Bunnings Group Ltd v Giudice [2018] NSWCA 144
Originally Published by Michael Cooper and Mary Kinna on Thursday, July 5, 2018 12:46:53 PM
On 3 July 2018, the NSW Court of Appeal delivered judgment in Bunnings Group Ltd v Giudice [2018] NSWCA 144. The appeal arose from principal proceedings commenced in the District Court brought by Ms Giudice against Bunnings Group Limited (Bunnings), in respect of injuries sustained on 4 April 2016 at Bunnings' popular Ashfield warehouse.
Summary
Ms Giudice had attended the warehouse together with a friend and her 4-year-old grandson. Her grandson was taken to a play area inside the warehouse by her friend, while Ms Giudice inspected furniture. It became apparent her grandson was distressed so, Ms Giudice walked to the gate enclosing the play area, opened the gate, stepped forward, tripped on an inclined slope consisting of matting and fell sustaining injury.
A total of six allegations of negligence were made against Bunnings.
Bunnings admitted it owed Ms Giudice “a duty to take reasonable care to avoid risks of harm that were foreseeable and not insignificant in accordance with section 5B of the Civil Liability Act 2002 (NSW)”.
The primary judge found that Bunnings had breached its duty of care to her in three of the alleged grounds and awarded damages in Ms Guidice’s favour.
“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.”
Appeal
Bunnings appealed the judgment against it. Bunnings maintained that the primary judge erred in finding any breach of duty and erred in finding that there was causation.
Review and findings on appeal
The Court observed, Section 5B of the Civil Liability Act 2002 (NSW) “… prevents a person from being found negligent in failing to take precautions against a risk of harm unless it is satisfied. Paragraphs (a) and (b) of s 5B(1) are directed to the risk of harm. Paragraph (c) of s 5B(1) is directed to the precautions, the failure to take which is alleged to be a breach of duty. The point is that it is for the plaintiff to show not merely that there were precautions available to address the risk, but also that a reasonable person in the defendant’s position would have taken those precautions. The onus of demonstrating that rests with the plaintiff, whose action must fail if this cannot be shown. That is reinforced by s 5C(b)…”
As the Court noted, it remained for Ms Giudice to “establish that the risk of harm was not insignificant”.
Based on the evidence adduced at trial, the Court determined it had not been shown 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.”
“Ms Giudice maintained that the gate obscured the yellow line differentiating the shock-absorbent surface from the concrete floor. Her submission is not without force, but on analysis it leads nowhere, for two reasons. First, that there is a different surface is obvious. Secondly, at the time a person approaches, either the gate is shut or it is ajar. If the gate is shut, then the person would have to come to a stop before entering. If the gate is already open as the person approached, the yellow line is obvious and unobscured.”
When those matters are borne in mind, the Court determined a reasonable person in Bunnings’ position would not have done more than it had already done - by delineating the fencing the area with yellow lines, a fence and a child-proof gate which obliged entrants to come to a stop.
The Court found that it was obvious the floor of the play area was raised, that it was different from the surrounding hard concrete and thereby, the risk of a fall was low. Further, and quite clearly, the floor was designed to protect a person from serious injury. Based on the evidence adduced at trial, Ms Giudice did not establish that the risk of harm was not insignificant and failed to establish section 5B(1)(b) and (c) of the Civil Liability Act 2002 (NSW). Bunnings' appeal was allowed with costs.
Comment
In this instance, the primary judge erred and the Court of Appeal has found Ms Giudice failed to establish the matters in s 5B(1)(b) and (c) of the Civil Liability Act 2002 (NSW).
This decision reminds us that those sections of the Civil Liability Act 2002 (NSW) addressing breach and duty of care must be reviewed carefully and evidence adduced before the primary Court to satisfy the necessary elements contained therein. The onus remains on the plaintiff to establish not simply that there were precautions available to address the risk, but that a reasonable occupier would have carried out those precautions.