Two recent slip and fall decisions of the New South Wales Court of Appeal have raised important considerations for defendants seeking to rely on the obvious risk provisions in the Civil Liability Act 2002 (NSW) (the CLA). The Court of Appeal has made it clear that, unless a defendant expressly pleads and relies upon voluntary assumption of risk, a finding that a risk was obvious may have little, if any, impact on their liability in negligence. The same decisions raise concerns about when a risk will be considered an obvious risk. In each case, the plaintiff slipped after walking through a wet area onto a dry area. Where that dry area was a travelator, the risk was held not to be obvious. Where it was stairs, the risk of slipping was considered obvious. The decisions show that complete and precise pleadings are required for the voluntary assumption of risk defence, and also the difficulties in establishing an obvious risk. Are the Courts denuding the relevant provisions of the CLA from their intended effect? Key Provisions The provisions relating to obvious risk in the CLA are located in Div 4 of Pt 1A. Obvious risk is defined in s 5F as follows: 1. For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. 2. Obvious risks include risks that are patent or a matter of common knowledge. 3. A risk of something occurring can be an obvious risk even though it has a low probability of occurring. 4. A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. The rest of the division relevantly provides that: (a) there is a rebuttable presumption that a plaintiff is aware of a risk if it was an obvious risk (s 5G(1)), even if they are not aware of the 'precise nature, extent or manner of occurrence of the risk' (s 5G(2)); (b) a defendant does not owe a duty to warn of an obvious risk (s 5H(1)), with certain exceptions (s 5H(2)). In Div 5, which relates to recreational activities, the CLA further provides that a defendant is not liable in negligence for harm suffered as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff (s 5L). TRIBOLOGICAL, HYDROPHILIC OR HYDROPHOBIC – ISN'T IT OBVIOUS? MINTER ELLISON | COMMERCIAL-IN-CONFIDENCE 2 of 5 ME_120009931_1 (W2007) Glad Retail Cleaning Pty Ltd v Alvarenga In Glad Retail Cleaning Pty Ltd v Alvarenga (2013) 86 NSWLR 191, the plaintiff was working at a Woolworths store in a shopping centre owned and occupied by Mirvac. At 7:20 am, 20 minutes after the centre had opened, she was asked to get something from another store. To do that, she had to go down a descending travelator to the car park. The white rubber surface around the travelator was being cleaned by Glad Cleaning, a contractor hired by Mirvac, and was wet. In addition, the steel area leading to the travelator was wet such that there was a significant amount of water in the plaintiff's path. The plaintiff saw the cleaner with the mop and walked carefully over the white rubber area. As she did so, she remarked that it was wet. Her shoes picked up moisture and when she stepped onto the moving metal travelator a tribological (lubricating) reaction occurred, she slipped and was injured. As the plaintiff slipped, she reached for the handrail. The first instance decision In the District Court, the primary judge held that Glad Cleaning breached its duty of care to the plaintiff because it allowed water to accumulate near the travelator, and did not take reasonable precautions to prevent the plaintiff from slipping. His Honour identified a number of precautions that he considered a reasonable person in Glad Cleaning's position would have taken, including: cleaning the travelator before the shopping centre opened; the cleaner stopping the plaintiff and asking her to wait until the he had dried the surface; and turning off the travelator while the area was wet (as the cleaner was responsible for turning the travelator on in the morning). The primary judge rejected Glad Cleaning's contention that the plaintiff's fall was an obvious risk within the meaning of s 5F of the CLA as the plaintiff was not aware of the specific risk she faced. His Honour stated that while it was obvious that the area was wet and she might slip, it was not obvious that by walking through the wet area, the soles of her shoes would become wet and she would be exposed to the risk of a lubricating effect when she stepped on a moving steel surface. The primary judge held that Mirvac breached the duty it owed to the plaintiff as a lawful entrant by, among other things, failing to require cleaning to be performed outside of opening hours and/or while the travelator was stopped. The primary judge reduced damages by 10% for contributory negligence and found that Mirvac was entitled to 80% contribution from Glad Cleaning. The appeal Glad Cleaning appealed to the Court of Appeal. The grounds of its appeal included that the primary judge should have found that the risk posed to the plaintiff was obvious within the meaning of s 5F of the CLA. Sackville AJA (Barrett and Gleeson JJA agreeing) dismissed the appeal. Before considering whether the primary judge erred in holding that the risk was not obvious, his Honour made some remarks about the operation of the obvious risk provisions in the CLA. Sackville AJA observed (at ) that a finding that a risk was an obvious risk has three significant effects: (a) the defendant