Obvious risk: The 'ordinary experience' test

Author: Chad Farah
Judgment Date: 28 June 2019
Citation: Council of the City of Sydney v Bishop [2019] NSWCA 157
Jurisdiction: NSW Court of Appeal¹

Principles

1. Pedestrians are under a duty to exercise reasonable care for their own safety. This is more so when the likelihood of an accident occurring is increased as a result of environmental factors, such as dim lighting.
   
   
2. The larger the trip hazard, in the context of a height differential, the more likely it is to be considered an 'obvious risk' for the purposes of Section 5F of the Civil Liability Act 2002 (CLA). Pursuant to that section, there is no duty of care on the part of a defendant to warn of an obvious risk. An example of a 'warning' in this context is making an object more visible with the use of bright colouring.
   
   
3. The opinion evidence of a liability expert about the obviousness of a risk is arguably inadmissible (Hawkesbury Sports Council v Martin [2019] NSWCA 76). Even if that evidence is found to be admissible, it will be of limited use to the Court about 'what was in essence a matter of ordinary experience' (Ghantous v Hawkesbury City Council).
   
   
4. Whether a risk is considered 'obvious' will have an impact on whether the defendant was required to take precautions against that risk within the meaning of Section 5B of the CLA (Bruce v Apex Software Pty Limited [2018] NSWCA 330).
   
   
5. The plaintiff bears the onus of establishing that their injuries were in fact caused by the defendant's negligence under Section 5D of the CLA; in other words, that the alleged precautions that ought to have been taken by the defendant would, if implemented, have prevented those injuries.
   
   

Background

On 31 January 2013, Karen Bishop (the plaintiff) tripped over a kerb in Potts Point that was allegedly under the control of the Council of the City of Sydney. The accident occurred at 8.15 pm while the plaintiff was walking from her place of employment to Kings Cross station. It was a journey she had completed hundreds of times previously.

On that particular evening, the Plaintiff attempted to mount a footpath that was separated from a walkway by a kerb with a gradual height of 16 cm at the highest point before eventually becoming flush with the walkway. The point in the kerb on which the plaintiff tripped was estimated to be around 4 to 5 cm in height.

The plaintiff sued that Council, as the sole defendant in the District Court of NSW, for damages arising from a broken hip. She argued that the Council ought to have provided a reflective yellow strip to delineate the edge of the kerb.

His Honour Curtis ADCJ found in favour of the plaintiff in the first instance and awarded her $977,864 in damages which was later amended to $750,000 in line with the District Court's jurisdictional limit.

The Council appealed on the issues of the duty to warn under Section 5H of the CLA, the breach of any such duty under Section 5B of the CLA and the causation of plaintiff's injuries under Section 5D of the CLA.

Court of Appeal

His Honour Macfarlan JA considered that the degree to which the risk of harm was obvious was a 'matter of ordinary experience' such that expert liability evidence on the issue was of limited use. Instead, his Honour made reference to a photograph of the kerb that was taken at the time that it was constructed in 2010 and which was supplied as part of the judgment.

With reference to that photograph, his Honour rejected the plaintiff's argument that the edge of the kerb was not obvious. His Honour further rejected the notion that the risk was concealed due to dim lighting during the evening hours, instead stating that the plaintiff ought to have exercised 'increased vigilance' by virtue of that very fact. His Honour summarised the position at paragraph 29 of the judgment:

For the same reasons, his Honour also found that the risk that a person exercising reasonable care for their safety would trip on the kerb was sufficiently low such that the defendant had not breached its duty of care by not taking precautions against the risk.

His Honour emphasised the importance of s 5C(b) of the CLA: The fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done.

His Honour then turned to the issue of causation. Reference was made to the plaintiff's evidence during the trial where she said that she was looking forward, not down, before the accident, and that she had attempted to mount the kerb to her right (which she knew existed from prior experience) to avoid people on the walkway ahead 'socialising, drinking and whatnot'. His Honour consequently rejected the proposition that the plaintiff would have noticed the kerb and successfully mounted it even if that kerb was delineated in yellow. It followed that any breach on the part of the defendant in that regard, which the Court had found was not committed, was not causative of the plaintiff's injuries.

His Honour Basten JA was critical of the plaintiff's pleadings, in which it was alleged, inter alia, that the Council was the 'occupier' of the 'premises' (with reference to the adjacent footpath and walkway). His Honour held that the plaintiff, during the trial, did not establish that the kerb was situated on Council's land, as opposed to a developer's land, such that there was occupancy or ownership giving rise to a duty of care within the meaning of the pleadings. Accordingly, the plaintiff had not established the underlying facts that are necessary for a finding that a duty of care was owed to her by the Council. His Honour ultimately held that the proceedings in the District Court ought to have been dismissed for that reason alone, and otherwise agreed with the judgment of Macfarlan JA.

In a dissenting judgment, Brereton JA held that the risk was not obvious and that it required the Council to install a yellow reflective strip along the length of the kerb to delineate it. His Honour further held that the plaintiff would have been in a better position to notice the kerb if a yellow strip had been implemented along its eight-metre length.

Why this case is important

There is a general assumption amongst practitioners that the Court will always be guided by expert evidence in making a determination on liability, if that evidence is before it. That is not always the case, particularly when dealing with matters of common sense. On the contrary, it remains open to the judiciary to disregard the expert liability evidence and to make up its own mind with reference to what it observes.

Cases concerning whether the risk of tripping on an object was an 'obvious risk' fall squarely in this category, particularly where contemporaneous photographic evidence of the risk is available for the inspection of the judiciary. It is perhaps for this reason that the majority judgment in this case is predicated on a photograph.

This case also serves as a reminder that the 'obvious risk' defence can defeat a claim in negligence entirely, not just the allegation that a duty to warn existed. The 'obvious risk' defence, if successful, will have a flow on effect that will determine whether that risk was significant enough such that a reasonable person in the defendant's position would have taken precautions in respect of that risk pursuant to Section 5B(1)(c) of the CLA.

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¹ Basten JA, Macfarlan JA and Brereton AJA.