Bunnings Group Ltd v Giudice

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.