Adjudicating Prospective Risk as Statutory “Obvious Risk” so as to Obviate a Duty to Warn

In Blue OP Partner Pty Ltd v De Roma [2023] NSWCA 161 (12 July 2023) the plaintiff was injured when she tripped and fell while walking over a steel utility pit lid and frame set in a concrete footpath. She was walking quickly to catch a bus waiting at a nearby bus stop.  The defendant partnership was legally responsible for the inspection, maintenance and safety of the lid and frame.  The trial judge found for the plaintiff in negligence but reduced damages by 20% on account of contributory negligence.  In making his primary finding on liability, the trial judge found the risk in question was not an “obvious risk” within the meaning of s 5F of the Civil Liability Act 2002 (NSW), the analogue of s 13 of the Civil Liability Act 2003 (Qld).  The consequence, if proved by the defendant, would be that NSW Act s 5H (Qld Act s 15) would relieve the defendant of the legal obligation – in discharge of the tortious duty of care owed – to warn of the risk of injury which materialised.

In overturning the decision on appeal, and entering a verdict for the defendant, the NSW Court of Appeal, by Meagher JA (Mitchelmore and Kirk JJA agreeing) wrote:

[1]  On 2 February 2017, towards midday, the respondent (Ms De Roma) was injured when she tripped and fell whilst walking over a steel checkerplate utility pit lid and pit frame set in a concrete footpath surface adjacent to premises in Parramatta Road, Ashfield, a suburb of Sydney. At that time, the respondent was walking “quickly” along the footpath towards her immediate destination — a bus stop and waiting bus. The appellant partnership (Ausgrid) was responsible for the inspection, maintenance and safety of the utility pit, which provided access to its electrical network infrastructure, one of 10,000 such pits within in its Sydney and surrounding areas network as at August 2022 (albeit five years after the incident).

Overview

[2]  The primary judge held that Ausgrid had breached its duty as ‘occupier’ of the utility pit in failing to provide any warning which drew attention to there being height differentials of up to 10mm (1cm) between the level of the pit lid and the top edge of its slightly higher surrounding metal frame (De Roma v Inner West Council & Ausgrid [2022] NSWDC 425 ). This warning was not directed to any further height differential between that top edge and the surrounding concrete surface, the primary judge having found that the pit frame was “flush” with that surface.

[3]  In considering Ausgrid’s defence that it owed no duty of care to warn of an “obvious risk” (Civil Liability Act 2002 (NSW), ss 5F, 5H) (CLA), his Honour found at J[269]:

… absent any warnings drawing attention to a height differential within the available walking surfaces ahead, and absent any shadows that might have potentially been cast from differing heights… the risk of tripping over the raised edge within the pit lid / footpath structures would not have been obvious to an ordinary reasonable person in the position of the plaintiff at the time that person walked quickly towards the waiting bus.

[4]  The precaution which his Honour held a reasonable person would have taken was “painting or applying lines on the raised surface in an obviously bright colour in order to draw attention to the trip hazard so posed” (J[230], [233]). It is not clear whether the “raised surface” to be painted or marked is the inner side and top edge of the pit frame or the concrete footpath immediately surrounding it or both.

[5]  Having rejected Ausgrid’s defence that the risk of tripping was an “obvious risk” and held that Ausgrid had breached its duty of care in failing to give that warning, his Honour turned to the issue of contributory negligence, concluding at J[301], [302]:

… I find that an element of a lack of due self-care occurred on the plaintiff’s part because as she approached the pit lid there was a need for her to consider whether the pit lid and its structure was a safe thing to walk upon as it may not have been a uniform area of uninterrupted pavement.

I find that in those circumstances, the plaintiff failed to observe the height discrepancy of the pit lid and its surrounding frame as it came into closer view at a time when she ought to have done so. Consequently, I find that she failed to take a required avoidant course, which resulted in her tripping on a trip hazard: s 5B and s 5D of the [CLA].

[6]  In the result, the respondent’s damages, assessed at $354,142, were reduced by 20% to $283,314 (J[361]). Ausgrid appeals against that judgment. In the event that its liability is upheld, Ausgrid does not challenge the quantum of damages awarded.

