Iliou v Eason & Eason - [2005] SADC 130

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ILIOU v EASON & EASON
Judgment of His Honour Judge Beazley
23 September 2005
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE - PARTICULAR CASES - DUTY OF OCCUPIER
NEGLIGENCE - DANGEROUS PREMISES
Injury to person exiting premises - liability for unsafe premises - no evidence of previous falls - defendants failed to take reasonable steps to avert reasonably foreseeable danger - no contributory negligence.

EVIDENCE
Admissibility and relevancy - admissibility of prior consistent statements - where event unseen - whether its cause can be reasonably inferred.
Wrongs Act 1936 s 17C; Civil Liability Act 1936 s 20; Occupational, Health Safety & Welfare Act, 1986 ss 4(2), 19, 23, referred to.
Hunt v Knight Frank (NSW) [2005] NSWCA 139 AT [31], [43-44]; Ragnelli v David Jones (Adelaide) Pty Ltd (2004) SASR 233; Wyong Shire Council v Shirt (1980) 146 CLR 40; Tame v New South Wales (2002) 211 CLR 317; Thompson v Woolworths (QLD) Pty Ltd (2005) H.C.A. 19; Drotem Pty Ltd v Manning (2000) NSWCA 320; James v Naracoorte Services (1978) 17 SASR 576; Australian Postal Corporation v Gallard (2000) NSWCA 316; Sedgewick v Jerrabomberra Park (2004) ACTSC 108; Campbell v Burrows Engineering (2001) 82 SASR 75; Complete Scaffold v Adelaide Brighton Cement [2001] SASC 199, considered.

ILIOU v EASON & EASON
[2005] SADC 130

The plaintiff claims damages for injuries sustained on 1 November 1999 while exiting the defendants’ business premises at 930 Port Road at Woodville.
The trial proceeded on the issue of liability alone, with the quantum of damages being agreed in the sum of $80,000 inclusive of interest in the event that the plaintiff were to succeed in the action.
Liability was very much in issue between the parties. The facts were largely uncontroversial and there was no dispute that the plaintiff was injured whilst exiting the defendants’ premises. There were however major disputes about the manner in which the plaintiff was injured, and the adequacy of the cleaning regime of the defendants. Amongst those disputes was whether the defendants had employed one or two pieces of carpet off cuts at the entrance to the premises and whether the use of that carpet was a cause of the plaintiff’s accident.
The Undisputed Facts
The plaintiff was a delivery driver, employed by Multi Group Distribution Services Pty Ltd, to drive a small vehicle delivering parcels and packages.
The defendants were the proprietors of a business named AAA Cash Registers and Scales which business sold and serviced cash registers and scales, at all relevant times, at 930 Port Road at Woodville (“the premises”).
At all relevant times, the premises presented as an old villa style home which had been converted to office accommodation, service facilities and a showroom. The premises constitute a double‑fronted, bluestone cottage with a central entrance door, and villa style veranda 1.8 metres wide across the full width of the front of the building. The central entrance door is approximately 10‑12 metres to the south of Port Road.
In order to exit the building through the central entrance door, a person must descend from a timber step approximately 140mm to the veranda surface.
While the veranda paving is generally of a smooth trowelled concrete surface, the centre section immediately in front of the entrance door is a polished terrazzo surface. The size of the terrazzo panel is approximately 1.2 metres wide and extends the full depth of the veranda of 1.8 metres. It is identified in the photographs tendered as a green centre panel with a perimeter border of pink and an outer filler border of black, which must be crossed by any person entering or exiting the building by the central entrance door.[1]
[1] See Exhibit P5
While exiting the premises on 1 November 1999, the plaintiff suffered an injury to his back resulting in discogenic back pain at the L5‑S1 level. The injury was described as a central to left sided disc bulge at the L5-S1 level together with an uncertain annular bulge at the L4-5 level.
The Pleadings
The plaintiff’s claim was pleaded, in the alternative, in negligence and for breach of statutory duty pursuant to s 23 of the Occupational Health, Safety and Welfare Act 1986. The particulars alleged that the defendants, as occupiers, failed to provide safe access and egress to the premises by permitting the surface to be in a slippery state, compounded by the use of two pieces of unsuitable carpet.
The plaintiff alleged that in the course of exiting the premises, he stepped on the pieces of carpet, which slipped from under his feet causing him to fall backwards on to the veranda surface and sustain personal injuries.
