- Friday, April 6, 2018
Authors: Glenn Biggs, Partner and Sarah Berkman, Solicitor
The recent decision of The Thistle Company of Australia Pty Ltd v Bretz & Anor  QCA 6 concerns an appeal by the Thistle Company of Australia, who was the owner / operator of a service station, to overturn a decision of the District Court of Queensland in favour of the plaintiff, Mr Bretz, for injuries sustained whilst on their premises.
The incident occurred when Mr Bretz, after filling up, struck the ball of his foot upon the concrete base (or plinth) surrounding the petrol bowser when walking from his car to the pay station.
At first instance, the District Court found the plinth a foreseeable, not insignificant risk, and a reasonable service station operator 'would not have obscured the visibility of the plinth by repainting it in the same colour as the surrounding ground'. The Court of Appeal agreed with the trial judge’s findings, noting the repainting resulted in a 'colour homogeneity of the stepped levels'. The Application for leave to appeal was therefore refused and costs of the appeal were awarded.
The plinth extended 300mm from the bowser, some 37 - 39mm high. While initially the plinth was painted yellow, the yellow paint over time became slippery and deteriorated. The area was then painted black with a brushed finish. Evidence showed, following the change in colour, complaints were made by customers however no formal incident reports were made.