Nikolich v Webb
[2020] WASCA 169
•21 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NIKOLICH -v- WEBB [2020] WASCA 169
CORAM: MURPHY JA
BEECH JA
VAUGHAN JA
HEARD: 14 SEPTEMBER 2020
DELIVERED : 21 OCTOBER 2020
FILE NO/S: CACV 60 of 2019
BETWEEN: AMANDA SUZY NIKOLICH
Appellant
AND
MATTHEW DOUGLAS WEBB
First Respondent
KAREN LYNETTE SOMERS
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: QUAIL DCJ
Citation: NIKOLICH -v- WEBB [2019] WADC 58
File Number : CIV 97 of 2017
Catchwords:
Statutory construction - Civil Liability Act 2002 (WA) s 5O - Whether operation of s 5O limited to defence of volenti non fit injuria
Torts - Negligence - Duty of care - Duty to warn - Whether obvious risk - Turns on own facts
Torts - Negligence - Short‑stay rental property - Slip in bathroom - Liability of owner - Whether reasonable precautions taken - Turns on own facts
Legislation:
Civil Liability Act 2002 (NSW), s 5H
Civil Liability Act 2002 (WA), s 5B, s 5E, s 5F, s 5H, s 5M, s 5N, s 5O
Occupiers Liability Act 1985 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | G M G McIntyre SC & J R Brooksby |
| First Respondent | : | J R B Ley SC |
| Second Respondent | : | J R B Ley SC |
Solicitors:
| Appellant | : | Percy Kakulas Gleeson |
| First Respondent | : | Greenland Legal Pty Ltd |
| Second Respondent | : | Greenland Legal Pty Ltd |
Case(s) referred to in decision(s):
Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Angel v Hawkesbury City Council [2008] NSWCA 130
Bruce v Apex Software Pty Ltd [2018] NSWCA 330
C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136
Carey v Lake Macquarie City Council [2007] NSWCA 4
Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183
Collins v Clarence Valley Council [2015] NSWCA 263; (2015) 91 NSWLR 128
Council of the City of Sydney v Bishop [2019] NSWCA 157
Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418
Gors v Tomlinson [2020] WASCA 164
Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510
Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Rep 81‑952
Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308; (2018) 99 NSWLR 98
Lightfoot v Rockingham Wild Encounters Pty Ltd [2018] WASCA 205
Liverpool Catholic Club v Moor [2014] NSWCA 394
Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Nikolich v Webb [2019] WADC 58
Phyllis v Daly (1988) 15 NSWLR 65
Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330
Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431
Schultz v McCormack [2015] NSWCA 330
Singh v Lynch [2020] NSWCA 152
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40
JUDGMENT OF THE COURT:
Overview
On 14 February 2014 the appellant, Mrs Nikolich, suffered injury to her right arm after slipping on a wet bathroom floor at the respondents' short‑stay accommodation rental property at Prevelly.
Mrs Nikolich commenced proceedings in the District Court claiming that the respondents owed her a duty of care in common law, in contract and as occupiers. Mrs Nikolich claimed that the respondents breached those duties and caused her injury. The respondents admitted owing a duty of care to Mrs Nikolich but, among other things, denied breaching their duty. The matter was heard as a trial on liability alone.
The primary judge (Quail DCJ) dismissed Mrs Nikolich's claim.[1]
[1] Nikolich v Webb [2019] WADC 58 (primary reasons).
Mrs Nikolich now appeals against the decision of the primary judge. The issues on appeal concern:
1.Whether, so far as Mrs Nikolich claimed that the respondents were liable by reason of having failed to warn her that the bathroom floor was dangerous and was slippery when wet, the primary judge erred in:
(a)misconstruing s 5O of the Civil Liability Act 2002 (WA)[2] by finding that it has the effect that a defendant does not owe a duty of care to warn of an obvious risk; and
(b)finding that the relevant risk was an 'obvious risk' for the purpose of s 5O of the CLA.
2.Whether the primary judge erred in finding that the respondents did not breach the required standard of care by failing to make the bathroom floor permanently non-slip (the primary judge finding that the respondents took reasonable precautions by providing a bath mat and towels).
[2] Referred to below as 'CLA'.
For the reasons that follow the appeal should be dismissed. The primary judge did not misconstrue s 5O of the CLA and was correct to hold that the risk was an obvious risk. There was no error as to the primary judge's findings regarding the other pleaded allegations of negligence. On the facts found by the primary judge, his Honour was correct to find that a reasonable person in the respondents' position would not have made the bathroom floor permanently non-slip in response to the risk of harm by a person slipping and falling on the wet bathroom floor.
