The Plaintiff, Lesley Cheng, fell when she tripped on a services cover positioned in the common mall area to supply power to a temporary G‑Free Donuts pop‑up store (Incident). Two A‑frame warning signs had been placed directly on the services cover.
The Plaintiff had been an infrequent visitor to the Centre over several decades and had never encountered service covers in the Centre's common mall areas in that time. On the Incident date, her peripheral vision was restricted by a face mask, though she was aware of this. The Court rejected the contention that the Plaintiff had been walking 'quickly', but accepted she had been briefly distracted by her interaction with the pop‑up store employee before the fall.
On 23 February 2026, Waugh DCJ entered judgment for the Plaintiff in the total sum of $72,240, (which incorporated a 25% reduction for contributory negligence).
Liability – Breach of duty
The Plaintiff relied on expert evidence from ergonomist Neil Adams, who identified seven precautions the Defendant could have taken. The Court accepted that reasonable care required the Defendant to adopt three of those measures, including:
- Repositioning the pop‑up store so the electrical outlet sat within its physical footprint. This would have avoided any cable or services cover being placed in the pedestrian path and imposed minimal burden;
- Supplying power from an alternative source, such as overhead cabling. The expert’s live demonstration supported this option, which the Court regarded as practical and not onerous; and
- Providing additional A‑frame warning signs placed at or slightly beyond the northerly end of the services cover. While the Court accepted the existing signs were not themselves inadequate, their placement did not account for the blind corner created for pedestrians approaching from the south.
The remaining precautions - placing a table over the services cover, installing angled temporary barriers, instructing pop‑up staff to provide verbal warnings, or conducting a post‑installation inspection - were considered to be unnecessary, unreasonable, or subsumed within broader considerations.
Drawing on the cases of Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103 and Raad v VM & KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust [2017] NSWCA 190, the Court emphasised that occupiers must anticipate distracted or inattentive pedestrians, particularly where the layout of temporary installations creates asymmetrical visibility. While the services cover and A-frame signs were visible from the north, they were effectively obscured for pedestrians approaching from the south until they rounded the corner, leaving insufficient reaction time.
Causation
Causation was satisfied on the basis that either relocating the outlet or supplying power from above would have eliminated the services cover entirely, and additional signage would have provided increased visual lead time for hazard detection.
The Court accepted that each of these precautions, independently, would likely have prevented the Incident.
Contributory negligence
The Defendant alleged the Plaintiff failed to keep a proper lookout and should have slowed due to her restricted peripheral vision. The Court agreed the Plaintiff bore some responsibility for the Incident, concluding that on rounding the corner of the pop-up store, the services cover and A‑frame signs were sufficiently conspicuous that the Plaintiff would have seen them had she been looking where she was walking. However, acknowledging the constrained sightlines and limited reaction space, his Honour assessed contributory negligence at 25%.
Implications
This case highlights the importance of risk‑assessment protocols around temporary tenancies, and the potential exposure where relatively low‑burden precautions - such as repositioning structures or adding warning signs - can prevent injury. It underscores the need for shopping centre occupiers to proactively assess and manage visibility‑related hazards, particularly where obstacles may be obscured from certain pedestrian approaches. It also confirms that even when warning signs are present and a hazard is technically visible, liability may arise if the configuration provides insufficient time or opportunity for detection and avoidance by users of varying attentiveness. The Court’s willingness to find contributory negligence (25%) but still impose liability emphasises that occupiers are expected to anticipate distracted or inattentive pedestrians.
