Nikolich v Webb - [2019] WADC 58

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   NIKOLICH -v- WEBB [2019] WADC 58
CORAM:   QUAIL DCJ
HEARD:   11-13 MARCH 2019
DELIVERED          :   24 APRIL 2019
FILE NO/S:   CIV 97 of 2017
BETWEEN:   AMANDA SUZY NIKOLICH
Plaintiff
AND
MATTHEW DOUGLAS WEBB
First Defendant
KAREN LYNETTE SOMERS
Second Defendant

Catchwords:

Torts - Negligence - Duty of care - Duty to Warn - Obvious risk - Short-stay rental property - Slip in bathroom - Liability of owner - Turns on own facts

Legislation:

Civil Liability Act 2002 (NSW)
Civil Liability Act 2002 (WA)
Occupiers Liability Act 1985 (WA)

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff	:	Mr J Brooksby
First Defendant	:	Mr A Nolan
Second Defendant	:	Mr A Nolan

Solicitors:

Plaintiff	:	Donna Percy & Co
First Defendant	:	Greenland Legal Pty Ltd
Second Defendant	:	Greenland Legal Pty Ltd

Case(s) referred to in decision(s):

Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Bennett v Minister for Public Works (NSW) (1908) 7 CLR 372
Carey v Lake Macquarie City Council [2007] NSWCA 4
Collins v Clarence Valley Council (No 3) [2013] NSWSC 1682
Department of Housing and Works v Smith (No 2) [2010] WASCA 25; (2010) 41 WAR 217
Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418
Great Lakes Shire Council v Dederer [2006] NSWCA 101
Homestyle Pty Ltd v Perrozzi [2007] WASCA 16
Inglis v Robertson & Baxter [1898] AC 616
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308
Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394
Mousa v Marsh [2001] NSWCA 317
MR & RC Smith Pty Ltd t/a Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Osborne v London and North Western Railway Company (1888) 21 QBD 220
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Schultz v McCormack [2015] NSWCA 330
Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1
Sydney Water Corp v Turano [2009] HCA 42; (2009) 239 CLR 51
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

QUAIL DCJ:

Introduction

Over the weekend of 14 February 2014, the plaintiff, Ms Amanda Nikolich, together with her husband, Mr Goran Nikolich, stayed at Aquatic Visions studio apartment number 1 (the premises) owned and managed by the first and second defendants, Mr Matthew Webb and Ms Karen Somers. On the first night of her stay Ms Nikolich slipped on the wet bathroom floor of the premises and fell, resulting in injury to her right arm.
Ms Nikolich now sues Mr Webb and Ms Somers as owners of the premises who owed her a duty of care in common law, in contract and as occupiers. She says they breached those duties and caused her injury. Mr Webb and Ms Somers admit owing a duty of care but deny breaching that duty. They also say Ms Nikolich contributed to her injury by her own negligence and voluntarily assumed the risk of injury. The matter was listed and heard as a trial on liability alone. No evidence was led concerning damages.
I will deal firstly with my findings of fact and then determine the liability issues arising from the trial.

Findings of fact

The witnesses

I found all three lay witnesses who gave evidence, Ms and Mr Nikolich and Mr Webb to be conscientious and credible in their accounts of events and recollection. Mr Nikolich and Mr Webb were both reliable and Ms Nikolich mostly so. Ms Somers did not give evidence.
Dr Steven Chew gave expert evidence for Ms Nikolich. He was well qualified to do so. Much of what he said did no more than confirm the common sense and experience of reasonable adults who use bathrooms on a daily basis.

