Bruce v Apex Software Pty Limited t/as Lark Ellen Aged Care

Overview

1. On 15 June 2015 the appellant (Mrs Lorraine Bruce), then aged 70, tripped and fell heavily in an area outside the main entrance to the Lark Ellen Aged Care Facility, suffering injuries to her left wrist and right elbow as well as lacerations to her nose and lip. 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. Mrs Bruce 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 latter being about 0.79 of an inch).
2. Mrs Bruce brought proceedings against the respondent operator of the aged care facility, Apex Software Pty Ltd (Apex), alleging negligence in its failing to remedy that "hazard" by raising the brick edges to eliminate any level differentials. The primary judge (Dicker SC DCJ) rejected that claim, holding that there was no breach of duty: Bruce v Apex Software Pty Limited trading as Lark Ellen Aged Care [2017] NSWDC 237. In doing so, his Honour held that the risk of tripping on that uneven surface was an "obvious risk" within Civil Liability Act 2002 (NSW), s 5F with the consequence that Apex did not have any duty to warn of it (Judgment [260]); and that any entitlement to damages would have been reduced by 15% for contributory negligence because Mrs Bruce was not looking where she was walking (Judgment [258]).
3. The primary judge made findings concerning Mrs Bruce's damages claim, and the parties were agreed as to the judgment to be entered in her favour if the appeal were allowed. However, for the reasons which follow, it is my view that the appeal should be dismissed with costs.

General and longstanding use of car park and pedestrian area

1. The question for this Court is whether the primary judge erred in not holding that a reasonable aged care operator in Apex'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.
2. There was much evidence as to the use made of the area by staff, residents and visitors. Ms Atlee commenced as an assistant nurse in 1998 and later as a member of the work, health and safety committee. Since about 2004 she undertook regular (at least twice a year) safety inspections directed to identifying and bringing to the committee's attention hazards, including uneven surfaces in the car park and pedestrian areas. During that period she did not receive reports of trips or falls on the surface or complaints about its condition. 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".
3. The maintenance supervisor, Mr Greg Bruce, had been employed in the facility since before 2000 and saw residents and visitors using the surface every day he was there, with no one to his knowledge encountering any difficulties before June 2015. When he was informed of the accident, he said: "I never thought it was a problem. It was never picked up to us as being a problem". Mr Goldshaft had been general manager of the facility since 2012. He walked through the car park on a daily basis, and gave evidence that those who used the suface included "people with mobility issues; four-wheel walkers; wheelchairs; just normal walkers … most of [the] residents have some kind of mobility issue, or a walking aide" as well as "the physiotherapist's aide … [who regularly] takes residents on walks up and down the car park as part of her exercise routine". No one had ever complained to Mr Goldshaft about uneven surfaces or that they had fallen, and no work health and safety report suggested any problems with the condition of the car park walkway surfaces.
4. Although Ms Atlee, Mr Bruce and Mr Goldshaft were employed in the centre, and might be expected to be defensive of its position in the proceeding, the primary judge accepted their evidence as truthful: Judgment [88], [124], [135]. Not unexpectedly, no challenge is made to his having done so. The only finding concerning the above evidence that is challenged is his Honour's rejection of the suggestion that Ms Atlee had "performed her [inspection] duty poorly" (Judgment [245]).
5. Finally, the director of nursing Connie Cheung's evidence was that she had never experienced difficulties walking across the area, and that since 2007 she had seen pedestrians "of all ages walking" on the area with no difficulty and, to her knowledge, no complaint.