The defendants denied that the surface was slippery, and positively asserted that the plaintiff, while rushing, had placed his heel on the doorstep, and stumbled forward without falling. There was a positive assertion that there was only one piece of carpet, and that it did not slip.
The Evidence
As I have indicated the facts were largely uncontroversial and the narrative of the facts recorded in these reasons reflects my findings. Where matters have remained in dispute, I have made specific findings at the completion of the narrative.
(1) The Plaintiff’s Case
The plaintiff’s evidence was that he had made deliveries to the premises on approximately two dozen occasions prior to the accident.
At approximately 10.00am on 1 November 1999, he had parked his vehicle on Port Road outside the premises. He could not recall how many cartons were delivered, but did recall that it took a few trips with a trolley borrowed from the defendants.[2] On the day of the accident the plaintiff was aged 31 years, was fit and healthy, and was wearing sandshoes. There had been no rain on that day and the surface of the veranda was in a dry state.
[2] The respective versions as to the use of a trolley were not put in cross examination however, nothing turned upon it in the event.
Upon the completion of the delivery, he re‑entered the premises by the central veranda door to enable the defendants to sign the delivery dockets. He then proceeded to walk to the front door, stepping over the front step. When he stepped onto the two pieces of carpet placed upon the terrazzo panel, he slipped and fell backwards. He described falling onto his buttocks, and said that while he was seated on the surface the first defendant came to assist him. As he attempted to get up, he placed his foot on one of the pieces of carpet, which again slipped from under him causing his head to make contact with the corner of the wall abutting the doorframe. He described feeling a very sharp pain in his back, on the left hand side of the belt line.
He was adamant that there were two pieces of carpet, each of a rectangular shape, and parallel to the doorway.
He attended the premises approximately one month after the accident to take photographs of the accident scene. Exhibit P6, being a bundle of four photographs, depicted the two pieces of carpet as they were at the time of the accident. He gave the two pieces of carpet to his solicitors, however, they appear to have been misplaced, subsequent to their examination by an architect.
The plaintiff was cross examined about the carpet pieces depicted in Exhibit P6 and as to whether they were the same pieces of the carpet on the day of the accident. The plaintiff stated that he was “pretty much sure that that was the carpet ..... because I remembered the carpet”. The plaintiff denied the assertion put to him that the cause of the injuries was him placing the heel of his right foot on the edge of the step and stumbling forward.
He could not explain why it was that a claim form for compensation, dated 9 November 1999, contained a description of the accident as follows:[3]
“Walking out of the house when finished delivering. Slipped off step ..... slipping off steps”
[3] See Exhibit P2
The document was not signed by the plaintiff, but had been written and signed on his behalf by the Occupation Health & Safety Officer of his employer. While he acknowledged that the information contained in the claim form could only have been sourced from him, he was adamant that if he had given her the information, then he would have said “I slipped off the carpet not the step”. There is no doubt that the defendants properly put their case to the plaintiff. The cross examination however was slightly different to the plea in the defence to the effect that the plaintiff had not fallen down.
QIsn’t what happened this: you fell over, you got up and you saw the carpet had moved. Isn’t that what happened?
ANo, what happened was I walked out, I stepped on the carpet, the carpet slipped from under me and I fell.
Q…. Now I ask again, why could not the heel of your slipping foot, if I can call it that, your forward foot, why could that not have just fallen off the edge of the step and then the carpet moves and you fell over, why isn’t that possible?
ABecause I didn’t feel the step hit my heel.
Expert Evidence
The plaintiff called an architect, Stephen Neil Penglase. A report prepared by Mr Penglase, dated 7 May 2004, which incorporated a slip resistance investigation undertaken by Mr James Mann was tendered.[4] Mr Penglase, in addition, gave oral evidence at the trial.
