Bunnings Group Ltd v Giudice

[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

2. 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 hardware, outdoor furniture and various other items for sale. The floor is concrete. Inside the premises is a fenced area, with a child-proof gate, within which there are a variety of children’s play items. The floor of the fenced play area is a shock-absorbent matting, which appears to have been installed on the concrete.

3. The fence, gate, and play area are shown in the following photograph tendered by Ms Giudice.

4. Ms Giudice’s grandson was taken to the play area by her friend while Ms Giudice was inspecting some furniture. She said that she heard her grandson distressed, excused herself from the salesman, and walked to the gate. She opened the gate with her right arm, stepped forward, and tripped and fell, landing on her right wrist. She was taken to hospital in considerable pain, and was found to have suffered two fractures. She underwent surgery, which involved plates and screws being inserted into her arm. There is some scarring and ongoing disability.

5. There was photographic evidence of the entrance to the play area, tendered by both sides. There was no precise evidence as to the dimensions. It was accepted that the surface of the play area is slightly higher than the concrete surface of the floor (perhaps, by around 2 inches). Instead of a lip of that height, there was an inclined slope of matting at the entrance to the play area. The photographic evidence suggested that the angle of that slope was around 20 degrees, at least where the matting adjoined the concrete floor, although the same photograph suggests that the slope also became shallower after perhaps four or five inches.

6. It may be, but there was no evidence of it, that underneath the matting which constituted the surface of the play area was a shock-absorbent layer of material, which caused the raising in the height of the surface. It is very difficult indeed to estimate from the photographs how deep the inclined slope was (by which is meant the distance between the concrete floor and the part of the play area where the surface was flat).

7. Some of the photographs suggest there is a slight “lip” at the junction of the concrete floor and the safety matting. If so, it is quite unclear (a) what the height of that “lip” is, (b) whether its edge is hard or yielding, and (c) whether it is capable of causing a pedestrian to trip.

8. However, the existence of the “lip” is not something about which Ms Giudice complains. The essence of Ms Giudice’s complaint appears to be that the height of the shock absorbent matting increases over a distance of approximately four or five inches from the “lip”. (Inches are used in this judgment because the instrument in the photograph above appears to use imperial measurements, and there was no other evidence of the height of the surface.) Where the matting begins at the gate, it is, apart from the “lip”, level with the concrete floor. However, where it reaches the height that is uniform over the balance of the fenced play area, the surface of the matting is approximately two inches above the concrete floor. Thus, there is a gradient, consisting of a convex curve, from the commencement of the matting at the “lip” to the point where it becomes level. Ms Giudice asserted that Bunnings was in breach of a duty owed to her by permitting the gradient to exist or by failing to warn her of the gradient.

9. At the edge of the safety matting there is a broad yellow painted line. That line clearly delineates the end of the concrete floor and the beginning of the play area with its safety matting. When the gate is closed, the yellow line is underneath the gate, and would be less readily seen by a pedestrian. There are also prominent yellow hatched lines on the concrete floor in the area through which the gate opens.

10. On the gate itself is affixed a sign in the following terms:

“DEAR CUSTOMER

Recommended ages 4-12 years old.

Children must be supervised by a Parent/Guardian at all times.

This is an unsupervised playground.

Gate fitted with Child Safe Lock.

Bunnings is not responsible for any injury sustained in this playground.”

11. The plaintiff was slightly vague as to the mechanism of her fall (no criticism of her is intended by that description). Her evidence in chief was that she fell after opening the gate:

“Q. Your right arm had to pull up the gate, the knob, and what, twist it?

A. Yeah. Yes.

Q. At that stage were you able to observe to see the floor level at that time?

A. No, not at all. Not at all. There was no warning. I didn't see any warning.

I just opened the gate and stepped. As I stepped, I just tripped, tripped and fell on my right wrist and I was in agony, obviously.

Q. When you say you tripped, can you describe to the Court exactly, doing the best you can, to say exactly what did you do?

