Tripping up: maintaining footpaths from a duty of care perspective

On 18 December 2018, the NSW Court of Appeal handed down a decision that will impact the way a commercial occupier’s duty of care is measured in regards to accidents that may occur on their premises.

In Bruce v Apex Software Pty Limited t/as Lark Ellen Aged Care [2018] NSWCA 330, Mrs Bruce, a retired 70 year old, tripped outside the entrance of an aged care facility where her elderly father resided, causing her to suffer injury. The path on which she tripped was relatively standard, consisting of concrete slabs boarded by rows of red bricks. At the heart of the dispute, there was a height discrepancy of 10-20mm where the edge of the concrete met the red bricks, creating a “lip”. Predictably, Mrs Bruce tripped on the said lip.

The NSW legislation on which the Bruce case was decided is comparable to the ACT’s (and other jurisdiction’s) civil liability legislation, making the NSW Court of Appeal’s decision a cautionary tale for business owners regardless of their location. In the case of each of NSW and the ACT, the general statutory principles for the court to consider are that:

1. A person is not negligent in failing to take precautions against a risk of harm unless:
   1. the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
   1. the risk was not insignificant, and
   1. in the circumstances, a reasonable person in the person’s position would have taken those precautions
2.  In determining whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
   1. the probability that the harm would occur if care were not taken;
   1. the likely seriousness of the harm;
   1. the burden of taking precautions to avoid the risk of harm;
   1. the social utility of the activity that creates the risk of harm.

In relation to this, in Bruce, Meagher JA held:

• The defendant was not negligent in allowing the concrete lip to remain as it was, as the risk of tripping on it was insignificant.
• This was based on the obviousness of the path transitioning from concrete to red brick, which pedestrians on the path would observe and accommodate for. Interestingly, the fact that the path was outside of an aged care facility did not hinder the threshold of this duty.
• The obviousness of the risk discharged the obligation which the defendant otherwise may have had to warn of the presence of the lip.
• A reasonable person in the defendant’s position would not have taken action to reduce the unevenness in the path. The burden in doing so was not warranted in light of regular inspections of the area being undertaken, and the longstanding use of the path in a high thoroughfare area without incident established the risk to be insignificant

This decision reaffirms the standard required by law for commercial occupants in conducting repairs and their due diligence in mitigating risk of injury on the premises. Specifically in this case, based on several different factors, the defendant was not liable for the injuries sustained by Mrs Bruce. Helpfully for defendants (and not so for plaintiffs), Bruce is a reminder that the presence of a risk that “could” be fixed by some forethought of the occupier does not equate to their being an obligation that the risk “must” be fixed.

All cases will, of course, turn on their own facts. Where safety risks are identified by an occupier that reasonably can be attended to without any great burden arising, taking whatever reasonable steps that are available to prevent an incident from occurring is always the preferable path to follow.

For more information about duty of care please contact our Litigation & Dispute Resolution team at BAL.