A recent NSW Court of Appeal decision has emphasised the duty of care owed by occupiers extends to implementing additional measures to prevent slip and falls on their premises during adverse weather.
In Sutherland Shire Council v Safar [2017] NSWCA 203, the Court of Appeal dismissed an appeal made by a local government against a trial judge’s findings that it was responsible for a patron’s slip and fall.
Facts
Ms Safar was attending a dance eisteddfod at the Sutherland Entertainment Centre on 23 June 2013 when she slipped on wet parquetry floor adjacent to the foyer. The Council was the owner and occupier of the premises. It was a rainy day and Ms Safar claimed the Council was aware, or should have been aware that water had accumulated on the parquetry floor and that the Council ought to have taken steps to eliminate or reduce the risks of slipping.
The expert evidence confirmed that, when wet, parquetry floor becomes very slippery. The Council produced evidence that it was aware of previous incidents of patrons slipping on the floor when it was wet.
Trial Outcome
Ms Safar was successful at first instance and awarded $288,820 in damages.
His Honour Levy DCJ SC, found that:
- It was reasonably foreseeable that a patron could slip and fall on the wet parquetry floor
- The Council should have taken the following precautions
- Provided a bucket for umbrellas
- Provided patrons with a place for raincoats to be hung up (such as a cloak room)
- Provided a bagging system for wet umbrellas
- Employed a person with a mop to wipe water on the floor after people had entered the auditorium
- Placed mats on the ground
- Had the precautions been taken, the floor would have remained dry
- The breach of duty by the Council caused the plaintiff’s injury
- The risk in question (slipping on wet floor) was an obvious risk and in accordance with the Civil Liability Act 2002, the Council had no obligation to warn of it.
The Council appealed the decision on five grounds. The first three grounds related to reasonable precautions which should have been taken by the Council and the last two related to causation.
Appeal
The Court of Appeal dismissed the Council’s appeal. It was unanimously held that the Council breached its duty of care by failing to take reasonable precautions to prevent patrons from bringing wet raincoats and umbrellas into the auditorium.
The Council argued the precautions were not reasonable in the circumstances.
In relation to providing a bucket for wet umbrellas, the Court of Appeal noted that “it would have been a matter of inexpensive simplicity for the Council to have placed bins or receptacles at some appropriate location or at several locations near the entrance to the auditorium that were suitable for the deposit of wet umbrellas. The provision of one bin near the box office was inadequate for that purpose” [78].
The Court of Appeal also noted that providing a bagging system for wet umbrellas was reasonable in the circumstances and should have been contemplated by the Council.
Justice Harrison (with White JA dissenting and Macfarlan not considering the issue) agreed with the trial judge’s finding that it was entirely reasonable for the Council to insist that patrons leave wet raincoats or other wet items outside the auditorium.
The Court of Appeal disagreed with the trial judge’s conclusion that reasonable precautions extended to placing mats on the ground.
With respect to the provision of a person inside the auditorium to monitor the floor and mop up water, Justice Harrison disagreed with the trial judge’s finding that the Council should have taken this precaution. He noted that in circumstances where inside the auditorium performances were taking place and the lights were dimmed, it was practically impossible for a person to monitor the floor. Justice White conversely, thought it was reasonable for the Council to employ someone to check the parquetry floor for water and mop up any water, immediately before the commencement of the eisteddfod.
In relation to causation, the Court of Appeal noted that there were no other competing causes for the presence of water on the floor. The Council permitted people with wet umbrellas and raincoats to enter the auditorium which resulted in water being deposited on the floor. Had the Council taken the precautions listed above, the floor would have remained dry.
The trial judge concluded that the Council did not owe a duty to warn the plaintiff of the risk of the floor being slippery as it was an obvious risk. Justice Harrison agreed with this finding. Justice Macfarlan disagreed the risk was obvious because two and a quarter hours elapsed between when the plaintiff saw the water on the floor and when she slipped. Justice White did not consider the issue.
Key points
This decision highlights the various precautions public venues and facilities should take to prevent or minimise the prospects of slips and falls occurring during wet weather.
In determining what precautions a reasonable person in the position of the occupier should have taken, the Court had regard to how slippery the floor in question would be when wet and the history of previous falls at the venue.
It is not enough for a plaintiff/entrant to establish that, had reasonable precautions been taken the risk of injury would be reduced. Instead, what must be shown is that on the balance of probabilities, had reasonable precautions been taken, the slip and fall would not have occurred. This is a question of fact to be determined using common sense.
For more information or discussion, please contact HopgoodGanim Lawyers’ Insurance and Risk team.