The events of 14 February 2014

There was not much dispute on the facts. I am satisfied on the balance of probabilities of my following findings of fact.
Sometime before 2010 Mr Webb applied to the Margaret River Shire for short-stay accommodation approval allowing him to run a bed and breakfast facility accommodating four people. Once approval was granted he, with the assistance of professionals, prepared and submitted building plans to the Shire which were also approved.[1] A qualified builder then constructed two apartments which are located beneath Mr Webb and Ms Somers's residence in Prevelly. Mr Webb and Ms Somers operated the apartments from around August 2010 as short‑term rental accommodation, albeit not supplying breakfast. They were marketed online targeting the adult couples market. Each apartment is furnished with one king size bed and children are not specifically catered for.[2]
[1] ts 127.
[2] ts 129.
Ms Nikolich booked a weekend's accommodation at the premises online as she and her husband were attending a concert at Leeuwin Estate on 15 February.[3] She paid a deposit for one night of $325 and sometime later the balance for the second night.[4] Ms and Mr Nikolich travelled to Prevelly, arriving at the premises at around 5.30 pm on Valentine's Day, 14 February 2014. They collected the key to the premises from a box and after arrival texted Mr Webb concerning an issue with a blind that would not close. He attended and attempted to repair it.[5]
[3] The booking was through either Trip Advisor or Flip Key, ts 129.
[4] Exhibit 7.
[5] ts 25.
At some point Ms Nikolich read the list of 'helpful tips' provided by Mr Webb to people staying at the premises which included instructions on using the spa-bath in the bathroom. The document also provided that 'linen is supplied for your stay. Please place towels on the heated towel rail, as this will ensure they are warm for their next use'.[6] The bath linen that was provided for the weekend by Mr Webb was two bath towels, one bath mat and two hand towels. The bath mat was made of a white towelling material and its dimensions were approximately 800 mm x 500 mm. [7]
[6] Exhibit 1.
[7] Exhibit 2.13.
There were no particular instructions or warnings in the 'helpful tips' list concerning the floor of the premises. No other warnings were displayed in the premises or given to Ms and Mr Nikolich about the slipperiness of the bathroom floor when wet.
The floor of the premises including the bathroom was and is light beige polished concrete, with dispersed mixed colour aggregate. The bathroom floor is approximately 2.3 m long and 1.1 m wide with a 75 mm diameter drain towards the vanity end of the bathroom and a sliding door to the bedroom at the opposite end.[8] On the left as you enter the bathroom is a stacked washer and dryer and then, separated by a wall, a spa-bath with jets. There are no grab rails but a heated towel rail is fixed above the spa-bath on the wall separating it from the dryer. On the right as you enter the bathroom is the shower. It has a pivoting glass door which is not sealed on the vertical edges, the gaps are approximately 2 mm.[9] Gaps are necessary so that the door can pivot open. On the floor the shower has an approximately 25 mm high metal strip to prevent water leaving the shower and escaping onto the bathroom floor.[10] The glass shower door seals against the metal strip. The floor of the shower is of the same polished concrete and has its own drain.
[8] Exhibit 4 page 6 - 7.
[9] Exhibit 4 page 11.
[10] Exhibit 4 page 8.
At around 8.30 pm Ms Nikolich lit two tea-light candles placing one at each end of the spa-bath and then ran the water, following the written instructions and ensuring it was not overfilled as she was conscious that the spa-bath did not have an overflow.[11] She placed the bath towels on the vanity and, I infer, the bath mat approximately in the middle of the floor, where it remained until she hung it up before leaving the bathroom to go to bed.
[11] ts 39.
Around 9.00 pm Ms Nikolich got into the spa-bath with her husband.[12] The water was above the level of the jets which were then switched on. The sliding door between the bathroom and bedroom was open and remained so for the duration of the weekend.
[12] ts 25.
As Ms and Mr Nikolich were in the spa-bath for some time, she estimated one and a half hours[13], it was necessary to empty out some of the cool water and add hot water. When Ms Nikolich added hot water the smoke alarm located in the bedroom ceiling just outside of the sliding door alarmed audibly. This occurred on a total of three occasions over approximately the following hour. Each time Mr Nikolich exited the spa-bath to turn off the alarm. In doing so and as observed by Ms Nikolich, he did not dry himself with a towel and water dripped off his body onto the floor and also the bath mat which he stood upon.[14] On the first occasion he walked through the house with bare feet and dripping water, located the alarm, fetched a chair from the kitchen and stood on it in order to reach and press the button to switch off the alarm. He also opened a blind or window in order to allow some steam to escape from the bedroom.
[13] ts 26.
[14] ts 40.
On the second occasion Mr Nikolich exited the spa-bath in the same way and, still dripping, opened an external door in an effort, I infer, to clear the air. On the third occasion after switching off the alarm he gave up on returning to the spa-bath and had a shower of about ten minutes before standing on the bath mat, drying himself with a towel and retiring to bed.[15] Mr Nikolich said that after he had finished his shower the bath mat was very wet.
[15] ts 78.
Mr Webb is primarily responsible for running the business of Aquatic Visions which manages the apartments. He is responsible for the maintenance and cleaning of the units. His evidence, which I accept, is that since construction of the apartment in 2010 there have not been any issues with the smoke alarm, there have been no complaints about false alarms from people staying at the premises and he is not aware of any false smoke alarms.[16]
[16] ts 133.
I am unsure what caused the false alarms but it may have had something to do with the build-up of steam and heat in the bath and bedroom, given the connecting door was open and the length of time Ms and Mr Nikolich were in the spa-bath. The alarm did not go off when the spa-bath was filled initially or later when the shower was being used. Ms and Mr Nikolich did not say it went off at any other time over the weekend.
After Mr Nikolich showered, Ms Nikolich spent a few more minutes in the bath before getting out, standing on the floor and mat without drying herself and then entering the shower. Ms Nikolich was in the shower for approximately 20 minutes.[17]
[17] ts 49.
As Ms Nikolich explained and I accept, the rainfall shower and her movement in it resulted in water ricocheting off her body and some of it escaped the shower cubicle. She was not aware of this mechanism of leakage on 14 February but by the time they checked out on 16 February both Ms and Mr Nikolich had established that fact.[18]
[18] ts 48 - 49.
Mr Webb, at the request of his solicitors, prepared a video recording of the shower in the premises in operation.[19] It is not said that the video replicates the experience of Ms Nikolich in the shower as Mr Webb is clothed and the video is only of 1 minute 49 seconds duration. Nevertheless it is of assistance to me in that it shows that water descends vertically from the showerhead directly to the drain on the floor. No water escaped the shower during the demonstration, even for the brief period that the door was open. Mr Webb said that there had been no modification to the shower between 14 February 2014 and when the video was taken in August 2018.[20]
[19] Exhibit 8.
[20] ts 136.
I find that Ms Nikolich's shower did leak a minor amount of water on 14 February, in all likelihood through the small vertical gaps on the edges of the door. The water added to the far more substantial quantity already on the bathroom floor outside the shower.
After finishing her shower, Ms Nikolich wrung her hair out before leaving the shower cubicle and then stood on the bath mat to dry herself. She then hung the towel and also the bath mat over the towel rail. It was her usual nightly routine to do so. She said:
There was some water on the floor so I swished the mat around a bit but it was saturated, the mat was sodden and I hung it on the towel rail and I walked out.[21]
[21] ts 28.
In cross-examination Ms Nikolich said that before hanging the mat she 'tried to get some of the water off the floor'.[22] I am satisfied that Ms Nikolich knew when she left the bathroom that there was water remaining on the floor and, because of her awareness of the events I have described above, substantially more water than would be expected from two adults each having only a shower or bath. She also knew that although the bathroom had been in use for approximately two hours the floor had not drained and was still wet.
[22] ts 50.
In cross-examination Ms Nikolich agreed that in answer to interrogatories prior to trial she said on oath:
After I got out of the bath and showered (my husband had showered earlier), the bath mat was soggy and saturated with water and no longer absorbent. As part of tidying up the bathroom before I went to bed, I removed the soggy bath mat and as far as I recall I had placed it in the clothes dryer.
In an earlier answer she said:
I had removed it from the floor because it was soaking wet. I think I had put it into the clothes dryer.[23]
[23] Exhibit 3.
Ms Nikolich explained that at the time she answered the interrogatories she thought she had put the mat in the dryer but on subsequent reflection believed that she had hung it over the towel rail. I found her answers in cross-examination to be entirely credible on this point. I do not think she was trying to reconstruct events, rather she had genuinely reflected on her answers and believed that the mat was hung on the rail. She said she would not have put the mat and towels in the dryer overnight because they were soggy and liable to get 'smelly'.[24] Mr Nikolich, although he had no recollection of seeing it there, also believed the bath mat was hung on the rail.[25]
[24] ts 60.
[25] ts 85.
After hanging the bath mat Ms Nikolich walked to the bedroom, put on her pyjamas, sat on the bed and went through her usual pre‑sleeping regime including brushing and tying her hair back and putting on serum and moisturising lotion. She then lay down and switched off the lights but before going to sleep and whilst still in an alert state, a thought came to her head that she ought to check that the candles in the bathroom were out. She switched the bedside lamp on and got up. In her evidence she estimated the time between leaving the bathroom and returning was approximately 30 minutes.[26] In her answer to interrogatories she said the time between leaving the bathroom after tidying up the mat and towels and returning to check on the candle was 'several minutes'.[27] I find that the 'several minutes' between leaving the bathroom and returning, having regard to what Ms Nikolich did in between, was no more than 30 minutes and probably closer to 15 minutes.
[26] ts 30.
[27] Exhibit 3; ts 61.
In her bare feet Ms Nikolich walked from her side of the bed to the bathroom door, a distance of no more than 3 m, and continued a further three steps into the bathroom intent on checking the candles. She did not consider or turn her mind to whether the bathroom floor was still wet or remember that it had been a short time before.[28] Ms Nikolich knew though, as everyone who uses a bathroom from childhood does, that there was a risk of slipping on a wet bathroom floor.[29]
[28] ts 30, 57.
[29] ts 56 – 57.
In the three steps she took into the bathroom Ms Nikolich did not register that the bathroom floor was still wet, as I find it was. What happened next is as she described in re-examination:
So, one foot's ahead of me, and then twisting my feet. But I'd stopped, when I took the step I'd actually stopped. I stopped, twisted and leaned forward and to my left to retrieve the candle and then my feet went from under me.[30]
[30] ts 68; The area where Ms Nikolich was standing is shown in Exhibit 2.13.
Ms Nikolich had also extended her left hand to reach the candle. As she slipped her right arm fell across the spa-bath.[31] Her arm was hyper‑extended as she fell back onto her bottom on the floor. At that point she was next to the spa-bath and roughly in the middle of the floor. She screamed in pain and shock.
[31] ts 32.
Mr Nikolich heard the fall and scream and immediately got out of the bed and walked to the entry of the bathroom. He was naturally concerned for his wife. Although he was not running he was focussed on getting to her and assisting her. He slipped just outside the entry to the bathroom on water under his bare feet.[32] I am satisfied the water he slipped on was either that which dripped when he was walking in and out of the bathroom attending to the smoke alarm or more likely from when he was standing on the chair switching it off. The point where he slipped is almost directly under the smoke alarm.[33] Mr Nikolich fell on his back and slid on the water on the bathroom floor and ended up 'in a heap' with Ms Nikolich in the middle of the floor.[34]
[32] The area where Mr Nikolich slipped is shown in Exhibit 2.4.
[33] Exhibit 2.4 is a website picture which does not appear to show the smoke alarm, which can be seen and the position matched in Exhibit 2.17.
[34] ts 75.
After a short while Mr Nikolich assisted Ms Nikolich to the bed. She was in pain and he had to change her pyjama bottoms as they were wet. He then gave her some pain relieving medication and took her to the hospital in Margaret River where she was attended to by a nurse.
Ms Nikolich returned to the hospital the following day for further treatment and also saw her general practitioner. There is no doubt that she suffered an injury to her right shoulder and possibly her right arm in the fall but it is not necessary for the purposes of determining liability to consider the nature and effect of the injury further.
On 16 February 2014 when the couple checked out of the premises, Mr Nikolich told Mr Webb that Ms Nikolich had slipped over in the bathroom.[35]
[35] It is not necessary for me to resolve whether anything else was said as this conversation was not put to Mr Nikolich in cross-examination and the defendant's counsel did not ultimately rely on any conclusion which might be drawn from the balance of the conversation about which Mr Webb gave evidence.