…

Resolution of liability issue as between the respondent as plaintiff and Inner West Council

[9]  It is convenient at this point to explain shortly the involvement of the first defendant Council in the proceedings below. That, in turn, requires reference in more detail to the utility pit and any relative height differences between the pit lid, the pit frame, and the concrete footpath surrounding the pit frame. The primary judge held that, on the respondent/plaintiff’s case, whether the Council had breached any duty of care was dependent on what it knew or ought to have known as to any height difference or differences at the junction of the pit lid and its frame within the surrounding concrete footpath (J[213], [215], [216]).

[10]  As his Honour noted at the outset (J[7]), it was common ground that the “appearance of the pit cover at the time of the incident” was as shown in the following photograph, which became Ex C and was also part of Ex 1:

[11]  The “X” in the photograph was placed there by the respondent’s solicitor as indicating the general location where the trip occurred. The arrow to the right of the photograph was placed there by the same solicitor as indicating the respondent’s direction of travel towards the bus stop, which cannot be seen in the photograph. The somewhat feint line longitudinally bisecting the pit lid was not on the concrete surface at the time of the accident. The dimensions of the utility pit surface were measured and described by the respondent’s expert, Dr John Cooke, as follows:

The pit lid is a steel checker plate lid measuring 820mm x 520mm, with rounded corners, set into a 10mm wide steel edge.

[12]  Returning to the primary judge’s findings, his Honour found that the pit lid surface was not flush with the top of its “surrounding housing frame” (J[6]). Dr Cooke’s evidence was that lid was “not flush with the frame, with a vertical lip of up to 10mm between the lid surface and the top surface of the steel frame”. In cross-examination, Dr Cooke explained that the height differential between the pit lid surface and the top edge of the metal frame was between 8 and 10mm. In arriving at that conclusion he took a number of measurements at various points around the lid, but did not have a precise measurement for the end of the pit lid marked with the “X”.

[13]  His Honour found that the top edge of the steel frame was “flush with the surrounding concrete” footpath surface (J[211]). That description of the finding accords with the findings summarised at J[93], which include that the “concrete footpath surrounding the pit was level” (J[93(1)]), that the top edge of the pit lid frame was “flush and level with the concrete surrounds of the footpath” (J[93(2)]), and that the gap between the vertical edge of that metal frame and the adjacent concrete paving was “small, and of itself was unlikely to constitute a trip hazard” (J[93(3)]). None of these findings is challenged, and Dr Cooke’s evidence was that the concrete surface of the footpath at the end of the utility pit marked with the “X” had been replaced so that any height difference at the time of the incident could no longer be measured.

[14]  In addition to these findings, the primary judge held that the Council was “not responsible for the location, position, design or manner of construction of the pit lid and its supporting metal frame”. Accordingly, as the respondent’s case against the Council was directed to the “uneven nature of the surface at the point where the pit lid and its frame was in close juxtaposition to the surrounding concrete footpath”, his Honour concluded that this case should fail, it not having been established that the Council “either knew or ought to have known of the existence of a trip hazard at the location where the plaintiff fell” (J[213], [215], [216], [224], [226]). The respondent does not challenge the dismissal of her claim against the Council.

[15]  Thus the case against Ausgrid was directed to there being a height differential between the pit lid surface and the top edge of the metal frame in which it was seated at the end of the utility pit marked with the “X”. Dr Cooke’s evidence was that the height differential at various unspecified points around the whole of the pit lid was between 8 and 10mm, and, accordingly, no more than 1cm. The relationship between the pit lid and that metal frame is shown more clearly in the photograph below. That photograph was also part of Ex 1, and was taken only a month or so before the hearing in August 2022. The only present relevance of this photograph is as showing more clearly the respective positions of the checkerplate lid and the slightly elevated top edge of the pit frame:

…

[41]  … At the outset, his Honour accepted the respondent’s submission that “whether an obvious risk” existed was “dependent upon the [position] from which one looked at the pit lid”. Whereas Dr Cooke’s close inspection at ground level revealed a “non-flush height differential of 10mm” (J[257]), the respondent’s view “from eye level whilst walking on the footpath” did not involve carrying out a close inspection of the edges of the utility pit frame and its surrounding concrete surface (J[258]).

