This case example explores what it takes for an injured woman to get the compensation she deserves after a slip and fall at a shopping centre carpark. Learn the importance of good evidence in public liability claims.
A woman shopping at the Casula Mall Shopping Centre in NSW with her 3 young children slipped and fell and sued the shopping centre. She had finished shopping and walked out of the shopping centre to head back to her car. She went to cross the road to get to the parking lot but had to walk over a raised hump. She didn’t see the hump and she fell. She argued that as she stepped off the pavement onto the crossing she didn’t expect to see encounter a hump. The sudden change in height was unexpected and caused her to lose her step and fall.
The Shopping Centre rejected her claim and her claim went all the way to trial. At the trial, the Shopping Centre did not call any witnesses. They accepted that she had fallen and even accepted that they had a duty of care. But they defended the claim saying that there wasn’t anything more that they should have done and that the reason why she fell was because she wasn’t looking where she was going.
The Court’s decision
The Court listened to all the witnesses and in the end said that:
- There was no record of any other accidents on the speed bump;
- The speedbump had been painted with bright yellow lines;
- The difference in heights was not concealed;
- The accident happened in broad daylight;
- People parking in car parks often see speed bumps so this was not something unusual;
The Court found it in the shopping centre’s favor and she lost her claim.
Devic v AMP Capital Investors Ltd [2022] NSWDC 371
Lessons: Obvious risk
Everybody knows that if a risk is “obvious” then you must take care of your own safety. But what is obvious and what isn’t? That depends on the circumstances of each case. In this case, the woman argued that she was busy minding 3 young children, she was pushing a pram, she was watching a truck that had stopped to allow her to cross, and therefore in her circumstances the hump wasn’t obvious to her and she didn’t see it. But the Court rejected her argument. The Court said that looking at that particular speed bump that it would have been obvious to “a reasonable person in her position” ie: she may say she didn’t see it, but if other people in her position would have then the hump is considered obvious. This is an important lesson. When a Court decides whether something is obvious or not, such as a speed bump, the test is not whether you saw it or not, that is not enough: you need to show that nobody in your position would have seen it. What was it about your accident that means that nobody would have seen the risk?
Do I have a case?
If you have been in an accident and you are thinking about making a public liability claim then you need to collect all the evidence that shows why you had your accident. You need evidence that shows why not only you but why any other person in your position, would still have had a problem. Things to look at are: the lighting; shadows; the colour; was it hidden etc. Then you will need to argue that there was something that could have been done to alert you to the problem and that it wasn’t done.
What should I do?
Public liability claims are not always straightforward. They can be complex and risky. But if you have been involved in an accident in Perth then you should chat with Lian. Lian Hall will advise you honestly and let you know where you stand.
