WCRA: ubiquitous mat fails the prospective foreseeability test

Valentine v D & C Masters Painters & Decorators Pty Ltd [2016] QDC 203 

Robertson DCJ

The plaintiff was a painter working as an employee of the first defendant, Masters. In 2012 the plaintiff suffered personal injury as a result of slipping on a door mat as he was exiting the premises at which he was painting. He suffered an injury to his lower back which required surgical intervention. He brought a claim against Masters, his employer, and the State of Queensland, the occupier of the building, alleging that the defendants breached their duty by failing to identify the door mat as a potential hazard.

 

The defendants agreed that they both owed a duty of care to the plaintiff, however, maintain that there was no breach of that duty. Relevantly, the issue for Robertson DCJ was whether Masters and or the State should have identified the door mat as a hazard and accordingly remove it.

 

In finding for the defendants, Robertson DCJ was not satisfied that the risk of slipping on the mat was foreseeable. His Honour made reference to Bowskill QC, DCJ in Fox v State of Queensland. In that case, Bowskill QC, DCJ set out the relevant principles:

 

[74] [U]nder the legislation a foreseeable risk is a risk of which the defendant knew, or ought reasonably to have known. Of an identically worded requirement in s 5B(1)(a) of the Civil Liability Act 2002 (NSW), in Benic v New South Wales [2010] NSWSC 1039 at [92] Garling J said:

‘… the plaintiff must satisfy the Court that the defendant, at the date of the alleged negligence, knew of the alleged risk of harm, or else, by reference to other facts, matters and circumstances ought to have known it. Those other matters will vary from case to case but may include such things as the common knowledge and experience of others in the similar position of the defendant, public notoriety of a particular risk of harm, publications and academic knowledge which might be expected to be read by people in the defendant’s position and the obviousness or the likelihood of the event happening when using common sense.’

 

In the present case His Honour also referred to MacFarlane JA in Searge v State of New South Wales where MacFarlane JA explained:

 

[32] It would be a large step to take to find as a general proposition that employers have an obligation to warn or take other precautions in relation to everyday activities in which employees might incidentally engage in the course of their employment, being activities which if not performed with care might lead to injury. Should employers reasonably be expected to warn employees not to cut themselves when using knives in the staff kitchen? Or not to scold themselves when pouring water which they had boiled for their tea or coffee? Or to be careful when ascending or descending stairs? Or not to bump into furniture?

 

After reviewing evidence from an expert in summing up the present case, Robertson DCJ stated that the door mat was a matter of course and that there was nothing unusual about it. He said:

 

[36] … the mat as described by Ms Callaghan was ubiquitous in the sense that it was the type of mat one would expect to see at the front door of residential and commercial premises as a matter of course. There was nothing about the mat that called for it to be inspected … The fact that Mr Valentine did slip is not to the point. Foreseeability is to be judged prospectively, from the point of view of the defendant, in circumstances that were known or ought to have been known at the time of the injury.

 

Robertson DCJ was not satisfied that the defendant knew or ought to have known that slipping on the door mat would lead to an injury. Accordingly, the plaintiff’s claim was dismissed.

 

David Cormack – Brisbane Barrister & Mediator

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