A. Well, it was, like, a - the level wasn’t, the level - it wasn't a level floor. It

was, like, a step, like, a little step. I realised after, obviously.”

12. Ms Giudice said she could not see the differential in the height of the floor of the play area. She said that “As soon as I opened the gate, I fell. I tripped and I fell.”

13. In cross-examination she said that as she approached the gate, she did not observe any of the yellow markings at the entrance to the gate. She confirmed by reference to the following photograph that she did not see the yellow line underneath the gate.

14. Ms Giudice also said that she did not notice the sign on the gate. However, she did notice that the floor surface was different:

Q. As you opened the gate to enter into the play area, it was apparent, wasn't

it, that the surface of the play area was different to the surface of the Bunnings Warehouse?

A. That's right.

Q. Because the Bunnings Warehouse is concrete?

A. Yes.

Q. You'd agree, wouldn't you, that it wouldn't be safe to have children playing

on a concrete floor?

A. I would agree to that, but it was elevated. They put carpet but it was

elevated, it wasn't on the same level.

Q. You observed that there was matting, didn't you?

A. Sorry?

Q. You observed the matting, you just gave evidence that you observed that

there was safety matting as you entered?

A. There was safety matting?

Q. Yes.

A. Yes, yes

Q. So, given that there was a concrete floor in the warehouse and safety

matting, it was reasonable to assume, wasn't it, that the matting would be at a

higher level than the concrete floor?

A. Not really.

Q. So, as far as you were concerned then, entering into this children's

playground area for the first time, are you saying that you had no expectation

that the presence of the matting might make the floor at a higher level?

A. No.”

15. The only other witness who gave evidence on issues going to liability was Mr Richard Horbury, who worked in the store coordinating its “Lifestyle Division”, which was one of three divisions in the store and the one in which the children’s play area was located. He was present on the day Ms Giudice fell, and called an ambulance for her. He said that in the four years he had worked at the store, he was unaware of any adult or child falling at the entrance to the playground, and that there had been no alteration to the markings. He accepted that there were others better placed to know of safety incidents than he was, and that there was a safety committee.

16. Neither party tendered the records of that committee, or any other documents to show how many incidents there had been.

17. That Bunnings owed the respondent “a duty to take reasonable care to avoid risks of harm that were foreseeable and not insignificant in accordance with section 5B of the Civil Liability Act 2002 (NSW)” was admitted on the pleadings. The statement of claim complained of the plaintiff falling on the “inclined area”. It alleged that the incline “was not clearly visible due to the closed gate and it was reasonably foreseeable that a person entering the play area could trip and fall on this incline”. Following an amendment, there were six “particulars of negligence and/or breach of duty of care”, namely, (a) failure to warn the plaintiff of the dangers of walking into the play area, (b) failure to warn the plaintiff of a raised surface, (c) failure to paint the raised surface with appropriate bright paint to draw the plaintiff’s attention to it; (d) placing a raised surface in an area where the defendant knew or ought to have known that it could cause injury to persons entering the area, (e) creating a trip hazard and (f) failure to alleviate trip hazard.

18. The primary judge heard the trial over two days, and indicated that he would give an oral judgment on the third day. Those reasons reflect, in part, the infelicities of an oral judgment, and are to be approached accordingly.

Reasons of the primary judge

19. The primary judge made the following findings of fact as to the relevant physical characteristics of the entrance to the playground and the mechanism of the plaintiff’s fall:

“1. that, at the entrance to the playground, there is a sudden raise in the height of the floor surface commencing at or beneath the gate which permits entrance to the playground area;

2. that such a variation in the height of the floor surface is not readily discernible, at least from the photographic evidence which has been provided by both parties. I make that finding notwithstanding the general caution that must be adopted in having regard to photographic evidence and the finding is made in the absence of any evidence to the contrary;

