The edge that separates what is 'obvious' from what is 'significant'

 
Judgment Date: 18 December 2018
Citation: Bruce v Apex Software Pty Limited t/as Lark Ellen Aged Care [2018] NSWCA 330
Jurisdiction: NSW Court of Appeal¹

Principles

1. Whether a risk is considered 'obvious' within the meaning of s 5F of the Civil Liability Act 2002 (CLA) will have an impact on its perceived significance under s 5B(1)(b). If the obvious risk is also considered to be insignificant, then the action in negligence will fail in its entirety.
   
   
2. Whether a defendant was required to take remedial steps to address a risk that was 'not insignificant' will depend in part on the length of time that the risk was present and whether there were any prior incidents arising from it.

Background

Mrs Lorraine Bruce, (the plaintiff) tripped outside an aged care facility on 15 June 2015 and sustained injury. District Court proceedings were brought on her behalf for damages in negligence against Apex Software Pty Limited, (the defendant) being the operator of the facility.

The uncontested facts are that the plaintiff tripped on a 10 to 20 mm height difference between the edge of the concrete and brick pavers delineating the entrance. This height difference was, on balance, present since the year 2000 without incident and had not been flagged as requiring remedial action in the bi-yearly safety inspections of the defendant. The plaintiff herself had uneventfully walked across the area around 100 times in the 9 months prior to her accident.

It was alleged by the plaintiff at trial that the defendant ought to have remedied the height difference by raising the brick pavers to the level of the adjacent concrete. His Honour Dicker SC DCJ disagreed and held there was no breach of the duty of care owed to the plaintiff. His Honour also found in the alternative that a deduction of 15% ought to apply for contributory negligence due to the plaintiff's failure to keep a proper lookout.

Court of Appeal

The plaintiff appealed on four main grounds as to liability:

1. the trial judge erred in finding that the safety inspections undertaken by the defendant before the accident were reasonable and adequate;
   
   
2. the trial judge erred in finding that the defendant was not under a duty to rectify the height difference in question when it became aware of it;
   
   
3. the trial judge erred in finding that the risk of harm was insignificant; and
   
   
4. the trial judge erred in finding that the risk was an obvious risk.

The plaintiff did not challenge the finding of contributory negligence.

In a unanimous judgment, Meagher JA held the primary judge was correct in finding the risk of someone tripping and falling was "insignificant" because of the obviousness of that risk and the remoteness of the likelihood that people using the area would fail to observe and take account of the uneven surface.

The court went on to distinguish between the defendant not identifying a significant risk of harm during its prior safety inspections on the one hand and, on the other hand, the plaintiff failing to observe the height difference immediately before her accident. The former simply meant that the defendant did not consider that the height difference warranted any action, but that is not evidence that the risk was not 'obvious' or somehow concealed. On the contrary, the court drew a direct connection between the obviousness of the risk from the plaintiff's view and the insignificance of that same risk from the defendant's point of view.

Furthermore, it was held that even if the risk was 'not insignificant' within the meaning of s 5B(1)(b) of the CLA, the defendant would still not have been required to take remedial action given the longstanding use of the area without prior incident and in line with the test under ss 5B(1)(c) and 5B(2) of the CLA.

The appeal was dismissed with costs.

Why this case is important

It is trite that there is no duty to warn of an 'obvious risk' under the CLA. While the obvious risk defence addresses only one aspect of any given claim (i.e. the failure to warn), it can also be the cornerstone to a more holistic defence in rebutting all allegations of negligence.

This reason is found in the inverse relationship between the obviousness of the risk and its perceived significance: The more obvious or pronounced the defect is to the reasonable person, the less significant the risk of harm arising from it will be. It is in fact the less obvious risks that pose a greater risk of harm in the eyes of the Court.

Plaintiffs wishing to litigate their claims in this context must also be mindful that the mere presence of an imperfection or defect does not automatically give rise to a duty to rectify it. It is crucial to examine the history of that defect (and the plaintiff's prior contact with it) to determine the probability of an injury occurring. The more uneventful and lengthy the history, the lower that probability becomes and with it the chances of establishing negligence.

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¹ Meagher JA, Leeming JA and White JA.