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Bunnings Group Ltd v Giudice [2018] NSWCA 144

OVERVIEW

In tort law, a duty of care is a responsibility or legal obligation imposed on an individual or business that requires a standard of reasonable care to be adhered to while performing and in the pursuance of actions that may be foreseeably harmful to others. To proceed with an action in negligence, it must be shown that this duty of care was breached, and in turn, that this breach led to harm or injury.

FACTS

In  this case, Ms Antonietta Giudice, the plaintiff, was shopping with her grandson and a friend in ‘Bunnings Warehouse’ in April 2016. Within the premises was a small fenced area with a child-proof gate that held a variety of children’s play equipment. A sign existed on the front of the gate which outlined various terms of use for the area. As the floor of the rest of the premises was concrete, the floor of the play area was matted; this resulted in the surface of the play area being slightly higher than the concrete floor, and consequently, an inclined slope existed at the entrance to the area. Ms Giudice’s grandson was in the play area while she inspected some furniture.

After hearing her grandson distressed, Ms Giudice walked to the gate, opened it with her right arm, stepped forward and tripped. She fell and landed on her right wrist, was taken to a hospital and underwent surgery to fix the two fractures she suffered. Ms Giudice’s wrist has some scarring, and she suffers ongoing disability.

Ms Giudice began proceedings against Bunnings Group, claiming compensation for her injury and asserting that it had been caused by Bunnings’ breach of its duty to her; this duty was defined as the “duty to take reasonable care to avoid risks of harm that were foreseeable and not insignificant”. The primary judge agreed and ordered $180,000 to be paid to Ms Giudice. Bunnings Group appealed this decision.

 The New South Wales Court of Appeal set aside the orders made by the primary judge.

The Court emphasised that a plaintiff’s claim must fail if the requirements of s 5B of the Civil Liability Act 2002 (NSW), which prevents a person from being negligent in failing to take precautions against a risk of harm unless the section is satisfied, are not met. It must be shown by the plaintiff that a reasonable person in the defendant’s position would have taken the precautions available to address the risk of harm. The approach of the primary judge failed to give weight to each of the distinct ways that precautions could have been taken and the burdens of each; the burden of installing a “Watch your step” sign was significantly different to that of aligning the play area surface with that of the concrete floor. Ultimately, it was found that a reasonable person in the position of Bunnings would not have done more than was already done to protect against the risk of injury.

It was up to Ms Giudice to establish both causation and the scope of liability; this would only occur if it were shown that Bunnings’ breach of its duty was a necessary condition of the occurrence of Ms Giudice’s injury.

 SUMMARY

 For a claim of negligence to be successful, you must show that:

  • The risk of harm was foreseeable, and
  • The risk was not insignificant, and
  • The person or company was negligent in failing to take precautions against a risk.

It must also be shown that the failure to take precautions directly resulted in the occurrence of the injury.

COMMENTS

It is important to be aware that, when bringing a claim of negligence to the courts, it is your responsibility as the claimant to prove each requirement. Whoever you are bringing a claim against simply must provide a defence. You must also prove that the harm suffered was foreseeable and not insignificant.

If all necessary and reasonable precautions were taken by the respondent to ensure injury was avoided, it is unlikely that a negligence claim will be successful. While you may have suffered harm, it may not be as a result of another’s negligence.