Schultz v McCormack [2015] NSWCA 330

The New South Wales Court of Appeal has upheld an injured’s guests appeal who slipped on wet tiled steps. The factual matrix would be common to many households – around midnight a guest leaves the residence of long term friend after it has rained earlier that evening, and slips while walking out of the tiled undercover area to tiled surface that was not completely protected by the veranda.

Home occupiers have tended to have had the benefit of a lower response to the risk of injury – Neindorf v Junkovic [2005] HCA 75; 80 ALJR 341; 222 ALR 631 at [14]:

Not all people live, or can afford to live, in premises that are completely free of hazards. In fact, nobody lives in premises that are risk-free. Concrete pathways crack. Unpaved surfaces become slippery, or uneven, many objects in dwelling houses could be a cause of injury. People enter dwelling houses for a variety of purposes, and in many different circumstances. Entrants may have differing capacities to observe and appreciate risks, and to take care for their own safety. … The response of most people to many hazards in and around their premises is to do nothing. The legislature has recognised, and has reminded courts, that, often, that may be a reasonable response.

This approach was applied in: Graham & Ors v Welch [2012] QCA 282. However, in circumstances where knowledge of a danger was known or ought to have been known to the occupier, together with adverse credit findings, the occupier has recently been found liable in Queensland: Johnson & Anor v Hancock [2014] QCA 130

 

The New South Wales Court of Appeal decision highlights the need to return to the basics [70] – [76]; [86] & [153] and assess the duty of care, foreseeability and breach and not to take the duty of care for granted or that the home occupier generally has the benefit of not having to address everyday hazards. In so doing the Court found the occupier ought to have been aware of the slipperiness of the steps and relied on the expert evidence [111]; [115] & [138], because of the conflict of the state of knowledge of the occupiers and their guests as to the slipperiness of the steps. In reconciling the conflict as to the knowledge of the occupiers, the Court found that the occupiers had adapted to the slippery tiled steps, even though they were unware of it [116]; [117] & [138] – [139]. The fact there had been no prior incidents did not deter the Court from finding that a reasonable occupier ought to have been aware [110] & [138].

Once this finding was made, it was then a matter to determine what the reasonable response ought to have been. The occupier had given evidence that after the incident a non-slip adhesive had been applied, but without a reduction in slipperiness. The Court however; relied on the occupier ought to have given a warning and bolstered this with a slip resistant mat [119]; [141] & [153].

As to whether it was an obvious risk, the Court found it was not, because the appellant was walking from dry tiles onto wet tiled steps, with the light behind her and thus walking into her shadow. The veranda was found to partly covered the entrance and hence the rain had wet the outlaying tiles and ingressed into some of the undercovered area [90] – [107]; [142] & [153].

HEADNOTE

[This headnote is not to be read as part of the Judgment]

The appellant, Sheran Ann Schultz, was injured when she slipped and fell on a tiled floor, which was, in effect, the top step of the verandah of the home of the respondents, Norman McCormack and Cathryn McCormack.

The accident took place at about midnight. The surface of the verandah had become wet due to rainfall earlier that evening, causing the appellant to slip on it whilst turning to walk down the steps having kissed one of the respondents goodbye. As a result of her fall, the appellant fractured her right ankle and sustained various soft tissue injuries. The respondents claimed that since tiling the front porch in about 2004 – 2005, neither had noticed any slipperiness in relation to the porch; nor had there been any other accidents on the tiles.

The appellant commenced proceedings in the District Court claiming damages for the respondents’ alleged negligence. The appellant’s statement of claim pleaded that the respondents ought to have warned her that the tiles on the landing were unusually slippery when they became wet, and that the tiles were likely to be excessively slippery, in circumstances where the respondents knew, or ought to have known, that the tiles had become wet due to rainwater reaching them.

The appellant failed in her action in the District Court. The primary judge found that while the risk of slipping on the wet steps was foreseeable and not insignificant, the appellant’s fall and injury was the materialisation of an “obvious risk” within the meaning of s 5F of the Civil Liability Act 2002 (NSW) (“CLA”) such that the respondents did not owe her a duty of care to warn her of it. Notionally, his Honour assessed the appellant’s contributory negligence at 50 per cent.

The appellant appealed against his Honour’s decision.

The following issues arose on appeal:

(i)   whether the primary judge erred in characterising the risk for the purposes of s 5B, CLA;

(ii)   whether the primary judge erred in finding that the risk she encountered was an “obvious risk”;

(iii)   whether the primary judge should have found that the respondents were negligent;

(iv)   whether the primary judge erred in finding, in the event the respondents were negligent, that the appellant was guilty of contributory negligence; and

(v)   whether the primary judge erred in his assessment of the appellant’s domestic assistance claim.

Held:

As to issue (i)

(1)   The primary judge identified the risk as slipping on the landing, or possibly the steps, because it was or they were wet. That was a sufficient description of the risk of harm (at [87]).

As to issue (ii)

(2)   The matters the primary judge attributed to either the appellant, or a reasonable person in her position, were unrealistic. The protected area on which she was standing immediately prior to the accident was dry, and there was no evidence that in the circumstances, the appellant was aware or should have been aware of the discrepancy between that area and the unprotected area on which she slipped. His Honour erred in attributing to a reasonable person in the appellant’s position a perception that the porch may be wet due to wind-blown rain (at [92] – [105]).

Collins v Clarence Valley Council [2015] NSWCA 263; Wyong Shire Council v Vairy [2004] NSWCA 247; (2004) Aust Torts Reports ¶81-754 applied

As to issue (iii)

(3)   The occupants of a house with tiled surfaces with the degree of slipperiness present on the respondents’ verandah ought to have realised that that was the case bearing in mind that the tiles had been in place for five or six years. They ought to have known of the high risk of slipperiness the tiles posed when wet. The risk of harm in such a context was foreseeable and not insignificant. In those circumstances, his Honour should have found that a reasonable person in the respondents’ position would have taken precautions, such as providing matting or giving a warning, against the risk of harm. His Honour therefore erred in failing to find the respondents breached their duty of care (at [113] – [118]).

As to issue (iv)

(4)   As the risk to which the appellant was exposed was one of which she did not know, or ought to have known, it was not open to the primary judge to conclude that the appellant had been guilty of contributory negligence (at [120]).

As to issue (v)

(5)   The question whether the appellant had established there was a reasonable need for the services she claimed was essentially an evaluative exercise. The primary judge’s findings concerning past and future domestic assistance were open to his Honour, based on observations he was better positioned than this Court to make (at [124] – [127]).

Dell v Dalton (1991) 23 NSWLR 528 considered

 

 

David Cormack – Brisbane Barrister & Mediator

 

 

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