[42]  The primary judge then made the following ‘findings’ as to what would or would not have been apparent to a reasonable person in the respondent’s position as she walked quickly towards the steel checkerplate lid and frame in the concrete surface (J[260]). First, that person would appreciate that an uneven walking surface involving “significant” height differences could constitute a risk of injury from tripping (J[264]). (His Honour described a height differential around the edge of the pit lid surface of up to 10mm as “extraordinary”. The description of such a height differential in a footpath setting as unusual or remarkable was not supported by the evidence and is not consistent with ordinary experience, as was supported by exchanges during the evidence.) Secondly, that person could easily have had their attention divided between “several concurrent activities whilst walking on the footpath” (J[265]). Thirdly, such a person could have seen the pit lid surface as she approached it but not have seen any “obstacles or trip hazards in the path ahead” (J[266]). Fourthly, such a reasonable person “walking and looking to where she was placing her feet, intermittently glancing towards the bus… could not have simultaneously maintained close attention to both of those visual tasks” (J[268]).

[43]  In those “circumstances”, the primary judge concluded at J[269]:

… absent any shadows that might have potentially been cast from differing heights (because it was midday at Eastern Standard Time), I find that the risk of tripping over the raised edge within the pit lid / footpath structures would not have been obvious to an ordinary reasonable person in the position of the plaintiff at the time as that person walked quickly towards the waiting bus.

Disposition of ground 2

[44]  There are fundamental difficulties with this assessment and conclusion.

[45]  The first difficulty is that the “risk of harm” which the primary judge identified for the purpose of considering s 5F — that someone might trip over a raised edge within the pit lid structure (J[269]) — described the very facts that materialised, which may not have been able to be discovered in that detail by a pedestrian walking towards the pit lid. That characterisation of the risk of harm was more specific than that adopted for the purpose of determining negligence. It was also more specific than the risk which was the subject of the “precautionary” warning that would have resulted in the respondent avoiding the trip and fall. The effect of that warning was of there being “a height differential within the walking surface of the footpath surface” (J[243]).

[46]  The correct approach to the characterisation of the risk of harm in the application of the provisions of the CLA dealing with obvious risk, as well as with breach of duty, is addressed by the majority (Gordon, Edelman and Gleeson JJ) in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11 , esp at [110]–[116]. In Tapp, the question was whether the defendant was not liable for harm which it argued was suffered as a result of the materialisation of an obvious risk of a dangerous recreational activity pursuant to s 5L(1), a provision in which the term “obvious risk” has the same meaning as it does in s 5F. The majority said that there are four significant matters that should guide the reasoning process concerning the selection of the correct level of generality in describing the risk of harm. They are:

[110]… First… the “risk” with which s 5L is concerned will usually need to be assessed after a determination that there is prima facie liability for negligence. Secondly, the s 5L risk should be characterised at the same level of generality as the risk is characterised in the course of assessing whether the defendant has breached a duty of care. Thirdly, the generality at which the risk in s 5L is stated should include the same facts as established the risk for the purposes of the breach of duty which caused the harm to the plaintiff, but no more. Fourthly, and consequently, the characterisation of the risk does not need to descend to the precise detail of the mechanism by which an injury was suffered if that detail is unnecessary to establish a breach of duty.

[47]  The second difficulty with the primary judge’s reasons concerns his Honour’s consideration of whether the risk of harm would have been obvious to a reasonable person exercising care for her safety. That consideration does not engage with the inconsistent findings at J[300]–[303] with respect to the contributory negligence defence that requires attention to the “standard of care required of the person who suffered harm [being] that of a reasonable person in the position of that person” (s 5R(2)(a)). …

…

[53]  … [T]he risk which materialised and resulted in the respondent’s injury was that of tripping on an uneven surface created by the presence of the utility pit lid and frame within the concrete footpath.

[54]  With respect to that risk of harm, the relevant question posed by s 5F(1) was not whether it was obvious that there was a risk that the respondent would trip in the way that she did. Rather, it was whether it was obvious that a risk of that kind might be present and materialise as she walked across the footpath containing the utility pit lid and frame. That this is so is confirmed by the operation of s 5G(2), which provides that an injured person is presumed to be aware of an obvious risk of harm if he or she is aware of the presence of that type or kind of risk, even if not aware of the precise nature, extent or manner of its occurrence: see also Kempsey Shire Council v Five Star Medical Centre Pty Ltd (2018) 99 NSWLR 98; [2018] NSWCA 308 at [12] (Basten JA, McColl JA and Simpson AJA agreeing); and Singh v Lynch at [149] (Payne JA).

