Federal Court Judge: And what law are you basing this argument on?

Darryl Kerrigan: The law of bloody common sense![1]

Chief Justice Gleeson: There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean that it is dangerous or defective.  ……[Standards only required tougher glass to be used in the event of the glass having to be replaced.  This]…..does not pre-empt the common law. But it reflects common sense.[2]

Courts generally impose a more lenient standard of care in respect of accidents that occur in a domestic setting.   This is no doubt driven by a pragmatic appreciation that no house is free from risks of injury and home owners are not expected to conduct a regular safety audit in order to identify every possible hazard.  For this reason, the milkman can trip over a hose that has been left out in the front yard without the owner being found liable[3].  Similarly, a landlord of residential premises won’t be found liable for injury caused by glass breakage even though the glass did not conform with the current Australian Standards[4].

However, the recent New South Wales Court of Appeal decision in Schultz v McCormack[5] challenges the assumption that a benign standard of care will always be applied in the context of injury claims occurring in a domestic setting. 

The claim arises out of an accident at Mr and Mrs McCormack’s home just before midnight on 5 February 2010.  They had been entertaining their soon to be litigious friend (Sheran Schultz) and were in the process of farewelling her on the front porch.  The porch was covered by a roof that provided incomplete protection from the elements.  As it had been wet and windy earlier in the evening, the tiles at the front of the porch were wet.  After saying goodbye, Ms Schultz turned to leave.  As she stepped on to the wet tiles at the front of the porch, she slipped and fell, fracturing her right ankle.

Longstanding friendship did not deter Mrs Schultz from suing her hosts.  She alleged that they had breached their duty of care by failing to take any steps to address the excessively slippery tiles and by failing to warn her of the consequent risk.  The arguments were buttressed by a report obtained by Neil Adams, an ergonomics consultant, who performed a slip test of the tiles and concluded that they would be regarded as slippery when wet.  This conclusion was disputed by Mr & Mrs McCormack who said that they had never found the tiles slippery and that no one else had ever slipped on them. 

The trial judge sided with the owners.  In light of the absence of any prior slips on the tiles, the trial judge held that a reasonable person in the position of the McCormacks would not have taken any precautions in response to the risk of the tiles being slippery when wet.  This conclusion was not altered by Mr Adams’ evidence.

The trial judge was required to consider whether Mr and Mrs McCormack should have warned their guest about the risk posed by the wet tiles.  This made it necessary for the trial judge to decide whether the risk posed by the wet tiles was an “obvious risk” within the meaning of section 5F of the Civil Liability Act 2003 (NSW).  In this regard, the trial judge noted that a reasonable person Ms Schultz’s position would have appreciated that the roof did not completely cover the porch and would have noticed the presence of rain on the steps.  The trial judge concluded that the risk posed by the wet steps constituted an obvious risk, which meant that the owners were under no duty to warn Ms Schultz of that risk.  The claim was therefore dismissed.

Ms Schultz appealed the decision.  The Court of Appeal did not share the trial judge’s views.  Indeed, Justice McColl of the Court of Appeal took the opportunity to school the trial judge about how to go about making an assessment of breach of duty (which actually makes quite instructive reading for any lawyers or claims handlers who practice in this area). Not surprisingly, the first step is to identify the relevant duty of care.  An analysis that starts elsewhere (as the trial judge did by examining obvious risk) invites error because any assumption that is made about the content of the duty may fail to take fundamental aspects of the relationship between the parties into account. 

The Court of Appeal held that as occupiers, Mr and Mrs McCormack owed Ms Schultz, as the entrant to their home, a duty to take reasonable care to avoid a foreseeable risk of injury to her on the premise that she was exercising reasonable care for her own safety[6]. In the present situation, the duty included an obligation to take those precautions a reasonable person in the circumstances would have taken by way of response to the risk that a person may slip on the porch tiles.

Once the duty of care and its content has been accurately identified, the next step is identify the relevant risk of harm.  Justice McColl grudgingly conceded that the trial judge had correctly identified this as the risk of slipping on wet steps.

Having identified the relevant risk of harm, the third step in the process is to determine what a reasonable person in the position of the McCormacks should have done in response to the risk. In deciding what a reasonable person would have done, the Court of Appeal was confronted with conflicting evidence about the nature of the risk.  On the one hand, Mr & Mrs McCormack testified that they did not find the tiles slippery when wet.  Indeed, Ms Schultz and her husband (who had visited the premises on numerous occasions in wet and dry conditions) both gave evidence that they had never had any problems with the tiles.  On the other hand, the slip tests performed by the ergonomics consultant returned an average BPN of 29.  This resulted in the surface being “classified within the category whereby the surface can be expected to make a high contribution to the risk of slipping in wet conditions”.  Mr Adams went on to say “I believe that any wet pedestrian surface on which is obtained a COF of 0.29 cannot be regarded as adequately slip resistant for use in an external location that can be expected to become wet from time to time”.

