67-year-old Shirley-Ann Baker filed proceedings against Port Macquarie Bunnings for $702,414.93 after falling and dislocating her left ankle. Ms. Baker fell from the kerb of a raised concrete island in the carpark in October 2017. The Statement of Claim outlined nine separate claims of negligence under the Civil Liability Act 2002 (NSW). This included failure to erect barriers, lack of delineation, providing inadequate warnings and general non-compliance with AS/NZS 2901.1 for off-street car parking facilities. Whilst there was a plea for alleged breaches of statutory duties under the Work Health and Safety Act 2011 (NSW) and Work Health and Safety Regulation 2011 (NSW), these were not later relied upon in the final submission.

For determination of damage for non-economic loss under s 16(1) of the CLA, no damages can be awarded unless its severity is at least 15% of a most extreme case. The court assessed the proportion as being 28%. Whilst there was no claim for future economic loss, Ms. Baker was awarded $144,265.77, reduced by 20% for contributory negligence/apportionment of liability to $113,812.61.

Case note: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWDC/2020/310.html?context=1;query=work%20health%20and%20safety;mask_path=