[4] See Exhibit P4
He described the tests undertaken at the subject premises some four and a half years after the accident on 15 April 2004, in accordance with the relevant Australian Standard, to determine the slip resistance or coefficient of friction of the surface of the terrazzo panel in a dry condition. He noted that the Australian Standard, being AS/NZS 4663:2002, provided that the coefficient of friction in a dry condition must be greater than 0.4 and that no specimen sample ought be less than 0.35 in accordance with the standard. The testing disclosed the co-efficient of friction as varying from 0.36 in the “as found” condition to 0.56 in a clean condition in different locations on the terrazzo surface. Ignoring the fact that the “as found” condition may have breached the standard the testing did disclose the level of the risk of slippage. He concluded that when in a clean and dry condition, the terrazzo panel would have had a moderate to very low risk of slipping. However he stated that the risk of slipping is high to very high when the surface was not cleaned and there was a contribution of dust and dirt. While Mr Penglase was not aware of the state of the terrazzo panel on the day of the accident, its condition on the day of the test was “typical” of the in service condition of such panels. He further noted that this particular panel was located close to Port Road, and that its particular environment meant that, in order for the surface to be a safe pedestrian surface, it must be regularly cleaned and kept in that condition constantly.
He recalled having been given a piece of the carpet by the plaintiff’s solicitors, which was approximately 1 metre wide and 0.75 of a metre long. He described it as being a standard type broadloom carpet which had wool or a pile of similar nature on a jute backing. He said that there was no rubber or like material on the back of the carpet. It was an unsuitable mat more likely to move than a rubber-backed mat, as it was not used for the purpose for which it was intended. He opined that to avoid an accident, the following alternatives were available:
1.To apply a finish to the terrazzo panel to increase its slip resistance or to roughen the surface to improve resistance. The latter required the use of a scabbling machine which would take approximately 30 minutes to roughen the surface.
2.To provide a suitable commercially designed entrance mat that had a backing which would not have slipped on the surface of the terrazzo. A suitable backed mat was readily commercially available.
3.A cleaning regime to ensure that dirt and dust were removed from the surface of the terrazzo panel.
In cross examination, Mr Penglase expanded upon why the carpet employed by the defendants was inadequate . He stated that the carpet was not impervious and that that was a fundamental problem, stressing,
“it’s not impervious to dust. So naturally you walk on a carpet or a mat and you brush your feet. The aim of the exercise there is to get the dirt off your feet. As you effectively massage the carpet with your feet, the dirt, the dust, whatever you want to call it, gradually works its way down through the bottom of the carpet ..... and will, in fact, go right through the carpet to the surface below because it is not an impervious surface.”
It was Mr Penglase’s opinion that the premises were built in approximately 1880-1890 and that the concrete veranda and terrazzo panel were laid some time later, whether it be in 1920, 1930 or as late as 1970. He further indicated that the extent to which the carpet would accumulate dust onto the terrazzo surface would depend upon how long it had been sitting in its position. If it were removed each day, it would attract less dust, whereas if it were left there for months, it would attract more. He concluded that its environment, being near a busy road, would add to the level of dust which would be attracted to the terrazzo surface.
I accept the evidence of Mr Penglase as to the inadequacy of the carpets employed by the defendants and as to the high to very high risk of slipping of the terrazzo surface in an uncleaned condition. Although it was faintly suggested that the carpet piece retrieved by the plaintiff one month after the accident and examined by Mr Penglase, was not the same carpet in place on 1 November 1999, I am satisfied, having heard the evidence of the plaintiff and the first defendant that it was the same carpet. I do not therefore have to consider whether any presumption of continuity ought apply.
The plaintiff sought to call two medical practitioners, Dr Anthony Thoo and Dr Mario Athinodorou, to give evidence essentially of prior consistent statements made by the plaintiff. I indicated to the plaintiff’s counsel that ordinarily such evidence would not be admissible unless it were suggested that the plaintiff’s evidence had been recently invented or reconstructed. I heard the evidence de bene esse. There is no doubt that if an issue as to credit had been raised by the defendants as to recent invention or reconstruction, then what the plaintiff told medical practitioners relatively shortly after the accident would be admissible. In Campbell v Burrows Engineering, (2001) 82 SASR 75, the Full Court restated the applicable principle:
“If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction.”[5]
[5] See Nominal Defendant v Clements (1960) 104 CLR 476 at 479
The defendants’ counsel made it clear that he did not allege that there had been any recent invention by the plaintiff. The defendants did not attack the veracity of the plaintiff, however submitted that the plaintiff was at all times uncertain as to what had happened in the accident. I conclude that the evidence of the allegedly prior consistent statements is not admissible, and I disregard the same.
