Blue OP Partner Pty Ltd v De Roma [2023] NSWCA 161
Background
De Roma was injured when she tripped and fell whilst walking over a steel utility pit lid and frame set in a concrete footpath. The surface had a small height differential of about 1 cm. Ausgrid was responsible for the inspection, maintenance and safety of the utility pit.
First Instance
The primary judge held that Ausgrid had breached its duty as “occupier”. It was held Ausgrid failed to provide any “warning” of there being a height difference between the level of the pit lid and the top edge of its slightly higher frame. The primary judge found contributory negligence of 20%. At trial De Roma succeeded and Ausgrid was found negligent in failing to warn by painting or applying lines to draw attention to the trip hazard.
On Appeal
Ausgrid appealed against the finding of liability. On appeal, it was found that the presence of the rusty pit and its surrounds in the footpath itself was enough of a cue to warn there might be an “uneven” surface and that a reasonable person taking care for their own safety would have seen and realised same.
In the circumstances it was an “obvious risk”, and no warning was required.
Note: The primary judge’s obvious risk analysis did not address that risk of harm from the perspective of a reasonable person walking on and over the utility pit lid and frame in the concrete footpath carried with it a risk of tripping and falling because of an uneven surface or surfaces.
Important Findings
Ausgrid had a duty to exercise “reasonable care” to see that the part of the footpath in which its utility pit was located was safe for people exercising reasonable care, noting:
- s5H of the Civil Liability Act 2002 (NSW) provides that a person does not owe a duty of care to warn of an obvious risk; and
- s5F of the Civil Liability Act 2002 (NSW) defines “obvious risk” as a risk that, in the circumstances, would have been obvious to a reasonable person – the obviousness of a risk of harm may depend on the level of generality or particularity with which the risk is described.
The relevant question was not whether it was obvious that there was a risk that De Roma would trip in the way that she did, but whether it was obvious that a risk of that kind might be present and “materialise” as she walked across it.
Appeal allowed and De Roma’s claim dismissed.