Obvious risk – To see or not to see…
In Shannaoui v Perron Investment Pty Ltd1 the District Court of NSW recently considered obvious risk in the context of a raised concrete kerb within a shopping centre car park. Specifically, the Court was required to determine whether the kerb was an obvious risk, and if so, whether the occupier had a duty to warn the plaintiff of the risk of tripping.
Noting the prevalence of slip and trip claims, this case provides useful guidance on the relevant factors to be considered:
- by Shopping centre owners and operators and
- in defending cases where ‘obvious risk’ potentially arises within the meaning of the Civil Liability Act, 2002 (NSW) (CLA).
What is an obvious risk?
An “obvious risk” is defined in section 5F and 5G of the Civil Liability Act 2002 (NSW) (CLA) as a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
In Thompson v Woolworths (Queensland) Pty Ltd2, the High Court stated that:
“the obviousness of the risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response.”
Background and allegations
The plaintiff, Mrs Shinnaoui, suffered injury as a result of tripping on a kerb whilst returning to her vehicle in an underground car park. It was accepted in the moments earlier and a matter of metres prior to where the plaintiff fell, she had successfully negotiated a similar concrete kerb in the car park.
When approaching the second concrete kerb, the plaintiff became distracted by another patron pushing a trolley close to her vehicle. Whilst her attention was directed to this, she tripped on the second concrete kerb causing her to trip and fall. Mrs Shinnaoui alleged she injured her neck, shoulder and knees in the fall and sustained subsequent psychological injuries.
In framing her case, Mrs Shinnaoui alleged that the owner and the managing agent, Perron Investment Pty Limited trading as Campbelltown Mall (Perron) and Jones Lang La Salle Pty Limited (JLL) respectively, did not guard against a foreseeable risk and were negligent in failing to:
- properly illuminate the car park to adequately reveal the concrete kerb and
- maintain the painted surface markings on the kerb, which had become weathered and faded.
Findings as to obvious risk
District Court Judge Levy concluded that the risk of tripping on the kerb was an obvious risk within the meaning of sections 5F and 5G of the CLA, and consequently, no warning of the risk was required.
In finding for Perron and JLL, His Honour gave weight to the evidence that:
- the plaintiff had visited this shopping centre a number of times over the preceding 8 years
- the plaintiff was familiar with the layout of the car park, including the structural appearance and
- the plaintiff had negotiated another kerb just prior to the fall.
His Honour dismissed the claim that Perron and JLL had breached their duty of care. This turned on particular facts, including:
- the lighting of the car park was not related to Mrs Shinnaoui’s fall – in fact, His Honour attributed the plaintiff’s fall entirely to her attention being directed to the trolley near her vehicle
- although the paint on the kerb was worn, and to maintain the paint is good practice, the failure to do this does not itself amount to a failure to exercise reasonable care and
- the risk of tripping was “obvious” and consequently Mrs Shinnaoui ought to have been aware of it – this was apparent from her ability to negotiate the first kerb.
In assessing “obvious risk” under the CLA, consideration ought to be given to:
- the plaintiff’s familiarity with the premises
- the level of the plaintiff’s attention to their surroundings at the time of the incident and
- the existence of any external factors to divert the plaintiff’s attention to their surroundings.
Despite a successful outcome for the defendants, this case should also serve as an important reminder for occupiers and building managers to ensure that commercial premises and areas accessible to the public are regularly inspected, maintained and kept in satisfactory upkeep in order to reduce the likelihood of slip and trip incidents.
1 NSWDC 54.
2(2005) 79 ALJR 90.
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