Glamuzina v The Tanning Salon Pty Ltd
[2003] WADC 248
•18 NOVEMBER 2003
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GLAMUZINA -v- THE TANNING SALON PTY LTD [2003] WADC 248
CORAM: BLAXELL DCJ
HEARD: 10, 11 NOVEMBER 2003
DELIVERED : 18 NOVEMBER 2003
FILE NO/S: CIV 2345 of 2002
BETWEEN: JUDY GLAMUZINA
Plaintiff
AND
THE TANNING SALON PTY LTD
Defendant
Catchwords:
Negligence - Occupiers liability - Plaintiff slipped at entrance to defendant's tanning salon - Whether or not plaintiff slipped on a step or "ridge" - Whether defendant is liable as occupier - Turns on own facts
Legislation:
Occupiers Liability Act 1985 s 5
Result:
Claim dismissed
Representation:
Counsel:
Plaintiff: Mr L M Hall
Defendant: Mr J G Staude
Solicitors:
Plaintiff: Bradford & Co
Defendant: Vincent Partners
Case(s) referred to in judgment(s):
Gondoline Pty Ltd v Hansford [2002] WASCA 214
Roman Catholic Archbishop of Perth v Hinchcliffe, unreported; Library No 980520; 14 September 1998
Case(s) also cited:
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Stannus v Graham (1994) A Tort Rep 81-293
Wyong Shire Council v Shirt (1980) 146 CLR 40
BLAXELL DCJ: This is an action for damages for personal injuries sustained by the plaintiff as a result of slipping and falling in the entrance way to premises occupied by the defendant. It is said that the defendant was negligent in (inter alia) failing to provide the plaintiff with a safe means of egress from the premises. Alternatively, it is claimed that the accident occurred as a result of the defendant’s breach of s 5 of the Occupiers Liability Act 1985 (“the Act”).
The defendant admits that it was the occupier of the entrance way in which the plaintiff fell, but denies that it was negligent or that the layout of the entrance way constituted a “danger” within the meaning of the Act. The defence also pleads that the plaintiff’s injuries were caused or contributed to by her own negligence.
During the course of the trial it was agreed between the parties that the plaintiff’s damages could be quantified at $22,500. Accordingly the only issues requiring determination are the questions of the defendant’s liability and the plaintiff’s contributory negligence.
The evidence
The plaintiff is 52 years of age, works as a receptionist/personal assistant, and resides with her husband and two daughters. In March 2001 she had arranged to accompany her husband on a holiday trip to Bali, and she wished to acquire a tan before she left.
It was for this reason that on 17 March 2001 the plaintiff accompanied her daughter Tanya to the defendant’s tanning salon in Beaufort Street, Mt Lawley. This salon operated from a former house set back a short distance from the street, and customers were required to enter via a paved alleyway.
The path in the alleyway was made of limestone paving, and as it neared the front entrance of the salon, ran alongside a verandah with a concrete floor. Because the path had a slight incline and the floor of the verandah was horizontal, customers were required to negotiate a tapered vertical step between these two surfaces. This step was approximately 4 metres in length, was 110 mm high at the nearest end as a customer approached, and tapered off to an even surface at the far end. A customer taking the most direct course towards the door would pass over the step at a point where it was approximately 50 mm high.
The plaintiff had not visited the defendant’s tanning salon before, and when she arrived with her daughter on 17 March 2001 she negotiated the step without trouble and was probably not even aware of it as she entered. She remained inside the salon for between 15 or 30 minutes, and then followed her daughter outside intending to depart. It was as she was crossing the step again that the accident occurred.
It is the plaintiff’s evidence that she walked out the front door behind her daughter and suddenly “lost my balance and felt myself falling”. She tried to correct her balance but fell against the far wall of the alleyway striking it with her right shoulder. She then heard a crack and fell to the ground.
The plaintiff also felt excruciating pain and was unable to move from where she fell. According to her, she came to rest flat on her back with the right side of her waist adjacent to the highest part of the step. Her head was facing away from the front door to the salon.
During cross‑examination the plaintiff denied that she had tripped over her feet or had stumbled before falling. In this regard she was wearing open backed sandals with continuous wedge heels which were securely strapped to her feet. She was unable to recall whether one of these sandals had come off and was laying on the verandah as a result of her fall.
The plaintiff was unable to further specify how it was that she came to fall but presumed that the ridge or step separating the verandah from the alleyway had “made me lose balance”. The plaintiff was also unable to be specific in identifying the point along that step where she fell.
After her fall the plaintiff was assisted initially by her daughter and then by male and female staff members who came out of the salon. She was taken by ambulance to Sir Charles Gairdner Hospital where she was found to have sustained a fractured humerus.
The plaintiff’s daughter, Tanya Glamuzina, did not see her mother fall and was unable to throw any light on how the accident might have occurred. She first became aware of the accident when she heard a noise behind her, and turned to see her mother “basically sliding down the wall”. In this regard her mother’s right shoulder was against the wall and she was sliding from a height of perhaps three quarters of normal.