The factual background
The facts at trial were largely undisputed.[3] On appeal, as will be seen, while there is a challenge to the primary judge's conclusion that the respondents did not breach the required standard of care, there is otherwise no ground of appeal alleging factual error. The following factual background thus summarises the factual findings of the primary judge which are undisputed by the parties on appeal.
[3] Primary reasons [6].
From around August 2010 the respondents owned and operated the Aquatic Visions studio apartments in Prevelly as short-term rental accommodation. The apartments were marketed online, targeting the adult couples market. The first respondent, Mr Webb, was primarily responsible for running the business that manages the apartments.
Mrs Nikolich booked a weekend's accommodation at Aquatic Visions studio apartment number 1 for the 2014 Valentine's Day weekend for herself and her husband. Mr and Mrs Nikolich were intending to attend a concert at Leeuwin Estate on 15 February 2014.
Mr and Mrs Nikolich arrived at the premises at around 5.30 pm on 14 February 2014.
At some point, after arrival, Mrs Nikolich read a list of 'helpful tips' provided by the respondents to people staying at the premises. This included instructions on using the spa-bath in the bathroom. There were no particular instructions or warnings contained in the helpful tips list concerning the floor of the premises. No other warnings were displayed in the premises about the slipperiness of the bathroom floor when wet.
The floor of the premises, including the bathroom, was light beige polished concrete, with dispersed mixed colour aggregate.
Upon entry to the bathroom of the premises there was a shower to the right and the spa-bath to the left. The shower had a pivoting glass door which was not sealed on the vertical edges (the gaps were approximately 2 mm). On the floor, the shower had an approximately 25 mm high metal strip to prevent water escaping onto the bathroom floor. The glass shower door sealed against this metal strip. The floor of the shower was the same polished concrete as the rest of the premises.
The evidence at trial included this photograph from the bedroom looking towards the spa bath:[4]
[4] GAB 6.
There were no grab rails in the bathroom. However, there was a heated towel rail fixed on the wall above the spa-bath. The bathroom linen provided in the premises 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.
The helpful tips document provided:
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.
At around 8.30 pm Mrs Nikolich lit two tea-light candles, placing one at each end of the spa-bath, and then ran the water to fill the spa‑bath. Mrs Nikolich did so following the written instructions on the helpful tips list so as to ensure that the spa-bath was not overfilled, as she was conscious that it did not have an overflow. Mrs Nikolich placed the bath mat in the centre of the bathroom floor. Around 9.00 pm Mr and Mrs Nikolich got into the spa-bath and turned on its jets.[5]
[5] Primary reasons [12] - [13].
Mrs Nikolich estimated that she and her husband were in the spa‑bath for approximately one and a half hours. The sliding door between the bathroom and bedroom remained open during that time.
As the couple were in the spa-bath for some time, it became necessary to empty some of the cool water and add hot water. When Mrs Nikolich added hot water the smoke alarm located in the bedroom ceiling just outside of the sliding door to the bathroom alarmed audibly. This occurred three times over the following hour. Each time, Mr Nikolich exited the spa-bath to turn off the alarm. Each time, Mr Nikolich did not dry himself and water dripped from his body on to the floor and on to the bath mat upon which he stood.
The first time the smoke alarm was triggered Mr Nikolich exited the spa-bath and walked through the apartment, dripping water, to fetch a chair from the kitchen to stand on so that he could reach the smoke alarm to switch it off. Mr Nikolich also opened a window to allow some steam to escape. On the second occasion Mr Nikolich exited the bath in the same way, turned off the alarm and, still dripping, opened an external door in an effort to clear the air.
The third time the smoke alarm was triggered Mr Nikolich gave up on returning to the spa-bath. Mr Nikolich switched off the smoke alarm, returned to the bathroom, and had a shower of about ten minutes. After his shower Mr Nikolich stood on the bath mat to dry himself with a towel before retiring to bed. Mr Nikolich gave evidence, which the primary judge apparently accepted, that after he had finished his shower the bath mat was 'very wet'.
Mr Webb gave evidence, which was accepted by the primary judge, that there had not been any issues with the smoke alarm nor any complaints about false alarms since construction of the apartments in 2010.
