Australia: An obvious risk may not require remedial action but managing that risk is still key

Last Updated: 3 April 2019
Article by Debbie Kaminskas and Melissa Fenton

In brief - Court of Appeal confirms that aged care provider did not breach duty of care in trip and fall case

In the decision of Bruce v Apex Software Pty Ltd t/as Lark Ellen Aged Care [2018] NSWCA 330, the Court of Appeal has reiterated the concepts of risk of harm and obvious risk - and confirmed that where the risk of tripping and falling on uneven pavement cannot be considered to be "not insignificant", there is no requirement for an occupier to warn or take precautions.

The circumstances surrounding the case involved the appellant, Mrs Lorraine Bruce, sustaining injuries following a trip and fall at the main entrance of Lark Ellen Aged Care Facility on 15 June 2015. The area upon which Mrs Bruce fell was a flat concrete slab bordered by rows of single red bricks. Mrs Bruce alleged that the incident occurred as a result of a difference in height between the concrete slab and the row of pavers. Although there was competing evidence as to the height differential, it was accepted by the primary judge that the levels varied between 10 and 20 mm.

Primary judge finds risk of harm posed by height differential between pavers and slab was obvious

At first instance, District Court Judge, Dicker SC, found in favour of the defendant, Apex Software Pty Ltd t/as Lark Ellen Aged Care (Apex), on the basis that the risk of a pedestrian tripping as a result of the height differential was insignificant, applying established principles codified by the Civil Liability Act 2002 (NSW) (CLA).

The primary judge found that there was no breach of duty of care. He did, however, determine that, if there was a breach, causation was established pursuant to section 5D of the CLA. His Honour Dicker also held that if there was a breach, he would have reduced any award for damages by 15% to account for Mrs Bruce's contributory negligence.

Significantly, the primary judge found that the risk of harm was obvious, with the risk of harm being the height differential. As a result of sections 5F and 5G of the CLA, Apex owed no proactive duty to warn Mrs Bruce of an obvious risk.

Court of Appeal considers section 5B of Civil Liability Act, agrees with primary judge's findings

On Appeal, Meagher JA (with Leeming JA and White JA agreeing) sought to identify the relevant "risk of harm" by applying section 5B of the CLA.

Although the primary judge found that the risk of someone tripping was foreseeable, he did not consider the risk to be "not insignificant" as required by section 5B(1)(b). Having assessed the low probability of the risk actually occurring, the Court of Appeal agreed with the primary judge and concluded that the height differential did not create a dangerous situation such that a reasonable person in the position of Apex would not have taken any action to rectify the unevenness of the pavers compared with the concrete slab.

On the evidence before the Court of Appeal, Meagher J was satisfied that it was within the primary judge's purview to support the conclusion of someone tripping and falling as being "insignificant" because of the obviousness of the risk and the "remoteness of the likelihood that people using the area would fail to observe and take account of the uneven surface" [at 27].

The Court of Appeal also made reference to the use of brick pavers bordering the concrete slabs to be readily apparent given the difference in textured materials and the colour. There was also an absence of any reported falls or other complaints about the area for at least 15 years prior to the incident, which the Court of Appeal considered was consistent with the primary judge's assessment of the risk of tripping as being insignificant. Indeed, Mrs Bruce had walked across the area for nine months prior to the fall without incident.

Finally, the Court of Appeal agreed with the primary judge's finding that the risk was obvious and considered that Mrs Bruce should have appreciated the risk of tripping and falling if she failed to take reasonable care and direct her attention to the walkway surface.

On the basis that:

  • Apex undertook inspections of the walkway area
  • the area was used without incident of any earlier falls or complaints
  • the risk of tripping on the pavers was obvious to a person taking reasonable care for their own safety,

the Court of Appeal affirmed the primary judge's assessment of the relatively low risk of harm and considered that the difference in the levels between the pavers and the slab did not constitute a risk that required remediation.

The appeal was dismissed with costs.

Pedestrians need to be careful but occupiers of premises should still consider importance of managing their risks

The Court of Appeal's decision, along with the thoroughly considered primary decision, offers a timely reminder that pedestrians need to exercise significant care by looking where they are going and perceiving and avoiding obvious hazards such as uneven pavement, stones, tree roots and boulders, and to establish causation pursuant to Dicker DCJ's finding that:

In my view the fact that there was some unevenness between the two surfaces which could result in a person stumbling and falling was not sufficient to establish a breach of duty of care in the present case. Uneven surfaces are regularly encountered on both public and private land and even external to commercial premises. In my opinion the differential in height did not create a dangerous situation. The defendant had established a system to review outside walkways and had not perceived this as a danger. I do not accept that Ms Atlee performed her duty poorly in reviewing the area. In my view, balancing all the evidence, a reasonable person in the position of the defendant prior to the accident having undertaken regular inspections of the walkway area externally would not have taken action to have reduced the unevenness in question in the present case.

Despite both the primary judge and the Court of Appeal finding that the risk which materialised in this instance was obvious, the decision serves as a reminder for occupiers of premises that systems of inspection and identification of risk are paramount in defending slip, trip and fall claims.

Debbie Kaminskas Melissa Fenton
Insurance and reinsurance
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Debbie Kaminskas
Melissa Fenton
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