Expert evidence

Dr Steven Chew was called by Ms Nikolich to give expert evidence. There was no dispute as to his qualifications or expertise.
Dr Chew attended at the premises in August 2017 and examined the bathroom and conducted slip tests on the floor, both when it was dry and wet. I accept his conclusion that the bare foot coefficient of friction on the dry bathroom floor was 0.52. I accept that the bare foot wet coefficient of friction on the bathroom floor was 0.20.[36]
[36] Exhibit 4 pages 13 and 14.
To interpret those results Dr Chew considered two relevant Australian Standards being AS4663-2013 relating to existing pedestrian surfaces and AS4586-2013 relating to new pedestrian surfaces.[37] He also had regard to related standards and interpretive guidelines.
[37] Referred to in Exhibit 4.
The Australian Standards are not directly referable to the floor in the premises as both are generalised standards and guidelines for all pedestrian surfaces, including external and internal surfaces. Dr Chew explained there is no Australian Standard in relation to bathroom or wet area floors and no mandatory standard that the floor of the premises was required to comply with.
My approach to the Australian Standards is that they are relevant to determining whether the bathroom floor constituted a danger which must be guarded against by the exercise of reasonable care.[38] Failure to follow a standard does not, without more, establish negligence.[39]
[38] MR & RC Smith Pty Ltd t/a Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 [69] – [70].
[39] Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 [110].

I accept Dr Chew's expert evidence in relation to the interpretation of the friction results by reference to the Australian Standards that the contribution of the floor surface to the risk of slipping for a barefooted person walking on the dry floor of the bathroom would be very low to moderate. I accept that a barefooted person walking on the wet floor would have a high, perhaps even very high, risk of slipping on the floor.[40]
[40] Exhibit 4 page 17.
Dr Chew made it clear that this risk assessment was based upon a person walking at a 'leisurely stroll'[41] on the floor of the premises and accepted the results were invalid and the risk of slip would be quite different for a person who was stationary or turning.[42] He said for a person who was stationary there was a very low risk of slippage if the person's legs were vertical and their feet facing the bath.[43] In his letter to Ms Nikolich's solicitors of 15 September 2018 he said 'foot slippage should not occur if a person is standing still'.[44]
[41] ts 103.
[42] ts112.
[43] ts 117.
[44] Exhibit 6; ts 118.
Dr Chew also performed some theoretical calculations relating to the potential for barefoot slippage on the wet floor surface in the position Ms Nikolich was in, stationary and leaning forward to her left[45], and said there was a 'real risk' when the leg angle to the vertical was 11 degrees or more.[46] He also properly conceded that there were other mechanisms that could account for falling such as over-balancing.
[45] ts 109, 111.
[46] ts 110.
Common experience also informs me that foot instability on a slippery floor, perhaps as a result of twisting to change direction or shifting weight distribution could result in foot slippage.
Dr Chew did not conduct any slip tests on the floor with a bath mat in place, either dry or wet.
Dr Chew did not undertake any drainage testing of the bathroom in the premises and did not run the shower to observe whether the floor outside the shower became wet.
Dr Chew measured the gradient of the bathroom floor as having a slope of 1 degree towards the drain. He said that there were no relevant Australian Standards concerning what the gradient should be but that gradients of around 2 to 3 degrees were common.[47] He said in this context, and I accept, that gradient is not the only consideration in relation to drainage because surface tension causes water to remain on a floor regardless of gradient and it may not drain but ultimately evaporate off the floor.[48] Again, this is a matter of common knowledge and experience.
[47] ts 107.
[48] ts 107.
On the basis of all of the evidence and bringing common experience to bear, I am satisfied Ms Nikolich slipped on water on the bathroom floor that had not yet drained, been dried or evaporated. It is possible that in turning to face the bath, one of her legs moved to an angle of more than 11 degrees from the vertical, initiating the slip. It is probable though that a combination of mechanisms including Ms Nikolich's leg angle after she turned, together with her leaning over and reaching out with her left hand which changed the distribution of her body weight so that it was not vertically aligned with her feet, caused her to slip and fall.