does not owe a duty of care to the plaintiff to warn him or her of the risk: s 5H(1); (b) if the plaintiff suffered harm as a result of the 'materialisation' of an obvious risk of a dangerous recreational activity, the defendant is not liable for negligence: s 5L(1); and (c) there is a presumption that a plaintiff was aware of the risk of harm: s 5G(1), which is relevant where the defendant relies upon a defence of voluntary assumption of risk (sometimes referred to as volenti non fit injuria). TRIBOLOGICAL, HYDROPHILIC OR HYDROPHOBIC – ISN'T IT OBVIOUS? MINTER ELLISON | COMMERCIAL-IN-CONFIDENCE 3 of 5 ME_120009931_1 (W2007) Sackville JA stated (at ) that 'a finding that a risk of harm is an obvious risk does not automatically prevent a defendant being held liable for breach of duty. Such a finding eliminates any common law duty to warn but does not, of itself, have any other relevance to whether the defendant was in breach of duty.' His Honour pointed out (at ) that in this case, Glad relied upon obvious risk alone, that is, without asserting the plaintiff had engaged in a dangerous recreational activity or that the plaintiff voluntarily assumed the risk. The consequence was that if the risk was obvious, the plaintiff could not rely on the cleaner's failure to warn her of the risk, but she could rely on other acts of negligence. Given the breaches found by the primary judge far exceeded a failure to warn, even if the risk was obvious, Glad Cleaning would still be liable in negligence, eg for failing to clean outside of opening hours. Sackville AJA then proceeded to consider whether the risk was obvious. Sackville AJA noted 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', that is, the question is what a reasonable person in the position of the plaintiff would regard as obvious. His Honour stated that the plaintiff's evidence may be relevant to what a reasonable person would know. Sackville AJA considered the plaintiff's evidence and her circumstances at the time of the accident, particularly the following: she was not asked what her experience was walking with wet shoes on travelators, or if she was aware of the risk in question; she walked carefully over the section mopped by the cleaner; and she had to use the travelator to reach the car park. His Honour stated that, for it to be obvious to the plaintiff 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', the plaintiff would at least need to know that: (a) an accumulation of moisture on shoes is capable of creating what the experts described as a 'tribological' effect; (b) the surface of the pallets was what the experts described as hydrophilic rather than hydrophobic; (c) 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 (d) the risk was exacerbated because of the travelator's degree of inclination. Sackville AJA concluded that, in the circumstances, Glad's submission that the primary judge's decision should be overturned as a matter of 'common sense' did not justify overturning the primary judge's decision that the risk was not obvious. TRIBOLOGICAL, HYDROPHILIC OR HYDROPHOBIC – ISN'T IT OBVIOUS? MINTER ELLISON | COMMERCIAL-IN-CONFIDENCE 4 of 5 ME_120009931_1 (W2007) Jackson v McDonald's Australia The Court of Appeal considered similar facts and issues in Jackson v McDonald’s Australia Ltd  NSWCA 162. In Jackson, the plaintiff and his friend entered a McDonald's early in the morning. As they approached the counter, they walked over an area of floor that had just been mopped by Holistic, a cleaning company engaged by McDonald's. Despite McDonald's instructions to Holistic to mop in sections to leave customers a dry path, the entire width of the floor was wet. The plaintiff left the wet area and began to descend a dry set of stairs to exit the store, when he slipped. McDonald's had taken a number of precautions to avoid slipping, such as using non-slip tiles, non-slip strips, white bubble tiles which acted as non-slip tread (similar to those in Glad) at the top of the stairs, handrails and warning signs. The plaintiff sued McDonald's and Holistic's insurer, CGU. The primary judge made little, if any, findings about the duty of care owed to the plaintiff, and whether the defendants had breached that duty. Rather, her Honour focused on the issue of causation, on which the plaintiff failed. The Court of Appeal considered that approach inappropriate and made separate findings about duty and breach. Basten JA (Ward JA agreeing, McColl JA dissenting on this issue only) held that McDonald's and Holistic breached their respective duties of care to the plaintiff because they failed to take the precaution of mopping in sections to allow the plaintiff a dry path to walk on. In making that finding, Basten JA quoted Glad extensively. Basten JA noted that the defendant saw signs warning him that the area was wet, which shaped the content of what was obvious to him. Basten JA quoted Glad at length and noted similarities apparently in support of the conclusion that the risk was obvious. Basten JA pointed out that (at -: (a) the plaintiff knew the floor near the stairs was wet; (b) there was no reason to think the plaintiff did not take that into account while walking on the wet floor; (c) the plaintiff knew his shoes would pick up moisture; (d) the plaintiff must have known 'as a matter of general knowledge' that