Tim McKenzie –

1.  The law of negligence is concerned with a number of situations which create a relationship between the parties which can be described in certain circumstances as giving rise to a duty.  It is obvious that an employer owes a duty of care to an employee and that duty has been described as non-delegable.  See Kondis v State Transport Authority (1984) 154 CLR 672.

2.  Undoubtedly, there is also a non-delegable duty of care between a hospital authority and a patient and between a student and a school authority.

3.  In the area of occupier’s liability, however, there have in the past been distinctions based on the category of entrant which described situations where it was more likely for a plaintiff to recover in a claim in negligence against the occupier.  To use an obvious example, it was easier for a plaintiff to recovery if he or she was invited onto the premises than if they were seen as a trespasser.

4.  The special and general duties, however, gave way to a general duty of care in the case of Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.  After that it was necessary only to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff (1987) 162 CLR 479 at 488.  So far so good.  A question might then become what is in broad terms in broad terms the concept of negligence to encompass.

5.  A classic definition of negligence was expressed by Alderson B in Blyth v the Birmingham Waterworks Company (1856) EWHC J65 (Exch); (1856) 11 Exch 781 at page 784 in these terms:

“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”

6.  Although that definition has a comforting ring of assurance about it, it really lacks much in the way of content.  It could be paraphrased by saying that negligence is where the chaps in the club would look at a state of affairs and say “That’s not cricket!”  The popular press is usually excited by stories of greedy plaintiffs recovering absurd sums of money for simply slipping over in a supermarket.  Most of the journalism about these accidents is designed to show in a very unsubtle way how unjustified it is that a lady who breaks her leg when she slips on a grape at the Coles Supermarket can receive $200,000.00 in compensation essentially “for nothing” while you and I have to slog away for the rest of our lives and barely have enough money to pay our bills.

7.  But we have in New South Wales of course the Civil Liability Act, 2002 (NSW) which was enacted after the Ipp Royal Commission into the law of negligence delivered their final report.  The Civil Liability Act was passed with the intention to give guidance to the judiciary in regard to the application of the law of negligence in response to what some people described as an “insurance crisis” in New South Wales.  Normally the rhetoric associated with this was that judges were far too generous in awarding damages in situations where a shopping centre or a local Council or a school authority had provided facilities which led to injuries.  Plaintiffs were also far too ready to sue for damages and judges were far too ready to give away money hand over fist without analysing the impact on the insurers.  Judicial interpretation has now focused on “s.5B General Principles” of the Civil Liability Act and we see judges insisting now that the risk of injury be identified with some precision.  In previous times a plaintiff would assert a set of facts and rely on any risk of injury that emerged either from the oral evidence or, in some cases, the expert evidence.  It was not uncommon to assert several different risks and perhaps succeed on only one or two.  That approach these days appears to deprecated and what we are seeing is a call for plaintiffs to limit their risk by pleading and identifying with some precision the risk of injury which s.5B speaks about as “a risk of harm”.  I set out s.5B below.

Section 5B General Principles

(1)  A person whose not negligent in failing to take precautions against a risk of harm unless:

(a)  the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)  the risk was not insignificant, and

(c)  in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)  In determining whether a reasonable person would have taken precautions against a risk of harm, the Court is to consider the following (amongst other relevant things):

(a)  the probability that the harm would occur if care were not taken,

(b)  the likely seriousness of the harm,

(c)  the burden of taking precautions to avoid the risk of harm, and

(d)  the social utility of the activity that creates the risk of harm.

8.  I don’t agree that every injury arises from only one risk of harm and to limit a case to one risk is wrong in most cases.  Recent cases demonstrated how certain risks can be variously identified with certain consequence particularly in relation to the issue of obvious risk.  The case of Liverpool Catholic Club v Moore [2014] NSWCA 394 involved a plaintiff who put on skating boots which he had hired from the skating office and proceeded to descend a flight of stairs which provided access to the ice skating rink.  As he did so he slipped and fell backwards and suffered relevantly a fracture to the right ankle.

9.  Judge Levy of the District Court entered judgment for the plaintiff in the sum of $148,343.00.  On appeal the issue was whether the risk of harm which materialised was an obvious risk within s.5F of the Civil Liability Act.  If it was, the second issue was whether the appellant who ran the ice skating rink was under any duty to warn of the obvious risk within the meaning of s.5H of the Act.

10.  The Court of Appeal dealt with the facts extracted from the evidence at trial fairly succinctly.  The leading judgment was given by Meagher JA.  The plaintiff was wearing skating boots which had a single blade at the bottom of them which was over 330 mm in length.  It was noted that this was 73 mm longer than the average tread length of the stairs.  Consequently, the plaintiff could not put his boot down on the stair and have the boot fully supported by it as he was descending the stairs.  The only possible way that this could be achieved was by adopting what was called a “duck walk” so that the boots went at an angle as the plaintiff walked down the stairs.  Clearly the plaintiff did not do this, lost his balance and fell.

