The NSW Court of Appeal has set aside a verdict in which a woman received $179,600 after she tripped and broke her wrist in a children’s play area at a retail store.
In 2017, District Court Judge David Wilson originally ruled Bunnings Warehouse was negligent in preventing harm coming to the plaintiff. She had tripped on an elevated piece of floor in a fenced playground after hearing her child become distressed.
Judge Wilson called upon principles outlined in the Civil Liability Act, stating that the risk of injury was not insignificant nor obvious and Bunnings could have taken various steps to prevent injuries.
Why was his decision overturned on appeal? Let’s examine the case in more detail, starting with how judges approach personal injury cases.
Establishing negligence in public liability claims
The burden of proof is on the plaintiff in public liability claims. They must convince the court:
- The defendant owed them a duty of care.
- That a duty of care was breached.
- This breach caused the injuries in question.
There are also a number of defences in Section 5 of the Act that protect individuals and organisations.
For example, defendants will only be found negligent if the risk of injury was foreseeable, not insignificant and a reasonable person would have taken preventative measures. Furthermore, plaintiffs must show they would, on the balance of probabilities, not have been injured if the defendant had taken the necessary precautions.
In the original trial, the judge ruled Bunnings Warehouse had not taken reasonable safeguards to meet its duty of care obligations, including failing to:
- Post warning signs.
- Adjust the flooring levels to ensure a flush surface.
- Spread the change in height between the surfaces over a larger area to avoid a sudden switch.
Appellate judges reassess trial decision
The appellate judges claimed the original judge’s decision faltered in a number of areas.
First, he gave his reasoning through an oral judgement, which is unusual in such cases. Second, the judge didn’t evaluate the three safety precautions separately, despite significant differences between them. For example, posting warning signs is far easier than adjusting floor levels, yet they were considered equally reasonable.
Lastly, the appellate judges disagreed with the order in which the trial judge approached certain sections of the Act. As such, they set aside the original decision and instead evaluated the evidence themselves.
Final decision handed down
After reviewing the evidence, the judges decided the plaintiff’s case did not meet the stipulations set out in the Act for negligence.
“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,” they explained.
“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.”
The appellate judges therefore ruled in favour of Bunnings Warehouse, with the plaintiff ordered to pay the company’s costs.
While the plaintiff was ultimately unsuccessful, this case emphasises the importance of choosing experienced no-win, no-fee lawyers who can diligently pursue your case without any financial risk to yourself. To learn more about no-win, no-fee personal injury claims, please contact one of our team at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers.
