Introduction
In New South Wales, the Civil Liability Act 2002 NSW (the Act) is the governing legislation that governs the recovery of damages for personal injury caused by the fault of a person. Part 1A of the Act outlines the rules pertaining to negligence, which is defined as failure to exercise reasonable care and skill.
Where a personal injury claim is made pertaining to failure of identifying a risk, a defendant can argue that the injury was caused by an 'obvious risk'. If this argument succeeds, the plaintiff will not be eligible to recover damages, or his/her damages will be reduced to reflect their own contributory negligence. Section 5F defines 'obvious risk' and provides that "an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person". Further, obvious risks include risks that are patent or a matter of common knowledge. A risk of something occurring can be obvious even if it has a low probability of occurring and a risk can be obvious even if it is not prominent, conspicuous, or physically observable.
A plaintiff claiming personal injury damages must first establish that there was a duty of care owed, breach of that duty, negligence and causation. Recent authorities show that the elements of a personal injury claim are not so clear cut and where obvious risk and contributory negligence are involved, the outcome is not always anticipated.
Trip and Fall cases
Khanna v Woolworths Group Ltd
In a recent and unique case, Khanna v Woolworths Group Ltd (No 2) [2021] NSWDC 567, the plaintiff alleged that his wife tripped on the legs of chairs which were stacked in the defendant's store. He argued that the chairs were negligently placed by the defendant, creating a trip hazard and this caused the plaintiff's wife to fall. The plaintiff, during his attempt to stop his wife falling, fell himself, causing injuries to him.
The defendant countered this argument and claimed that it took reasonable precautions in the circumstances to remove hazards. However, in the alternative, the defendant pleaded that if it was negligent, the plaintiff's injuries were due to the manifestation of an obvious risk. The defendant also relied on contributory negligence and a lack of causation.
The Court found that the plaintiff's wife was clearly contributory negligent. She should have seen the stack of chairs and avoided the legs of the stack. A witness said that the plaintiff was looking on her left side at other shelves whilst continuing to walk forward, causing the plaintiff to collide with the chairs and fall.
However, the plaintiff himself, did not trip on the chair leg, rather, he was walking near his wife, who tripped on the chair leg and he was injured when attempting to stop his wife from falling. There was nothing to indicate that he did not take a degree of care for his safety that an ordinary reasonable person would take in the circumstances. However, there was no satisfactory evidence to suggest whether the plaintiff's injuries were the result of him lifting his wife up or the fall itself. It was therefore found that contributory negligence was not established against the plaintiff, as the elements of causation were not found. Judgment was entered for the defendant and the plaintiff was ordered to pay costs.
Jackson v McDonald's Australia Ltd
In Jackson v McDonald's Australia Ltd [2014] NSWCA 162, the plaintiff brought a personal injury claim against McDonald's and a leading contractor known as Holistic Facility Services (Holistic). The plaintiff was injured when he fell on stairs in the early hours of the morning.
It was found that the floor had recently been mopped and was wet. The primary judge found that neither McDonalds nor Holistic was liable in negligence.
It was held that instead of the stairs, the plaintiff fell because of 'inattention or misstep' while talking to his friend, holding his skateboard, and not holding onto the handrail. McDonalds had nonslip strips on the stairs,
handrails in place and required the cleaning company to use non-slip detergent. This was considered by the primary Judge to be a reasonable response to the risk of someone slipping and falling on the stairs.
However, the plaintiff succeeded on appeal (because the Court of Appeal found that McDonalds should have taken steps to immediately remove the spillage), but his damages were reduced by 70% for contributory negligence for his failure to observe the wet floor warning sign.
Fitzsimmons v Coles Supermarkets
Finally, in the case of Fitzsimmons v Coles Supermarkets [2013] NSWCA 273, "wet floor" signs were placed around a water spill on which the plaintiff slipped and the plaintiff's damages were therefore reduced by 50% for her failure to observe the obvious risk. However, the Court was also critical of Coles because it did not station an employee around the spill to warn customers. The Court further found that the caution signs alone were not a reasonable response to the risk of someone slipping on the wet floor, because the low-lying wet floor signs were outside the normal field of vision of persons shopping at the store.
In summary 'obvious risk' is not always a get out of jail free card. However, it can reduce liability in some circumstances where a personal injury claim is made.
Takeaways
- Signage is not always sufficient to ensure hazard avoidance or reduce liability in a personal injury claim.
- Response time and response plan to hazards is extremely important.
- When determining whether a risk is 'obvious', the Court will consider the specific circumstances of the event.
- Where a defendant can establish that there was an obvious risk, it can avoid/lower liability for failing to warn the plaintiff of the risk (however, it is rare that a plaintiff's sole allegation in negligence is based on a duty to warn).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