11.  His Honour Judge Levy thought that the plaintiff’s injury would have been avoided if he had been informed of the need for special precautions to be adopted for descending the stairs due to their dimensions and likely wetness.

12.  As Justice Meagher said the principle issue on the appeal was whether the primary judge erred in not holding that the risk of harm which materialised and resulted in the respondent’s injury was an obvious risk within s.5F of the Civil Liability Act.  If it was, the appellant had no duty to warn of that risk pursuant to s.5H.

13.  A few general principles were dealt with as a preliminary matter.  First of all quoting Roads and Traffic Authority of NSW v Dederer 234 CLR 330 (quoting Gummow J at 18), it is basic and settled that whatever its content or scope a duty of care imposes an obligation to exercise reasonable care.  His Honour stated that this basic principle informed s.5B of the Civil Liability Act which provides that a person is not negligent in failing to take a precaution against a risk of harm unless a reasonable person in that person’s position would have taken that precaution.  I might say the summary of what Gummow J said in Dederer may not take enough account of certain distinctions in the content of the duty of care.  For example, in the case of the employer, to duty is to ensure that reasonable care is taken (see Kondis at paragraph [32] per Mason).

14.  The first point to note is that as far as defendants are concerned it is not the actual defendant’s action that is determinative, it is the action of a reasonable person in the position of the defendant and consequently the test is supposed to be an objective one.

15.  The Court of Appeal stated that the primary judge correctly formulated the general duty of care of the appellant as occupier as being to take reasonable care to avoid a foreseeable risk of injury to persons entering its premises.  Justice Meagher thought that the Trial Judge had correctly addressed the issues in s.5B and that ground of appeal was dismissed.

16. In terms of obvious risk again the question is whether the risk would have been obvious to a reasonable person in the position of the defendant.  The risk to be obvious has been described as one which is clearly apparent or easily recognised or understood and various authorities were quoted for that principle at paragraph 23.  The risk which was the subject of the inquiry is the risk that matured and caused the plaintiff’s injury.  The forward looking enquiry required by s.5F is whether that risk of harm would have been obvious in the relevant sense to the hypothetical reasonable person in the circumstances of the plaintiff.

17.  It is quite clear when reading these cases that the law has now come to a stage where it is not relevant to find out what a real plaintiff did on a real defendant’s premises.  What is important is to determine what a reasonable person in the position of the plaintiff would have done on premises which were controlled by a reasonable person in the position of the defendant.  This makes a consideration of what the actual plaintiff did or how the actual defendant responded problematic.

18.  Justice Meagher stated this:

“32. The enquiry as to the respondent’s actual knowledge of those matters was irrelevant except to the extent that how he acquired any actual knowledge may have been relevant to the forward looking enquiry as to whether the risk would have been obvious to a reasonable person in the circumstances of the respondent.

33. I understand his reference to “constructive” knowledge to be a shorthand way of referring to the knowledge that a reasonable person in the respondent’s position should be taken to have had.  In relation to an enquiry as to that knowledge it would be relevant to know whether the respondent had been given any general or specific warning of risk because the fact of such a warning would be a circumstance to be taken into account when considering what would have been obvious to a reasonable person in the position of the respondent.”

19.  I am not sure I completely understand the subtlety of the distinction.  It seems to be that his Honour is saying that although the actual knowledge of the plaintiff is irrelevant, it would be relevant to know what warning was actually given to the plaintiff because that warning would condition what should have been obvious to a reasonable person in the position of the plaintiff.  In any event, in this case there was no relevant warning given to the plaintiff that his stairs would overstep the nosing which would commonly cause a reasonable person in the position of the plaintiff to fall.  His Honour found that no such warning was required as the risk of falling in the circumstances was obvious.  His Honour dealt with this at paragraph [40]:

“The respondent was 18 years of age, he was not familiar with the appellant’s ice rink and was a relatively inexperienced skater.  He was wearing a size 13 skate boot, the blade of which was significantly longer than the tread of any stairs.  It would have been apparent to a person in his position that the risk of falling when walking down the stairs was significantly heightened by the fact that he was wearing skating books.  His only contact with the surface of the stairs was with the skate blade, making it more difficult for him to maintain his balance, and that blade was much longer than ordinary shoes and longer than the stair treads.  Each of those matters also was readily apparent.  In addition, the fact that there was balancing and other difficulties in descending the stairs in those boots was easily observed from the actions of the patrons who descended whilst the respondent was standing at the top of the stairs.”

