Trip and fall injuries - Is there a higher duty of care for the elderly?

Jan 2019 |

Trip and fall injuries are a daily occurrence. The consequences can often be severe, particularly for the elderly. According to current injury research and statistics:1

  1. One in four people over the age of 60 and one in three people over the age of 65 experience a fall each year;
  2. Slipping, tripping and stumbling are the most common causes of falls leading to hospitalisation; and
  3. In men and women over the age of 65, falls remain one of the leading reasons for being admitted to hospital: 38% compared to 13% for transport related injuries.

It is therefore not surprising that trip and fall claims remain prevalent, despite such claims often being difficult to prosecute. With an increasingly aging population, the number of claims is likely to increase.

The legal principles in trip and fall claims are reasonably well established. The difficulty arises from the fact specific nature of such claims. The central question is always, 'what, if anything, would have been a reasonable response to the risk in the circumstances?'.

It is often argued that a higher duty will arise where the claimant is elderly or the incident occurs on commercial premises. This issue was recently considered by the New South Wales Court of Appeal in Bruce v Apex Software Pty Limited t/as Lark Ellen Aged Care.2

The facts

In 2015, the appellant, then aged 70, tripped and fell outside the entrance to an aged care facility operated by the respondent. That area was used by vehicles and pedestrians to move between the entrance and a visitors’ car park.

Its surface consisted of large, flat concrete slabs bordered by rows of single red bricks laid side by side. The appellant tripped because there was a difference between the height of the edge of a concrete slab and a row of slightly sunken brick pavers which ran across the direction in which she was walking. That difference in levels was found to be somewhere between 10 and 20mm.

The issue

The principal issue was whether or not a reasonable aged care operator in the respondent’s position would have recognised that the differences in levels constituted a risk that should be addressed, and then done so. Those differences in levels were present in varying degrees over the car park and pedestrian area and it was likely that had been the position since 2000 or earlier.3

Primary judgment

At first instance, the trial judge found in favour of the aged care operator.

The judge considered the following:4

  1. The area was a shared walkway and driveway. The appellant walked across it in daylight when the accident occurred;
  2. There was no evidence that the concrete lip on which the appellant fell was shaded or concealed at the time;
  3. The contrasting colour of the brickwork differentiated it from the concrete slabs;
  4. The appellant was not under any disability at the time;
  5. The appellant had walked across the area for the nine months prior to the accident including up to about 100 times without any difficulty;
  6. The respondent had put in place a WHS Committee, and Ms Atlee (a member of the committee) who had training in occupational health and safety, had reported that there was no problem with the outside walkway areas;5
  7. No problems in the area had been reported to the respondent, nor had there been any reported falls in the area;
  8. Whilst the area was used by elderly and disabled persons, which is a relevant factor, a respondent is entitled to expect that users would exercise reasonable care for their own safety by looking where they were to walk; and
  9. As was stated by the NSW Court of Appeal in Hastings Council v Giese6, the appellant, being an older lady and by her age being more vulnerable to the consequences of falls than younger persons, and less likely to be able to regain her balance if she slipped or stumbled than younger persons, should have been seeking to observe closely the area in front of her feet as she moved along.

It was also relevant that, shortly after the incident, the pavers were relaid to eliminate the height differential between the pavers and the concrete slabs. The respondent described this as an 'over precaution'.7

In assessing liability, His Honour considered s 5B of the Civil Liability Act 2002 (NSW) (which deals with breach of duty) and found that the risk of falling was not significant in the circumstances of a pedestrian looking where they were going, and a reasonable person in the respondent’s position would not have taken the precautions prior to the accident of raising the pavers, even taking into account it was a commercial facility which had visitors who were elderly.8

His Honour went on to say:9

'The height differential in my view was not so significant as to create a danger or a trap. To use the words of Callinan and [Heydon] JJ in Neindorf … the nature and extent of the danger were minor, obvious and of a kind which were unexceptionally encountered in outdoor areas including in areas outside the Facility. Whilst the Facility was commercial premises and had frequent visitors, there is no suggestion that the plaintiff’s age or her physical condition prevented her from appreciating the differential in height between the pavers and the concrete slab such that it could be called a danger. The differential was not concealed. The change from the brick pavers to the concrete slab in obviously different materials alerted someone such as the plaintiff to the potential for a change in height. The unevenness in the two surfaces was of a kind that is often encountered by pedestrians outside premises including shared parking/walkways outside commercial premises. The differential would have been readily seen by someone looking carefully where they were walking.'

