Cheng v Jones Lang Lasalle (NSW) Pty Ltd [2026] NSWDC 12
A recent decision of the District Court (NSW) found Eastgate Shopping Centre liable for injuries sustained by the Plaintiff, who tripped over a services cover in a common area (even with the presence of warning signs at the scene). While the Plaintiff’s damages were reduced by 25% for contributory negligence, the decision serves as a reminder that warning signs alone will not always discharge an occupier’s duty of care.
The Facts
The Plaintiff, Mrs Lesley Cheng, tripped and fell over a services cover in the common area of Eastgate Shopping Centre. The cover protected electrical cabling running from a floor power outlet to a nearby pop-up store. Two yellow A-frame warning signs had been placed on top of it.
Counsel for Mrs Cheng relied on CCTV footage of the incident and on the decision in Ratewave Pty Ltd v BJ Illingby, where Meagher JA recognised that shopping centres are inherently busy environments where it is expected that some people may be distracted, inattentive, or have their line of sight partially obstructed. Counsel further submitted that, from the direction Mrs Cheng approached, her view of the services cover was obscured by the positioning of the pop-up store and so the hazard was not visible to her until it was too late to avoid it. Counsel also relied on expert evidence from ergonomist Neil Adams, who identified seven precautions the defendant could have taken to address the hazard.
The defendant argued that the brightly coloured signage was highly visible and that reasonable persons would anticipate hazards as a possibility of shopping malls. They submitted that the services cover and warning signs, considered as a “whole package,” constituted an “obvious risk” under s 5F of the Civil Liability Act 2022 (NSW) which, if accepted, would have relieved the defendant of any duty to take further precautions pursuant to s 5H. The defendant also pleaded contributory negligence, alleging that Mrs Cheng’s injuries were caused wholly, or at least partly, by her own failure to keep a proper lookout.
Judgment
His Honour Judge Waugh SC considered whether a reasonable person in the defendant’s position would have taken the precautions alleged by the plaintiff, applying ss 5B(1)(c) and 5B(2) of the Civil Liability Act and the principles established in Adeels Palace Pty Ltd v Moubarak.
His Honour referred to earlier authority recognising that occupiers must anticipate that pedestrians will not always exercise perfect care. In Ratewave, Meagher JA held that it is reasonable to expect pedestrians may be “distracted or inattentive or even less than careful.” Similarly, in Raad v VM & KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust, McFarlan JA observed at [26] that, as the relevant area provided access between a shopping village and carpark, it was to be expected that all manner of people would be using it, including “the young and old, the attentive and the inattentive, and the hurried and unhurried.”
Applying these principles, His Honour found that the existing warning signs were inadequate. In particular, their placement failed to sufficiently warn pedestrians approaching from the direction that Mrs Cheng did, where visibility was partially obstructed by the pop-up store. The Court concluded that a reasonable person in the defendant’s position would have implemented at least one of the precautions proposed by the plaintiff’s expert. Those identified as reasonable were:
1. Repositioning the pop-up store so that the outlet fell within the store’s footprint;
2. Supplying power through an alternative source such as overhead cabling; or
3. Placing additional warning signs at or beyond the end of the services cover to account for the blind corner where Ms Cheng tripped.
Obvious Risk
His Honour rejected the defendant’s submission that the risk constituted an “obvious risk” under s 5F. Given Mrs Cheng’s direction of travel, the services cover and associated hazard were not readily apparent because her view was obstructed as she approached. The risk therefore did not enliven the obvious risk defence.
Contributory Negligence
His Honour also considered whether Mrs Cheng’s injuries were caused, at least in part, by her own failure to take reasonable care, applying s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) and ss 5R and 5S of the Civil Liability Act. The relevant question was whether Mrs Cheng failed to take the care that a reasonable person in her position, with the knowledge she had or ought to have had, would have taken for her own safety
His Honour held that a reasonable person rounding the corner would have been looking where they were walking, and that had Mrs Cheng done so, she would likely have noticed the services cover and warning signs in sufficient time to avoid the accident. As a result, her failure to look where she was walking amounted to contributory negligence.
However, the Court attributed significantly greater responsibility to the defendant, who had created the hazard and failed to implement reasonable precautions that could have prevented the risk entirely. Mrs Cheng’s damages were therefore reduced by 25% to reflect her contributory negligence.
Key Takeaways
This decision reinforces several important principles relevant to occupiers’ liability claims in New South Wales:
1. Occupiers of busy public spaces must account for the reality that pedestrians may be distracted, inattentive, or hurried.
2. Warning signs alone may not suffice, and a hazard may still pose an unreasonable risk even where warning signs were present if that signage did not adequately address the circumstances of the risk.
3. Whether a risk is an “obvious risk” depends heavily on the circumstances, which in this case included the Plaintiff’s direction of travel and obstructions to visibility.
4. Plaintiffs who fail to keep a proper lookout may still recover damages, however these may be reduced for contributory negligence.
If you have been injured as a result of a slip or fall, feel free to contact one of our lawyers for obligation free advice.
Written by Evelynn Wang