3. it is apparent from the photographs in exhibit A, in particular photographs 1, 2 and 3, that a person approaching the gate would not notice a variation in the floor surface between the warehouse concrete floor and the playground padded floor. Indeed it is apparent from other photographs, including photograph number 4 in exhibit A, photograph number 7 in exhibit A and photograph behind tab 6 in exhibit 1, that the variation of height and the extent of the difference in height is not apparent unless one views it from ground level;

4. I further find that it was the sudden change in the height of the surface which caused the plaintiff to trip, fall and suffer the injuries about which she now complains;

5. Finally I find that there was no warning or other steps taken to alert a person in the position of the plaintiff to the risk which was posed by the elevation in the floor surface.”

20. Two matters should be noted in relation to those findings. First, the reference to a “sudden” raise or change in height must be understood as a reference to the height differential, whatever it was, perhaps of the order of 2 inches, along the inclined slope of the safety matting adjacent to the gate.

21. Secondly, the primary judge was conscious of the limitations of photographic evidence, recently reviewed by Beazley P in Goode v Angland [2017] NSWCA 311. On appeal, both parties were likewise conscious of the limitations. However, both proceeded on the basis that, notwithstanding those limitations, the appeal could be determined on the basis of the evidence available. The reliance on the photographic evidence, and the paucity of testimonial or documentary evidence on the nature of the entrance to the play area and the mechanism of the fall has the consequence that, in this litigation where there was no issue as to credit, this Court is relatively well placed to review the findings of fact.

22. The primary judge then dealt with s 5B of the Civil Liability Act 2002 (NSW), in the abstract, as follows:

“1. [I find] that the risk of injury was foreseeable to the defendant. That is, the defendant either knew or ought to have known that there was a risk that somebody might trip on the uneven surface. I make that finding notwithstanding the evidence of Mr Horbury that in his time at the premises, no other person, to his knowledge, had fallen in that location;

2. I further find that the risk of injury by tripping on the elevated section was not insignificant and I rely upon the comments I have previously made in relation to the photographic evidence in support of that finding. The presence of the gate and the colour and texture of the padded floor to some extent hide the hazard which, in this case, gave rise to the risk as previously described. The variation in floor surface is not readily detectable other than from the surface of the floor as is revealed by the photographs;

3. Further I find that in all of the circumstances which exist, including the fact that the playground area would be accessed by persons of all ages including children and their carers who no doubt would vary in age and in condition, that a reasonable person in the position of the defendant would have taken precautions to either remove the risk entirely or reduce the chance of the risk eventuating.”

23. A little later in his reasons, after recording Bunnings’ admission as to duty, the primary judge said that “it is perhaps desirable to identify those matters which might be described as precautions which could or ought to have been taken by the defendant so as to reduce the risk of harm to the plaintiff”. He identified three.

1. The first was providing a warning which would direct attention to the variation in the floor surface (for example by “Watch your Step” or “Caution”). Alternatively, his Honour said that a “variation in colour of the lip as opposed to the other area may have achieved the same outcome, namely drawing the plaintiff's attention to that fact”.

2. The second was the possibility of adjusting the surface between the two areas to ensure a flush surface. His Honour said that “making the surface flush with the concrete surface of the warehouse may be a more burdensome task than the other precautions referred to. However, given the nature of the risk which was presented by the conditions which existed I find that it was a precaution which the defendant ought to have taken”.

3. Thirdly, his Honour addressed the possibility of “spreading the change in height over a larger area so as to reduce the angle and avoid the sudden increase in height”. His Honour acknowledged that that had not been pleaded, or the subject of any evidence or submissions, but the primary judge found in the alternative that the defendant ought to have taken that precaution. Immediately before delivering reasons, the primary judge had raised this squarely with counsel for the defendant, who sought and obtained a short adjournment to take instructions, and who ultimately did not dispute that a tripping hazard would be reduced if the incline took place over a larger distance. What the larger area would have been, and what the resultant slope would have been was unstated.