it was possible for water to have an effect on his shoes and make them less secure; (e) because of 'common knowledge', the plaintiff must have known his shoes might still be wet when descending the stairs and there was, therefore, an increased risk of him slipping. Basten JA concluded (at ) that if the plaintiff fell because of wet soles, the risk was an obvious risk. However, as Sackville AJA did in Glad, he noted that the only consequence of that was that McDonald's and Holistic did not owe the plaintiff a duty of care to warn of the risk. His Honour stated that risk was irrelevant to the breach of duty he had found earlier, ie allowing a dry path for customers to walk. This was because the defendants had not pleaded the plaintiff's voluntary assumption of risk as a defence. Ultimately, the Court of Appeal held that the plaintiff's appeal failed as he could not establish that his shoes were wet or that he slipped because his shoes were wet. Regardless, Basten JA assessed contributory negligence as 70% on the basis that the plaintiff knew the floor was wet and the associated risks, but proceeded down the stairs without holding the handrails and while talking to a friend. TRIBOLOGICAL, HYDROPHILIC OR HYDROPHOBIC – ISN'T IT OBVIOUS? MINTER ELLISON | COMMERCIAL-IN-CONFIDENCE 5 of 5 ME_120009931_1 (W2007) Commentary Importantly, both of these cases make it clear that the only consequence that follows from a finding that a risk was obvious alone is that the defendant is not subject to a duty to warn the plaintiff of that risk. To defeat other alleged acts of negligence, a defendant must specifically plead the defence of a voluntary assumption of risk and rely upon it at the hearing. In Glad, where the risk of harm was held to be foreseeable to the defendant but not obvious to the plaintiff, there was some tension between the Court's description of the risk. The primary judge referred to the tribological reaction between water and a hard surface, and the risk of slipping, because that reaction was 'well known' – language not dissimilar to 'common knowledge' in s 5F. In the Court of Appeal, Sackville AJA stated that the risk was foreseeable, but it could 'not be said to be obvious to someone in the plaintiff's position'. However, his Honour did not explore the reasons for this disparity. The commercial nature and experience of the defendants could explain it, but it is not clear that Glad as the cleaning company would know the information Sackville AJA considered the plaintiff would need to know for the risk to be obvious, for example, that the travelator's surface was hydrophilic rather than hydrophobic. The approach Sackville AJA took to obviousness seems to require a reasonable person in the position of the plaintiff to have a very detailed knowledge about the risk before it could qualify as obvious. If that approach is adopted in future decisions, it could create significant difficulties for defendants seeking to rely on obvious risk for defences such as voluntary assumption of risk. In Carey v Lake Macquarie City Council  NSWCA 4, McClellan CJ observed (at -) that Div 4 of Pt 1A of the CLA was introduced to encourage greater use by the Courts of the voluntary assumption of risk defence, because at common law even if the plaintiff was aware of a risk, a defendant still needed to prove the plaintiff knew the manner or extent he or she may be injured. His Honour quoted (at ) the Ipp Report's recommendation that the Legislature enact: • A provision to the effect that for the purposes of the defence of assumption of risk, it would be presumed that the person against whom the defence is pleaded was actually aware of an obvious risk unless that person could prove, on the balance of probabilities, that he or she was not aware of the risk (para 8.30); • A provision to the effect that for the purposes of the defence of assumption of risk, the test of whether a person was aware of a risk is whether he or she was aware of a risk of the type or kind of risk, and not of its precise nature, extent or manner of occurrence (para 8.31). Knowledge of information such as the surface of a travelator and the exact inclination seems to be knowledge of the precise nature of the risk. If a reasonable person in the position of the plaintiff is required to appreciate the precise nature of the risk or manner of occurrence for it to be obvious (matters expressly excluded from s 5G), the defence of voluntary assumption of risk will be difficult to make out and may 'disappear eventually into the limbo of forgotten things' (see Tingle v J B Hinz & Sons  Qd R 108 referring to Fleming on Torts, 3rd ed). The approach taken by Basten JA appears to be less stringent. While the facts in Jackson and Glad were different, the risk posed to the plaintiff in each case was very similar. The travelator was moving and made of metal, which could increase the risk. However, the reasoning used by Basten JA to hold that the risk of slipping on the dry stairs with wet shoes was obvious is equally applicable to the travelator in Glad. Each of the factors his Honour identified in Jackson could have been said about the plaintiff in Glad. The two decisions are difficult to reconcile – one hopes that the High Court will examine the issue soon and restore the obvious risk provisions to their intended effect.