20.  The primary judge erred in not finding that the risk of harm was obvious within the meaning of s.5F.

21.  Quite fairly, his Honour noted (at 43) that s.5F does not apply to take any other reasonable step to prevent, avoid or minimise harm from an obvious risk.  His Honour noted that the case under consideration it could be accepted that the centre had a duty to take reasonable care to provide a safe means of access to the ice rink.  However, he noted that the plaintiff’s case was not that the only means of access to the ice rink provided required the use of stairs wearing skating boots and that the appellant was negligent in not providing some other means of access.

22.  The defendant’s case was that the ice rink could be safely accessed by walking down the stairs in ordinary footwear and putting skating boots on in an area at the bottom of the stairs which contained chairs.

23.  Although the decision in the case is not too much of a surprise, it shows that there will be difficulties in a plaintiff succeeding in situations where plaintiffs rely only on any duty to warn.  A better case for the plaintiff which was not pressed at trial would be that the defendant was under a duty to provide safe access in circumstances where it knew or ought to have known that people would attempt to negotiate the stairs while wearing skating boots hired at a higher level at the centre but as Justice Meagher noted that was not the case pressed at trial and the plaintiff failed.

24.  In Jackson v McDonalds Australia Ltd [2014] NSWCA 162 a plaintiff slipped and fell at a McDonalds “restaurant” in circumstances where the floor of the shop had recently been mopped.  The facts emerged from the judgment of Barrett JA at paragraph [62].  The plaintiff noticed that cleaning was in progress as soon as he entered the premises.  He saw that the floor beyond  white double tiled area at the top of the stairs was wet from recent mopping which also produced certain smells associated with cleaning products.  The wetness from mopping was across the whole floor.  The plaintiff referred to a “thin film of water”.  He said initially that when he was on the second or third step from the top his right foot slipped from under him, although in the witness box he retracted that and said he probably slipped at the top of the stairs (paragraph [63]).  The plaintiff admitted (paragraph [64]) that he saw one or more signs warning of the wet floors near the counter.  When he was served, he retraced his steps to leave the premises and then slipped and fell.  This implies of course that the plaintiff had walked through the water on the way to the counter to be served.

25.  The cleaning company (Holistic) was under a duty to take precautions against foreseeable risk of harm to persons walking on the floor that a reasonable person would have taken, according to the Court of Appeal.

26.  Justice Barrett stated that the primary judge erred by not making any finding in relation to breach.  The primary judge in this case was Gibson J of the District Court.  Barrett JA stated that the starting point for determining whether breach of duty of care had occurred was s.5B of the Civil Liability Act which provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable and not insignificant.  He noted that the risk of a person slipping on a wet floor after walking through it was plainly foreseeable in the sense that it was known or ought to have been known.  He noted that the risk was not insignificant because although not likely to materialise it was nevertheless not trivial.

27.  The plaintiff failed because in the circumstances the Court of Appeal found that the risk was obvious and there was no necessity pursuant to s.5H to warn of that risk.  Barrett JA dealt with it in this way at [105]:

“105. Common knowledge would have told a reasonable person in the appellant’s position that in those circumstances the soles of his shoes might still be wet when he began to descend the stairs.  Common knowledge would also have told such a person that descending the stairs while wearing shoes with wet soles involved a risk of slipping that was not encountered when descending stairs while wearing shoes with dry soles.

106. It follows in my view that if the risk to which the appellant succumbed was that of slipping because of wet soles, the risk was an obvious one even though the foregoing analysis does not correspond precisely with that made by the primary judge but in the present context the only consequence in terms of the defendant’s liability is that prescribed by s.5H(1) of the Civil Liability Act, that is that McDonalds (and if relevant Holistic) did not owe the appellant a duty of care to warn of that risk.  The finding of obvious risk is thus irrelevant to the breach of a duty of care consisting of failure to mop in sections or otherwise in a way ensuring that there was always available passage for pedestrians to cross dry area.”

28.  Apart from the minor difference in relation to the discharge of the respondent’s duty in relation to the precautions they would have taken, the plaintiff in this case failed in relation to breach of duty under s.5B as well and consequently the decision was not based on obvious risk alone.

29.  Towers v State of NSW [2015] (see list of authorities attached) Another case where slipping played a vital part in the determination was a slightly unusual case as far as slipping cases go in that it was a matter context of a cleaner at work at school premises.  Although it was a public liability situation it was somewhat out of the usual in that the plaintiff was a contractor working at the premises where he slipped and fell.  It was raining heavily at Taree West Public School and the plaintiff attended to clean the premises at approximately 2:30 pm.  At approximately 4:30 pm at a time when it was still raining heavily, he walked from the permanent school rooms to an area where there were demountable classrooms.  He was carrying a bucket and a mop in his right hand and cleaning materials in his left hand.  He walked up four steps to a demountable classroom to a landing outside the door which was marked room 16.  He realised that the room was not on his list to be cleaned and he turned to exit via the same four steps.  As he did so his feet slipped from under him and he fell heavily down the stairs injuring his right hip.  This much emerges from the facts as set out by the Trial Judge Mahony SC, DCJ.

