The facts were not contentious. The plaintiff/respondent tripped and fell injuring her right wrist on entering the playground equipment area at Bunnings to attend to her distressed four-year-old grandson. The trial judge allowed the claim and awarded $179,000.00 including a deduction for contributory negligence of 20%. The appeal focused on the trial judge erring on breach of duty and causation.
The plaintiff alleged that on hearing her distressed grandson, she entered the playground area via the self-locking child gate. The playground area was covered with a black/grey shock-absorbent matting on the concrete and fenced. The concrete surface before the gate area was marked in yellow paint and delineated the entrance area. There was a sign on the gate as to the conditions of entry. The plaintiff admitted she saw the yellow markings, the matting, but could not recall seeing the sign on the gate.
The plaintiff stated that upon opening the gate and stepping forward, she immediately tripped. The plaintiff alleged that the reason for this was that that the matting was raised for about four to five inches in a convex curve leading to the lip of the gate. The evidence for this was limited. There were some photographs which suggested the angle of the slope was about 20 degrees. There was no evidence as to what was underneath the surface of the matting, which may have caused the raised surface.
The plaintiff particularised the breach of duty as (a) failure to warn the plaintiff of the dangers of walking into the play area, (b) failure to warn the plaintiff of a raised surface, (c) failure to paint the raised surface with appropriate bright paint to draw the plaintiff’s attention to it; (d) placing a raised surface in an area where the defendant knew or ought to have known that it could cause injury to persons entering the area, (e) creating a trip hazard and (f) failure to alleviate trip hazard.
The trial judge found Bunnings breached its duty as follows:
“Accordingly, I find that the defendant breached its duty to the plaintiff by (a) failing to bring the variation in floor surface height to her attention by warning, painting or otherwise; (b) failing to ensure a flush surface between the warehouse and the adjacent playground area; and/or (c) failing to adjust the entrance to the playground area so as to spread the increase in height over a larger area which would have had the effect of significantly reducing any risk of tripping, if not completely alleviating that risk.”
The resolution of the appeal turned on s 5B & D of the Civil Liability Act 2002 (NSW) –
Section 5B provides:
“5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.”
The Court of Appeal stated that s 5B(2) required each of the subsections (a) – (d) to be considered before concluding s 5B(1)(c) and to be considered for each precaution. In considering the subsections, one of which was the burden of the precaution, the Court of Appeal found that the trial judge had not considered the burden of the measures apart from the warning sign. The Court of Appeal stated it was not sufficient to show that there were precautions, but that it was required to show that a reasonable person in the defendant’s position would have taken the precautions. The Court of Appeal found the trial judge’s reasons conflated the precaution because there was a distinct difference between a warning sign “Watch your Step” and ensuring the surface was at the same level of the concrete floor.
Turning to the test for causation, the Court of Appeal proceeded on the basis that it would only be established if, and only if, it was shown that the breach was a necessary condition to the occurrence to the injury. The Court of Appeal found the trial judge had failed to apply s 5D. There was no finding by the trial judge that if there were a sign, the fall would not have been sustained. Bunnings made submissions that in light of the concession by the plaintiff that she did not see the warning sign on the gate, she would not have seen a sign about “Watch your Step”. The Court of Appeal while noting the persuasiveness of the submission, noted the fine distinction that if the plaintiff had seen the sign, there was no evidence it would have prevented the fall.
In disposing of the appeal, a retrial was not ordered. The Court of Appeal found that credit was not an issue and the evidence was limited. The Court of Appeal further found as part of the reasoning against a retrial that the risk of harm was not insignificant, noting the change from the common law test:
 The change has been said to impose a more demanding test, but “not by very much”: Shaw v Thomas  NSWCA 169; (2010) Aust Torts Rep 82-065 at . It is “not particularly high”: Sibraa v Brown  NSWCA 328 at , Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55;  NSWCA 361 at , Stenning v Sanig  NSWCA 214 at . It is “not particularly demanding”: Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust  NSWCA 82 at .
 But it remains for Ms Giudice to establish that the risk of harm was not insignificant. It was obvious that the floor in the play area was raised. It was obvious that it was different from the hard concrete surface of the rest of the premises. (These considerations overlap with s 5H, however Bunnings placed no reliance on that section.) Such evidence as there was was that no person had ever sustained injury from a fall as he or she entered after opening the child-proof gate, and that up to ten children used the play area each day. Thus the risk of a fall was low. Further, the floor was designed to protect a person who fell (such as a running child) from serious injury. A person who entered after stopping to unlock the child-proof gate was surely less likely to suffer serious injury, in the event of a fall, than if he or she had been moving faster. At least, there was no evidence to suggest anything to the contrary.
The Court of Appeal went on to consider the contrary position, that even if the risk of harm was not insignificant, it was still a very small risk. The Court of Appeal found that no more than what had already been done, namely delineating the fenced area with yellow lines, and a child-proof gate – which required entrants to stop before entering, was required.
David Cormack – Brisbane Barrister & Mediator