24. The primary judge then expressed his conclusions on breach of duty as follows:

“Accordingly, I find that the defendant breached its duty to the plaintiff by (a) failing to bring the variation in floor surface height to her attention by warning, painting or otherwise; (b) failing to ensure a flush surface between the warehouse and the adjacent playground area; and/or (c) failing to adjust the entrance to the playground area so as to spread the increase in height over a larger area which would have had the effect of significantly reducing any risk of tripping, if not completely alleviating that risk.”

25. The “and/or” is problematic, although no specific complaint was made by Bunnings. The respondent confirmed that it should be read literally, so as to amount to a series of alternative findings. First, a finding that all three matters constituted breaches of duty. Secondly, if that be wrong in relation to any of the matters, then there was a finding that the two remaining matters were breaches. Thirdly, if that be wrong, then the remaining matter was still a breach. Naturally, this is significant when addressing causation, which the primary judge did immediately thereafter.

26. Prominent in Bunnings’ defence was its submission that, given that the plaintiff accepted that she had not noticed the yellow markings existing on the approach to the gate, nor the sign headed “DEAR CUSTOMER” fitted to the gate, it was unlikely that she would have noticed any other warning. The primary judge addressed that submission in three places in the judgment. On all occasions, his Honour expressed his finding in a double negative. His Honour said:

1. “In my view it does not necessarily follow that the plaintiff’s failure to recall in giving evidence the yellow section marked with both vertical, diagonal and horizontal stripes illuminating the area over which the gate to the playground was open, does not necessarily mean that she would not have been alerted to the risk presented by the raised lip had that been highlighted.”

2. “Further, the plaintiff's failure to observe the ‘Dear customer’ sign and the yellow lines which exist adjacent to the gate on the warehouse side of it does not mean, in my view, that she would have failed to observe a warning given in respect of a separate risk, namely the trip hazard presented by the raised lip upon entering the playground.”

1. “In short, the fact that she did not notice a warning in respect of another matter does not mean necessarily that she would not have noticed a warning in respect of the specific matter which gave rise to her injury.”

27. In relation to the breaches based on the failure to make the shock-absorbent floor flush with the concrete floor, or to spread the increase in height over a larger area, the primary judge simply said that he was satisfied that the breach was a necessary condition of the occurrence of the harm. There was no other reasoning expressed, although it was consistent with his Honour’s finding that it was the change in height, and more particularly the “sudden” change in height, which caused Ms Giudice to fall.

Submissions on appeal

28. Put simply, Bunnings submitted that the findings in relation to breach and causation could not stand. It said that there had not been compliance with s 5B, nor s 5C(b), nor s 5D read with s 5E. It said that findings as to causation in relation to the warnings did not comply with s 5D(1), which was necessary, this not being an exceptional case, while the finding of causation in relation to the second and third breaches merely recited s 5D.

29. The respondent acknowledged there were infelicities in the way the reasons had been expressed, but claimed that the primary judge should be understood as having found the requisite matters to the civil standard in accordance with the Civil Liability Act. Although the primary judge had only addressed s 5B(2) belatedly, he had done so, and that was sufficient to comply with the section. The findings of causation were said, in substance, to amount to findings of the but-for test, which was accepted to be necessary in this case.

Consideration

30. Although everything that could properly be said on behalf of the respondent in support of the judgment was advanced, the appeal must be allowed, for the following reasons.

Findings of breach

31. The existence of a duty of care was uncontroversial and indeed admitted on the pleadings in conventional terms. The respondent had advanced six ways in which the occupier’s duty had been breached, of which three found favour with the primary judge. But the respondent had to fail unless s 5B was satisfied, this being a case where her case depended upon the failure to take precautions against the risk of injury through falling due to the surface at the entry to the play area.

32. Section 5B provides:

“5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.”