Relevant principles

1. Although ground 1 of the amended notice of appeal contends that the primary judge erred in failing sufficiently to define the scope of the duty of care, the argument in support of that ground is directed to emphasising the matters to be considered in assessing what the exercise of reasonable care required of the occupier of a "high care nursing home" in the circumstances of this case. It was not controversial that the duty engaged was to exercise reasonable care so that the premises, including the outside areas providing access to and from the car park, were safe for pedestrian and other users: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; [1987] HCA 7; Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234 at [24]; [2005] HCA 19. Whether there was a breach of that duty must be considered by reference to the provisions of the Civil Liability Act, and in particular s 5B (as was emphasised in Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [27]; [2009] HCA 48).
2. That section provides: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
3. In Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103, I observed at [54]: In assessing what reasonableness requires in response to a particular risk of harm, the reasonable person in the occupier's position is entitled to take into account "with due allowance for human nature, [that] a person he permits to be on his premises will use reasonable care for his own safety": per Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 at 74; a passage cited with approval in Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [45] fn 69 (Gummow J); [2007] HCA 42. The weight to be given to that expectation is in each case a matter for factual judgment: Thompson v Woolworths (Q'land) Pty Limited (2005) 221 CLR 234 at [35]; [2005] HCA 19; 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" (at [36]). The Court (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) continued (at [37]): The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.
4. It is necessary first to identify the relevant "risk of harm", and in dealing with the question of breach, to consider the application of s 5B by reference to each precaution which the defendant is alleged to have been negligent in failing to take: Bunnings Group Ltd v Giudice [2018] NSWCA 144 at [38].

The findings of the primary judge

1. Here, the primary judge described the relevant risk of harm as tripping on the "raised concrete lip" in the relevant area: Judgment 244. No issue is taken with that formulation. The precautions that it was alleged a reasonable person would have taken were "remedial action to remove the hazard, or at the very least [to] demark its presence". In this Court, the argument focussed on the taking of remedial action, and there was no attention to any differences in the burdens associated with those two pleaded precautions. That was no doubt because shortly after Mrs Bruce's accident, work was undertaken to raise the level of the brick pavers to substantially remove any unevenness, and it was not contended that the same work could not have been undertaken before the accident, if Apex had determined that it was necessary to do so: Judgment [219] (16).
2. Thus, the factual question for the primary judge was whether a reasonable person in Apex's position would have taken that precaution in circumstances which included that there was no significant burden in doing so.
3. Addressing s 5B and the question of breach, his Honour concluded: [244] … (a) The risk to the plaintiff of falling on the raised concrete lip was foreseeable by the defendant, being a risk of which the defendant ought to have known. There is no evidence that the defendant actually knew of the risk prior to the accident. The evidence from the defendant's internal records suggests that the risk was not perceived prior to the accident. However, the raised lip was able to be perceived upon a detailed inspection after the accident; (b) The risk of injury was not insignificant if the plaintiff fell. However, having regard to the lack of prior injury or complaint, in my view the risk of falling in the circumstances of the present case was not significant in the circumstances of a pedestrian looking where they were going having regard to the height differential between the brick pavers and the concrete slab where the plaintiff fell of between 10 and 20mm; (c) In my view, a reasonable person in the defendant'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. 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 at paragraph 116 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; (d) There is a low probability that the harm would occur to a pedestrian if care were not taken to raise the particular pavers. The likely seriousness of the harm if someone tripped is a relevant factor to be taken into account. The burden of taking precautions to avoid the risk of harm was not significant having regard to the nature of the Facility and was taken by the defendant after the fall was known. There is also nothing relevant in the social utility of the activity that creates the risk of harm which should be taken into account.

The grounds of appeal

1. By grounds 2 and 3 of the amended notice of appeal, his Honour's failure to find that the risk of harm was "not insignificant" and assessments of there being "a low probability that the harm would occur" and that "the differential in height did not create a dangerous situation" are challenged, as is his conclusion that a reasonable person, having undertaken regular inspections, would not have taken action to reduce any unevenness. His Honour's implicit finding that those inspections were conducted reasonably and adequately is also challenged.
2. Ground 4 alleges error in the primary judge giving little weight to various of Dr Cooke's opinions (Judgment [200]). The written and oral submissions focussed on Dr Cooke's estimate as to the height of the "exposed concrete lip" being approximately 20-22mm and his opinion that the "difference in levels" would have been "apparent upon inspection and ought to have been remedied"; the unstated premise being that it should have been recognised as a trip hazard which required attention. Finally, ground 5 challenges the finding that the height differential created an "obvious risk". Ground 6, which challenged the finding of contributory negligence, is not pressed.

