- The owner’s knowledge of extraneous conditions will be relevant when determining the scope of the duty of care pursuant to s 5B(2)(a) and (b) of the Civil Liability Act 2002 (CLA).
- In this case, a property owner’s specific knowledge of the weather conditions and his opportunity to inspect and otherwise remove a mat which had been exposed to the elements over a period of years were relevant in determining the nature and scope of the owed duty to the plaintiff.
- The risk of an unsecured mat sliding on a polished floor when a person walked on it was foreseeable and the risk itself was not insignificant. A reasonable person in the owner’s position would have taken precautions to inspect the underside of the mat and place either a non‑slip material beneath it or simply not use the mat at all.
Margaret Hair (plaintiff) was employed as a property manager and was the managing agent of a property owned by Mr Harry and Mrs Jann Dillon (first defendants) and located in the Blue Mountains in New South Wales. The property had been leased to Emma Munro (second defendant) who had terminated the lease and was in the process of vacating the property at the time of the accident.
The plaintiff commenced proceedings against both the first defendants and the second defendant.
It was determined at first instance, and not challenged on appeal, that the first defendants were the relevant occupiers, not the second defendant, and whilst judgment was entered in favour of the second defendant, the first defendants were nonetheless ordered to indemnify the plaintiff in respect of the second defendant’s costs. Nothing further turns on this.
The plaintiff fell as she was exiting the property. She put her left foot on a mat on the floor inside the front door and claims that the mat moved very quickly underneath her feet. The floor under the mat was polished timber floorboards which were described as being “highly polished and sealed”.
Whilst there was some contest as to who owned and/or placed the mat on the floorboards, it was ultimately accepted that the mat had been outside for a considerable length of time, possibly 4 years, and that Mr Dillon had moved the mat from the porch outside the front door to inside the front door, thus positioning it on the polished floorboards, during the period the second defendant was vacating the premises.
The mat was described as being a hard textile type, probably synthetic, with a rubber backing on its underside. It measured approximately 45 cm wide by 30 cm deep and it was ultimately accepted that the under surface of the mat had deteriorated over the years. The mat had been observed by the plaintiff prior to her fall.
The matter was heard in the District Court before Elkaim SC DCJ.
In applying s 5B of the CLA, his Honour was satisfied that the risk of an unsecured mat sliding on a polished floor when a person walked on it was foreseeable. He was similarly satisfied that the risk was not insignificant and that a reasonable person in Mr Dillon’s position would have taken precautions against the harm, including inspecting the underside of the mat and either placing a non‑slip material beneath it, or simply not using the mat inside but leaving it outside.
His Honour determined that allowing a person to walk on a mat that might reasonably slide beneath a person’s feet was easily preventable and that falling onto a hard surface could cause significant injury.
His Honour found that prior to the plaintiff’s fall, Mr Dillon had taken a mat that was originally on the deck and had placed it immediately inside the front door. Although Mr Dillon denied this, his Honour rejected his evidence in that regard.
Some focus was also given to the first defendants’ actions following the accident, including specifically the decision of Mr Dillon to dispose of the mat after the accident so as to avoid it causing any further problem. He stated that he did this not because it was in poor condition but rather that it was his first instinct to dispose of it.
His Honour found in favour of the plaintiff against the first defendants. Judgment was entered in favour of the second defendant against the plaintiff and the first defendants were ordered to indemnify the plaintiff in respect of the second defendant’s costs (Bullock Order).
His Honour’s finding of negligence against Mr Dillon specifically was the primary challenge on appeal.
1. The duty of care of an occupier is not to make premises perfectly safe.
2. The mere fact of slipping is not sufficient to establish that a surface is slippery or that an object on the surface will move – it is necessary to show that the surface is unreasonably slippery.
3. There was no evidence that a worn mat was less slip‑resistant than a new mat or that a worn mat would not meet an objective standard of slip resistance.
4. Even if the rubber backing on the mat in question might have become harder and less elastic by reason of a lapse of time, that of itself does not establish that such a mat is less slip‑resistant than a new mat.
5. The primary judge made no findings about the substance from which the mat was made or whether it had a rubber backing and in failing to do so, his Honour ignored critical evidence that needed to be addressed in determining the prerequisites of s 5B of the CLA.
Tobias AJA delivered the primary judgment with Macfarlan JA and Emmett agreeing. The appeal was dismissed with costs with the court determining that it was open to the primary judge to find that a reasonable person in Mr Dillon’s position, having inferred knowledge of the condition of the underside of the mat, would take precautions before placing it on a smooth polished timber surface.
Two factual matters were considered relevant, namely the nature of the floor itself and the nature and condition of the mat, particularly the composition of its underside.
It was accepted that the mat had been moved from an outside deck made of untreated timber slats to an inside polished surface, and that the said polished surface presented as a smooth surface in good condition.
As to the nature and condition of the mat, it was noted that evidence had been led by both the plaintiff and Mr Dillon that it consisted of a textile surface on top with a rubber backing on its underside. Further questioning, particularly of Mr Dillon, established that the mat had likely deteriorated due to being left outside for potentially 4 years in the harsh weather conditions in the Blue Mountains. Particular relevance was placed upon the fact that Mr Dillon was aware of the impact of the harsh weather conditions and his Honour was able to draw an inference as to the likely condition of the underside of the mat. This should have been obvious to a person such as Mr Dillon, had he been acting reasonably.
It was submitted by the first defendants that the primary judge did not expressly deal with the plaintiff’s evidence that she never thought of the floor as slippery or that the mat was dangerous given that she had stepped on it previously and that it had not moved. Whilst the judge did not set out in his reasons the evidence of the plaintiff nor of Mr Dillon which supported his findings, the Court of Appeal was not satisfied that his Honour had erred in ignoring critical evidence given his other findings of fact.
The absence of expert evidence in relation to the slipperiness or otherwise of the backing of the mat was also of no consequence.
The first defendants’ appeal was dismissed with costs.
The subjective knowledge of an occupier as to a particular hazard will be relevant in determining the scope of the duty under s 5B of the CLA.
In matters where an inference can be readily drawn as to foreseeable risks, it is not always necessary to call expert evidence.
Once a finding is made as to foreseeability of risk, breach can be readily determined on objective evidence as to what precautions a reasonable person would take in response to the risk.
- Macfarlan and Emmett JJA, and Tobias AJA