Mind the step – occupier’s liability and obvious risk
The New South Wales District Court has found in favour of a large, national retailer under the ‘obvious risk’ provisions of the Civil Liability Act 2002 (NSW), and has examined the balance between the duties of care imposed on an occupier and entrant.
- Whether there had been a breach of the defendant’s duty of care, in particular, whether there was a failure to warn of the risk of injury posed by a step.
- Whether the risk of injury was obvious within the meaning of section 5F of the CLA.
On 25 October 2017, Shirley-Ann Baker (the plaintiff) sustained a serious ankle injury at the retail store of Bunnings Group Limited (the defendant) situated at Port Macquarie, New South Wales (the premises).
The incident occurred at the timber section entrance of the premises, which consisted of a driveway, pedestrian access and a nearby raised concrete ‘island’, which was sometimes used to display stock. The plaintiff stepped up the kerb and onto the island, which she intended to cross in order to reach the entrance. As she walked across the island, she did not see the step down on the other side. She mis-stepped over the kerb and fell.
The plaintiff submitted that the height difference between the island and the roadway was not readily discernible and posed a risk of injury to pedestrians. The island was similar in colour and appearance to the surrounding roadway. There were no visual cues to the presence of the kerb. The plaintiff submitted that a reasonable person in the position of the defendant would have taken precautions, such as applying yellow paint to the kerb. There was evidence that such a measure had been taken at a different entrance to the premises.
The defendant submitted that the section of kerbing was readily observable on approach, that there was no duty to warn as the risk was obvious, and that there had previously been substantial pedestrian traffic over the island, with no prior incidents of slip, trip or fall. To support those submissions the defendant called a number of witnesses (employees) and tendered photographs of the island and records relating to prior, unrelated trips and falls at the premises.
The decision at trial
The court found in favour of the defendant. It determined that a reasonable person would not have taken measures to paint or delineate the kerb because the risk was obvious. Further, whilst these precautions would not be burdensome and would have likely avoided the incident, the probability of the incident occurring was low, given the lack of prior incidents.
The court emphasised that a necessary element of the occupier’s duty of care is that entrants will exercise reasonable care for their own safety. In this case, the court found that a reasonable person exercising care for her own safety, having stepped up onto the island, would be carefully looking for a step down. The risk of there being a kerb and the plaintiff falling if she did not exercise reasonable care for her own safety was obvious and there was no proactive duty on the defendant to warn. The fact that certain precautions had been taken in other areas of the premises did not translate to a need to take the same precautions in respect of the island.
Had there been a breach of duty, the court would have discounted the plaintiff’s damages by 20% on account of contributory negligence.
Implications for you
Aside from being an example of how the CLA obvious risk provisions can be effectively used to defeat a personal injury claim, this decision emphasises that occupiers are entitled to assume that entrants will take reasonable care for their own safety. Further, the case is a reminder that any failure to take precautions must be considered prospectively and that the need to take certain precautions is not necessarily uniform across multiple areas of an occupancy.