33. The primary judge’s reasons worked through each of the seven paragraphs of s 5B in order, but at a level of generality. At least in the circumstances of this case, where the various precautions for which the plaintiff contended were very different, that discloses error. It neglects the important way in which those paragraphs address different things, and it neglects the way in which the finding in s 5B(1)(c) is to be made.

34. Section 5B prevents a person from being found negligent in failing to take precautions against a risk of harm unless it is satisfied. Paragraphs (a) and (b) of s 5B(1) are directed to the risk of harm. Paragraph (c) of s 5B(1) is directed to the precautions, the failure to take which is alleged to be a breach of duty. The point is that it is for the plaintiff to show not merely that there were precautions available to address the risk, but also that a reasonable person in the defendant’s position would have taken those precautions. The onus of demonstrating that rests with the plaintiff, whose action must fail if this cannot be shown. That is reinforced by s 5C(b), which provides that:

“the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done.”

35. The finding in s 5B(1)(c) that the defendant would have taken those precautions is only to be made after the Court has considered each of the matters in s 5B(2). Those matters refer both to the risk and to the precautions.

36. His Honour addressed s 5B(1)(c) in a single sentence:

“further I find that in all of the circumstances which exist, including the fact that the playground area would be accessed by persons of all ages including children and their carers who no doubt would vary in age and in condition, that a reasonable person in the position of the defendant would have taken precautions to either remove the risk entirely or reduce the chance of the risk eventuating.”

37. One error with that approach is that it conflates the three distinct ways in which the respondent said precautions should have been taken. Whether or not a reasonable person in Bunnings’ position would have installed a “Watch your Step” sign is quite different from whether or not a reasonable person in Bunnings’ position would have ensured that the surface of the play area was at the same level as that of the concrete floor.

38. Another way in which that approach discloses error is that the Court is commanded, by s 5B(2), to consider each of the matters in paragraphs (a), (b), (c) and (d) of that subsection before reaching a conclusion on s 5B(1)(c). One of those mandated considerations is the burden of taking precautions. This well illustrates why it is necessary to consider the particular precautions individually, for it is plain that the burden of installing a “Watch your Step” sign is quite different from the burden of aligning the surface of the play area with the concrete surface. Indeed, it is not even established that it is possible, let alone reasonable, for Bunnings to align the surface of the play area with the concrete surface. No mechanism to do so was suggested by the primary judge, and it seems plain that if the rest of the floor surface was to remain exposed concrete, then it would be necessary to remove some of the concrete under the footprint of the play area. There was no explanation at all of (a) the cost of doing such work, (b) whether Bunnings was a tenant or an owner of the land, (c) what permissions from the local council and any landlord would be required to undertake the work or (d) the cost of restoring a level surface if the play area were moved or a lease (if there was one) came to an end.

39. The respondent submitted that shortly afterwards in his Honour’s reasons his Honour turned to s 5B(2), and asked the Court to read the reasons charitably, such that the finding as to s 5B(1)(c) anticipated and took into account what his Honour later found as to s 5B(2). The reasons should be read bearing in mind that they were given orally. However, on a fair reading, the primary judge proceeded on a basis which did not comply with the requirement of s 5B(2) to consider those four matters. There is no suggestion that his Honour was proleptically bringing into play the matters in s 5B(2). Contrary to what he said, it was not “perhaps desirable” to identify those matters “which might be described as precautions” in order to apply s 5B. It was necessary to identify each of them, and to apply s 5B to them. And there is no way in which the reasons may be read to disclose separate attention to s 5B(1)(c) by reference to each individual precaution, rather than collectively.

Findings of causation

40. Section 5D relevantly provides:

“5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (‘factual causation’), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (‘scope of liability’).”

41. Section 5D(2) permits causation to be established in exceptional cases where the negligence was not a necessary condition, but it was not suggested that was applicable. Section 5E confirms that the onus at all times rested on Ms Giudice.