The plaintiff called the orthopaedic surgeon, Dr George Potter. While Dr Potter opined that the plaintiff’s disability and pathology was consistent with having been caused by a slip and fall in the manner described by the plaintiff, he conceded that the pathology and disability could also have been caused in the manner suggested by the defendants, namely that the heel of the plaintiff’s right foot had caught the door step causing him to crumple forward at the knees.
(2) The defendant’s case
The defendants’ evidence was solely that of the first defendant, Geoffrey Thomas Eason. He indicated that having purchased the premises in the early 1990’s, some renovation work in the nature of painting and re‑carpeting had occurred prior to the business operating there in 1995-1996. In consequence of that renovation, a few pieces of carpet off‑cuts were retained. The business was moved in early 2000 from the subject premises to alternative premises at 955 Port Road, Cheltenham.
He specifically recalled the plaintiff arriving at the premises on the day of the accident. He observed the plaintiff carrying two fairly big boxes and walking into the premises. He said that he signed the delivery docket and followed the plaintiff to the entrance door which had been left in an open fixed position. He denied that the plaintiff had used the trolley and asserted that there had only been one trip made by the plaintiff in his delivery on that day.
His evidence as to the accident was as follows:
QWhat did you observe.
AWell, as he was stepping out of the door, he caught his heel on the edge of the doorjamb which basically, you know, he was stepping over to step onto the veranda. He caught the back of his heel on the edge of the doorjamb. Obviously all his weight was coming down, it’s caused him to crumple and he grabbed his back and stood there cursing.....
QWas it his front foot or his back foot.
AIt was his front foot.
QAre you able to remember whether it was his right foot or his left foot.
AIt was his right foot.
QWhat happened after he caught his heel on the step.
AWell, he buckled, he sort of - his legs buckled a bit, he grabbed his back, he turned around, he kicked at the mat, he swore. I said “Are you alright?” and he said “No” and he just kept cursing and then he walked off and that was it.
QYou just mentioned that he kicked at the mat.
AYes.
QFirst of all, what sort of mat was it.
AIt was a piece of carpet, an off cut of what we did the house in.
QA single piece or more than one.
ANo, one piece, one big piece.
He further stated that the purpose of the carpet on the veranda was that the front of the yard was susceptible to water and “a lot of dirt gets there so people just tramp straight into the building. It was just really there to help them wipe their feet”. He stated that his business did not have contract cleaners and that whenever there was water, he would sweep the water onto the garden and basically sweep the veranda nearly every day or every second day. When pressed he indicated that if the weather was fine as it was on the day of the accident, he would sweep the veranda every two or three days.
He described the premises as including a showroom and that, inclusive of staff, there would be 10-12 people who would come in and out of the central front entrance of the building on a typical day. He recalled that at the time the business would receive deliveries by delivery drivers two to three times a week.
In addition to staff members and delivery drivers, retail or commercial customers would attend the premises, in particular the showroom, on one or two occasions per day.
Mr Eason was adamant that the plaintiff did not fall nor did his buttocks make contact with the veranda surface. He asserted that he walked approximately half a metre behind the plaintiff as he approached the front door, and that he “was actually watching his feet, because I did not want to stand on him”. He expressly denied the plaintiff’s assertion of slipping on the carpets and falling down, landing roughly on his buttocks. He further refuted the plaintiff’s evidence of banging his head against the frame of the door, as he tried to get up.

He was cross examined with respect to the cleanliness of the veranda surface and said:
QDuring lengthy dry periods, it may not be needed.
AWe get a lot of dust and leaves blow, so we had to do it regularly.
QThe carpet off cuts that you had outside, were they brought in every evening.
AThere was one off cut and it was never brought in.
QNever brought in.
ANo.
QWhen you would do the sweeping, would you sweep around the carpet.
AThe carpet was basically stuck down to the veranda so there was no need to pick it up we just swept it off.
QDid you sweep around the carpet or not.
AWe swept the carpet as well.
QIn doing the sweeping you go over the carpet and across.
ACorrect.
Mr Eason was adamant that there was only one piece of carpet. When he was shown Exhibit P6, being a photograph of the two pieces of carpet, he again stated that he thought there had only been one piece of carpet. He finally stated “if that’s what was left there, that’s what it was”.
Findings on Disputed Facts
The issue of whether the plaintiff fell forward from the step or slipped on the carpet was the significant issue in the trial. As noted in Ragnelli v David Jones (2004) 90 SASR 232 at 237 there are various indicators which may support either version.
