Service station liable for failure to distinguish elevated platform
Feb 2018 |The recent decision of The Thistle Company of Australia Pty Ltd v Bretz & Anor [2018] QCA 6 concerns an appeal by the Thistle Company of Australia, who was the owner / operator of a service station, to overturn a decision of the District Court of Queensland in favour of the plaintiff, Mr Bretz, for injuries sustained whilst on their premises.
The incident occurred when Mr Bretz, after filling up, struck the ball of his foot upon the concrete base (or plinth) surrounding the petrol bowser when walking from his car to the pay station.
At first instance, the District Court found the plinth a foreseeable, not insignificant risk, and a reasonable service station operator 'would not have obscured the visibility of the plinth by repainting it in the same colour as the surrounding ground'. The Court of Appeal agreed with the trial judge’s findings, noting the repainting resulted in a 'colour homogeneity of the stepped levels'. The Application for leave to appeal was therefore refused and costs of the appeal were awarded.
The plinth extended 300mm from the bowser, some 37 - 39mm high. While initially the plinth was painted yellow, the yellow paint over time became slippery and deteriorated. The area was then painted black with a brushed finish. Evidence showed, following the change in colour, complaints were made by customers however no formal incident reports were made.
The decision
In picking up on the reasons for the trial judge’s decision, the Court of Appeal’s judgment focussed on three issues.
Did the plinth constitute an obvious risk?
Mr Bretz lead expert evidence concluding where there was no differentiation in colour, there were no conspicuous clues as to the height differentiation and therefore it was highly predictable pedestrians would trip and fall on the raised corner of the slab.
Counsel for the service station argued the plinth was an obvious risk as the potential for tripping would have been obvious to a reasonable person, particularly when the plaintiff stood for some minutes with his head directly over the plinth, positioned his feet in close proximity to the edge of the plinth and moved about in the vicinity in general for a number of minutes.
This was rejected by the Court of Appeal, who considered the 39mm rise less noticeable than a substantial step. The plinth was 'high enough to trip someone, but not so high to be immediately apparent'. They went on to state:
'As a matter of common experience, a small definite rise is more likely to cause a trip than a substantial step that is easy to see. Here it was effectively camouflaged by the repainting'.
Also considered relevant was the location where customers stood in proximity to the bowsers and the resulting aerial view which made the step less noticeable than a profile view.
Was the risk 'not insignificant'?
Submissions were made by the service station any risk posed by the plinth was insignificant; an inference which could be drawn by a lack of incident reports to the contrary.
The Court of Appeal disagreed and considered there was sufficient evidence to demonstrate, despite a lack of formal incident reports, there were known complaints of people stumbling or tripping on the plinth, which in itself should lead to a finding the threat posed was not an insignificant risk.
Contributory negligence
The service station submitted a finding of contributory negligence should follow as Mr Bretz admitted he was not looking where he was walking.
The Court of Appeal was not convinced Mr Bretz’s inadvertence here amounted to a failure to take reasonable care for himself because in this instance a person would not be on the lookout for unexpected obstructions on the ground. It was therefore held for that purpose a person would not be obliged to be watching his feet and any failure to do such would not be considered a failure to keep a reasonable lookout.
Lessons from this decision
This decision outlines the following factors of importance:
- Slight variations in height are less apparent and therefore are less obvious to the public, warranting a greater response from an owner or occupier;
- Circumstances for consideration in relation to whether a height difference poses a risk is the location, items placed around, and the purpose of the height variation;
- Once notice of a perceived risk has been received, a plan for a reasonable response should follow; and
- Whilst as a general starting point, differences in height are to be expected in public places, courts will be less likely to make a finding of contributory negligence against a plaintiff in circumstance where no difference in height would be expected.
This article may provide CPD/CLE/CIP points through your relevant industry organisation.
