Mrs Shinnaoui suffered injury as a result of tripping on a kerb when returning to her vehicle in an underground car park. It was accepted that she had negotiated a similar concrete kerb in the car park just prior to the incident.
When approaching the second concrete kerb, Mrs Shinnaoui became distracted by another patron pushing a trolley close to her vehicle. Whilst her attention was directed to this, she tripped on the second concrete kerb causing her to fall and suffer injury.
Mrs Shinnaoui alleged that the owner and the managing agent of the shopping centre failed to properly illuminate the car park to adequately reveal the concrete kerb or maintain the painted surface markings on the kerb, which had become faded.
Findings as to obvious risk
An “obvious risk” is defined in sections 5F and 5G of the Civil Liability Act 2002 (NSW) (CLA) as a risk that, in the circumstances, would have been obvious to a reasonable person in the position of the plaintiff.
The District Court judge concluded that the risk of tripping on the kerb was an obvious risk within the meaning of sections 5F and 5G of the CLA, and consequently, no warning of the risk was required. In dismissing the claim, His Honour focused on particular facts, including that:
- the lighting of the car park was not related to Mrs Shinnaoui’s fall
- although the paint on the kerb was worn, and to maintain the paint is good practice, the failure to do this does not itself amount to a failure to exercise reasonable care and
- the risk of tripping was “obvious” and consequently Mrs Shinnaoui ought to have been aware of it – this was apparent from her ability to negotiate the first kerb.
Shannaoui v Perron Investment Pty Ltd  NSWDC 54
|In assessing “obvious risk” under the CLA, consideration ought to be given to the Mrs Shinnaoui’s familiarity with the premises, the level of the her attention to their surroundings at the time of the incident and the existence of any external factors to divert the plaintiff’s attention to their surroundings.|