NSW Court of Appeal affirms that foreseeable users of a shopping centre include those who may be inattentive or careless and a reasonable occupier must take reasonable steps to prevent such users from the risk of slipping and falling.
- Scope of an occupier's duty to a patron hurrying across wet tiles.
- The extent of contributory negligence for running over the wet tiles.
The appellant, Mr Raad, sought damages for injuries he sustained on 13 June 2011 when he slipped and fell on a wet, tiled, outdoor area at a shopping village occupied by the respondent. It was accepted that it was raining at the time of the incident and that water tended to accumulate on the tiles due to a low surface gradient. Further, it was accepted that the appellant was running at the time.
The appellant claimed damages for ongoing back pain, addiction to prescription drugs and psychological issues.
The Decision at Trial
The trial judge found that the respondent breached its duty as occupier by failing to ensure that the tiles were treated with a slip-resistant coating or alternatively, failing to replace the tiles to enable adequate water run off.
In relation to damages, the trial judge held that there was an absence of evidence to support a causal connection between the appellant’s addiction to prescription drugs and psychological issues and the incident. Damages in the amount of $75,547, which incorporated a 10% reduction for contributory negligence, were awarded.
The Issues on Appeal
The appellant alleged that the trial judge erred in finding that he had been contributorily negligent and for not finding two aspects of his condition to be causally related to the incident. The respondent applied to cross appeal on the basis that the trail judge erred in finding it had breached its duties as occupier and in failing to award a greater reduction for contributory negligence.
The Decision on Appeal
The appeal and intended cross appeal were unanimously dismissed.
The Court of Appeal held that the respondent breached its duty as occupier because it failed to appreciate that all manner of people would use the premises. The respondent was required to contemplate the possibility that some users might be inattentive or careless and therefore was required to mitigate the associated risks accordingly. The Court of Appeal noted that this could have been achieved by taking the relatively low cost step of treating the tiles with a non-slip coating.
With respect to the appeal on damages, the Court of Appeal held that there was insufficient evidence to establish that either the addiction or psychological issues were caused by the incident. The Court of Appeal did not disturb the trial judge’s reduction for contributory negligence on the basis that the appellant ought to have been more cautious when traversing the wet tiled area.
Implications for you
Occupiers must ensure that their premises are safe for use by a range of users including those who are careless or inattentive. It is essential that risk avoidance measures are taken to reduce the risk of injury to all patrons, particularly where the measures are of low cost. In this instance, coating outdoor weather exposed tiles with a slip resistant product was such an inexpensive measure and failure to adopt it led to a finding of liability.