Issues for determination

I will deal with the issues that arise for determination in the following order:
1.Did Mr Webb and Ms Somers owe a duty of care to Ms Nikolich?
2.Was there a duty to warn?
3.Was the risk of slipping and falling on the wet bathroom floor obvious?
4.Did Mr Webb and Ms Somers breach the required standard of care? What precautions should they reasonably have taken against the foreseeable risk of injury?
5.Did any breach of duty by Mr Webb and Ms Somers cause the injury to Ms Nikolich (was their fault a necessary condition of the harm)? If so, is it appropriate for the scope of their liability to extend to the injury to Ms Nikolich?
6.Did Ms Nikolich voluntarily assume the risk of slipping on the wet bathroom floor?
7.Was there any contributory negligence on the part of Ms Nikolich?
8.Disposition of the claim.

Did Mr Webb and Ms Somers owe a duty of care to Ms Nikolich?

Mr Webb and Ms Somers admit that they owed a common law duty to Ms Nikolich to take reasonable precautions to avoid the foreseeable risk of slipping on the bathroom floor when it was wet.[49] Although that is not precisely how the duty was framed in the defence I am satisfied that is the duty of care that was owed by Mr Webb and Ms Somers to Ms Nikolich and both counsel were agreed at trial I could proceed to determine the matter on that basis.[50]
[49] First and second defendants' opening submissions dated 12 February 2019 [18] and counsel's opening address ts 121.
[50] Paragraph 4 of the amended defence filed 20 August 2018 pleads the duty was to take reasonable care to ensure the bathroom floor was 'fit for use by the plaintiff'. There is no material difference between the two expressions in this case but the more precise duty identified in the defendants' opening is preferable.
Mr Webb and Ms Somers also admit it was an implied term of the contract between Ms Nikolich and themselves that the bathroom floor was safe to stand on and traverse with normal use of the bathroom. That duty of care was analogous to the duty owed at common law.[51] No different consequences would result from determining the matter in negligence or contract and as no evidence was lead or submissions made concerning contractual liability I will not dwell on it further.
[51] First and second defendants' opening submissions [20].
Ms Nikolich also pleads that Mr Webb and Ms Somers were occupiers of the premises on 14 February 2017 and owed her a statutory duty of care under the Occupiers' Liability Act 1985 (WA). That was denied on the pleadings and at trial by Mr Webb and Ms Somers. Both counsel were agreed though that determination of liability in this case under occupiers' liability principles would be no different than in negligence or contract.
I would also observe that as the trial focused on negligence there was ultimately insufficient evidence adduced by Ms Nikolich to satisfy me of the precise terms of her occupation of the premises over the weekend of 14 February. I am unsure whether Ms and Mr Nikolich had exclusive possession or whether they had only a license and Mr Webb and Ms Somers retained a right to enter the premises.[52] Ultimately therefore I could not be satisfied that Mr Webb and Ms Somers were occupiers of the premises at the relevant time (although I suspect they were).
[52] See Occupiers' Liability Act 1985 (WA) s 2, s 5, s 9 and also Jones v Bartlett [45], [152].

Was there a duty to warn?