The only witness for the defendant was one of its directors, Mr Hassan Hassan. Mr Hassan and his partner have operated the defendant’s business at the tanning salon for between four and five years. He arranged for the construction of the alleyway and entrance at the time that the business commenced.
According to Mr Hassan the path in the alleyway was on an incline because rainwater would otherwise accumulate. In this regard the alleyway was covered by a timber frame and shade cloth which allowed rain to penetrate. It had been his wish to extend the solid roof of the verandah out over the alleyway, but the local authority had refused permission. He had chosen limestone paving for the path because it was a non‑slip surface and allowed rainwater to drain through.
According to Mr Hassan, the business has received between 150 and 300 customers per week and has provided tanning services to more than 40,000 people during its four or five years of operation. Each of those customers have passed over the tapered step when entering and leaving the premises, and apart from the plaintiff’s accident, there has been no other incident or complaint that he is aware of.
On 17 March 2001 Mr Hassan was inside the salon when he was told of the plaintiff’s accident. He immediately went outside to assist and noted that one of the plaintiff’s sandals had come off and was on the verandah approximately 400 mm from the edge of the step (as depicted in Exhibit 7).
Mr Hassan spoke to the plaintiff and her daughter and enquired how the accident had occurred. He was told that the plaintiff had “slipped” and had put her arm out against the wall to stop her fall. The plaintiff’s body had then “twisted”, her arm had given way to the weight, and she had fallen to the ground.
The plaintiff did not make any complaint to Mr Hassan about the step, and he assumed from the presence of the sandal on the verandah that it was this that had caused her to slip.
Findings of fact
The only conflicts in the evidence arise from the plaintiff’s denial of the conversation with Mr Hassan, and differences between his and her (and to a lesser extent Tanya Glamuzina's) versions of events after the fall. Mr Hassan impressed me as being honest and credible in his account and I have no hesitation in preferring his evidence to that of the plaintiff.
Because the plaintiff has been unable to give a detailed account I am also unable to make a finding as to precisely how the accident occurred. Nevertheless I am satisfied that the plaintiff either tripped or slipped in the vicinity of the step, and that at about the same time a sandal came off one of her feet. As a result the plaintiff was thrown forward and she spontaneously stretched out her right arm in front of her towards the wall of the alleyway (which was only 850 mm beyond the step). As the plaintiff’s right arm came into contact with the wall her body twisted causing her humerus to fracture. The plaintiff then fell to the ground.
In my view it is self‑evident that the evidence is incapable of satisfying me on the balance of probabilities that the plaintiff’s fall was in fact caused by the step. There was nothing projecting above the step to cause the plaintiff to trip, nor is there anything to suggest that the surface of the verandah was in any way slippery. An equally consistent inference in all of the circumstances is that the plaintiff tripped as a result of her sandal becoming dislodged. Yet another possible inference is that the plaintiff simply missed her footing in the vicinity of the step.
I also make the finding that the tapered step was not a “danger” within the meaning of s 5 of the Act. The surfaces of the verandah and the alleyway (particularly as depicted in the photographs in Exhibit 6) were sufficiently different in texture and colouring as to make the presence of the step obvious to customers entering and departing from the salon. In my view, even allowing for the fact that a customer leaving the salon might have to adjust his or her eyes to bright sunlight outside, the step was still sufficiently obvious as not to constitute a trap.
In this regard the very nature of the surrounding structures should have indicated to the plaintiff the likelihood of there being a step at the edge of the verandah. She was passing from the concrete verandah of a relatively old building with a solid roof overhead onto an adjacent limestone paved pathway covered with shade cloth. It is a matter of ordinary human experience that one will often encounter a change in levels where two such adjoining areas meet.
The law does not require the occupiers of premises to guard against “ordinary and accepted risks created by different levels on pathways, raised paving stones and the like” (Miller J in Gondoline Pty Ltd v Hansford [2002] WASCA 214 at 64). Similarly, in Roman Catholic Archbishop of Perth v Hinchcliffe, unreported; Library No 980520; 14 September 1998, which was a case involving a step remarkably similar in size and shape to that in the present matter, the Full Supreme Court held that the same was:
“… something which was commonly encountered as a change in level in everyday experience which people could reasonably be expected to negotiate without unreasonable risk.”
In my view a further matter of relevance is the fact that some 40,000 of the defendant’s other customers have traversed the same step while entering and leaving the salon, and have done so without any known difficulty. While this fact is not of itself conclusive, it does strongly corroborate the finding that the step did not constitute a hazard or danger.
It follows from these findings that the defendant was not negligent in failing to sign post or otherwise warn the plaintiff of the presence of the step.
For all these reasons the plaintiff’s claim must be dismissed.
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