A recent Court of Appeal decision shows that “obvious risk” can be an important consideration in personal injury cases. The RMB Compensation Law Division explains.
The Civil Liability ACT 2002 NSW defines obvious risk as a risk that in the circumstances would have been obvious to a reasonable person.
Obvious risk was dealt with in a Court of Appeal decision of Blue OP Partner Pty Ltd v De Roma [2023] NSWCA 161 (12 July 2023).
The respondent to the appeal, Ms De Roma, was injured in February 2017 when she tripped and fell while walking over a rusty steel checker plate utility pit lid and frame set in a concrete footpath surface. At the time, she was walking quickly along the footpath to a bus stop.
The appellant, Blue OP Partner Pty Ltd (a partner of Ausgrid) was responsible for the inspection, maintenance and safety of the utility pit, which was found to have a height difference of about one centimetre between the pit lid surface and the top edge of the frame.
At trial in the District Court, Ms De Roma succeeded on the basis that Blue Op was negligent in failing to draw attention to the presence of the trip hazard by painting or applying coloured lines to it.
Blue Op challenged this finding in the Court of Appeal, contending that the risk of tripping was an “obvious risk” and there was therefore no duty to warn.
On appeal, their Honours Meagher, Mitchelmore and Kirk all agreed the question of whether there was an “obvious risk” was whether it was obvious that a risk of that kind might be present and happen as Ms De Roma walked across the footpath containing the utility pit lid and frame.
Walking on and over the utility pit lid and frame carried with it a risk of tripping and falling, and the presence of the rusty pit lid and frame was enough of a visual cue to warn of a risk of tripping. Any reasonable person taking care for their own safety would have seen and appreciated that presence.
Their Honours considered that as the risk of tripping was sufficient to satisfy the definition of an obvious risk, Blue Op did not owe a duty to warn of that risk.
The appeal was successful and Ms De Roma’s judgment in the District Court was overturned. Ms De Roma was ordered to pay the appellant’s costs of the District Court action and the appeal.
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