The Thistle Company of Australia Pty Ltd v Bretz

The case of The Thistle Company of Australia Pty Ltd v Bretz involved a dispute in the Court of Appeal of the Supreme Court of New South Wales. The plaintiff, The Thistle Company of Australia Pty Ltd, sought to appeal against a decision of the trial judge who found the company negligent in failing to warn the first respondent of the risks associated with a petrol bowser plinth at one of their petrol stations. The first respondent sustained injuries when he tripped over the plinth, which was painted black and stood at right angles, blending into the surrounding tarmac. The trial judge found that while the management had identified the camouflaged plinth as a tripping hazard, the risk was not obvious. The company challenged the trial judge's findings, arguing that the risk was obvious and that the trial judge applied an impermissibly subjective test.

The central legal issue in the appeal was whether the trial judge correctly assessed the obviousness of the tripping risk posed by the petrol bowser plinth. The company argued that the plinth constituted an obvious risk, and thus, they were not required to warn the first respondent. The first respondent, on the other hand, contended that the risk was not obvious. Additionally, the company disputed the trial judge's finding that the risk of tripping was not insignificant, arguing that the trial judge failed to consider the prospective nature of the risk rather than assessing it with the benefit of hindsight. Furthermore, the company challenged the trial judge's determination regarding the first respondent's contributory negligence and the causal relationship between the fall and the first respondent's decision to undergo shoulder surgery.

The Court of Appeal found that the trial judge's assessment of the obviousness of the risk was consistent and did not introduce an impermissibly subjective test. The court held that the trial judge was entitled to conclude that the risk was not obvious, given the evidence presented. Regarding the standard of care, the Court of Appeal affirmed the trial judge's finding that the risk of tripping was not insignificant, and thus, there was a breach of the company's duty. The court also upheld the trial judge's finding that the first respondent was not contributorily negligent. Concerning the third-party claim, the Court of Appeal upheld the trial judge's decision that the exclusion clause in the contract effectively discharged the second respondent from liability.

ORDERS:
The application for leave to appeal was refused with costs.