After Mr Nikolich showered, Mrs Nikolich spent a few more minutes in the spa-bath before getting out, standing on the floor and mat without drying herself, and then having a shower. Mrs Nikolich's shower lasted for about 20 minutes. This second shower caused a minor amount of water to leak through the small vertical gaps on the edges of the shower door. This water added to the far more substantial quantity of water already on the bathroom floor.
After finishing her shower, Mrs Nikolich stood on the bath mat to dry herself. By this point, in Mrs Nikolich's words, the bathmat was 'saturated'. As the primary judge recorded, Mrs Nikolich's evidence was that:
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.[6]
[6] Primary reasons [22].
The primary judge accepted that the bath mat was hung on the towel rail.
The primary judge made factual findings, unchallenged on appeal, that when Mrs Nikolich left the bathroom she knew that:[7]
1.There was water remaining on the floor.
2.The water remaining on the floor was substantially more water than would be expected from two adults each having only a shower or bath.
3.Although the bathroom had been in use for approximately two hours the floor had not drained and was still wet.
[7] Primary reasons [23].
Mrs Nikolich prepared to go to sleep, performing her usual pre‑sleeping routine. Mrs Nikolich got into bed and switched off the lights. However, before going to sleep, and whilst still in an alert state, Mrs Nikolich thought that she ought to check that the candles in the bathroom were extinguished. Mrs Nikolich switched on the bedside lamp and got up. The time between Mrs Nikolich leaving the bathroom and returning to check on the candles was no more than 30 minutes and probably closer to 15 minutes.
Mrs Nikolich walked, in bare feet, from the bed to the bathroom door and then three steps into the bathroom. Mrs Nikolich did not turn her mind to whether the bathroom floor was still wet or that it had been wet a short time before. Nor in those three steps did Mrs Nikolich register, despite being barefoot, that - as was the case - the bathroom floor was still wet. Nonetheless, the primary judge observed that:
Mrs Nikolich knew though, as everyone who uses a bathroom from childhood does, that there was a risk of slipping on a wet bathroom floor.[8]
[8] Primary reasons [28].
Mrs Nikolich had one foot in front of the other when she stopped, twisted and leaned forward and to the left, lifting her left arm to retrieve a candle. Her feet slipped out from underneath her. Mrs Nikolich's right arm fell across the spa-bath and was hyper-extended as she fell backwards on to her bottom on the floor. Mrs Nikolich screamed in pain and shock.
Mr Nikolich heard his wife fall and scream and immediately got out of bed and walked to the entry of the bathroom. Mr Nikolich slipped just outside the entry to the bathroom on the water that he had dripped on to the floor earlier in the night when he was attending to the smoke alarm: the point at which he slipped was almost directly under the smoke alarm. Mr Nikolich fell onto his back and slid on the water into the bathroom, ending up in a heap with his wife in the middle of the bathroom floor.
In due course, Mrs Nikolich attended the Margaret River hospital where she was attended by a nurse. The primary judge found that Mrs Nikolich suffered an injury to her right shoulder and possibly her right arm. However, for the purposes of determining liability it was not necessary to consider the nature of the injury any further.
Based on the expert evidence of a professional mechanical engineer and certified professional ergonomist, Dr Steven Chew, the primary judge found that in terms of the contribution of the floor surface to the risk of slipping on the floor:[9]
1.A barefooted person walking on the bathroom floor when dry would have a very low to moderate risk of slipping on the floor.
2.A barefooted person walking on the wet bathroom floor would have a high - perhaps even a 'very high' - risk of slipping on the floor.
[9] Primary reasons [40].
The primary judge also observed that, as a matter of common experience, foot instability on a slippery floor could result in foot slippage.
Based on the evidence of Mrs Nikolich and Dr Chew, and bringing the identified common experience to bear, the primary judge was satisfied that Mrs Nikolich slipped on water on the bathroom floor that had not yet drained, dried or evaporated. In short, Mrs Nikolich slipped and fell on the wet bathroom floor.
The reasoning of the primary judge
The primary judge identified eight issues for determination.[10] In resolving those issues the primary judge first identified that the claim was pursued in terms of negligence under the common law, breach of an implied contractual duty and breach of a statutory duty of care under the Occupiers Liability Act 1985 (WA). The parties were agreed that determination of liability under occupiers' liability principles would be no different than in negligence or contract. The primary judge held that no different consequences would result from determining the matter in negligence or contract. Accordingly, his Honour proceeded to determine the claim in negligence, that being the focus the trial. On appeal there is no challenge to that approach.
[10] Primary reasons [48].