On appeal

On appeal, the appellant challenged the trial judge’s findings that there was a low probability that harm would occur; that the differential in height did not create a dangerous situation; and that a reasonable person, having undertaken regular inspections, would not have taken action to reduce any unevenness.

The appeal was dismissed.

In relation to the applicable principles, the Court referred to the decision of the NSW Court of Appeal in Ratewave Pty Limited v BJ Illingby10, in which it was noted that the weight to be given to the expectation that a person will use reasonable care for his or her own safety is, in each case, a matter for factual judgment, and the matters to be considered include the obviousness of the risk and the remoteness of the likelihood that other people will fail to observe and avoid it.11

In the present case, the Court agreed with the trial judge that the evidence supported the conclusion that the risk of someone tripping and falling was 'insignificant' because of the obviousness of that risk and remoteness of the likelihood that people using the area would fail to observe and take account of the uneven surface.12 The Court stated:13

'Whilst the extent of the difference in levels at any point may have been difficult to determine, the fact of the difference remained obvious and recognisable as something which ordinary life experience and common sense showed must be avoided or accommodated. The evidence as to the absence of any reported falls, or other complaints, for the period of at least 15 years … is wholly consistent with an assessment of the risk of tripping as being insignificant; as was the fact that [the appellant] herself had walked across the area "for the nine months prior to the accident including up to about 100 times without any difficulty".'

For the same reasons, the Court found that the trial judge did not err in finding that there was a low probability that a pedestrian would suffer harm if the brick pavers were not raised; or in concluding that a reasonable person in the respondent’s position would not have taken action to reduce the unevenness in question.14 The Court considered that the finding 'rightly took account of' the respondent’s having undertaken regular inspections of the walkway area, and the longstanding use of the relevant area without incident.15

Conclusion

It remains the case that each claim will turn on its individual facts. The claim failed here because the risk in question was obvious, it was of the type ordinarily encountered in every day life, and there had been no past complaints; the claimant simply failed to look where she was walking.

The Court concluded that it was reasonable for the aged care operator to expect that the claimant would take reasonable care for her own safety by looking where she was walking, even though she was elderly and the incident occurred on commercial premises.

This decision suggests that, where the risk in question involves an imperfection or irregularity in the ground conditions which is minor in nature, neither the age of the claimant nor the commercial nature of the premises will create a higher duty of care in an occupier. If, on the other hand, the risk is not an everyday or static risk, then these factors will form part of the overall factual matrix to be taken into consideration when determining an appropriate response to the risk.

.....

1 'Stay on Your Feet' (https://www.stayonyourfeet.com.au/home/what-can-cause-a-fall/falls-facts/), citing AIHW: Bradley, C. (2013) Trends in Hospitalisations due to falls by older people, Australia 1999-00 to 2010-11, Injury Research and Statistics no. 84. cat. no. INJCAT 160. Canberra: AIHW.  Retrieved from  http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=60129543591.
2 [2018] NSWCA 330.
3 Ibid [4].
4 Bruce v Apex Software Pty Limited trading as Lark Ellen Aged Care [2017] NSWDC 237, [242].
5 During her inspections, she saw the height differences between the concrete and brick surfaces and did not consider them to constitute a trip hazard, describing them as 'very small' or 'minimal'.
6 [2003] NSWCA 178, [31].
7 Bruce v Apex Software Pty Limited trading as Lark Ellen Aged Care [2017] NSWDC 237, [16].
8 Ibid [244].
9 Ibid.
10 [2017] NSWCA 103.
11 Bruce v Apex Software Pty Limited t/as Lark Ellen Aged Care [2018] NSWCA 330, [11].
12 Ibid [27].
13 Ibid.
14 Ibid [30].
15 Ibid [31].

This article may provide CPD/CLE/CIP points through your relevant industry organisation.

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