30.  His Honour set out facts and made relevant findings at paragraph 65.  He stated as follows:

“65. The risk of harm here was the risk of someone slipping and falling when negotiating the stairs in wet weather.  Pursuant to s.5B(1) that risk was foreseeable and not insignificant.  The question then in determining  whether there has been a breach of the defendant’s duty of care as occupier of the premises was whether a reasonable person in the defendant’s position would have taken the precautions advocated by the plaintiff against that risk of harm.  Those precautions are set out as the particulars of negligence … and essentially amount to a system of inspection and maintenance that would ensure that the stairs were kept in a good state of repair, in this case meaning that the surface of the stairs which had deteriorated with wear in the past and had been repainted with a non-slip surface, would be maintained in a safe condition

69. In determining whether a reasonable person in the position of the defendant would have taken precautions against the risk of harm, the court is to have regard to the matters set out in section 5B(2) of the Civil Liability Act.  I find that it was probable that the harm would occur in wet conditions if reasonable care was not taken by the defendant.  This was clearly a risk which was known to the defendant and which they had responded to by taking precautions on two previous occasions.  It was also a risk which involved the likelihood of serious injury if a person fell on the stairs.  The burden of taking the precautions to avoid that risk of harm was minimal, the evidence establishing the cost of painting the stairs was between $100 and $150.  Clearly there was a social utility ensuring that the stairs were safe for all passage in all weather conditions.”

31.  His Honour then referred to the expert evidence and went on to say:

“72. I find in circumstances where the defendant must have known that the steps were subject to wear and had required repainting with a non-slip paint on two occasions in the past and were dangerously slippery when wet, that reasonable care on the part of the defendant required it to take precautions advocated that is to inspect and repaint the steps.  It did not do so and its failure was left unexplained by those who were responsible for doing so.  I find the defendant breached its duty of care to the plaintiff.

73. As to causation pursuant to section 5D of the Civil Liability Act I find that negligence was the necessary condition of the occurrence of harm on the but for test.  See Strong v Woolworths Limited (2012) 246 CLR 182.  Therefore factual causation has been made out and I further find that it was appropriate for the scope of the defendant’s liability to extend to the risk of harm so caused and therefore I am satisfied as to the scope of liability as required by section 5D(1)(b).

74. I therefore find that the defendant breached its duty of care as occupier of the premises to the plaintiff and that negligence was causative of the plaintiff’s injuries.”

32.  It seems to me that Judge Mahony’s decision ticks all the boxes in relation to how a decision of this nature should be reached.  If a decision is challenged in the Court of Appeal I would predict it would be difficult for the State of New South Wales to establish error on the facts of this case and the way that it was handled by Judge Mahony.

33.  The three cases above are only indicative of factual situations where plaintiffs have slipped and fallen or missed their step and fallen.  Intuitively both the decision in Liverpool Catholic Club v Moore and Jackson v McDonalds Australia Limited would have been difficult cases to win in any event regardless of the judge.  On the other hand, the case of Towers v The State of New South Wales given the fact that the stairs had been previously painted twice with non-slip paint which had worn off would suggest that the plaintiff had a reasonably strong case against the occupier.

34.  The occupier in the case of Liverpool Catholic Club v Moore was blamed for a failure to warn although really the plaintiff’s complaint should have been that there was no safe access to the skate rink once he had chosen to put on his skates at the top of the stairs.  If the plaintiff could have recast his case in terms of what is suggested above then failure to warn would not have been the determining factor.  In Jackson’s case the fact that the plaintiff could see that cleaning was in process and could see that the steps were wet was enough to suggest that any case based on failure to warn was going to be very difficult, if not impossible.  There are cases, however, where warning signs will be inadequate for a plaintiff who slips at a shopping centre premises and I will refer to those in the course of the seminar but in relation to obvious risk, I would like to take you to a fairly recent case which I will try to explain in some detail at the seminar and that is Schultz v McCormack [2015] NSWCA 330.  This case concerns a slip from stairs on private premises after a dinner party and bears some close scrutiny in terms of useful principles.

35.  I hope this paper points out some difficulties in relying too narrowly on warnings.  “Obvious risk” will not defeat cases as was demonstrated in Thompson v Woolworths (Qld) Pty Ltd 221 CLR 234.  It certainly will not negate the overall duty of care.  It is only the effect of s.5F of the Civil Liability Act that causes problems where the failure to warn is the only ground relied upon.  However, there is no reason, in most cases, why a case should be limited to that alone.


Tim McKenzie

19 November 2015