On 9 February 2018, the Queensland Court of Appeal handed down a decision that serves as a timely reminder to owners or occupiers that variations in height, colour or location expose members of the public to the risk of injury; and once a risk presents itself, a robust response is required.
The respondent, Mr Bretz was 80 years old at the time of the subject accident. Mr Bretz attended a service station owned by The Thistle Company of Australia Pty Ltd (owner) and re-fuelled his motor vehicle. Walking from his motor vehicle to the pay area, Mr Bretz tripped, striking the ball of his foot on the concrete platform (or plinth) on which the petrol bowser was positioned.
Mr Bretz was unfamiliar with the petrol station and, immediately prior to the incident, he was captured on CCTV walking around the petrol bowser, at one point standing within 22mm of the plinth, which extended 300mm from the petrol bowser, approximately 37mm – 39mm high. At the request of the owner, the plinth had been repainted black rather than yellow, as had previously been the case, as the yellow paint had been deteriorating and become slippery. Importantly, the area surrounding the concrete plinth was also painted black.
Mr Bretz sued the owner for his resulting injuries.
First Instance Decision
The trial judge, Judge Clare SC, held that the risk of tripping on the plinth was reasonably foreseeable and not an insignificant one, and that a reasonable service station operator in the position of the owner would not have obscured the visibility of the plinth by repainting it in the same colour as the surrounding ground. Her Honour also held that the plinth did not present as an obvious tripping risk, being camouflaged by the repainting, and accordingly section 15 of the Civil Liability Act 2003 (Qld) (CLA) (no proactive duty to warn of an obvious risk) did not apply.
In doing so, Her Honour heard evidence that a number of customers had made complaints to the owner about the slipperiness of the original yellow surface and found that patterns of wear on the plinths evidenced that other customers had tripped or slipped on the plinth.
Her Honour also found that Mr Bretz was not contributorily negligent despite Mr Bretz's evidence during cross-examination which included the following exchange:
Q. Did you watch where you were walking?
A. No. Take off and walk.
The owner appealed.
During the appeal, Counsel for the owner submitted that the trial judge had erred in her findings, contending that plinth was an obvious risk as defined in section 13 of the CLA, being "a risk that would have been obvious to a reasonable person" in the position of Mr Bretz. The manifestation of this argument being that, pursuant to section 15 of the CLA ,there was no duty to warn Mr Bretz of the risk.
The Court of Appeal, however, rejected the owner's argument, finding that the repainting of the plinth camouflaged it, and that the plinth, at 37mm high, was high enough to trip someone, but not so high as to be immediately apparent. The Court also found that the trial judge appropriately determined that the risk was not obvious to a reasonable person in the position of Mr Bretz, considering that the plinth was an unusual feature of the site and that it had been painted black. In addition, given Mr Bretz's limited experience at the service station, the plinth was not an obvious risk for him.
Counsel for the owner submitted that the trial judge ought to have found that the risk of tripping on the plinth was insignificant, and by virtue of section 9 of the CLA, liability should have been decided adversely to Mr Bretz. The owner submitted that the trial judge conflated complaints about slipperiness with those of actual tripping.
The Court of Appeal rejected the owner's argument, noting that, on the owner's evidence trial, the prospect of a customer tripping and falling whilst visiting the service station is among the highest operational risks that could exist. As such, there was no operational motivation to paint the plinth the same colour as the immediate surrounding area, other than for aesthetics. The result being that the removal of the visual cue for the presence of the cement elevation would obviously increase the risk of tripping and also falling.
Counsel for the owner submitted that the trial judge erred in finding that Mr Bretz was not contributorily negligent. The owner's argument was essentially that the trial judge did not adequately consider Mr Bretz's evidence (as outlined above) in that it demonstrated "a cavalier attitude" on his part and a failure to keep a proper lookout for where he was walking. A further submission made by the owner was that the trial judge incorrectly applied the decision in Cains v Mathers Shoes Pty Ltd 1, which concerned a person who tripped over a small rise at the entrance to a shop.
The Court of Appeal again rejected the owner's argument, finding no error on part of the trial judge in having determined that the plinth in this matter was an unexpected obstruction in the path of travel of Mr Bretz. The Court of Appeal noted that the position in Cains is that, as a general rule, pedestrians are not obliged to watch their feet in order to avoid unexpected obstructions as they walk.
1  QCA 193.
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