In this Alert, Partner Robert Tidbury and Solicitor Candice Stower discuss the recent decision handed down by the New South Wales Court of Appeal in Pavlis v Wetherill Park Market Town Pty Ltd (2014) NSWCA 292. In the case, a customer’s claim for negligence against a shopping centre and its managing agent in respect of injuries suffered from a slip and fall on a wet pavement failed at both first instance and on appeal because reasonable precautions had been taken against the risk of someone slipping on the pavement.
On 4 October 2009 the plaintiff was approaching an ATM at a shopping centre in suburban Sydney when she slipped over and fractured her right arm. The pavement was wet from rain. Some six months prior to the customer’s slip, the pavement had been coated with a paint containing a non-slip additive.
Expert evidence led by the plaintiff at trial revealed that the pavement remained prone to being slippery despite the coating of non‑slip paint.
Both the shopping centre and its managing agent accepted that the arcade’s pavement was exposed to the elements and likely to become wet in rain. It was also accepted that the paving was liable to be slippery when wet.
The injured customer did not contend that the action taken to coat the pavement with non‑slip paint was inappropriate. Instead the plaintiff raised issues in relation to whether the application of the non‑slip coating comprised an adequate precaution; whether the whole of the relevant area was painted and whether non‑slip paint had deteriorated over a period of six months, so as to require a further coat or replacement.
The managing agent defended the proceedings and sought to be indemnified by the shopping centre for its costs. The management agreement appointing the managing agent as the shopping centre agent contained an indemnity clause which provided that the shopping centre was obligated to indemnify where proceedings were taken against the managing agent “in the course of or arising out of the proper performance of any of its powers, duties or authorities”. The shopping centre resisted the claim for indemnity in respect of the managing agent’s costs in defending the claim by the plaintiff on the basis that the indemnity clause did not extend to proceedings which were concerned with a claim for non-performance.
The trial judge’s decision
The customer’s claim failed in the first instance with the trial judge finding in favour of the shopping centre and its managing agent on account of the following factors:
- It was a reasonable precaution to apply paint with a non‑slip additive to the pavement;
- The whole of the pavement had been painted less than six months before the accident;
- Whilst the defendants' expert accepted the pavement should be inspected every six months, this was a period which extended beyond the period for which the paint had actually been applied prior to the accident;
- Although the plaintiff’s expert had identified various measures which could reasonably have been taken to reduce any risk of harm, the plaintiff’s expert did not say that any particular measure should have been taken; and
- There was no evidence that any person had slipped in the area since it had been painted.
Taking the above considerations into account, the trial judge was not satisfied that either of the defendants were required to take any steps other than those which had been taken prior to the accident. The trial judge rejected the shopping centre’s arguments on indemnity and held there was no reason to read the indemnity clause as restricting the general law right of an agent to be indemnified by its principal for liabilities reasonably incurred or discharged in the execution of the agent’s authority. The court further held there was no reason to read the indemnity clause as excluding a claim for the non-negligent performance of its duties.
Despite the fact that the plaintiff’s claim was unsuccessful, the court ordered that the shopping centre indemnify the managing agent for the costs of the proceeding.
The appellate court’s decision
The plaintiff’s appeal to the New South Wales Court of Appeal was also unsuccessful.
In its judgment the Court of Appeal acknowledged that the plaintiff’s expert and the defendants' expert agreed that the slip resistance of the area where the customer fell, at least when the surface was wet, was significantly lower than the co-efficient recommended by the relevant Australian Standard for walkways.
However, the Court of Appeal upheld the countervailing factors relevant to liability relied upon by the defendants, namely that the risk had been identified and precautions taken less than six months prior to that accident; that the precautions taken were reasonable and appropriate in the circumstances; and that those precautions could reasonably be expected to have effect for a period of not less than six months.
In weighing these competing considerations, the Court of Appeal found that no error had been demonstrated on the part of the trial judge in failing to be satisfied that neither or both of the defendants had failed to take reasonable precautions against the risk of harm which materialised. In arriving at that conclusion, the Court of Appeal was mindful that whilst the risk was foreseeable, the absence of evidence that the risk had materialised in any other case in a busy shopping centre suggested that, if not insignificant, the risk was not high. This was a factor properly taken into account in deciding what precautions were reasonably necessary.
The Court of Appeal also upheld the trial judge’s decision on the managing agent’s claim for indemnity against the shopping centre, finding there was no reason to read the relevant clause in the written agreement between the defendants as restricting the general right of indemnity. Nor was there any reason to read the language of the clause as excluding the non-negligent performance of the managing agent’s duties. To that end, the managing agent’s claim for costs incurred in defending the proceedings brought by the plaintiff clearly extended to the costs incurred by the agent with respect to the proceedings brought against it arising out of the non-negligent conduct.
- The fact that pavements on the premises of occupiers or retailers may remain prone to being slippery when wet, despite the application of paint containing non-slip additives, does not by itself mean that the occupier’s duty of care requires additional precautions, particularly in cases where there is a lack of evidence that anyone else has slipped in the relevant area.
- Even if expert evidence can demonstrate that the relevant surface’s coefficient of friction is significantly lower than the minimum recommended by the relevant Australian Standard, a customer’s prospects for succeeding on liability in a slip and fall claim may still be tenuous if the occupier can demonstrate that a risk of slipping had been identified and the precautions taken were reasonable and appropriate in the circumstances.
- A party that is successful in obtaining an indemnity from another party may still be able to recover its costs against the party required to indemnify it, notwithstanding the fact that no negligence has been established.