What happened

The customer opened a child-proof gate to enter a play area where her grandson was present, tripped on the inclined shock-absorbent matting and sustained wrist fractures requiring surgery. The play surface was about two inches above the concrete warehouse floor with a sloped entrance, yellow markings and a gate, but the dimensions and evidence of prior incidents were sparse.

The issues

The issues under ss 5B and 5D of the Civil Liability Act 2002 (NSW) were whether the trip risk was not insignificant, whether a reasonable occupier would have added a warning, paint, a flush surface or a gentler incline, and whether any such step would have prevented the fall. The primary judge's failure to analyse each distinct precaution and its burden separately was central.

The court's decision

The Court held that the evidence did not establish a not-insignificant risk and, even if it did, the low probability, safety utility of the matting, and existing yellow lines, fence and gate did not require further precautions. There was also no positive finding that an additional warning would have been noticed and prevented the fall, so the appeal was allowed, the trial orders set aside and the proceeding dismissed.

Understanding the figures

The trial judgment was historical AUD 179,600 after a 20% contributory-negligence reduction, but the Court of Appeal set that judgment aside and dismissed the claim. It was therefore not an award that remained payable.

What this case shows

The decision shows that identifying something else an occupier could have done is not enough: each alleged precaution must be assessed against probability, seriousness, burden and social utility under s 5B(2). It also distinguishes rejecting a defendant's causation argument from positively finding that the omitted precaution would have prevented the injury.

Why another case may differ

The outcome turned on an unusually thin evidentiary record about the fall mechanism, slope dimensions and incident history. The Court did not declare that all raised play-area surfaces or missing warnings are safe; it decided this facility on the evidence the parties chose to adduce.

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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