The parties were agreed that the respondents owed a common law duty of care to Mrs Nikolich to take reasonable precautions to avoid the foreseeable risk of slipping on the bathroom floor when it was wet. The primary judge was satisfied with this expression of the duty of care owed by the respondents to Mrs Nikolich.[11]
[11] Primary reasons [49].
An issue arose, however, as to whether the respondents owed a duty of care to warn Mrs Nikolich that the bathroom floor was slippery when wet. The respondents denied they had any such duty to warn because the risk posed by the wet bathroom floor constituted an 'obvious risk' and s 5O of the CLA thus excluded any duty to warn. Section 5O is in these terms:
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.
In an argument that is essentially repeated on appeal, Mrs Nikolich contended that s 5O only arose for consideration in the context of a defence of voluntary assumption of risk and did not impact on the scope of the duty owed. The primary judge rejected that submission, concluding that, on the proper construction of s 5O, a defendant does not owe a duty of care to a plaintiff to warn of an obvious risk.[12] As, in his Honour's view, the risk of slipping and falling on the wet bathroom floor was an obvious risk,[13] the primary judge concluded that the respondents did not owe a duty of care to Mrs Nikolich to warn her of that risk (ie there was no duty to warn Mrs Nikolich that the bathroom floor was slippery when wet).[14]
[12] Primary reasons [59] - [70].
[13] Primary reasons [72] - [77].
[14] Primary reasons [78]. See also [54].
However, it was necessary for the primary judge to go on and consider whether the respondents breached the required standard of care in other respects. The primary judge considered this in terms of the precautions the respondents should reasonably have taken against the foreseeable risk of injury and employed an orthodox analysis in terms of s 5B of the CLA.[15]
[15] Primary reasons [48.4], [79] - [86].
The primary judge made findings as follows:
1.The reasonable response to the relevant risk was for the respondents to do what they had done, ie provide people in the position of Mrs Nikolich with a bath mat and towels.[16]
2.It was not a reasonable response to the relevant risk:
(a)to provide sufficient bath mats to cover the full extent of the bathroom floor;[17] nor
(b)to provide additional or spare bath linen insofar as the linen provided was sufficient to deal with the risk posed by the wet bathroom floor;[18] nor
(c)to make the bathroom floor permanently non-slip by application of a commercial anti-slip coating or grinding the bathroom floor to roughen it.[19]
[16] Primary reasons [92], [99], [101].
[17] Primary reasons [93].
[18] Primary reasons [94].
[19] Primary reasons [98].
In the last respect, the primary judge stated that there was no evidence of exact cost in relation to making the bathroom floor permanently non-slip.[20] That finding is not challenged on appeal. However, even 'accepting' (which we understand the primary judge to have used in the sense of 'assuming') that such measures could be undertaken at a reasonable cost, his Honour considered that it was not reasonable to do so and would change the aesthetic of the bathroom, finding that provision of a non-slip covering in the form of a bathmat and towels was a cheaper, more practical and more aesthetically pleasing response than grinding or coating the floor.[21]
[20] Primary reasons [98].
[21] Primary reasons [98] - [99].
In so concluding, the primary judge found that there was social utility in the commercial availability of short-stay accommodation in a popular tourist region which was modern and targeted at the adult market. His Honour accepted that the bathroom could have been made safer; for example, resembling that which would be expected in a hospital or aged care facility. However, to require that would be unreasonable and deprive the accommodation of the character that made it appealing to its target market.[22]
[22] Primary reasons [100].
The primary judge also made a series of findings as to whether there was a breach of duty in failing to install grab rails. The allegation of breach was rejected. That aspect of the claim is not re-agitated on appeal. Accordingly, nothing further need be said as to the finding as to that alleged breach and some consequential provisional findings. Nor is it necessary to detail additional findings concerning an alleged breach by failure to adjust the smoke alarm.
For the reasons summarised at [38] - [42] above the primary judge was not satisfied that the respondents breached the duty of care they owed to Mrs Nikolich.[23]
[23] Primary reasons [101].
The primary judge went on to make a series of provisional findings. In substance:
1.If, contrary to the primary judge's finding, there was a duty to warn, then it would have been reasonable for the respondents to warn a person in Mrs Nikolich's position that the bathroom floor would be slippery when wet and posed a slip risk.[24] However, the primary judge found that a warning would have made no difference to Mrs Nikolich slipping and falling: she would not have remembered the warnings when she entered the bathroom.[25] Accordingly, factual causation was not established in the event that there was a breach of any duty to warn.
