The appellant hotel occupier was liable for failing to take reasonable precautions to prevent the respondent from tripping on a raised timber platform in the hotel's lobby. The risk of tripping on the platform was not obvious and the respondent should have provided a warning of its presence.

In Issue

  • Whether the trial judge erred in finding that the respondent was so affected by glare that he could not see the raised platform
  • If the respondent was not affected by glare, whether the risk of tripping on the platform was obvious
  • Whether the respondent was contributorily negligent

The Background

The respondent, BJ Ilingby, was injured on 19 June 2009 when he tripped over the corner of a raised timber platform in the lobby of the Manly Pacific Hotel. The platform was constructed of dark timber and was approximately 1.7m wide x 2.6m long x 15cm high. It was a permanent structure positioned to the right side of the walkway to the main bar area. Its bottom edge was raised 5.5cm above the white marble floor tiles of the lobby so that the top edge was about 20cm above the floor. A strip of LED lights under the bottom edge of the platform cast light onto the floor tiles. There was also a sculpture positioned on the platform.

At the time of the incident the respondent was walking towards the platform, which was slightly to his right. He gave evidence that he was looking straight ahead and thought that the sculpture was sitting on the floor. He also said that there was blinding sunlight coming through the walkway from the bar area.

The Decision at Trial

The trial judge accepted that the respondent had not seen the raised platform before he tripped and found that his ability to see it was affected by intense glare from windows to the south of the bar area. He accordingly rejected an argument that the risk of tripping was an ‘obvious risk’ within section 5F of the Civil Liability Act 2002 (NSW).

The trial judge further held that appropriate warnings would have alerted guests to the unusual and raised nature of the structure and its placement.

The Issues on Appeal

The appellant appealed the trial judge’s findings that tripping on the platform was an ‘obvious risk’ and that the respondent’s vision was significantly affected by glare coming from windows to the south.

The Decision on Appeal

The Court of Appeal held that the primary judge was not justified in giving little or no weight to the appellant’s expert evidence concerning the likely existence of blinding light or glare conditions at the time of the incident. The evidence did not support a finding that the light source was bright or debilitating and could not explain why the respondent did not see that the platform was raised.

In accepting the respondent’s evidence as to what he did see, and taking account of the difference between the experts, the Court of Appeal held that the presence of the low platform was not so obvious from the perspective of an occupier that it could confidently be predicted that a person walking towards the bar area would necessarily have become aware of its presence.

The Court of Appeal was satisfied that the appellant had breached the duty of care that it owed to the respondent. The majority found that a reasonable person in the appellant’s position would have provided some form of warning of the risk, such as roping the platform off or placing some form of warning at each of its exposed corners. The majority further held that the risk posed by the raised platform would not have been obvious to a reasonable person in the respondent’s position.

The majority of the Court of Appeal did not consider that the respondent had failed to take reasonable care for his own safety as he had seen the visual cues that ought to have seen The appeal was dismissed with costs.

Implications for you

We believe that the hotel can feel a little hard done by as a result of this decision. Nonetheless, this decision illustrates that visual cues signifying the presence of an obstacle or change in conditions will not always be sufficient to alert pedestrians to the presence of the hazard. In such circumstances, an occupier will need to give consideration to additional warnings and/or precautions.

Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103