On 4 April 2016, Ms Antonietta Giudice attended a Bunnings Warehouse in Ashfield, together with a friend and her grandson, who was almost four years old at the time. Ms Giudice’s grandson was taken to the play area by her friend while Ms Giudice was inspecting some furniture. She heard her grandson distressed so she walked over to the play area. She opened the gate with her right arm, stepped forward, and tripped and fell, landing on her right wrist. She suffered two fractures and underwent surgery to insert plates and screws into her arm.
The surface of the play area was slightly higher than the concrete surface of the floor, estimated to be around two inches. A sign was affixed on the gate in the following terms:
“DEAR CUSTOMER
Recommended ages 4-12 years old.
Children must be supervised by a Parent/Guardian at all times.
This is an unsupervised playground.
Gate fitted with Child Safe Lock.
Bunnings is not responsible for any injury sustained in this playground.”
Ms Giudice commenced proceedings in the District Court of New South Wales against Bunnings Group Ltd, in negligence and claimed damages. His Honour Wilson DCJ SC found that at the entrance to the playground there was a sudden raise in the height of the floor surface and that it was the sudden change in the height of the surface which caused Ms Giudice to trip, fall and suffer injury. His Honour also found that there was no warning to alert a person in the position of Ms Giudice to the risk which was posed by the elevation in the floor surface.
His Honour found in favour of Ms Giudice and awarded damages in the total sum of $179,600, with a 20% deduction on account of contributory negligence.
Bunnings appealed from the primary judge’s decision. It argued that the primary judge erred in finding any breach of duty, and erred in finding that there was causation.
The court found that none of the primary judge’s findings of breach could stand, nor could the finding of causation in relation to the failure to warn case.
For more information on the above contact Joe Bonura on (02) 4626 5077 or jbonura@marsdens.net.au.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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