[55]  The primary judge’s obvious risk analysis does not address that risk of harm from the perspective of a reasonable person in the respondent’s position. Walking towards the utility pit lid and frame, the following matters were readily apparent and obvious. There was a checkerplate steel lid which was set in some sort of a steel frame in the concrete footpath ahead. The rusty colouration of the edges of the steel plate surface and frame suggested that there was a gap between the steel plate and frame, and that there might be height discrepancies between the level of the plate and the frame edges, and between those edges and the surrounding concrete. That meant that there were or were likely to be uneven levels or surfaces within that area which presented a risk of tripping.

[56]  Conversely, in his consideration as to whether the risk would have been obvious to a reasonable person in the respondent’s position, his Honour took account of matters particular to the respondent that were not consistent with her exercise of care for her own safety, as his Honour’s findings in relation to contributory negligence demonstrate. Those matters included that she was walking quickly towards the waiting bus, “intermittently glancing towards the bus” so that she “could not have simultaneously maintained close attention” to the visual task of looking to where she was placing her feet (J[267]–[269]). His Honour then addressed the question whether the risk of “tripping over the raised edge” would have been obvious to a reasonable person in the position of the plaintiff. In answering that question, his Honour assumed that such a person would have acted as the plaintiff in fact acted, and concluded that the specific risk of harm which materialised would not have been obvious to that person. This analysis is flawed for the reasons given above.

[57]  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. That was sufficient to satisfy s 5F(1) in relation to the risk that materialised, and to engage the application of s 5H(1), with the consequence that the appellant did not owe a duty of care to the respondent to warn of that risk. The primary judge erred in concluding otherwise.

[58]  The circumstances which the foregoing analysis as to what would have been obvious to a reasonable person in the position of the respondent address cannot be described as unusual or unexpected from the perspective of such a pedestrian; as was emphasised by the High Court in Brodie; Ghantous and by this Court in Richmond Valley Council v Standing [2002] NSWCA 359 .

[59]  In Brodie; Ghantous, Gleeson CJ, agreeing with Callinan J that there was no negligence made out against the Council in relation to the condition of the footpath, said at [6]:

Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land.

[60]  The plurality (Gaudron, McHugh and Gummow JJ) said at [163] of the position of the plaintiff pedestrian in Ghantous:

In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger… In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a “trap”… In Romeo [v Conservation Commission (NT) (1998) 192 CLR 431; [1998] HCA 5 at [52] ], Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises “is generally entitled to assume that most entrants will take reasonable care for their own safety” [Romeo at [123]].

[61]  Finally, at [355] Callinan J said of that pedestrian:

The case of the applicant in negligence was that a differential in height between the concreted part of the footpath and the earthen part of it created a dangerous situation… There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this… The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the earthen verges.

[62]  To the same effect, in Richmond Valley Council v Standing [2002] NSWCA 359, the plaintiff was injured on an irregular paved concrete surface in the vicinity of a school. The surface contained cracks and holes of various sizes, and some differences in height between its various portions. One of those holes was 15mm deep, another 10mm deep, and another 8mm deep. The differences in the levels of the respective concrete slabs were up to 50mm.

[63]  At [54]–[55], Heydon JA (with whom Handley and Sheller JJA agreed) said:

But it was not a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety. The plaintiff, like pedestrians generally, was in an excellent position to see and avoid imperfections in the surface. There could have been no expectation on her part that the surface would be smooth. The unevenness in the paving slabs, the cracks and the holes at the place where the plaintiff was moving were as obvious as similar features all over the country, and as obvious as other common features like raised tree roots and manhole covers. There was no concealment of any of the features of the site which the trial judge criticised. There was no inadequacy in the lighting, or obscuring of the hazard by grass or otherwise. It was reasonable to expect the plaintiff to have seen what lay ahead of her as she walked along in broad daylight: what was there was obvious and called for no special vigilance.

So far as there was any hazard it was both not only obvious but insignificant and common. The condition of the pavement was typical of innumerable kilometres of pavements in the cities, suburbs and towns of this country…

(emphasis added)

[64]  It follows that the appellant did not breach any duty of care requiring a warning by painting or applying lines on the raised surface of the utility pit so as to draw attention to the trip hazard which it posed (cf J[230]).

(emphasis added)

A link to the case can be found here.