Obvious and insignificant risk resulting from unevenness in surface December 21, 2018

In 2015 the appellant, then aged 70, tripped outside the entrance to an aged care facility operated by the respondent. The surface of that area consisted of large, flat concrete slabs bordered by rows of red bricks. There were height differences of 10–20 mm between the edges of the concrete and brick pavers, which had likely been present since 2000 or earlier. Current employees of the respondent (who had commenced work at various times since 1998) gave evidence they had not received any complaints about the surface, or any reports of falls on it prior to the appellant’s accident. An assistant nurse, who undertook twice-yearly inspections to identify safety risks, did not consider there to be a trip hazard, describing the height differentials as “very small” or “minimal”.

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

In 2015 the appellant, then aged 70, tripped outside the entrance to an aged care facility operated by the respondent. The surface of that area consisted of large, flat concrete slabs bordered by rows of red bricks. There were height differences of 10–20 mm between the edges of the concrete and brick pavers, which had likely been present since 2000 or earlier. Current employees of the respondent (who had commenced work at various times since 1998) gave evidence they had not received any complaints about the surface, or any reports of falls on it prior to the appellant’s accident. An assistant nurse, who undertook twice-yearly inspections to identify safety risks, did not consider there to be a trip hazard, describing the height differentials as “very small” or “minimal”.

1. Any risk of tripping created by the height difference was “insignificant” (Civil Liability Act 2002 (NSW), s 5B(1)(b)), given its obviousness and the remoteness of the likelihood that a pedestrian would fail to observe and account for it. The use of brick pavers as borders was readily apparent from the different surface materials and colouring; and the fact of there being a difference in the levels of the two surfaces was obvious: at [26]–[28].

2. The risk was “obvious” within Civil Liability Act, s 5F. It followed that the respondent was not required to warn of it: at [29].

3. A reasonable person in the respondent’s position would not have taken action to reduce the unevenness in question. In so holding, the primary judge rightly took account of the respondent having undertaken regular inspections of the area; and its longstanding use without incident: at [30]–[31].

(NSW) Civil Liability Act 2002 ss 5B, 5F

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48; Australian Safeway Stores Pty Ltd v Zaluzna(1987) 162 CLR 479; [1987] HCA 7; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20; Bunnings Group Ltd v Giudice [2018] NSWCA 144; Neindorf v Junkovic (2004) 88 SASR 162; Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82; Ratewave Pty Ltd v BJ Illingby[2017] NSWCA 103; South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8; Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19, cited

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