The Court of Appeal resolved the tension by preferring the expert evidence over the lay evidence.  The absence of prior incidents was not determinative of liability.  Further, given the results of the slip test and Mr Adams conclusion that the tiles would generally be experienced as slippery when wet, the court formed the view that the McCormacks “ought” to have been aware of the problem (even if they actually weren’t).  The court suggested that maybe the owners were unaware of the problem due to the fact that they had unconsciously adapted to the slipperiness of the tiles. 

In any event, in light of the finding that Mr and Mrs McCormack ought to have been aware of the tiles being slippery, the court went on to consider what a reasonable person in their position would have done in response to the risk.  Justice McColl said that the most obvious response would have been for Mr and Mrs McCormack to warn Ms Schultz that the porch was wet and that the tiles might be slippery.  A non-slip mat could also have been used to address the problem.  By failing to take either precaution, the Court of Appeal held that the owners breached the duty of care owed to their guest. 

In reaching such a conclusion, the court was required to consider whether the hazard posed by the wet tiles constituted an obvious risk.  The Court of Appeal disposed of this issue relatively easily.  The floor at the back of the porch was dry, and it would not have been immediately apparent to a reasonable person in Ms Schultz’s position that the roof above the porch did not provide complete protection from the rain.  Bearing in mind that it was midnight and the porch was not brightly illuminated, this meant that it would not have been obvious to a reasonable person in the appellant’s position that the tiles at the front of the porch were wet.

The situation was compounded by an issue identified by Mr Adams, namely, that Ms Schultz’s ability to observe the water would have been hampered by the fact that, as the porch light was behind her, she was walking into her shadow which would have obscured her forward vision and made it difficult to see the water. Consequently, court concluded that the hazard posed by the wet tiles did not constitute an obvious risk meaning that section 5F, meaning that the McCormacks were not relieved of their duty to provide a warning in respect of that risk. 

Certain aspects of the judgment are a little troubling.  In order for Justice McColl to reach the conclusion that the McCormacks “ought” to have been aware that the tiles were slippery when wet, she refers to the “extreme slipperiness” of the tiles and that they were “dangerously slippery when wet”.  Mr Adams’ evidence does not support this description.  Using more moderate language, Mr Adams says that the tiles would “generally be experienced as slippery when wet” and would “make a high contribution to the risk of slipping in wet conditions”.  Nowhere in the judgment does he refer to the tiles being dangerous or excessively slippery.  If the risk posed by the tiles was categorized in a manner more consistent with Mr Adams’ evidence, we query whether the Court of Appeal would have found that Mr and Mrs McCormack “ought” to have been aware of the risk. The significance of this is that, in the absence of such a finding, the appeal would have been dismissed. 

There is also something of a double standard in Justice Macfarlan’s judgment.  While Ms Schultz gave evidence that she had visited the premises on many occasions in both wet and dry weather, Justice McFarlane said that there was no basis for concluding that she ought to have been aware of the problems with the tiles.  But when the owners gave similar evidence about a lack of knowledge, he held that they ought to have been aware simply by virtue of the fact that they had lived there for a few years.  He went on to find that the owners breached their duty of care by failing to warn their guest about a risk that they were unaware of. 

A more measured assessment of the situation is found in the judgment of Justice Beech-Jones. He acknowledges that a surface with a co-efficient of friction of 0.29 might not necessarily be dangerously or excessively slippery.  However, such a surface has the potential to be dangerous if there is a discrepancy between the level of slip resistance that is expected by a pedestrian and the actual level of slip resistance.  Justice Beech-Jones thought that it was this divergence (or “mismatch”) between expectation and reality that was the root cause of Ms Schultz’s fall.  When Ms Schultz was saying goodbye to her hosts, she was standing on dry tiles.  Unlike her hosts, she was unaware that the tiles at the edge of the porch were wet. In other words, she was expecting to step on to a dry surface. However, the tiles were wet and the consequent mismatch between expectation and reality caused or contributed to the slip.

In circumstances where Mr and Mrs McCormack were aware that the tiles were wet, and it was reasonable for Ms Schultz to be unaware of that fact, the McCormacks’ duty as reasonable occupiers obliged them to at least warn Ms Schultz of the issue.  By failing to do so, they breached that duty.

Justice Beech-Jones assessment of the situation is a little more persuasive than the other judges because his finding of breach does not rely on the somewhat artificial description of the tiles being dangerously slippery. His finding of breach flows naturally from that the finding that the owners were in a better position than their guest to appreciate the existence of a risk (the wet tiles) and should reasonably have warned her of that risk.  This is particularly so bearing in mind the ease and convenience of the remedial measure (a simple verbal warning). Such a finding not only sits comfortably with the law of negligence, but also passes the common sense test.

The upshot of the decision is that it would be dangerous for insurers to assume that claims arising out of accidents in a domestic setting will always confront judicial headwinds.  The judgment constitutes a salutory reminder that the law of tort applies equally to residential and commercial premises, even if the courts are generally prepared to temper their expectations about what a reasonable homeowner would do in response to a given risk.  Even so, where a risk can be adequately addressed by a verbal warning, the courts will expect one to be forthcoming