The first defendant’s evidence is supported by the statement contained in the compensation claim form executed by the Occupational Health & Safety Officer on 9 November 1999.
I accept that both witnesses were truthful and did their best to accurately relate the events which they honestly believed had occurred. It is clear however that the two versions cannot be reconciled, particularly as to whether the plaintiff fell to the ground.
The resolution of this dispute, however, has been made all the more difficult due to the passage of time, nearly six years since the accident occurred, and which has understandably affected the memory of witnesses.
I had regard to the demeanour of the witnesses as they gave their evidence. Despite the length of time since the accident, and the delay before he was asked to recall the events, Mr Eason was quite adamant about much of the minutia, including whether the plaintiff had used a trolley, the number of trips to complete the delivery that morning, and even the distance he was walking behind the plaintiff. I prefer the evidence of the plaintiff in respect of these matters. I do not accept Mr Eason’s evidence that he was concentrating upon the plaintiff’s feet shortly prior to the accident. In my view this was highly improbable and is consistent with a witness having reconstructed the events over time. He was equally adamant that there was only one piece of carpet until confronted with Exhibit P6.
I conclude that, particularly given the long time which passed between the date of the accident and his attendance to give evidence, Mr Eason has reconstructed the incident so that he now honestly believes the incident occurred in the manner in which he deposed.
I was favourably impressed by the plaintiff as a witness of truth. He presented as being an uncomplicated person who was clearly affected by the events which occurred on 1 November 1999. The plaintiff got on with his life after the accident, took himself off Workcover benefits and re-established himself as a delivery driver. The defendants properly conceded that they could not attack his veracity as a witness. The plaintiff did not at any stage embellish his evidence. I accept that the incident occurred in the manner he recounted to the court.
No point was taken with respect to the failure to call the Occupation Health & Safety Officer of the plaintiff’s former employer, however, I accept the plaintiff’s evidence that insofar as he provided any information to that officer, the statement contained in the compensation claim form did not accurately reflect what he had told her with respect to slipping on the carpet.
I find that there were in fact two pieces of carpet in place at the time of the accident as depicted in Exhibit P6 and that the piece of carpet provided to Mr Penglase was one of those pieces, upon which the plaintiff slipped.
The expert evidence as to the high risk of slippage whenever the terrazzo panel became dirty or dusty was largely undisputed. There was, of course, no direct evidence to indicate that the area beneath the carpet pieces was dusty or dirty on the day in question. The evidence of the defendants, which was also undisputed, was that there had been no previous falls or slippages on that carpet since the defendants had entered into business on the subject premises in 1995 or 1996.
The fact, however, remains that the area surrounding the veranda was prone to dust. The manner in which the first defendant cleaned the veranda was inherently likely to lead to dust accumulating under the carpet. While I am unable to find on the evidence that the carpet was not moved for the whole of the period from the renovation work in 1995/1996, I infer that the carpet remained in place as depicted in Exhibit P6 for a considerable period prior to the fall. Because it was not impervious, there would be a constant build up of dirt, both from people wiping their feet on the carpet, and from the defendants brushing over the carpet rather than cleaning underneath it. This is a case where the longer the carpet remained, the greater the accumulation of dust underneath the carpet would become and the higher the risk of slippage. In those circumstances, the absence of any record of previous slippage is easily explicable. The overwhelming inference is that dust had accumulated under the pieces of carpet over that two year period and that it was in such a state as to constitute a high risk of slippage on the day of the accident.
The Australian Standard is not legally binding and the mere fact that on a given day the slip resistance may have been in breach of that standard is not of itself of any significance: see Chicco v City of Woodville (1989) 150 LSJS 89 and Reed v Peridis [2005] SASC 136 at 39.
What is of significance in this case is that if the terrazzo panel was sufficiently dusty or dirty under the carpet on the day in question, then there would have been a high risk of slippage. This was not a case of an unusual event such as some unexplained material on the floor. The most likely inference is the accumulation of dust and dirt.[6] I infer and find that the terrazzo panel was in such a state of uncleanliness underneath the pieces of carpet that it created a high risk of slippage and that the carpets did so slip causing the plaintiff to fall and injure himself in the manner he described in his evidence.[7]
[6] James v Naracoorte Services (1967) 17 SASR 576 and Hunt v Knight Frank (NSW) Pty Ltd [2005] NSWCA 139 at [31]
[7] Brown v Target Australia (1984) 37 SASR 145
Standard of Care
There was no dispute at the trial that the defendants owed a duty of care to the plaintiff and others visiting their commercial premises to take reasonable care to avoid a foreseeable risk of injury to the plaintiff.[8] The duty of care at the time of the accident was imposed by s17C of the Wrongs Act 1936 SA, (now contained in s20 of the Civil Liability Act 1936) (“the Act”).
