Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 2 March 2019.
Betty, aged 70, trips and falls heavily in an area outside an aged care facility. Unfortunately, she suffers substantial bruising and significant injuries to her left wrist and right elbow.
The cause of the incident was the edge of a concrete slab bordered by sunken surrounding brick pavers which created a height difference of between 10 and 20mm.
A year later, as a result of the injuries, Betty is still experiencing significant problems with her wrist and elbow.
Betty makes a claim in the District Court, alleging that the aged care facility was negligent in failing to remedy the ‘hazard’ by not raising the brick pavers to eliminate any height difference.
The Court observes that the aged care facility had undertaken regular inspections of the area and there was long-standing use of the area without any incidents.
The Court says that the use of the brick pavers as borders was readily apparent from the different surface materials and colouring.
The Court rules that the risk of tripping was ‘obvious’ within the meaning of the Civil Liability Act and as a consequence the aged care facility was not required to “warn” Betty of the risk.
In making the finding about obvious risk, the Court says that the risk of tripping that was created by the height difference was ‘insignificant’ given its obviousness and the unlikelihood that a pedestrian would fail to observe and account for it.
The Court rules that a reasonable person in the aged care facility’s position would not have taken action to reduce the unevenness in question and dismisses Betty’s claim.
Not only does Betty miss-out on an award for damages, she is ordered to pay the aged care facility’s legal costs which total $60,000.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
