What happened

In June 2015, the plaintiff was walking between an aged-care facility's main entrance and visitor parking when she tripped at the edge of a concrete slab beside slightly sunken brick paving. She suffered fractures to her left wrist and right elbow and facial lacerations. Staff, visitors and residents using mobility aids had used the area daily, with no reported fall or complaint for at least 15 years, and regular safety inspections had not identified it as a hazard.

The issues

The issues were whether the risk was 'not insignificant' for s 5B of the Civil Liability Act 2002 (NSW), whether a reasonable facility operator would have raised or marked the pavers, and whether the risk was obvious under s 5F. The plaintiff relied on the modest remediation burden and the presence of elderly visitors, while the defendant relied on longstanding safe use and the visibility of the surface change.

The court's decision

The Court of Appeal noted that the primary judge had used language imposing a higher threshold than the statutory phrase 'not insignificant', but concluded on the evidence that the risk was in fact insignificant. The different materials and colours made the possibility of a level change readily apparent, and the likelihood of a pedestrian failing to observe and accommodate it was remote. The risk was obvious, so no warning was required, and regular inspections plus longstanding incident-free use meant a reasonable operator would not have remediated it; the appeal was dismissed with costs.

What this case shows

The decision shows that breach in a minor surface-level case is not determined by measurement alone; obviousness, patterns of use, inspection evidence and the absence of prior incidents all inform the assessment. The fact that remediation was inexpensive and undertaken after the accident did not itself establish that reasonable care required it beforehand.

Why another case may differ

The case does not create a rule that every 10-20 mm level difference is safe; lighting, concealment, traffic, user characteristics and prior incident history may produce a different result. Because liability failed, no damages were awarded, and any trial-level quantum findings made on the assumption of a successful appeal were not an actual recovery.

Applying it to your claim

Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.

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