Disposition

1. The primary judge found that the risk of someone tripping by reason of the differences in surface levels was foreseeable, in the sense that Apex "ought to have known" of it, although it was apparently not "perceived" as such prior to the accident (s 5B(1)(a)). He was not satisfied, and did not find, that risk to be "not insignificant" (s 5B(1)(b)). And having assessed the probability of its occurring to be low (s 5B(2)(a)) and finding that the "differential in height did not create a dangerous situation" (s 5B(2)(b)), his Honour concluded that a reasonable person in Apex's position prior to the accident "having undertaken regular inspections of the walkway area externally" would not have taken action to reduce the unevenness in question (s 5B(1)(c)): Judgment [244], [245]. His Honour's assessment of the probability of harm occurring in the absence of any such action took account of the obviousness of height differences between the levels of brick pavers and concrete slabs, and the fact that notwithstanding its daily use by staff, residents and visitors, as described earlier, there were no reported falls or "problems" over the previous fifteen years or so.
2. Ground of appeal 2 challenges the critical conclusions of the primary judge. As grounds 3 and 4 identify errors said to have contributed to those conclusions, it is convenient to deal with these grounds together; and to deal with the complaints regarding the treatment of Ms Atlee's and Dr Cooke's evidence at the outset.

Ms Atlee's evidence

1. There is an apparent tension between his Honour's finding that there was a risk of tripping of which the nursing home operator "ought to have known", which was "obvious", and his conclusion that the regular inspections undertaken by Ms Atlee did not involve any "poor" performance of her duty, notwithstanding that they did not identify any level differences as a trip hazard. However, this tension is resolved when account is taken of his Honour's assessment of the risk of harm as insignificant, or very low, and accordingly not one which should have been brought to the attention of the work health and safety committee as requiring attention.
2. Mrs Bruce argues that the effect of Ms Atlee's evidence is to accept that a height differential of about 20 mm created a "trip hazard" because she accepted that an electrical lead of that diameter strung taut across a walkway would have done so. It was said to follow that if Ms Atlee had appreciated that the relevant height differential was 20mm (rather than "very minimal" or "very small" as she described it), she would have concluded that it represented a trip hazard. In cross-examination, Ms Atlee rejected the suggestion that she had not undertaken a sufficient inspection, and in re-examination described an electrical cord with a diameter of 20 mm as "totally different to what we are looking at here", and added as to that difference, "the cement lipping there is … not a moveable area. It's there, where an electrical cord, it's a hazard where there is people walking past and in the corridors, but is also moveable … it's a moveable hazard". His Honour accepted this evidence, which in part drew attention to the static nature of the alleged risk and its obviousness, and rejected the suggestion that she had performed her duties "poorly": Judgment [245]. Properly understood, her evidence was not that the trip hazard represented by a 20 mm diameter electrical lead across a walkway area was equivalent to that presented by the height differentials in the car park area. His Honour did not err in proceeding on that basis.

Dr Cooke's evidence

1. It is said that the primary judge erred in giving little weight to Dr Cooke's opinions as to: (i) the height of the exposed concrete lip in the area where the accident occurred as approximately 20 to 22 mm; and (ii) that difference being "apparent upon inspection" and one which "ought to have been remedied".
2. His Honour found that the level differences in the area of the fall were "not certain but somewhere between 10 and 20mm": Judgment [219] (14). In doing so he preferred the evidence of Apex's builder, Mr Homann, which was that he had raised the level of each of the brick edges and at that time measured the level differences which were "in the worst area" between 10 and 20 mm. His Honour described Mr Homann as "an impressive witness": Judgment [146]. There could be no error in preferring the evidence of a credible witness as to actual measurements of the level differences to that of a witness estimating those differences by reference to photos which he did not take.
3. The primary judge gave the second opinion little weight, it being directed to matters upon which the Court was able to form its own opinion (see Neindorf v Junkovic (2004) 88 SASR 162 at [37] and cases cited); in respect of which it had much evidence of prior use from which conclusions could be drawn as to the obviousness of the risk and the reasonableness of an assumption that the range of persons using the car park exercising some care for their own safety would observe and accommodate the differences in levels. Furthermore, Dr Cooke's opinion that it was "reasonable to regard height differences in the pavement of approximately 20 to 22 mm (slightly less than an inch) as posing a trip hazard" was based in part on an analysis of building standards and workplace guidelines including Australian Standard 1428.1-2009 as applicable to "accessible pathways". His evidence did not however establish that those standards applied directly or otherwise to a car park or pedestrian access area such as that in issue here. In the course of oral argument, counsel for Mrs Bruce withdrew any submission that the evidence established that underlying premise for Dr Cooke's opinion, thereby rendering it in that respect to merely an unsupported conclusion.
4. The primary judge is not shown to have erred in his treatment of Dr Cooke's or Ms Atlee's evidence and the remaining challenges to his Honour's findings must be addressed on that basis.