Before turning to consider the question of breach of duty it is necessary for me to resolve a further aspect of the scope of the duty owed to Ms Nikolich at common law. This issue arises because in her statement of claim Ms Nikolich pleads as follows:
11.The accident was caused by the negligence, breach of statutory duty and breach of contract of the Defendants in that the Defendants:
(a)failed to warn the Plaintiff that the bathroom floor was dangerous by reason of its highly polished finish and was slippery when wet;
(b)failed to warn the Plaintiff that despite the presence of a shower screen and drainage, water would accumulate on the bathroom floor near the bath and outside the shower recess and remain slippery after water had spread onto it;
(c)failed to warn the Plaintiff that the slope of the floor to the drain hole was such that water would remain on the floor and not drain efficiently and/or quickly to the extent that the floor would remain wet and slippery for a considerable time after the bathroom was used and became wet. [53]
[53] Amended statement of claim filed 21 December 2018.
Although pleaded in relation to breach I will treat the statement of claim as alleging by necessary implication that Mr Webb and Ms Somers owed a duty of care to warn Ms Nikolich that the bathroom floor was slippery when wet. Mr Webb and Ms Somers deny they had any duty to warn.
Section 5O of the Civil Liability Act 2002 (WA) (the CLA), under the heading 'Assumption of risk' in pt 1A div 6 provides:
5O.No duty to warn of obvious risk
(1)A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.
The exceptions to that general proposition in the balance of the section are not relevant to this matter.
'Obvious risk' for the purposes of s 5O has the meaning given to it in s 5F.[54] Section 5F relevantly provides:
5FTerm used: obvious risk
(1)For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2)Obvious risks include risks that are patent or a matter of common knowledge.
(3)A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4)A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
[54] CLA s 5M.
At the conclusion of the trial I asked counsel to file supplementary written submissions addressing whether s 5O was confined to the defence of voluntary assumption of risk or whether it operated more broadly in relation to the scope of a duty of care, excluding a duty to warn.
Ms Nikolich submitted that s 5O only arises for consideration in the context of the defence of voluntary assumption of risk and does not impact the scope of the duty owed. Mr Webb and Ms Somers submitted that the effect of the CLA is to modify the common law defence such that a plaintiff is presumed to have knowledge of an obvious risk and to provide a statutory defence by limiting the scope of a duty of care to exclude a duty to warn of an obvious risk. They say s 5O cuts across the scope of duty and is not dependent on the defence being raised.
Ms Nikolich's submission must be rejected for the following reasons.
Although s 5O is within div 6 of the CLA and the heading of the division 'Assumption of risk' must be read as part of the Act,[55] the 'primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of the provisions of the statute'.[56]
[55] Interpretation Act 1984 (WA) s 32.
[56] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69].
Ms Nikolich submitted that the division heading has a 'controlling effect on what follows'.[57] That is not a correct statement of the law as 'where the enacting words are clear and unambiguous, the title, or headings, must give way, and full effect must be given to the enactment'.[58]
[57] Plaintiff's submissions on the duty to warn dated 25 March 2019 [14] citing Inglis v Robertson & Baxter [1898] AC 616.
[58] Bennett v Minister for Public Works (NSW) (1908) 7 CLR 372, 383; Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1, 16.
The scheme of the CLA is that it does not provide a general statement of the circumstances where a duty of care arises between a plaintiff and defendant. Although div 2 is headed 'Duty of care', it deals not with the existence of a duty but rather the issue of breach of duty. The heading is thus not a reliable guide to understanding the scope of the sections within it and is 'apt to mislead'.[59]
[59] Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [13].
The clear and unambiguous words of s 5O are that 'a person … does not owe a duty of care to another person … to warn' (emphasis added). In my opinion those words can only be a reference to the scope of the duty of care that a defendant owes to a plaintiff.
Generally, the common law will determine whether a duty of care exists.[60] What the CLA does do though is deny the existence of a duty of care in s 5O (No duty to warn of obvious risk), s 5I (No liability for recreational activity where risk warning) and s 5S (Mental Harm: duty of care).[61] Section 5W (Principles concerning resources, responsibilities etc of public body or officer) and s 5Z (Special protection for road authorities) deal with whether a duty of care is owed or breached in particular circumstances.
[60] Department of Housing and Works v Smith (No 2) [2010] WASCA 25; (2010) 41 WAR 217 Buss JA [77].
[61] See Villa D, Annotated Civil Liability Act 2002 (NSW) (3rd edition 2018) page 96.
Although the effect of s 5O has not been considered determinatively in Western Australia, Ms Nikolich relied on the decision of McClellan CJ at CL in Carey v Lake Macquarie City Council.[62] His Honour said in relation to identical provisions in the Civil Liability Act 2002 (NSW) that they only operated to relieve a defendant of a duty to warn of obvious risk in cases of assumed risk. His Honour's interpretation was that the division heading in the Act and consideration of extrinsic materials suggested that the purpose of the 'obvious risk' provisions was to inform the common law defence of voluntary assumption of risk.[63] The other members of the court in Carey, McColl JA and McDougall J, did not join in McClellan CJ at CL's judgment on this issue as the case had not been argued on that basis.[64]
[62] Carey v Lake Macquarie City Council [2007] NSWCA 4.
[63] Carey v Lake Macquarie City Council [71] and also see [34].
[64] Carey v Lake Macquarie City Council [2] and [117].
Subsequent to Carey, McColl JA briefly revisited the question in the NSW Court of Appeal in Schultz v McCormack.[65] His Honour said (footnotes removed):
A finding of obvious risk under s 5F, however, does not have that effect. It merely eliminates that part of a defendant's duty of care which involves warning of such a risk. There is a view that, because s 5H cuts across the scope of the duty of care, logically it should be addressed after considering whether any such duty exists and its prima facie scope and before considering breach. The appellant did not complain about the order in which the primary judge addressed the issues and I will not take the issue further.[66]
[65] Schultz v McCormack [2015] NSWCA 330.
[66] Schultz v McCormack [85].
The 'view' McColl JA referred to was that of Beech-Jones J in Collins v Clarence Valley Council (No 3)[67] who said that:
Section 5H provides that a 'person…does not owe a duty of care to …warn of an obvious risk'. So expressed, it cuts across the scope of the duty. Logically it should be addressed after considering whether any such duty exists and its prima facie scope and before considering breach.
[67] Collins v Clarence Valley Council (No 3) [2013] NSWSC 1682 [100].
Although in Schultz McColl JA could not be said to have formed a concluded view on whether a duty to warn should be considered before breach, the NSW Court of Appeal endorsed that approach in Action Paintball Games Pty Ltd (in liq) v Barker.[68] His Honour did find though that where an obvious risk exists, the duty is 'eliminated'.
[68] Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128 [29] Basten JA, Hoeben and Ward JJA agreeing.
More recently, Basten JA with whom McColl JA agreed, said in Kempsey Shire Council v Five Star Medical Centre Pty Ltd that the equivalent section to s 5O in the CLA (NSW) had changed the law and 'removes any duty to warn of an obvious risk'.[69]
[69] Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308 [11].
I respectfully agree with the approach in Collins, Schultz, Kempsey Shire Council and Action PaintballGames Pty Ltd (in liq). Section 5O of the CLA changes the common law in that it provides expressly that a defendant does not owe a duty of care to a plaintiff to warn of an obvious risk. Notwithstanding that the section is within the division relating to assumption of risk it operates more broadly and affects the nature of the duty of care that is owed. Therefore logically it should be addressed after consideration of the existence of duty and its scope and before considering breach. Section 5O only relates to a duty of care to warn and does not otherwise affect the scope of duty.
Thus it is necessary to consider whether Mr Webb and Ms Somers owed Ms Nikolich a duty to warn her of the risk of slipping on the bathroom floor when it was wet.

Was the risk of slipping and falling on the wet bathroom floor obvious?