[8] Thompson v Woolworths (QLD) Pty Ltd [2005] H.C.A.19
The question of the liability of an occupier is to be determined in accordance with the principles of the law of negligence subject to the Act. The defendants were not under an absolute duty to ensure the safety of persons using the premises. It is trite to say that there are dangers on any premises and common experience is that people do slip and fall. It does not necessarily mean that an occupier will be liable for the usual or common perils incidental to his premises. In all cases the duty will be discharged by the exercise of reasonable care.
Section 17C(2) set out the indicia which a court must take into account in determining the standard of care to be exercised by an occupier.
In the present case there is no need to distinguish between the principles applicable at common law and the statutory provisions: see Ragnelli v David Jones (supra) at 17.
In Wyong Shire Council v Shirt (1980) 146 CLR 40 Mason J observed on the issue of foreseeability:
“A risk of injury which is quite unlikely to occur ..... may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being foreseeable we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.:
There is no doubt that the risk of injury to a visitor to the defendants’ premises slipping on the loose carpet in place over a dusty or dirty terrazzo surface was real and foreseeable. It was not far-fetched or fanciful.
There is little doubt in the present case that the slippage of the carpet could easily have been prevented.[9] Putting to one side the other alternatives expressed by Mr Penglase, the defendants ought to have employed a more thorough cleaning regime, in particular, cleaning under the carpets; or alternatively, placing an appropriate non‑slip mat in place of the two pieces of unsuitable carpet.
[9] See Turner v State of South Australia (1982) 56 ALJR 830 at 840 per Gibbs C.J. and Phillips v Daly (1989) 15 NSWLR 65 at 77.
In Tame v New South Wales (2002) 211 CLR 317 at 353, McHugh J warned against sliding from such findings into a conclusion of negligence:
“Given the undemanding nature of the current foreseeability standard, an affirmative answer to the question whether damage was reasonably foreseeable is usually a near certainty. And a plaintiff usually has little trouble in showing that the risk was reasonably preventable and receiving an affirmative answer to the second question. This is especially so since Lord Reed said that a reasonable person would only neglect a very small risk of injury if there was ‘some valid reason’ for disregarding it. A proposition that effectively puts the onus on the defendant to show why the risk could not have been avoided. Once these two questions are answered favourably to the plaintiff, there is a slide - virtually automatic - into a finding of negligence. Sometimes, courts do not even ask the question in a negligence case: did the defendant’s failure to eliminate this risk show a want of reasonable care for the safety of the plaintiff? They overlook that it does not follow that the failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence.”
His Honour repeated the observations of Mason J in Shirt that it is only when, [the magnitude of the risk and the degree of probability, along with the expense and inconvenience of taking alleviating action], are balanced out, that a tribunal of fact can confidently assert what is the standard to be ascribed applying the formulation in Shirt. Among the matters to be balanced are the indicia in section 17C(2) of the Act, including the extent to which an occupier was or ought to have been aware of the danger, and the extent to which it would have been responsible or practicable for an occupier to take measures to eliminate, reduce or warn against the danger.
Relevance of No Previous Accidents
In Australian Postal Corporation v Gallard [2000] NSWCA 316, the submission that an occupier could not be liable unless he knew of, or had reason to suspect unsafeness was rejected by Heydon J.A. In the present case, while there was no evidence of previous falls, the defendants were aware of the existence of facts tending to create or likely to create a danger. They were aware that dust accumulated on the veranda, and that the house was prone to dust by its proximity to Port Road. They knew that the area beneath the carpet was not cleaned, and that was the carpet was not taken up or cleaned other than by brushing over its surface. They knew that members of the public including delivery drivers would enter the premises by walking over the terrazzo panel. It was only a matter of time before the area would become so slippery that the carpets would slip[10]. The likelihood of injury to a person slipping on the carpet was reasonably high, whether it be injury to ankles, knees or, in the plaintiff’s case, the back. There is no doubt that the accident could have been readily avoided, either by the simple expedient of the proper cleansing of the terrazzo surface, or the installation of a suitable non‑slip mat.
