In a judgment delivered [1] in the matter of Fedaa Shinaoui v Perron Investment Pty Limited & Anor [2017] NSWDC54, the District Court of New South Wales considered whether a raised concrete kerb within a car park is an obvious tripping risk and, if so, whether it obviated the need to warn the plaintiff of the risk of tripping.

Background

On 15 May 2012 Mrs Shinnaoui proceeded to return to her parked vehicle within an underground car park at Campbelltown Mall, when she tripped and fell on a concrete kerb of a lane separation traffic island, sustaining injuries to her left shoulder and knee.

Proceedings were commenced in the Sydney District Court, Sydney and proceeded to a three day hearing before his Honour Judge Levy.

Mrs Shinnaoui alleged that the owner of the shopping mall and car park, Perron Investment Pty Limited t/as Campbelltown Mall and Jones Lang La Salle Pty Limited as the managing agent, were negligent in that they:

  • failed to properly illuminate the car park to adequately reveal the presence of the concrete island; and
  • failed to maintain the painted surface markings which had become warn and faded on the edges of the concrete island within the car park.

The Evidence 

Mrs Shinnaoui gave evidence that prior to the incident, she was returning to her vehicle in the car park. Moments prior to the fall, she had successfully negotiated a similar concrete island.

Upon approach to the subject concrete island, Mrs Shinnaoui became distracted by a woman pushing a shopping trolley near to her vehicle and as she continued to walk forward, she tripped and fell over the concrete island.

Mrs Shinnaoui also attempted to adduce evidence that she fell because of a combination of the degraded paint on the kerb and the inadequacy of the artificial lighting conditions. Ms Shinnaoui asserted the raised concrete kerb could not be seen by her at the time.

The parties relied on their respective expert liability reports. The experts agreed that the concrete island was a potential trip hazard and that good practice required the painting of a contrasting colour around the island.

There was disagreement between the experts as to whether the illumination of the car park and the raised concrete kerb, was adequate. Nonetheless, the measurements taken by Mrs Shinnaoui’s expert showed that the lighting of the car park exceeded the requirements of the Building Code of Australia.

At the time of the incident, Mrs Shinnaoui was not working but demonstrated that, were it not for the injuries sustained, she was motivated to pursue employment. Mrs Shinnaoui’s husband gave evidence that for 12 months following the accident, he provided about 22 hours per week of personal domestic assistance and thereafter about 24 hours assistance per week.

Judgment

His Honour considered the meaning of “obvious risk” pursuant to section 5F of the Civil Liability Act 2002 and whether or not the defendants had a duty to warn Ms Shinnaoui of a risk of injury that should have been obvious to her.

His Honour gave considerable weight to the evidence that:

  • Mrs Shinnaoui had attended the shopping centre regularly over a period of 7-8 years, prior to the accident;
  • Mrs Shinnaoui was familiar with the layout and structural appearance of the car park, including the presence of concrete kerb dividers located within the car park; and
  • Mrs Shinnaoui was distracted and not looking at the floor surface as she approached the concrete island.

His Honour made the following findings:

  • The lighting of the car park area was not related to Mrs Shinnaoui’s fall, as there was no evidence that it was below standard;
  • Although the painting on the concrete island was degraded, and to refresh the paint is good practice, the non-observance of good practice does not equate to a failure to exercise reasonable care;
  • The only reason the plaintiff tripped and fell was that she was distracted; and
  • The risk of tripping was an “obvious risk” and Ms Shinnaoui ought to have been aware of the risk.

Damages

Notwithstanding the findings on liability, His Honour went on to assess damages. His Honour was critical of Mrs Shinnaoui and her husband’s evidence in relation to domestic assistance, finding the time estimates of such domestic tasks to be an obvious exaggeration. As His Honour could not rely on the evidence, he declined declining to make any assessment for damages of past and future gratuitous assistance.

Implications

This decision is of particular relevance not only to occupiers and building managers of shopping centres and commercial buildings, but to patrons simply failing to look or pay attention to their footing.

This is a pleasing decision in light of the increasing trend of claims by patrons who have tripped over concrete islands and who simply fail to take reasonable care for their own safety. In order to consider the meaning of “obvious risk”, it is relevant to consider the patrons familiarity with the location as well as level of attention, or in this case, distraction.

This decision confirms that common sense must prevail and plaintiffs are expected to take reasonable care for their own safety when placed in familiar situations.