Having regard to s 5F an 'obvious risk' is one that in all of the circumstances would have been obvious to a reasonable person in the position of Ms Nikolich. It is necessary to have regard to the particular circumstances in which Ms Nikolich suffered the relevant harm and determine whether the risk which resulted in her suffering that harm would have been obvious to a reasonable person in her position. All of the surrounding circumstances which occurred immediately prior to Ms Nikolich falling must be identified for the purposes of determining whether the risk which materialised was obvious.[70]
[70] Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 [98]; Homestyle Pty Ltd v Perrozzi [2007] WASCA 16.
Whether or not the risk was obvious to a person in the position of Ms Nikolich must be answered objectively, attributing to them an adult's knowledge of the bathroom and conditions possessed by Ms Nikolich at the time.[71]
[71] Great Lakes Shire Council v Dederer [2006] NSWCA 101 [152].
Ms Nikolich's actual knowledge of the risk at the time that she entered the bathroom is not relevant except to the extent that how she acquired that knowledge may assist in the determination of the forward looking inquiry as to whether the risk would have been obvious to a reasonable person in her position.[72] Her actual knowledge of the risk may also be relevant as a circumstance to be taken into account when considering what would have been obvious to a reasonable person in her position.
[72] Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394 [32].
Based on my findings of fact I am satisfied that a reasonable person in the position of Ms Nikolich would have known:
•A dry polished concrete floor is safe to walk on in bare feet;
•A wet polished concrete floor presents a moderate to high risk of slipping in bare feet;
•A larger than normal amount of water fell and accumulated on the polished concrete bathroom floor during the approximately two hours the bathroom was in use on the evening of 14 February;
•Water also dripped on other areas of the polished concrete floor of the premises;
•On leaving the bathroom for bed the floor was wet, the bath mat sodden and hung on the towel rail;
•There was then no bath mat, towel or other anti-slip surface on the wet bathroom floor;
•Wet bathroom floors do not drain completely to a dry state as surface tension holds some water in place which has to evaporate over a longer period than half an hour or be dried off;
•On re-entry to the bathroom that night the floor would still be wet, at least in patches that might not be visually prominent, and thus slippery;
•to traverse the bathroom floor safely, whether in slippers or bare feet, it would be necessary to look where you were going, tread carefully, use available handholds and avoid the wet patches;
•to make the wet area of the floor safe it would be necessary to put down a bath mat (even a wet one) or towel to provide a non-slip surface to stand and walk on.
These are all matters of common knowledge and patent to adults who use bathrooms regularly for washing, bathing and showering.
For these reasons I am satisfied that the risk of slipping and falling on the wet bathroom floor on the evening of 14 February 2014 was an obvious risk within the meaning of s 5F of the CLA.

It follows that because of the operation of s 5O of the CLA, Mr Webb and Ms Somers did not owe a duty of care to Ms Nikolich to warn her of that obvious risk.

Did Mr Webb and Ms Somers breach the required standard of care? What precautions should they reasonably have taken against the foreseeable risk of injury?

