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

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Blue Op Partner Pty Ltd v De Roma [2023] NSWCA 161
Hearing dates: 16 March 2023
Date of orders: 12 July 2023
Decision date: 12 July 2023
Before: Meagher JA at [1];
Mitchelmore JA at [69];
Kirk JA at [70]
Decision:
(1) Appeal allowed.
(2) Set aside orders 3, 4 and 5 of the District Court.
(3) In lieu therefore, order that the proceedings against the appellant partnership (as fourth defendant) be dismissed and that the respondent (as plaintiff) pay the appellants’ costs of those proceedings.
(4) Summons seeking leave to cross-appeal dismissed.
(5) Respondent pay the appellants’ costs of the appeal and proposed cross-appeal.
(6) Grant leave to the appellants to apply by motion to vary the costs order in order 3. That notice of motion is to be filed and served in accordance with Uniform Civil Procedure Rules 2005 r 36.16.

Catchwords:
TORTS – negligence – occupiers’ liability – where pedestrian injured following trip on uneven surface of footpath created by up to 1cm height differential between utility pit lid and surrounding metal frame – whether risk of tripping on uneven surface an “obvious risk” – characterisation of “risk of harm” – obvious risk engaging s 5H(1) of Civil Liability Act 2002 (NSW)

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 5A, 5B, 5C, 5D, 5F, 5G, 5H, 5G, 5L, 5R

Cases Cited:
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29
Bruce v Apex Software Pty Limited t/as Lark Ellen Aged Care [2018] NSWCA 330
C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136
Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46
Council of City of Sydney v Bishop [2019] NSWCA 157
De Roma v Inner West Council & Ausgrid (No 2) [2022] NSWDC 562
Fallas v Mourlos (2006) 65 NSWLR 418; [2006] NSWCA 32
Hawkesbury Sports Council v Martin [2019] NSWCA 76
JFIT Holdings Pty Ltd t/as New Dimensions Health & Fitness v Powell [2021] NSWCA 137
Kempsey Shire Council v Five Star Medical Centre Pty Ltd (2018) 99 NSWLR 98; [2018] NSWCA 308
Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65
Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103
Richmond Valley Council v Standing [2002] NSWCA 359
Road and Traffic of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42
Romeov Conservation Commission (NT) (1998) 192 CLR 431; [1998] HCA 5
Russell v Carpenter [2022] NSWCA 252
Singh v Lynch (2020) 103 NSWLR 568; [2020] NSWCA 152
South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8
Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11
Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19

Texts Cited:
WorkCover NSW, Preventing Slips, Trips and Falls (2007)
Austroads,

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWCA 161
Decision Date: 12 July 2023

CaseChat Overview and Summary

Blue Op Partner Pty Ltd appealed to the New South Wales Court of Appeal against a District Court decision that found it liable for injuries sustained by the respondent, Mr De Roma. Mr De Roma had tripped and fallen on an uneven footpath, sustaining injuries. The unevenness was caused by a height differential of up to 1cm between a utility pit lid and its surrounding metal frame. The dispute concerned whether Blue Op Partner Pty Ltd, as occupier, owed a duty of care to Mr De Roma and whether the risk of tripping on the uneven surface constituted an "obvious risk" under the *Civil Liability Act 2002* (NSW).

The Court of Appeal was required to determine whether the risk of harm to Mr De Roma was an obvious risk for the purposes of section 5H(1) of the *Civil Liability Act 2002* (NSW). This involved considering how the risk of harm should be characterised and whether the specific risk of tripping on the uneven footpath, with its particular height differential, was an obvious risk that would have been apparent to a reasonable person in the position of Mr De Roma.

The Court reasoned that the risk of harm needed to be characterised by reference to the specific circumstances, not in general terms. It found that the height differential of up to 1cm between the utility pit lid and the surrounding frame did not present a risk of harm that would have been obvious to a reasonable person. Therefore, the risk was not an "obvious risk" as defined by the Act, and the protection afforded by section 5H(1) was not available to the appellant.

Consequently, the Court of Appeal allowed the appeal, setting aside the District Court's orders. The proceedings against the appellant partnership were dismissed, and Mr De Roma was ordered to pay the appellant's costs. The Court also dismissed a summons seeking leave to cross-appeal and ordered Mr De Roma to pay the appellant's costs of the appeal and the proposed cross-appeal. Leave was granted for the appellant to apply to vary the costs order in relation to the District Court proceedings.

Orders

Orders of the court

(1) Appeal allowed.

(2) Set aside orders 3, 4 and 5 of the District Court.

(3) In lieu therefore, order that the proceedings against the appellant partnership (as fourth defendant) be dismissed and that the respondent (as plaintiff) pay the appellants’ costs of those proceedings.

(4) Summons seeking leave to cross-appeal dismissed.

(5) Respondent pay the appellants’ costs of the appeal and proposed cross-appeal.

(6) Grant leave to the appellants to apply by motion to vary the costs order in order 3. That notice of motion is to be filed and served in accordance with Uniform Civil Procedure Rules 2005 r 36.16.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Blue Op Partner Pty Ltd v De Roma [2023] NSWCA 161
Hearing dates:	16 March 2023
Date of orders:	12 July 2023
Decision date:	12 July 2023
Before:	Meagher JA at [1]; Mitchelmore JA at [69]; Kirk JA at [70]
Decision:	(1) Appeal allowed. (2) Set aside orders 3, 4 and 5 of the District Court. (3) In lieu therefore, order that the proceedings against the appellant partnership (as fourth defendant) be dismissed and that the respondent (as plaintiff) pay the appellants’ costs of those proceedings. (4) Summons seeking leave to cross-appeal dismissed. (5) Respondent pay the appellants’ costs of the appeal and proposed cross-appeal. (6) Grant leave to the appellants to apply by motion to vary the costs order in order 3. That notice of motion is to be filed and served in accordance with Uniform Civil Procedure Rules 2005 r 36.16.
Catchwords:	TORTS – negligence – occupiers’ liability – where pedestrian injured following trip on uneven surface of footpath created by up to 1cm height differential between utility pit lid and surrounding metal frame – whether risk of tripping on uneven surface an “obvious risk” – characterisation of “risk of harm” – obvious risk engaging s 5H(1) of Civil Liability Act 2002 (NSW)
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5A, 5B, 5C, 5D, 5F, 5G, 5H, 5G, 5L, 5R
Cases Cited:	Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 Bruce v Apex Software Pty Limited t/as Lark Ellen Aged Care [2018] NSWCA 330 C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46 Council of City of Sydney v Bishop [2019] NSWCA 157 De Roma v Inner West Council & Ausgrid (No 2) [2022] NSWDC 562 Fallas v Mourlos (2006) 65 NSWLR 418; [2006] NSWCA 32 Hawkesbury Sports Council v Martin [2019] NSWCA 76 JFIT Holdings Pty Ltd t/as New Dimensions Health & Fitness v Powell [2021] NSWCA 137 Kempsey Shire Council v Five Star Medical Centre Pty Ltd (2018) 99 NSWLR 98; [2018] NSWCA 308 Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65 Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103 Richmond Valley Council v Standing [2002] NSWCA 359 Road and Traffic of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 Romeov Conservation Commission (NT) (1998) 192 CLR 431; [1998] HCA 5 Russell v Carpenter [2022] NSWCA 252 Singh v Lynch (2020) 103 NSWLR 568; [2020] NSWCA 152 South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11 Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19
Texts Cited:	WorkCover NSW, Preventing Slips, Trips and Falls (2007) Austroads,