Author of her own misfortune – occupier’s liability for a trip and fall accident

17 October 2022

Ms Jelena Devic brought a claim for damages after suffering personal injury following a fall whilst at the Casula Mall Shopping Centre on 17 December 2019.

In issue

  • Whether the defendant took all reasonable care to avoid a foreseeable risk of injury (specifically a risk of falling whilst walking across a walkway) to the plaintiff whilst on the defendant’s premises.

The background

Jelena Devic (plaintiff) brought a claim for damages for personal injury as a result of a fall that occurred on 17 December 2019 whilst at the AMP Capital Investors Limited’s premises known as the Casula Mall Shopping Centre (defendant).

At the time of the accident, the plaintiff was with her three children, one of whom was in a pram. Whilst on the premises the plaintiff made her way along a walkway which led to a crossing, part of which was raised so that it was level with the walkway. It was designed with the dual purpose of allowing both pedestrians and vehicles to use it in circumstances where the road was at a lower level than the kerb.

The raised area of the crossing fell away to the road level at each side of the crossing. The plaintiff alleged that she was walking across the walkway and when she stepped onto the crossing, she encountered an unexpected variation in the height of the crossing which caused her to misstep, and as a result she twisted her ankle and fell to the ground.

The plaintiff alleged that her misstep was due to the unexpected and unreasonable variation in the height of the crossing, and that the presence of the variation in height of the crossing posed a risk which was not insignificant, that the variation in height of the crossing was a necessary condition of the plaintiff’s harm and that as a consequence of the misstep, she suffered injury, loss and damage

The defendant accepted that it was the occupier but denied that it was negligent and said further that if there was any risk it was an obvious one for which it had no duty to warn.

The decision at trial

The court found in favour of the defendant.

In arriving at its decision, the court noted:

  • Whilst a risk of injury was foreseeable, adequate precautions by the defendant were taken (painted strips on the crossing) and there were no prior incidents or complaints in respect of the use of the walkway or the variation in height between the walkway and crossing;
  • The photographs of the walkway and crossing showed that the painted highlighting on the crossing provided an appropriate visual cue of the variation in height between the walkway and the crossing;
  • A reasonable person in the defendant’s position would not have taken any further precautions in respect of the walkway such as installing bollards or barriers; and
  • The probability of harm presented by the walkway was low.

Ultimately, the court was not satisfied that causation had been established. Or alternatively put, the court was not satisfied that “but for” the alleged failures by the defendant, the plaintiff would have still suffered harm.

Implications for you

The case serves as a useful reminder to occupiers to avoid complacency and ensure risks and hazards present on their premises are reduced as much as possible or alternatively adequately quarantined or highlighted to potential entrants.

Devic v AMP Capital Investors Ltd [2022] NSWDC 371

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