Counsel were agreed that I should approach the issue of breach of duty by application of the classic pronouncement by Mason J (as he then was) in Wyong Shire Council v Shirt,[73] commonly known as the Shirt calculus. However, even though there may be little difference between the common law and CLA regarding breach of duty, the correct approach is to commence a consideration of negligence by having regard to the CLA first.[74] Section 5B of the CLA provides:
[73] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 – 48.
[74] Adeels Palace Pty Ltd v Moubarak [11].
5BGeneral principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless —
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
Section 5B(1)(b) discards the common law test of scope of liability for foreseeable risk of 'not fanciful or farfetched', substituting a test of risk that is 'not insignificant'.
In assessing whether a risk of injury is foreseeable, it is sufficient if the class (or kind) of injury is foreseen as a possible consequence of particular conduct.[75] It is not necessary to be able to foresee the particular injury. Nor it is necessary that the precise sequence of events leading to injury be foreseen.[76]
[75] Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, 390.
[76] Sydney Water Corp v Turano [2009] HCA 42; (2009) 239 CLR 51 [46].
Although he was doing so in the context of occupiers' liability, Buss JA in Department of Housing and Works v Smith (No 2) summarised the relevant common law principles concerning reasonableness in this context as being:
First, the determination of what, if anything, a reasonable person in the [occupiers or lessors] position would have done involves an assessment of what would have been reasonable and practicable for the [occupier or lessor] to have done. Second, this enquiry is not to be undertaken in hindsight. It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury. Third, contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case. Fourth, reasonableness may require no response to a foreseeable risk that is not insignificant. Fifth, the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness.[77]
[77] Department of Housing and Works v Smith (No 2) [87].
In closing submissions counsel for Mr Webb and Ms Somers properly conceded that as a general proposition there was a foreseeable risk of a person slipping and falling on the wet bathroom floor.[78] I would add that based on my findings of fact that risk was not insignificant. Counsel identified that the real issue was what a reasonable person in the particular circumstances of Mr Webb and Ms Somers ought to have done in response to that risk.[79] In the words of s 5B of the CLA, what precautions, if any, should they have taken against the risk of harm?
[78] ts 152.
[79] ts 152.
In considering this question I bear in mind what Gleeson CJ said in Jones v Bartlett in a case where the appellant sustained injuries when he walked into a glass door in a house in circumstances where the door complied with current building standards at the time the house was built but not at the time of the accident. His Honour said:
[22]In the present case we are not concerned with a dwelling house that was dilapidated or tumble-down, or that contained negligently installed and dangerous electrical wiring. There was nothing about the premises that alerted, or should have alerted, the owners to any unusual danger. The premises were constructed in accordance with the standards prevailing at the time, and, so far as it appears from the evidence, were adequately maintained.
[23]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, it safety were the only consideration. The fact that a house could be made safer does not mean that it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including costs, convenience, aesthetics and practicality. The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense.
[24]In Phillis v Daly (1988) 15 NSWLR 65 at 74, Mahoney JA said:
'There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed.'[80]
[80] Jones v Bartlett and Another [22] – [24].
To determine this issue it is necessary to deal with each of the alleged breaches particularised in Ms Nikolich's statement of claim and relied upon by her at trial.
In doing so I am satisfied that the wet bathroom floor posed a medium to high slip risk to someone walking on it in bare feet without a bath mat or non-slip surface in place. The probability of suffering physical injury for someone slipping and falling in the position of Ms Nikolich was high. Slip and fall injuries can vary from mere bruising to death.
I have already referred to the first three particulars of negligence when dealing above with obvious risk and duty to warn. In light of my conclusions that there was no duty to warn it follows that there was no breach.
However, if I am wrong in my conclusion that the risk was obvious and there was a duty to warn, then it would have been reasonable for Mr Webb and Ms Somers to warn people in the position of Ms Nikolich that the polished concrete floor of the premises, including the bathroom, would be slippery when wet and posed a slip risk.[81] Such a warning would have been easy to effect at no cost by including a reference to the risk in the document of 'helpful tips' provided to people checking into the premises.[82] Equally, it would have been reasonable to put a sign displayed in an obvious place in the premises warning of the risk. It would not be necessary to have put the sign on the bathroom door, anywhere in the premises which was obvious to a person when they first entered would have been desirable, given that the whole floor presented a risk of slipping wherever water might be accumulated upon it.
[81] Statement of claim par 11(a).
[82] Exhibit 1.
It would not have been reasonable to warn people in the position of Ms Nikolich that, despite the presence of a shower screen and drainage, water would accumulate on the bathroom floor near the bath and outside the shower recess.[83] That is a matter of common experience and known to all reasonable adults who use bathrooms. The more general warning referred to above would have been sufficient.
[83] Statement of claim par 11(b).
Similarly, it was not a reasonable response to warn people in the position of Ms Nikolich that the slope of the floor to the drain hole was such that water would remain on the floor and not drain efficiently and/or quickly to the extent that the floor would remain wet and slippery for a considerable time after the bathroom was used.[84] In light of my findings of fact, I am not satisfied that the drainage to the floor was inadequate or inefficient. Further, drying of the bathroom floor was a consequence of not only drainage but also evaporation or bath mat absorption. Again, these are matters of common experience and there was no reasonable requirement to warn of it.
[84] Statement of claim par 11(c).
Turning to the balance of the pleaded allegations of negligence:
11(d)failed to provide sufficient bath mats to enable not only the absorption of water which flowed from the shower recess and/or dripped off the Plaintiff onto the floor after exiting the bath, but to cover the floor sufficiently to enable safe passage across the bathroom without the need to make direct contact with the slippery floor;
(e)failed to adjust the smoke alarm so that it did not trigger each time the hot water was being used for a shower/bath necessitating exiting the shower/bath in order to turn it off;
(f)failed to install a 'grab' rail or other device to which patrons, and in particular the Plaintiff could hold onto to steady themselves on the slippery floor;
(g)failed to take steps to ensure the floor was non-slip.
I will deal with each in order. The reasonable response to the risk of slipping on the wet bathroom floor was for Mr Webb and Ms Somers to provide people in the position of Ms Nikolich with a bath mat and towels. They did so. Ms Nikolich used the bath mat on the floor and it was effective for its purpose. Had the bath mat remained on the floor and not been hung up by Ms Nikolich it would have continued to be effective as a non-slip surface upon which people entering the bathroom could have walked and stood. In my view it covered sufficient of the floor to effect that purpose. Although the bath mat might have been unpleasant to stand on when sodden, common experience is that it would still have been an effective non-slip surface.
It was not a reasonable response to the risk that Mr Webb and Ms Somers should have provided sufficient bath mats to cover the full extent of the bathroom floor from the door to the vanity. If such a large portion of the floor became wet that the bath mat could not cover it then it would have been reasonable for Ms and Mr Nikolich to have used the towels provided by Mr Webb and Ms Somers to cover additional parts of the floor. Mr Webb and Ms Somers made a washer and dryer available and they could have been used to launder or at least dry any wet towels and the bath mat the following day.
It was also not a reasonable response to require Mr Webb and Ms Somers to provide additional or spare bath linen as the linen which was provided was sufficient to deal with the risk posed by the wet bathroom floor.
It was not a reasonable response to the risk for Mr Webb and Ms Somers to have done anything more than they did in relation to the smoke alarm. The premises were built by a builder with a good reputation and, more importantly, in compliance with plans lodged with the Shire. I infer the smoke alarm was compliant and in an appropriate position. The alarm was not faulty and has no history of failures or similar problems to the knowledge of Mr Webb. There was no evidence the alarm could be adjusted (other than by turning it off) to prevent it triggering.
Whether faulty or not, the risk of someone in the position of Ms Nikolich slipping on the wet bathroom floor by reason of the triggering of the smoke alarm was not reasonably foreseeable. Appreciating that the precise mechanism of injury need not be anticipated, Mr Webb and Ms Somers did not know and could not have known that people staying in the premises might leave the connecting door between the bedroom and bathroom open, that the alarm in the bedroom might then trigger repeatedly while the spa-bath was being used and that in switching it off a person would drip water over the floor without drying themselves and thus create a slip hazard. The breach alleged here is quite different to one that can be imagined where a smoke alarm placed in a bathroom triggers because of poor placement near a heat source and a person slips and suffers harm while getting out of a spa-bath intending to switch it off. In that scenario breach might well be established.
It was not a reasonable response to the risk for Mr Webb and Ms Somers to install a grab rail or other device which someone in the position of Ms Nikolich could hold to steady themselves. If this were thought to be a reasonable response to slip risk (as opposed to being an aid to get in and out of the spa-bath) then it would be necessary to install railings along all of the bathroom walls and elsewhere in the premises where water might reasonably fall on the floor, such as in the kitchen. To do so would be expensive and impractical. Grab rails would also do nothing to reduce the risk of slipping in the middle of the floor and out of reach of a rail. In this bathroom there were a number of surfaces and edges (vanity, vertical dryer wall and spa-bath) as well as a towel rail which could serve the same precautionary stabilising function as a grab rail.[85] Grab rails would also ruin the aesthetic appearance of a modern apartment that targets the short-stay adult holiday market.
[85] Exhibit 4 page 7.
It was not a reasonable response to the risk for Mr Webb and Ms Somers to make the bathroom floor permanently non-slip by application of a commercial anti-slip coating or by grinding the floor to roughen it. Even accepting that such measures could be undertaken at reasonable cost (although there was no evidence of exact cost), it was not reasonable to do so and would change the aesthetic of the bathroom.
The reasonable precaution to the slip risk posed by the wet bathroom floor was that which Mr Webb and Ms Somers took in providing a non‑slip covering in the form of a bath mat and if necessary to be used, the towels. That was a cheaper, more practical and aesthetically pleasing response than grinding or coating the floor.
All bathrooms contain hazards and safety is not the only consideration. There is a social utility in the commercial availability of short‑stay accommodation in a popular tourist region which is modern or contemporary in architectural character and targeted at the adult market. No doubt this bathroom could have been made safer so that it more resembled what would be expected in a hospital or aged care facility. To require so would be unreasonable and deprive the accommodation of the very character that makes it appealing to its target market.
It follows that I am not satisfied that Mr Webb and Ms Somers breached the duty of care that they owed to Ms Nikolich. Their response to the obvious risk of slipping and falling on the wet bathroom floor, in providing a bath mat and towels, was the reasonable precaution for them to take.
Accordingly, the claim brought by Ms Nikolich against Mr Webb and Ms Somers must be dismissed.
In the event though that my conclusions above are wrong, I should though make some further findings with the benefit of being the trial judge.

Did any breach of duty by Mr Webb and Ms Somers cause the injury to Ms Nikolich (was their fault a necessary condition of the harm)? If so, is it appropriate for the scope of their liability to extend to the injury to Ms Nikolich?