2.However, causation was proved if either:
(a)there was a breach of duty by reason of a failure to provide sufficient bath linen;[26] or
(b)there was a breach of duty by reason of a failure to make the bathroom floor permanently non-slip by applying a coating to it or grinding it so that the floor had a rougher surface.[27]
3.Mrs Nikolich did not freely and voluntarily agree to accept the risk of slipping on the wet bathroom floor. Accordingly, a defence of voluntary assumption of risk was not established.[28]
4.Mrs Nikolich contributed to her injury by reason of her own negligence. The primary judge assessed Mrs Nikolich's contributory negligence at 40%.[29]
[24] Primary reasons [88].
[25] Primary reasons [105].
[26] Primary reasons [106], [110].
[27] Primary reasons [109] - [110].
[28] Primary reasons [111] - [115].
[29] Primary reasons [116] - [120].
Mrs Nikolich's claim against the respondents was dismissed as liability had not been established.
Grounds of appeal
There are three grounds of appeal. A fourth ground, ground 4,[30] was abandoned by senior counsel for Mrs Nikolich during the appeal hearing.[31] It raised whether the primary judge erred in identifying the relevant risk of injury as being the risk of slipping and falling on the bathroom floor when it was wet.
[30] Referred to as 'ground 4' in the grounds of appeal as enumerated but 'ground 3' in the appellant's submissions. See WAB 15.
[31] Appeal ts 4.
Logically, as it will be necessary to consider whether the relevant risk of injury was an 'obvious risk', it remains necessary to traverse some of Mrs Nikolich's submissions in support of the abandoned ground 4. The identified risk of injury - more correctly in the context of the CLA the identified 'risk of harm'[32] - provides the framework for considering the question of obvious risk and the issue of breach.[33]
[32] CLA s 5B.
[33] Schultz v McCormack [2015] NSWCA 330 [86].
Grounds 1 and 2 concern s 5O of the CLA (the reproduction below omits the particulars to ground 1):
1.The [primary judge] erred in failing to properly interpret the provisions of s 5O of the [CLA] in context and as a consequence relieved the Respondents of the duty to warn the Appellant of the slippery nature of the bathroom floor.
2.If [the primary judge] had properly interpreted the provisions of s 5O he would have found that:
i.The Appellant had not assumed the risk of slipping on the wet and slippery floor.
ii.The defence of voluntary assumption of risk (volenti) was not available to the Respondent.
iii.In the circumstances, s 5O had no application.
iv.As part of the reasonable person's response to a foreseeable risk, which was found by his Honour to exist, a warning should have been provided.
v.It would have been reasonable to assume that the Appellant would have heeded a warning in the circumstances.
At the appeal hearing, senior counsel for Mrs Nikolich informed the court that he was not pressing ground 2 as a separate ground. It was said to be consequential on success in relation to ground 1. In substance, insofar as ground 1 asserted constructional error, ground 2 only advanced what ought to have flowed had the primary judge agreed with Mrs Nikolich's preferred construction of s 5O of the CLA.[34]
[34] Appeal ts 2 - 3.
Having regard to the written and oral submissions as a whole, two central propositions were advanced in respect of grounds 1 and 2 as so understood. First, senior counsel for Mrs Nikolich submitted that, on its proper construction, s 5O of the CLA only has application if it is found that the claimant voluntarily assumed the relevant risk. Second, in any event, senior counsel for Mrs Nikolich submitted that the relevant risk was not an 'obvious risk' for the purpose of s 5O of the CLA.
The remaining ground is ground 3:
[The primary judge] erred in finding that in the face of a foreseeable risk (described by his Honour as 'medium to high') that it was not unreasonable for the Respondents to take no action whatsoever, notwithstanding there was evidence that:
i.The floor could have been abraded or;
ii.Alternatively coated with non-slip finish;
iii.Alternative preventative measures could have been taken;iv.The precautions referred to could have been taken at relatively nominal expense;v.The Appellant's expert witness was not cross-examined on the precautions set out in (i) and (ii) above.
