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Edge that separates
In this piece, GSA’s Liability Claims Executive - Luke Yates - looks at the issue of likely trip and fall locations, and whether there is any onus to rectify them based upon their level of obviousness:
If a hazard presents as obvious, does remediation need to take place to remove said hazard, or is it simply enough that the defect poses minimal risk, because it is inherently visible to people?
In January, McCabe Curwood published a paper entitled The Edge That Separates (authored by Chad Farah), which discusses the Court of Appeal’s (CA) recent review of the issues surrounding obvious defects, as defined under the Civil Liability Act 2002, and whether their clear and apparent nature renders them as insignificant?
The belief then being that any person would naturally avoid an obvious hazard, so as to avoid harm or loss.
In such an examination, the CA also considered past incidents heavily, so as to determine exactly ‘how obvious’ the defect actually was to the reasonable person. I.e., the more incidents involving any given defect, the less obvious it would appear to be. Hard to argue with that.
Ultimately, the CA concluded that an obvious risk’s threat diminishes and becomes insignificant if there is only a remote possibility that a reasonable person would fail to notice said risk. It follows then, that a raised concrete area marked with warning paint should see less incidents than a slight rise between two slabs and, therefore, the raised and painted section may not require remedial works. IE, even though the resultant injury may be greater, this risk of this injury is removed due to the clear nature of the hazard.
To further complicate the discussion, reductions in settlement values have been seen due to factors of contributory negligence – most notably, through failing to maintain a proper look out. If you’ve ever walked through Wynyard tunnel in Sydney, you know the sort of look out failures we’re talking about!
So, how does this affect the manner in which GSA handles claims of this nature?
With regard to our Client’s claims, the issues around an obvious risk is one method through which GSA considers trip and fall cases very differently than slip and fall claims. If the trip hazard is obvious, then there is less liability on the part of our Client, and less impetus to settle. Slip and fall claims, however, are generally the result of liquid – which is often much harder to distinguish from the regular flooring area – rendering it not an obvious hazard.
As such, it is often easier to defend against a trip and fall claim – by either fully denying liability or arguing for contributory negligence on the part of the injured party. GSA Claims Executives maintain up to date knowledge of Court decisions, discussion papers and insurance trends, to ensure that your claims are managed to achieve the best result possible.
The full article can be found here: https://mccabecurwood.com.au/edge-separates-obvious-significant/