[10] Sedgewick v Jerrabomberra Park (2004) ACTSC 108 and Hunt v Knight Frank Supra at [31] per McColl J.A.
It is trite that the standard of care will vary with the circumstances of the occupation of premises. It appears clear that in the case of a private dwelling with relatively few visitors the scope of what might reasonably be expected, of the occupier will be circumscribed. In the case of a public facility such as a shopping mall with many visitors of all ages, the requirements of the duty will be much more substantial.
In Drotem Pty Limited v Manning [2000] NSWCA 320 at 36 Powell J said in a case in which there had been no evidence of previous falls:
“..... the courts have adopted differential approaches to the standard of care due to an entrant according to the use made of the premises. The cases cited indicate the difference in the standard applied to premises used for residential purposes and those to which members of the public generally are invited, namely retail, commercial, hospital or recreational premises. In retail or commercial premises as stated by President Kirby in Johnson there is an obligation to pay attention to accident prevention. In supermarket cases there is a positive obligation to put in place a system of regular monitoring and inspection of the condition of premises.
These authorities lead me to conclude that in a situation such as is currently before me the standard of care requires more than a reaction when a danger is made known, particularly so when the danger is a result of wear and tear from general public use over a period of approximately twenty years. There is no evidence that the defendant in this case conducted any regular inspection of the premises in the nature of a safety audit. In my view the law imposes on occupiers of retail and commercial premises to which members of the public are invited an obligation of regular inspection to ensure that they are maintained in a condition which is safe for general public use.”
The subject premises are commercial premises, but such that there are limited attendances by members of the public. In the present case the system required of the defendants did not involve the need for continuous inspection and cleaning as might be required of a major department store.[11] The obligation however was to adequately clean the terrazzo panel underneath the carpets or to provide a non slip mat. Such a mat was subsequently installed by tenants of the defendants, as appears in Exhibit P5.
[11] Ragnelli v David Jones (Supra) and Kartinyeri v Woolworths (South Australia) Pty Ltd [2004] SASC 172 at [23]
Breach of Duty of Care and Causation
I have found that the plaintiff slipped on the pieces of carpet while exiting the defendants’ premises on 1 November 1999. I infer from the evidence of Mr Eason as to the general dusty nature of the area and the manner of cleaning the veranda surface, that the terrazzo under the pieces of carpet had accumulated dust over the two year period and that it had a high risk of slipping.[12] Reasonable practical and economic alternatives existed and had they been instituted the accident would not have occurred.
[12] Hunt v Knight Frank, Supra at [43-44]
I have no doubt that the defendants breached their duty of care by not cleaning under the rugs. The foreseeability of risk of injury was not so slight, even when considered alongside the experience of Mr Eason as to the absence of falls. There is further no doubt that the breach of duty by the defendants was the cause of the plaintiff’s fall. I have no difficulty concluding on the balance of probabilities that a proper cleaning regime, or alternatively, the placing of a non‑slip mat would have prevented the plaintiff’s fall.
Contributory Negligence
The defendants pleaded that the plaintiff was contributorily negligent. While in his address defendants’ counsel submitted that I should make such a finding, the issue of contributory negligence was only faintly argued, and properly so.
The plaintiff was a delivery driver attending commercial premises. There was nothing to indicate to him that there was any danger facing him. It is not suggested that he wore inadequate shoes. There was no evidence to the effect that he was rushing or otherwise placing himself in danger. The hidden nature of the risk, being the accumulated dust and dirt under the carpet pieces affected his ability to appreciate the risk of danger in this case. I am therefore not satisfied that the plaintiff was guilty of any contributory negligence. In my view, his behaviour in the circumstances was entirely reasonable[13].
[13] Butt v Tujon Pty Ltd (1984) Aust Torts Rep 80-503
In the event I do not need to consider whether the plaintiff could succeed in the alternative claim brought pursuant to section 23 of the Occupational Health, Safety and Welfare Act 1986[14].
[14] As to which see, Complete Scaffold v Adelaide Brighton Cement [2001] SASC 199 at [46]
There will be judgment for the plaintiff against the defendants in the sum of $80,000 inclusive of interest.
I will hear the parties as to the question of costs.