Court decision

Retailer not liable for failing to warn customer of the risk of tripping in its children's play area

By Anna Hendry and Robert Tidbury / 09 July 2018
5 min.
read
Worthwhile read for: occupiers liability, insurance, claim, duty of care

In the recent decision Bunnings Group Ltd v Giudice [2018] NSWCA 144, the Court of Appeal overturned the trial judge’s finding that Bunnings had failed to warn a customer of the risk of tripping when entering the children’s play area within the store.

What happened?

Ms Antonietta Giudice sustained injuries to her right wrist when she tripped and fell as she entered the children’s play area within the Bunnings warehouse at Ashfield on 4 April 2016.

At trial, Ms Giudice gave evidence that she heard her grandson distressed within the play area and she walked to the gate. She then opened the gate with her right arm, stepped forward and tripped and fell landing on her right wrist.

Photographic evidence was provided by Ms Giudice at trial which showed the fence, gate, play area and the edge of the surface of the play area where it meets the concrete. No precise evidence was tendered as to the dimensions of the shock-absorbent matting in the play area or in relation to how deep the incline was between the concrete and the part of the play area where the surface was flat.   

At trial Ms Guidice gave evidence that she did not notice the yellow markings at the entrance of the gate, nor did she notice the sign on the gate but she did notice that the floor surface of the play area was different.

It was Ms Giudice’s position that Bunnings breached its duty of care to her by permitting a gradient to exist between the commencement of the matting at the lip to the point where it becomes level within the play area or by failing to warn her of the gradient.

Trial decision

The New South Wales District Court found that Bunnings had breached its duty of care to Ms Guidice by:

  • failing to bring the variation in floor surface height to her attention by warning, painting or otherwise;
  • failing to ensure a flush surface between the warehouse and the adjacent playground area; and/or
  • 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.

Ms Giudice was awarded $179,600 in damages which included a reduction of 20% on account of contributory negligence.

Appeal decision

Bunnings was successful on appeal. The Court of Appeal found that the trial judge erred in his consideration and reasoning in relation to section 5B of the Civil Liability Act 2002 (NSW) (CLA). In particular, the Court of Appeal was critical of the approach taken by the trial judge to section 5B(1)(c) where he discussed all of the precautions collectively rather than considering each precaution individually. It was noted that the burden of installing a “Watch your Step ” sign was wholly different from the burden of aligning the surface of the play area with the concrete surface.

The Court of Appeal noted that Ms Giudice had not established that it was even possible to align the surface of the play area with the concrete surface. The Court noted that no evidence had been led of:

  • the cost of doing the work; 
  • whether Bunnings was a tenant or an owner of the land; and
  • what permissions from the local council and any landlord would be required to undertake the work or the cost of restoring a level surface if the play area were moved or a lease (if there was one) came to an end.

In relation to causation, the Court of Appeal found that there was no positive finding made by the trial judge that Ms Giudice would have seen a “Watch you Step” sign if one had been present, therefore the correct test of causation was not applied.

The Court of Appeal was not prepared to order a retrial, as the evidence led at trial was not sufficient for Ms Giudice to establish that the risk was not insignificant. Further to this, the Court of Appeal concluded that a reasonable person in the position of Bunnings would not have done more than it had already done, by delineating the fencing of the area with yellow lines, providing a fence and a childproof gate which required entrants to come to a stop before entering.

Judgment was made in favour of Bunnings.

Our thoughts

  • In order for the plaintiff to have viable prospects for succeeding at trial in an occupiers’ liability claim, the plaintiff must usually lead evidence establishing that a reasonable person in the position of the defendant would have taken precautions against the particular risk of harm. The issue surrounding the burden of taking these precautions must be considered in detail and evidence should be produced at trial.
  • In considering section 5B of the CLA (section 9 of the Civil Liability Act 2003 (Qld) and section 305B of the Workers’ Compensation & Rehabilitation Act 2003 in Queensland are similar) each precaution is to be considered individually and not collectively.
  • It is important to note that in Queensland, any statements made by the plaintiff about what he or she would have done are inadmissible (e.g. failure to warn cases) except to the extent, if any, that the statement is against his or her interest (see section 11(3) CLA in Qld and section 305D(3) of the WCRA).  

For more information or discussion, please contact HopgoodGanim Lawyers’ Insurance team.

09 July 2018
Authors
Anna Hendry
Partner
Anna is a Partner who advises exclusively in insurance litigation, acting on behalf of major public liability insurers, workers’ compensation insurers and self-insurers, compulsory third party insurers and professional indemnity insurers.
Robert Tidbury
Partner
Robert is the lead Partner and head of HopgoodGanim Lawyers’ Insurance practice.

What’s new

Subscribe
Receive email updates of our new publications.