42. It was necessary for Ms Giudice to establish both factual causation and scope of liability. However, there was no issue as to scope of liability in the present case, and the parties proceeded on the basis in this Court that causation would be established if and only if it were shown that the breach was a necessary condition of the occurrence of Ms Giudice’s injury. That is an after-the-event analysis, which very much turns on the mechanism of her fall. Accordingly, it is necessary to consider the findings of causation concerning the “Watch your Step” sign and the brightly painting the inclined slope separately from the findings of causation in relation to the second and third breaches.

43. The findings made in relation to the warning sign do not reflect the test for causation. It was for the plaintiff to show, positively and to the civil standard of proof, that if the precaution had been taken, then the injury would not have been suffered. The substance of the reasons, stated no fewer than three times, was to reject Bunnings’ submission that because Ms Giudice accepted that she had not seen the markings on the floor or the sign on the gate, she would not have noticed a “Watch your Step” sign or the inclined surface if it had been painted. That is certainly true as a matter of logic, and may well be true as a matter of fact. It is one thing not to notice a sign with small print purporting to limit Bunnings’ liability for injuries suffered by children in the play area; it is another not to notice a verbal or visual cue that the shock-absorbent floor inside the play area is higher than the concrete floor outside.

44. However, the rejection of Bunnings’ submission on causation is very different from a positive finding that if either of those things had been done, Ms Giudice would not have fallen. The distinction may be a fine one, but the rejection of a submission that Ms Giudice would not have seen a sign is distinct from a positive finding that Ms Giudice would have seen a sign and not sustained a fall. Nowhere was the positive finding required by s 5D made in terms, and in light of what the primary judge did say, the proper inference to be drawn is that the correct test of causation was not applied.

45. The findings in relation to the second and third breaches do reflect the language of s 5D. Bunnings complained that they did not expose any aspect of the reasoning process; they are conclusory. That is true. But what is to be said? The mechanism of the fall was the “sudden” change in height. If there was no change in height at all, or a gradual change in height, then factual causation is established. This aspect of Bunnings’ submissions is to be rejected.

Resolution of the appeal

46. For those reasons, none of the findings of breach can stand, nor can the finding of causation in relation to the failure to warn case.

47. The remaining question is whether there must be a retrial, or whether this Court should, in accordance with Bunnings’ submission, issue judgment in its favour. For her part, Ms Giudice did not submit that there should be a retrial in the event that the appeal were allowed.

48. This is not a case where there was any issue of credit. The parties chose to litigate their dispute with the serious limitations upon the available evidence mentioned above. There is no warrant to order a retrial to permit a different case, with different evidence, to be run. The question then is whether, on the basis of the record, Bunnings’ submission that the claim must fail should be accepted. On that limited basis, this Court is in substantially the same position as the primary judge.

49. In oral submissions, Ms Giudice at one stage advanced a very different case, which was that Bunnings should never have had a children’s play area in its premises at all. That had not been pleaded, nor raised before the primary judge, nor included in her notice of contention. No application was made to amend the notice of contention. Accordingly, that submission must be rejected.

50. In her notice of contention, Ms Giudice said that the placing of yellow markings in front of the gate could not be held to be a reasonable response to a raised edge hidden by a closed gate, and that the failure to see the yellow markings was not causative of the injury, as the markings related only to the gate. She also raised a pleading point. None of these points was sought to be elaborated. None addresses the threshold issues posed by s 5B(1)(b) and (c).

51. Bunnings had a fenced children’s playground with a child-proof gate. Viewed prospectively, most persons entering the playground would do so only after stopping at the gate. It was a children’s playground in a large warehouse with a concrete floor. The fact that the playground had a different floor surface was obvious and would have been expected by anyone familiar with children’s playgrounds.

52. The relevant risk of harm was that a person would trip from a standing start as he or she placed his or her foot on the elevated surface of the playground, or in the inclined slope adjacent to the gate, thereby sustaining injury. Was there a “not insignificant” risk of a person falling after opening the child-proof gate and entering into the play area? If so, would a reasonable person in the position of Bunnings have taken further precautions?

