Australia: Assessing reasonable measures is no childs play: applying section 5B of the Civil Liability Act 2002 (NSW) to allegations of breach

On 3 July 2018, the NSW Court of Appeal handed down its judgment in Bunnings Group Ltd v Giudice [2018] NSWCA 144, relevantly reinforcing that the overarching principles of negligence as outlined in the Civil Liability Act 2002 (NSW) (CLA) are to be determined based on what a reasonable person, and not instead a perfect person, would have done.

Background

On 4 April 2016, Antonietta Giudice attended the Bunnings store at Ashfield with her friend and her four-year-old grandson. The grandson was placed in a fenced-off play area, typical of those found in many Bunnings stores. Mrs Giudice subsequently heard her grandson cry and quickly walked to over to the play area. She stopped at the gate to the play area, lifted the child-proof latch (similar to those on pool fences) and opened the gate towards her. As she stepped into the play area, she tripped and fell, injuring her right wrist.

The floor surface of the play area was covered by dark rubber safety matting. The general floor surface in the store was concrete. There was a slight raise where the two surfaces met. At the edge of the safety matting, outside the gate on the concrete floor, there was a broad yellow painted line. There were also yellow diagonal lines indicating the area where the gate opens outwards. Affixed to the fence was a large yellow sign warning parents/guardians to supervise their children whilst they play in the play area.

Mrs Giudice sued Bunnings for personal injury.

First Instance Decision

Bunnings admitted that it owed a duty to Mrs Giudice to take reasonable care to avoid foreseeable and not insignificant risks, but denied that it had failed to take adequate precautions in the circumstances. It also led evidence that there had been no previous incidents of any trips or falls on the raised surface.

Mrs Giudice gave evidence that she did not notice the warning sign to supervise children in the play area or the yellow painted lines because, at all times, she was looking at her grandson.

The only liability evidence before the Court was various photographs of the entrance to the play area. Mrs Giudice was not permitted to rely on her expert liability report due to late service. There was no evidence before the Court as to what reasonable precautions were available to Bunnings to protect Mrs Giudice from the risk of harm caused by the raised surface of the play area.

District Court Judge Wilson found Bunnings liable in negligence and assessed Mrs Giudice's damages at $224,500. He reduced damages by 20% for contributory negligence and entered judgment for Mrs Giudice in the sum of $179,600 plus costs.

Notwithstanding Bunnings' evidence that there had been no previous incidents of any trips or falls, his Honour found that Bunnings knew or ought to have known that there was a risk that someone might trip on the uneven surface and that such a risk was foreseeable for the purposes of section 5B(1)(a) of the CLA. He also found that the risk was "not insignificant" for the purpose of section 5B(1)(b), because the gate and the colour/texture of the padded floor actually hid the hazard caused by the variation in the floor surface and it was not readily detectable by someone approaching the gate.

His Honour found that a reasonable person in Bunnings' position should have provided a warning sign directing Mrs Giudice's attention to the variation in the floor surface, adjusted the safety matting so that it sat flush with the concrete floor or altered the space of the incline of the raised surface to reduce the angle of the incline at the edge of the mat.

Relevantly, his Honour did not have regards the matters required to be considered in section 5B(2)1 in determining that it would have been reasonable for Bunnings to have taken the above precautions.

On the issue of causation, although Mrs Giudice's evidence was that she was always looking at her grandson and therefore did not notice the warning sign to supervise children or the yellow painted lines, his Honour found that this did not necessarily mean that Mrs Giudice would not have noticed a warning about the variation in the height of the floor surface.

Bunnings appealed.

Appeal

In a unanimous judgment delivered less than 10 days after the appeal hearing, the Court of Appeal unanimously agreed with Bunnings' submissions that the findings in relation to breach and causation could not stand because Judge Wilson had failed to consider and apply sections 5B, 5C, 5D and 5E of the CLA.

The Court of Appeal identified that the relevant risk of harm was the risk:

that a person would trip from a standing start as they placed their foot on the elevated surface of the playground or the inclined slope adjacent to the gate thereby sustaining injury.

The Court of Appeal found that the Judge Wilson erred in:

  • coming to a cursory conclusion in respect of approaching section 5B(1)(c) of the CLA that a reasonable person in Bunnings' position would have taken precautions to remove or reduce the chance of the risk eventuating; and
  • failing to consider the matters in section 5B(2) in relation to each specific precaution that Bunnings should have taken.

In considering the matters outlined in section 5B(2), the Court of Appeal concluded that:

  • the probability and seriousness of the harm from a fall at the entry were small, as the matting was primarily designed to soften the falls of children playing in the area;
  • the burden of placing an additional warning sign on the gate would have been small; however
  • the laying of safety-matting, which created the risk of the harm, had relatively high social utility because falls of children on a hard surface while playing are far more likely than falls attributable to the slightly elevated surface of the matting.

The Court of Appeal also found that the Judge Wilson had erred in finding that Bunnings' failure to warn caused Mrs Giudice to fall in light of her evidence that she did not see the existing warning signs.

Implications

This case was determined by the Court of Appeal's application of settled legal principles to a specific set of facts.

The decision provides practical guidance as to the approach that should be taken when assessing breach and causation under sections 5B and 5D of the CLA and that reasonableness does not require perfection, but instead often accords with ordinary community expectation. It also warns of the risks associated with hindsight, speculation and conflating the requirements of each subsection in assessing liabilty.

Gilchrist Connell acted for Bunnings.

Footnote

1 The probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm and the social utility of the activity that creates the risk of harm

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