To warn or not to warn…

24 August 2023

A Plaintiff’s claim fails on appeal as the risk of tripping on a utility plate was deemed an obvious risk. The Court of Appeal was required to consider whether the primary judge erred in its determination of obvious risk.

In issue

  • Whether the risk of tripping on uneven surface was an 'obvious risk' within the meaning of s5F of the Civil Liability Act 2002 (NSW) (the CLA)
  • The appropriate characterisation of the 'risk of harm' – whether the primary judge erred in adopting a characterisation of the 'risk of harm' for the purpose of determining the question of 'obvious risk' that was more specific than the characterisation adopted when determining questions of duty and breach of duty.

The background

The plaintiff was a pedestrian who was walking quickly along a council footpath to catch a bus. The defendant partnership were a group of engineers and project managers responsible for the maintenance of utility plates embedded along the footpath. There was a rusty steel utility plate and frame situated in the footpath, which had a small height discrepancy between the level of the plate’s frame edges and the concrete of about one centimetre. The plaintiff tripped and fell over the sunken utility plate, which sat lower than the surrounding footpath.

The plaintiff sustained injury after she fell, and alleged the defendant partnership had breached its duty of care as the occupiers responsible for the inspection, maintenance and safety of the pit cover and footpath. As such, the plaintiff sought damages for negligence.

The decision at trial

The plaintiff was successful at trial on the basis that the defendant partnership was negligent in failing to warn by painting or applying lines to draw attention to the trip hazard posed by the steel utility plate and frame. The primary judge found the plaintiff was contributorily negligent and reduced damages by 20% on grounds that she had not exercised care for her own safety when approaching and assessing the utility plate. The defendant appealed.

The issues on appeal

On appeal, the appellant (defendant partnership) challenged the primary judge’s finding of negligence by contending that it had no duty to warn because the risk of tripping was an 'obvious risk' within the meaning of section 5F of the Civil Liability Act 2002 (NSW) (CLA), with the result (by the application of section 5H (1)) that the appellant had no duty to warn.

The appellant went on to challenge the primary judge’s analysis of the 'risk of harm' on the basis that the primary judge did not address the risk from the perspective of a reasonable person in the position of the plaintiff. It argued the correct approach to the characterisation of the risk of harm is the application of the provisions of the CLA dealing with obvious risk, as well as with breach of duty. The Court of Appeal relied on four key considerations upheld in Tapp to determine the obviousness of the risk:[1]

  1. The risk under section 5L of the CLA needs to be assessed after a determination that there is prima facie liability for negligence.
  2. The risk should be characterised at the same level of generality as the risk is characterised when assessing whether the defendant has breached its duty of care.
  3. The generality of the risk should include the same facts as those which established the risk for the purpose of the breach of duty which caused the harm to the plaintiff, but no more.
  4. The characterization does not need to descend to the precise detail of the mechanism by which an injury was suffered if that detail is unnecessary to establish a breach of duty.

Having regard to Tapp, it was ultimately decided that the relevant question was not whether it was obvious that there was a risk that the plaintiff would trip in the way that she did, rather, it was whether it was obvious that a risk of that kind might be present and materialise as she walked across the footpath containing the utility pit lid and frame.

The decision on appeal

The Court of Appeal agreed with the appellant partnership stating that the primary judge’s obvious risk analysis did not address the risk of harm from the perspective of a reasonable person in the plaintiff's / respondent’s position. The Court considered that the presence of the rusty utility pit and its surrounds in the footpath itself was enough of a visual cue to warn of the fact that there was or might be uneven surface ahead.

The Court further considered that a reasonable person taking care for their own safety would have appreciated that walking on or over a utility plate carried a risk of tripping and falling because of the uneven surface. This was sufficient to satisfy the definition of obvious risk and to engage the application of section 5H (which holds there is no proactive duty to warn of obvious risk).

In the circumstances, the risk could not be described as unusual or unexpected from the perspective of a pedestrian using the footpath. It followed that the appellant did not breach any duty of care requiring a warning to the utility plate.

Accordingly, the primary decision was dismissed.

Implications for you

This decision clarifies the correct procedure to follow when determining the application of the obvious risk / warning provisions of the Civil Liability Act 2002 (NSW) in a particular case (which are similar to the obvious risk / warning provisions in other jurisdictions).

Although the defendant was ultimately successful on appeal, this decision nonetheless serves as a reminder to occupiers of the need for maintenance and safety inspections to be carried out diligently and for occupiers to identify and warn of potential risks of injury to persons that enter onto their land.

Blue OP Partner Pty Ltd v De Roma [2023] NSWCA 161

[1] Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11.

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