53. Prior to the Civil Liability Act, the question was whether that risk was a real one, as opposed to one that was far-fetched or fanciful. That was the undemanding test enunciated by the Privy Council in Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd [1967] 1 AC 617 at 643, confirmed by the High Court in Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 and from which a majority of that Court declined to depart in New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20 (at [79] and [127]-[128]; cf [225]-[227]). There is no doubt that s 5B(1)(b) altered the law of negligence from that undemanding test, despite a suggestion that it might not have done so in Roads and Traffic Authority v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263 at [186]. The Ipp Report made it clear that a change was intended, and said this of it:

“The Panel favours the phrase ‘not insignificant’. The effect of this change would be that a person could be held liable for failure to take precautions against a risk only if the risk was ‘not insignificant’. The phrase ‘not insignificant’ is intended to indicate a risk that is of a higher probability than is indicated by the phrase ‘not far-fetched or fanciful’, but not so high as might be indicated by a phrase such as ‘a substantial risk’. The choice of a double negative is deliberate. We do not intend the phrase to be a synonym for ‘significant’. ‘Significant’ is apt to indicate a higher degree of probability than we intend.”

54. The change has been said to impose a more demanding test, but “not by very much”: Shaw v Thomas [2010] NSWCA 169; (2010) Aust Torts Rep 82-065 at [44]. It is “not particularly high”: Sibraa v Brown [2012] NSWCA 328 at [49], Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361 at [153], Stenning v Sanig [2015] NSWCA 214 at [32]. It is “not particularly demanding”: Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 at [140].

55. But it remains for Ms Giudice to establish that the risk of harm was not insignificant. 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. (These considerations overlap with s 5H, however Bunnings placed no reliance on that section.) Such evidence as there was was that no person had ever sustained injury from a fall as he or she entered after opening the child-proof gate, and that up to ten children used the play area each day. 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. A person who entered after stopping to unlock the child-proof gate was surely less likely to suffer serious injury, in the event of a fall, than if he or she had been moving faster. At least, there was no evidence to suggest anything to the contrary.

56. For those reasons, based on the exiguous evidence adduced at trial, it has not been shown that the risk of harm was not insignificant.

57. Let it be assumed that, contrary to the above, the risk of harm was not insignificant. On any view, the risk was small. The shock-absorbent matting, designed primarily to soften the inevitable falls and stumbles of young children playing, made the probability of serious harm from a fall at the entry very small. It also lessened the likely seriousness of the harm suffered by a person who tripped and fell. It is certainly true that placing an additional warning on the gate would have been a small burden. The activity which created the risk of harm was, on the way this litigation has been conducted, the placing of the shock-absorbent matting on the surface of the play area, and that has a relatively high social utility, because falls of young children on a hard surface while playing are far more likely than falls attributable to the slightly elevated surface resulting from the matting.

58. Ms Giudice maintained that the gate obscured the yellow line differentiating the shock-absorbent surface from the concrete floor. Her submission is not without force, but on analysis it leads nowhere, for two reasons. First, that there is a different surface is obvious. Secondly, at the time a person approaches, either the gate is shut or it is ajar. If the gate is shut, then the person would have to come to a stop before entering. If the gate is already open as the person approached, the yellow line is obvious and unobscured.

59. When all those matters are borne in mind, a reasonable person in Bunnings’ position would not have done more than it had already done, by delineating the fencing of the area with yellow lines, a fence and a child-proof gate which obliged entrants to come to a stop.

60. For those reasons, Ms Giudice has failed to establish the matters in s 5B(1)(b) and (c) of the Civil Liability Act.

61. The orders to give effect to the above are:

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.

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Amendments

04 July 2018 - [28] "s 5C(2)" changed to "s 5C(b)".

[43] third sentence, words "it did not follow that" after "sign on the gate," deleted.

[59] "of" inserted between "fencing" and "the".

Decision last updated: 04 July 2018