I will approach causation by application of the principles in s 5C and s 5D of the CLA and as they were explained by the High Court in Adeels.[86] Firstly, I must determine whether Mr Webb and Ms Somers' assumed negligence was a necessary condition of the occurrence of Ms Nikolich's harm, in other words whether such harm would not have occurred 'but for' their fault. Secondly, I must decide whether it is appropriate for the scope of their liability to extend to the harm so caused.
[86] See also Department of Housing and Works v Smith (No 2) [89] – [94].
If there was breach of a duty to warn then I am not satisfied that Mr Webb and Ms Somers' fault was a necessary condition of Ms Nikolich suffering harm. If there were warning signs in the premises or included in the 'helpful tips' list there is no doubt Ms Nikolich would have read them. However, just as she did not remember that the bathroom floor was wet when she entered the bathroom to check the candles, I do not think she would have remembered any warnings when she entered the bathroom. Even if there was a warning sign on the door of the bathroom I do not think she would have noticed or remembered it then because she did not see or notice the water on the floor that she walked across before slipping. Throughout she was focused on the candles. Warning signs would have made no difference to her slipping and falling.
Factual causation is proved if there was breach for failure to provide sufficient bath linen. Had additional towels and bath mats been provided, I am satisfied that Ms Nikolich would have used the bath mats (although not towels) when she saw there was excess water on the floor. I am also satisfied that she would have removed all of the bath mats from the floor and hung them when she left the bathroom to go to bed. Although there is no evidence about the quantity of water on the floor, on balance I am satisfied that additional bath mats would have effectively absorbed most, if not all of the water and the risk of slipping would have been far lower than it was. But for Mr Webb and Ms Somers' assumed negligence Ms Nikolich would likely not have been injured.
I am not satisfied factual causation is proved if there was breach in failing to adjust the smoke alarm so it did not false alarm. The water which was connected to the alarm incidents was dripped on the floor and bath mat by Mr Nikolich when getting out of the spa-bath to switch off the alarm. He increased the slip risk on the floor by his voluntary actions over which Mr Webb and Ms Somers had no control. Any causal link between the alarm and the harm was severed by Mr Nikolich who should have dried either himself or the water he dripped on the floor. Any fault of Mr Webb and Ms Somers in relation to the alarm was not a necessary condition of Ms Nikolich's harm.
If there was a breach of duty in failing to install grab rails then I am not satisfied that Mr Webb and Ms Somers' fault was a necessary condition of Ms Nikolich suffering harm for two reasons. Firstly, immediately prior to slipping, Ms Nikolich was not thinking about water on the floor or the danger of slipping and would not have thought to hold onto any grab rail as a precaution before leaning toward the candle. Secondly, the position Ms Nikolich was standing on the floor before slipping was adjacent to the spa-bath. If she had thought to hold onto something there is no obvious location where a grab rail could have been installed that would have prevented the slip. The obvious places to hold onto to improve stability and prevent falling were the vanity, edge of the spa‑bath, vertical wall edge or towel rail.[87]
[87] Exhibit 4 page 7.
Finally, factual causation is proved if there was any breach of duty to make the bathroom floor permanently non-slip by applying a coating to it or grinding it so that it had a rougher surface. If the floor was rougher, I am satisfied on balance that Ms Nikolich would not have slipped and suffered harm.

Where I have found that factual causation would be proved I am also satisfied that it is appropriate for the scope of Mr Webb and Ms Somers' liability to extend to the harm caused to Ms Nikolich.

Did Ms Nikolich voluntarily assume the risk of slipping on the wet bathroom floor?

Mr Webb and Ms Somers plead voluntarily assumption of risk as a complete defence to the claim brought by Ms Nikolich. Ms Nikolich denies that she voluntarily assumed any risk.
To successfully establish the defence of voluntary assumption of risk it must be shown that Ms Nikolich freely and voluntarily, with full knowledge of the nature and extent of the risk she ran, agreed to incur that risk.[88] Thus Mr Webb and Ms Somers must prove three elements of the defence:[89]
1.That Ms Nikolich perceived the existence of the danger;
2.That she fully appreciated it;
3.That she freely and voluntarily agreed to accept the risk.
[88] Osborne v London and North Western Railway Company (1888) 21 QBD 220, 224.
[89] Carey v Lake Macquarie City Council [85].
Section 5N of the CLA provides some assistance to defendants and modifies the common law so that Ms Nikolich is presumed to be aware of an obvious risk. I have already found that the risk of slipping on the wet bathroom floor was an obvious risk within s 5O of the CLA and for the reasons I have already explained I am satisfied also that the first two elements of the defence are proved.
The CLA does not impact on proof of the third element though. I am not satisfied that Ms Nikolich freely and voluntarily agreed to accept the risk of slipping on the wet bathroom floor.
Ms Nikolich did not recall when she went into the bathroom that the floor was wet. She simply did not think about it as she was focused on the candle. In that way it cannot be said that she adverted to and agreed to accept the risk of slipping. If negligence on the part of Mr Webb and Ms Somers' were proved, Ms Nikolich did not consent to it. The defence of voluntary assumption of risk is not proved.

Was there any contributory negligence on the part of Ms Nikolich (did she fail to take care of her own safety)?

Mr Webb and Ms Somers plead that Ms Nikolich's fall was caused or contributed to by her own negligence. Ms Nikolich denies she was negligent.
I will determine this issue by applying the principles in s 5K of the CLA and having regard also to the statements of principle in Vairy v Wyong Shire Council.[90]
[90] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [220].
I am satisfied on balance that Ms Nikolich contributed to her slip and consequent injury by reason of her own negligence. She failed to take care of her own safety by:
•Removing the bath mat from the floor before she left the bathroom for the night, knowing the floor was still wet and when it was reasonable to think that either she or Mr Nikolich might still use the bathroom before it dried;
•Not using the towels to dry the floor and make it safe to walk on or alternatively failing to leave them on the floor for the night;
•Not remembering and noticing the floor was wet when she re‑entered the bathroom;
•Not turning carefully on the floor which she should have remembered and noticed was wet and likely to be slippery;
•Not putting a towel or the bathmat on the floor to stand on before leaning toward the candle;
•Not holding onto the vanity, spa-bath, vertical wall edge or towel rail to steady herself.
Apportionment of negligence is a question not of principle or positive findings of fact or law but of proportion, of balance and relative emphasis and of weighing different considerations.[91]
[91] Mousa v Marsh [2001] NSWCA 317 [12].
Sensible apportionment of negligence must depend on the nature of any findings on breach and causation. Assuming the most likely breach, being a failure to provide sufficient bath linen, I would assess Ms Nikolich's contributory negligence at 40%.

Disposition of the claim

Ms Nikolich's claim against Mr Webb and Ms Somers is dismissed as liability has not been proved.
I will hear the parties on costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AW
Associate to Judge Quail
23 APRIL 2019