owned and managed the recreational infrastructure consisting of the cricket ovals including the fence and the cricket nets. Only Council had the authority to install additional infrastructure such as a gate.

Despite multiple requests from Laurimar Cricket Club (the Second Defendant), who used the oval, for a gate to be installed, Council failed to install a gate prior to the Plaintiff’s incident. Following the Plaintiff’s incident, Council installed a gate at the boundary connecting the oval and the nets at the modest cost of approximately $1,500.

Decision

Judge Gorton held that Council breached its duty of care on the basis it was entirely foreseeable that players would take the shortcut of jumping over the fence. It was held Council knew or ought to have known of this risk, the installation of a gate was an inexpensive and simple solution and failing to provide a direct route for pedestrians created an unreasonable risk of injury.

Judge Gorton emphasised the importance of considering how people actually behave, rather than how they ought to behave. In this regard it was noted that the layout of the reserve encouraged people to take the shortcut of jumping over the fence. On this basis Council was or should have been aware that the likely behaviour of most persons using the reserve was to jump or climb over the fence instead of walking an appreciable distance out of their way to use a pedestrian gate.

Further the importance of aggregate risk, whereby small risks become significant when repeated frequently was discussed in this case. In this regard it was noted that while a single attempt to jump over the fence may carry a small risk of injury, negligence must be assessed across hundreds of users and repeated crossings. When viewed collectively the probability that someone would eventually suffer a serious injury in the absence of a gate became sufficiently foreseeable.

Further, it was held that the Plaintiff had not voluntarily accepted the risk of injury by choosing to jump over the fence on the basis that while he was aware of the risk of suffering some injury from falling, he did not understand or appreciate the possibility of suffering a very serious injury.

The issue of contributory negligence was addressed, and it was accepted that running to and attempting to vault over the fence without slowing down first increased the risk of the Plaintiff falling and hurting himself. It was therefore held the Plaintiff’s damages be reduced by 20% for contributory negligence.

The Plaintiff’s claim against the Second Defendant was unsuccessful on the basis the Second Defendant had previously requested a pedestrian gate be installed by Council and had no authority to carry out the works itself.  

Key takeaways

The Woolnough decision provides the following key takeaways:

1. When assessing safety Courts will look at how people actually use a premises, not simply how they are supposed to use it.
2. Simple and relatively inexpensive changes such as installing a gate can significantly reduce both safety risks and potential liability exposure for occupiers and owners.