Significance of risk

1. Although purporting to do so, his Honour did not answer the question of whether the risk of harm was "not insignificant", instead concluding that "the risk of falling in the circumstances of the present case was not significant" (Judgment [244] (b)) - a higher degree of probability than the phrase "not insignificant" requires: see Bunnings Group Ltd v Giudice at [53], [54]. And his Honour's earlier reference to the "risk of injury" being "not insignificant if the plaintiff fell" was not directed to the overall risk of harm, but only to the probability of injury in the event there was a trip and fall. Mrs Bruce's submissions do not identify or address this error in his Honour's application of s 5B(1)(b), treating his Honour's conclusion as being that he was not satisfied that the risk of tripping and falling was "not insignificant". Nor does she submit that his Honour erred in taking into account as relevant to the assessment of the significance of the risk its obviousness, its likelihood of occurrence, and the seriousness of its consequences. Each of those factors was taken to be relevant to this assessment by this Court in South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 at [89], a passage also cited with approval in Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 at [140].
2. The question remains whether, as Mrs Bruce contends, the primary judge should have held that the risk of harm was "not insignificant". In my view the evidence before the primary judge 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: Thompson v Woolworths at [36]. The use of the brick pavers as borders to the concrete slabs was readily apparent, both from the different surface materials and their colouring. The fact of a difference in the levels of the two surfaces was also obvious to anyone giving some attention to the surface on which they were walking. 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 (see [4] to [8] above) is wholly consistent with an assessment of the risk of tripping as being insignificant; as was the fact that Mrs Bruce herself had walked across the area "for the nine months prior to the accident including up to about 100 times without any difficulty" (Judgment 240).
3. This conclusion is sufficient to dispose of the appeal.

Obvious risk

1. The primary judge's finding that the risk was "obvious" should be upheld for the reasons given immediately above. Such a risk is one which "in the circumstances, would have been obvious to a reasonable person in the position of [Mrs Bruce]" (s 5F(1)). It followed that Apex was not required to warn of it. Contrary to Mrs Bruce's submission, the primary judge did not deal with this issue on the basis that Apex's staff were themselves unable to discern the relevant risk (see [20] above). That risk arose because of the difference in levels, and that was obvious to a person in Mrs Bruce's position giving some attention to the walkway surface.

Probability of harm and reasonable precautions

1. For the same reasons, his Honour 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 Apex's position would not have taken action to reduce the unevenness in question. The two primary arguments made in response to this conclusion have been dealt with above.
2. That finding and conclusion rightly took account of Apex's "having undertaken regular inspections of the walkway area", and the longstanding use of the relevant area without incident. The evidence as to the absence of any earlier falls or complaints was relevant to an assessment of the risk of harm, and the weight to be given to that evidence was a matter for the primary judge: Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 at 309; [1986] HCA 20. It follows that, even if that risk were assessed to be "not insignificant", a reasonable person in Apex's position would still have considered the differences in levels to not constitute a risk that required remediation.

Conclusion

1. Accordingly, I propose that the appeal be dismissed with costs.
2. LEEMING JA: I agree with Meagher JA.
3. WHITE JA: I agree with Meagher JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2018