Bunnings Group Ltd v Giudice

Case [2018] NSWCA 144

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Bunnings Group Ltd v Giudice [2018] NSWCA 144
Hearing dates: 22 June 2018
Decision date: 03 July 2018
Before: Leeming JA; White JA; Emmett AJA
Decision:

1. Appeal allowed with costs.

 2. Set aside orders 1 and 2 made on 3 November 2017, and in lieu thereof order that the proceedings be dismissed, with the plaintiff to pay the defendant’s costs.
Catchwords: NEGLIGENCE – occupier’s liability – customer trips and falls in appellant’s premises while entering a children’s play area – play area had raised shock-absorbent surface – primary judge found failure to warn and failure to make surface of play area level with remainder of premises were breaches of duty which caused the injury – findings under ss 5B and 5D of Civil Liability Act 2002 (NSW) set aside – appeal allowed and judgment entered for appellant
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 5H
Cases Cited: Goode v Angland [2017] NSWCA 311
Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361
New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20
Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd [1967] 1 AC 617
Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82
Roads and Traffic Authority v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263
Shaw v Thomas [2010] NSWCA 169; (2010) Aust Torts Rep 82-065
Sibraa v Brown [2012] NSWCA 328
Stenning v Sanig [2015] NSWCA 214
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12
Texts Cited: Nil
Category:Principal judgment
Parties: Bunnings Group Ltd (Appellant)
Antonietta Giudice (Respondent)
Representation:

Counsel:
G M Watson SC and I L Griscti (Appellant)
B D Dooley SC and P Clingan (Respondent)

  Solicitors:
Gilchrist Connell (Appellant)
Stephen Spinak Solicitors (Respondent)
File Number(s): 2017/361379
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Citation:
Nil
Date of Decision:
03 November 2017
Before:
His Honour Judge Wilson DCJ SC
File Number(s):
2016/310722

Judgment

  1. THE COURT: Bunnings Group Ltd appeals from a judgment against it in the amount of $179,600 in favour of Ms Antonietta Giudice, who was injured when she tripped and fell at a “Bunnings Warehouse” in Ashfield, occupied by the appellant, on 4 April 2016. The judgment amount includes a deduction for contributory negligence assessed at 20%. No challenge is made to the determination of contributory negligence, nor to any element of quantum. Instead, Bunnings maintains that the primary judge erred in finding any breach of duty, and erred in finding that there was causation.

Background

  1. Ms Giudice had attended the premises together with a friend and her grandson, who was almost four years old at the time. She had been there previously. The premises are a large enclosed space with displays of…

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Details
AGLC
Bunnings Group Ltd v Giudice [2018] NSWCA 144
Case
[2018] NSWCA 144
Decision Date

CaseChat Overview and Summary

Bunnings Group Ltd appealed to the New South Wales Court of Appeal against a decision of the primary judge who had found Bunnings liable for injuries sustained by the respondent, Ms Giudice, when she tripped and fell while entering a children's play area within Bunnings' premises. The primary judge had determined that Bunnings breached its duty of care to Ms Giudice by failing to warn her of a height difference between the main floor and the raised play area surface, and by failing to make the play area surface level with the remainder of the premises. These failures were found to have caused Ms Giudice's injuries.

The Court of Appeal was required to determine whether the primary judge erred in finding that Bunnings breached its duty of care to Ms Giudice under sections 5B and 5D of the *Civil Liability Act 2002* (NSW). Specifically, the appeal concerned whether the identified failures constituted a breach of duty, and whether such breaches were causative of Ms Giudice's fall and subsequent injuries.

The Court of Appeal found that the primary judge's findings were not supported by the evidence. It was held that the raised nature of the play area surface, which was designed to be shock-absorbent, was not of itself a dangerous feature requiring a warning. Furthermore, the court determined that the slight height difference between the main floor and the play area surface was not a condition that a reasonable occupier would have foreseen as posing an unreasonable risk of harm to a customer entering the area. Consequently, the court concluded that Bunnings had not breached its duty of care.

The appeal was allowed, and the orders of the primary judge were set aside. Judgment was entered for Bunnings Group Ltd, with Ms Giudice ordered to pay Bunnings' costs of both the appeal and the original proceedings.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside orders 1 and 2 made on 3 November 2017, and in lieu thereof order that the proceedings be dismissed, with the plaintiff to pay the defendant’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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