Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482

Barrett JA at [1] Gleeson JA at [2] Sackville AJA at [3]

Sackville AJA

Was the Risk Obvious?

59 The definition of “obvious risk” incorporates an objective test but one that is to be applied by reference to the position of the person concerned. In a passage that has been frequently cited, Tobias JA observed in Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418, at [98], that:

It is clear from the definition of ‘obvious risk’ in s 5F that one is required to have regard to the particular circumstances in which the [plaintiff] suffered the relevant harm and determine whether the risk which resulted in his suffering that harm would have been obvious to a reasonable person in his position. In other words … all of the surrounding circumstances which occurred immediately prior to the [plaintiff’s] suffering the relevant harm must also be identified for the purpose of determining whether the risk which materialised was ‘obvious’.

In the same case (at [100]) Tobias JA repeated the definition of the word “obvious” that he had put forward in Wyong Shire Council v Vairy [2004] NSWCA 247; (2004) Aust Torts Reports 81-754, at [161]:

‘Obvious’ means that both the condition and the risk are apparent to and would be recognised by a reasonable man, in the position of the [plaintiff], exercising ordinary perception, intelligence and judgment.

60 In Council of the City of Greater Taree v Wells [2010] NSWCA 147; 174 LGERA 208, Beazley JA (with whom McColl and Basten JJA agreed) summarised the authorities construing the definition of “obvious risk” as follows:

75. Whether a risk is obvious is determined objectively, having regard to the particular circumstances in which the … plaintiff … was in: see Fallas v Mourlas (2006) 65 NSWLR 418, where Ipp, Basten and Tobias JJA determined that “the position of the plaintiff” comprehended the particular circumstances in which the risk materialised and the harm was suffered.

76. The question of obvious risk requires a determination of whether the [defendant’s] conduct involved a risk of harm which would have been obvious to a reasonable person in the position of the [plaintiff]: Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Reports 81-874 at [93]. In Great Lakes Shire Council v Dederer [2006] NSWCA 101; (2006) Aust Torts Reports 81-860 Ipp JA (Handley and Tobias JJA agreeing) stated that the position of the plaintiff will include the plaintiff’s knowledge and experience of the relevant area and conditions (see Ipp JA at [152]). (The question of obvious risk was not dealt with by the High Court in Roads and Traffic Authority of NSW v Dederer; see also Santow JA in C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [106]-[108]). In Fallas v Mourlas Basten JA, at [153], stated that for the purposes of s 5F, it was necessary to identify the circumstances and extent to which “the aspects of ‘the position’ of the plaintiff” are to be ascribed to the reasonable person.

61 Since the test is objective, it is not the plaintiff’s state of mind that is determinative, but what a reasonable person in his or her position would regard as obvious. Even so, as Ipp JA stated in Great Lakes Shire Council v Dederer [2006] NSWCA 101; (2006) Aust Torts Reports 81-860, at [164], the plaintiff’s evidence is relevant to the assessment of what a reasonable person would know about the risk. For that reason, Ipp JA took into account the knowledge that Mr Dederer, who had been injured diving from a bridge, had as to the depth of water, the sign prohibiting diving and the existence of a sandbar. See also Carey v Lake Macquarie CC, at [96]-[99], per McClellan CJ at CL.

62 Mr Sexton pointed out that the Plaintiff had been cross-examined as to her knowledge that the cleaner was mopping the very area over which she walked. She agreed that she had seen the cleaner with a mop in his hand. No doubt this evidence justified the finding made by the primary Judge (at [51]) that it would have been obvious to the Plaintiff that the cleaner was using water on the surface ahead of her. But as his Honour observed, the risk that was said to be obvious was a different one, namely the lubricating effect of wet shoes coming into contact with a moving (but dry) steel surface. The Plaintiff was not asked whether she appreciated that risk or had any previous experience of walking with wet shoes on this or any other travelator.

63 Mr Sexton accepted that the onus of proving that the risk was obvious rested on Glad Cleaning. He submitted, correctly, that the fact that the Plaintiff was not asked about her subjective appreciation of the risk was not necessarily fatal to a finding that the risk was “obvious”, although in my opinion the absence of evidence on that point is a factor to be taken into account. When asked to identify the basis on which the primary Judge’s finding (that the risk was not obvious) should be overturned, Mr Sexton replied that it was “a matter of common sense”.

64The Plaintiff’s circumstances at the time the accident occurred have to be taken into account. She appreciated that the rubber section was wet and that she had to proceed carefully because the floor was wet. She did in fact proceed carefully. She then had no choice but to use the travelator in order to reach the car park. A reasonable person in her position, in order to regard it as obvious that there was a particular risk associated with the lubricating effect of moisture on the underside of shoes coming in contact with the moving travelator pallets, would need to appreciate at least that:

  • an accumulation of moisture on shoes is capable of creating what the experts described as a “tribological” effect;
  • the surface of the pallets was what the experts described as hydrophilic rather than hydrophobic;
  • the plaintiff had accumulated sufficient moisture on the undersides of her shoes to create the tribological effect when she came in contact with the moving pallet; and
  • the risk was exacerbated because of the travelator’s degree of inclination.

65 The Plaintiff carefully negotiated the section being mopped by the cleaner. In doing so, it is likely that she attempted to minimise the extent to which the undersides of her shoes became wet. There is no evidence to suggest that the Plaintiff’s footwear was especially likely to accumulate moisture or that a reasonable person in her position would have expected that the extent of the accumulation of moisture was unusual.

66 In these circumstances, I do not think that “common sense” provides a sound basis for overturning the primary Judge’s finding that the risk was not “obvious” within the meaning of s 5F(1) of the CL Act.

David Cormack – Brisbane Barrister.

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