Court of Appeal confirms no action ought to have been be taken to address an uneven surface outside an aged care facility Court of Appeal confirms no action ought to have been be taken to address an uneven surface outside an aged care facility

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Court of Appeal confirms no action ought to have been be taken to address an uneven surface outside an aged care facility

15 January 2019 | Commercial Premises

The NSW Court of Appeal dismissed an appeal by the plaintiff from a judgment of the District Court, which held that an occupier’s reasonable response to a risk of tripping on an uneven surface at an aged care facility was to do nothing at all. 

In issue

  • Did the aged care facility commit an act of negligence by failing to remedy the level differentials between a concrete surface and brick pavers?

The background

On 15 June 2015, Ms Lorraine Bruce tripped and fell outside the main entrance to an aged care facility (the facility) operated by the respondent. That area was used by vehicles and pedestrians to move between the entrance and a visitors’ car park. Its surface consisted of large, flat concrete slabs bordered by rows of single red bricks laid side by side. Ms Bruce tripped because there was a height difference of 10-20mm between the edges of the concrete and the brick pavers which ran across the direction in which she was walking.  

The decision at trial

An assistant nurse at the facility gave evidence that she undertook bi‑annual safety inspections to identify and raise any hazards, including the uneven surfaces in the car park and pedestrian areas. The assistant nurse did not consider there to be a trip hazard as she considered the height differentials to be very small. Other employees at the facility gave evidence that they had not received any complaints about the surface or reports of any incident going back as far as 1998.

Ms Bruce alleged the aged care facility was negligent in failing to raise the brick edges to eliminate any level differentials. Whilst the primary judge found the risk of falling on the uneven surface was foreseeable, having regard to the lack of prior incidents or complaints his Honour concluded that the risk of falling in the present case was not significant in the circumstances and given the height differential of the uneven surface was approximately 10-20 mm. His Honour held there was no breach of duty, and that a reasonable person in the facility’s position would not have taken any precautions prior to the incident such as raising the pavers. In doing so, his Honour held that the risk of tripping on the uneven surface was an “obvious risk” pursuant to section 5F of the Civil Liability Act 2002 (NSW) (CLA) and the aged care facility did not have a duty to warn of it.

His Honour found in favour of the aged care facility and ordered Ms Bruce to pay the facility’s costs of the proceedings. Ms Bruce appealed.

The issues on appeal

The main issues on appeal were whether the primary judge erred in finding that:

  1. the differential in height did not create a dangerous situation;
  2. the height differential created an obvious risk; and
  3. a reasonable person in the facility’s position, having undertaken regular inspections, would not have taken action to reduce any unevenness of the surface.

The decision on appeal

The Court of Appeal upheld the decision of the trial judge, and dismissed the appeal. In a unanimous decision the Court of Appeal held that any risk of tripping created by the height difference was insignificant, given its obviousness and the remoteness of the likelihood that a pedestrian would fail to observe and account for it (noting the difference in height, surface materials, and colouring).

The Court of Appeal further held that as the risk was obvious within section 5F of the CLA, there was no obligation for the facility to have warned of the risk.

The Court of Appeal concluded that a reasonable person in the facility’s position did not need to take action to reduce the uneven surface, having regard to the regular inspections of the area and its longstanding use without incident. The appeal was therefore dismissed with costs.

Implications for you

This decision is a timely reminder of the factors which the court will take into consideration in deciding whether a reasonable person ought to have taken steps to address a risk presented by an uneven surface. 

Bruce v Apex Software Pty Limited t/as Lark Ellen Aged Care [2018] NSWCA 330

Dean Cupac

Dean Cupac

Associate