Occupiers Liability - Revisiting what is a Foreseeable RiskOct 2022 | Insurance
Devic v AMP Capital Investors Limited  NSWDC 371
Occupiers of commercial premises are regularly and rightfully held to a high standard to avoid foreseeable risks of injury to entrants. Notwithstanding occupiers regularly face arguments which treat this standard as one akin to a strict liability. However, a recent decision of the NSW District Court highlights the importance of the foreseeability test particularly where there are no prior reported incidents or complaints about the hazard and the hazard was adequately highlighted. It also provides a useful update on how courts approach evidence for the purpose of sections 5B and 5C of the Civil Liability Act 2002 (NSW), obvious risk arguments, as well as the assessment of secondary injuries.
The Plaintiff, Jelena Devic, commenced proceedings against AMP Capital Investors Limited (AMP), the landlord of Casula Mall Shopping Centre (Centre), for injuries to her left ankle, knee, elbow, wrist and lower back pain which she sustained as a result of a fall at the Centre on 17 December 2019.
Ms Devic was returning to the carpark at the Centre when she stepped onto what she believed was a crossing level with the footpath, but as the crossing fell away at the sides, she encountered an unexpected height difference which she says caused her to misstep and fall.
Ms Devic relied on expert evidence of Mr Cauduro who observed that while AMP had installed yellow lines to highlight the change in level, the great number of yellow lines made the visual appearance of the footpath confusing. Mr Cauduro considered that AMP ought to have highlighted the height difference with a contrasting colour to the other yellow lines in the area. He also considered that the area could have been 'fenced off' with bollards very inexpensively to avoid the risk of falls.
AMP submitted that Ms Devic was the author of her own misfortune. AMP drew attention to the fact that Ms Devic had used the walkway on previous occasions, it was a relatively bright day and about 10 minutes earlier she had traversed the same walkway in the opposite direction.
AMP further submitted that it did not know about the risk of harm as there had not been another incident of a similar kind nor any complaints about the walkway.
AMP also argued that the yellow lines ought to have alerted Ms Devic to the variation in height. This was supported by AMP’s liability expert, Dr Cooke, who was of the opinion that the markings provided were sufficient and a barrier of some type would prevent pedestrians such as Ms Devic from stepping onto the wings of the kerb ramp.
Weinstein SC DCJ agreed with Dr Cooke, determining, in relation to matters critical to the assessment of negligence under sections 5B and 5C of the CLA, that:
- Whilst a risk was foreseeable, adequate precautions were taken in that there was adequate and effective highlighting of the variation in height;
- Since there was no evidence of prior accidents or incidents being previously reported and the painted highlighting provided an appropriate visual cue, the risk was not significant;
- A reasonable person in AMP’s position would not have taken the precautions set out in Mr Cauduro’s report. Weinstein was of the view that a risk assessment would not have identified a significant risk. He was also not satisfied that there ought to have been different coloured highlighting or that bollards or fencing out to have been erected as suggested;
- The probability of harm was low, and it could not be said that there was a real likelihood of Ms Devic sustaining serious bodily injury. This was reinforced by the fact that there had been no prior reported incidents or complaints;
- Painting the highlighting in different colours would not have satisfied section 5D causation;
- The installation of bollards or fencing, whilst inexpensive, may have created pedestrian traffic difficulties which was unexplored on the evidence;
- The fact that a risk of harm might have been avoided by doing something differently does not of itself give rise to or affect liability; and
- AMP was not negligent and Ms Devic’s case should fail.
Weinstein SC DCJ further concluded that the variation in height was an obvious risk that a person walking from the Centre into the carpark would be expected to encounter and watch out for, having regard to the yellow painted strip of pavement adjacent to the walkway.
The effects of the finding is that AMP did what was necessary in the circumstances by painting the yellow strip of pavement adjacent to the walkway in yellow and had no duty to warn Ms Devic of the obvious risk.
The timing and cause of Ms Devic’s lower back pain was also a major contention within the hearing. Ms Devic’s expert, Dr Giblin, diagnosed her with a soft tissue injury to the left ankle and the lower back. In contrast, AMP submitted that, at its highest, Ms Devic suffered a sprained ankle.
At trial, Ms Devic indicated that her back pain developed two months after the incident. This was inconsistent with her reporting to Dr Giblin and Dr Mitchell (AMP’s expert) to whom she indicated that her back pain occurred a few days after the fall. The clinical records of Ms Devic’s GP also raised suspicions given she visited her GP on five occasions within a year of the incident and did not complain of back pain. Eventually, she told her GP that she had back pain in July 2021.
Despite the disparities, Weinstein SC DCJ held that Ms Devic’s lower back pain was causally related to the incident and accepted Dr Giblin’s diagnosis that it was a secondary soft tissue injury. Weinstein SC DCJ accepted that the fact that Ms Devic did not immediately complain of back pain was not inconsistent with her suffering the injury at the time or consequent upon the incident.
Beyond the specific facts of this case, Devic provides helpful guidance on precautions that are considered adequate in the context of variations in height on pathways and confirms that the fact that (in hindsight) something could have been made safer by doing something different, does not necessarily indicate that the failure to do so was negligent.
It also affirms that inconsistent versions of events about when pain commenced or a failure to complain of pain to a GP (despite consulting the GP on five separate occasions) will not immediately result in a determination that a Plaintiff did not sustain an injury.
This article may provide CPD/CLE/CIP points through your relevant industry organisation.
The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.