Bruce v Apex Software Pty Ltd

The appellant, Bruce, brought proceedings against the respondent, Apex Software Pty Ltd, alleging negligence after tripping and falling outside the entrance to an aged care facility operated by the respondent. The accident occurred due to a height difference of approximately 10-20mm between the edge of a concrete slab and adjacent brick pavers. The Court of Appeal of New South Wales was tasked with determining whether the primary judge had erred in their assessment of the evidence and the application of legal principles.

The central legal issues before the Court of Appeal were whether the risk of injury posed by the unevenness of the entrance was "not insignificant" within the meaning of the Civil Liability Act 2002 (NSW), whether the risk was "obvious," and whether a reasonable person in the position of the occupier would have taken steps to mitigate this unevenness. The court considered whether the primary judge had correctly evaluated the evidence presented regarding the nature of the defect and the history of its existence.

The Court of Appeal upheld the primary judge's decision, finding that the height difference, while present, did not constitute a risk that was "not insignificant" in the circumstances. The court noted that the unevenness had existed for approximately 15 years prior to the appellant's accident without any prior incidents or complaints, suggesting it was not a substantial hazard. Furthermore, the court determined that the risk was not an "obvious risk" as contemplated by the relevant legislation, and that a reasonable occupier would not have been expected to take action to rectify such a minor and long-standing disparity.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.