Bruce v Apex Software Pty Ltd

[2018] NSWCA 330

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bruce v Apex Software Pty Limited t/as Lark Ellen Aged Care [2018] NSWCA 330

Hearing dates:

27 April 2018

Date of orders:

18 December 2018

Decision date:

18 December 2018

Before:

Meagher JA at [1];
Leeming JA at [33];
White JA at [34]

Decision:

Appeal dismissed with costs.

Catchwords:

TORT – negligence – breach of duty of care – where appellant tripped outside entrance to aged care facility operated by respondent – where 10-20mm height difference between edge of concrete slab and brick pavers – where height difference likely present since 2000 without incident or complaint prior to appellant’s accident in 2015 – whether primary judge erred in treatment of evidence – whether risk “not insignificant” – whether risk obvious – whether reasonable person in occupier’s position would have taken action to reduce the unevenness in question

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5F

Cases Cited:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7
Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301; [1986] HCA 20
Bunnings Group Ltd v Giudice [2018] NSWCA 144
Neindorf v Junkovic (2004) 88 SASR 162
Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82
Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103
South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8
Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19

Texts Cited:

N/A

Category:

Principal judgment

Parties:

Lorraine Bruce (Appellant)
Apex Software Pty Limited t/as Lark Ellen Aged Care (Respondent)

Representation:

Counsel:

 

G Hickey (Appellant)
B Hull (Respondent)

 

Solicitors:

  Slater & Gordon (Appellant)
Holman Webb (Respondent)

File Number(s):

2017/283893

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2017] NSWDC 237

Date of Decision:

30 August 2017

Before:

Dicker SC DCJ

File Number(s):

2016/99202

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2015 the appellant, then aged 70, tripped outside the entrance to an aged care facility operated by the respondent. The surface of that area consisted of large, flat concrete slabs bordered by rows of red bricks. There were height differences of 10–20 mm between the edges of the concrete and brick pavers, which had likely been present since 2000 or earlier. Current employees of the respondent (who had commenced work at various times since 1998) gave evidence they had not received any complaints about the surface, or any reports of falls on it prior to the appellant’s accident. An assistant nurse, who undertook twice-yearly inspections to identify safety risks, did not consider there to be a trip hazard, describing the height differentials as “very small” or “minimal”.

Before the primary judge (Dicker SC DCJ), the appellant alleged negligence in the respondent’s failing…