The reproduction of ground 3 strikes out 3(iii) and (iv). These particulars were, in effect, abandoned in the course of the appeal hearing. Senior counsel for Mrs Nikolich confirmed that the only reasonable precautions relied on were those in ground 3(i) and (ii) (ie abrading the bathroom floor or coating it with a non-slip finish).[35] Senior counsel for Mrs Nikolich also accepted there was no evidence that those precautions could have been taken at relatively nominal expense.[36] Although referring to the primary judge's assumption, as recounted at [40] above, that such measures could be undertaken at a reasonable cost, senior counsel for Mrs Nikolich accepted, correctly, that this was put in terms of an assumption rather than a finding. Senior counsel also accepted that there was no evidence at trial as to the exact cost of such measures.[37] Particular 3(iv) was therefore incorrectly premised on an unproven assumption with the consequence that, as was accepted on Mrs Nikolich's behalf at the appeal hearing,[38] ground 3 reduced to particulars 3(i) and (ii) (particular 3(v) dovetailing back to (i) and (ii)).[39]
[35] Appeal ts 19. Accordingly, there is no need to consider the appellant's case so far as it appears to raise other matters. See eg appellant's submissions pars 71(c), 76 - 80 WAB 15, 17.
[36] Appeal ts 18. This was contrary to what was advanced in Mrs Nikolich's appellant's case. See appellant's submissions pars 71(d), 82 WAB 15, 18.
[37] Appeal ts 18 - 19. At trial the evidence was no higher than Dr Chew responding 'no' when asked in examination-in-chief whether he had any idea of the cost of diamond grinding and polishing the bathroom floor: ts 111.
[38] Appeal ts 19.
[39] Appeal ts 19. See also Appeal ts 17.
We have reproduced the remaining grounds of appeal in full because it is necessary to point out manifest deficiencies in them, both in form and in substance.
None of the grounds identifies where, in the primary reasons, the error is alleged to occur. This court's rules have contained a requirement to do so since 2017.[40] Nor do the grounds state whether the alleged error is one of fact, law or mixed fact and law.[41] The proper construction of s 5O of the CLA is self-evidently a question of law. However, assessment of whether there was a negligent breach of a duty of care involves a factual judgement.[42] Often a challenge to such a finding will allege an error of fact. So too, as will be seen, the obviousness of a risk is a question of fact. There is, however, no PD 7.4 schedule in relation to any ground.
[40] Supreme Court (Court of Appeal) Rules 2005 (WA) r 32(4)(d).
[41] Compare Supreme Court (Court of Appeal) Rules 2005 (WA) r 32(4)(e).
[42] Allied Pumps Pty Ltd v Hooker [2020] WASCA 72 [15].
The inference, confirmed by senior counsel for Mrs Nikolich at the appeal hearing,[43] is that there was some error of law (unidentified in nature in the grounds of appeal) in coming to the impugned conclusions.
[43] Appeal ts 3 - 4.
At the appeal hearing the relevant errors were put in terms of misapplication and also on the basis that on the primary facts as found the ultimate conclusions were incorrect.[44] Accordingly, with the exception of the question of the proper construction of s 5O, we understand the appeal to raise the appropriate legal characterisation of, or proper conclusion to be drawn from, substantially undisputed primary facts as found below.
[44] Appeal ts 3 - 4, 17.
Finally, as was accepted at the appeal hearing,[45] the grounds of appeal do not, in terms, allege a factual error by the primary judge insofar as his Honour made the provisional finding that factual causation was not established in the event that there was a breach of any duty to warn. The highest that the grounds of appeal alleged error in this regard is the allegation, at par 2(v), that it would have been reasonable to assume that Mrs Nikolich would have heeded a warning if the primary judge had 'properly interpreted' s 5O of the CLA. Irrespective of the concession that ground 2 was not pressed as a separate ground, that cannot be understood, even on a generous basis, as attacking the provisional factual finding made by the primary judge at [105] of the primary reasons. Paragraph 2(v) is premised on Mrs Nikolich's preferred construction of s 5O of the CLA. Any such misconstruction does not support a challenge to the factual issue presented by the provisional finding that causation was not proved.
[45] Appeal ts 2 - 3.
The primary judge's causation finding is attacked in Mrs Nikolich's written submissions.[46] It is trite, however, that this court considers whether there was error in the primary court by reference to grounds of appeal. Extraneous complaints as to factual findings outside the scope of the grounds are no more than an unnecessary distraction.[47]
[46] Appellant's submissions pars 7, 91 - 92 WAB 7, 20. (But apparently, at least as to pars 91 - 92, in respect of ground 3 rather than grounds 1 and 2).
[47] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [53], [55].
The failure to challenge the primary judge's provisional finding as to causation, by a ground of appeal, means that Mrs Nikolich's duty to warn case cannot succeed even if s 5O of the CLA had no application.
Identification of relevant risk of injury
On a number of occasions the primary judge identified the relevant risk of injury as being the risk of a person slipping and falling on the wet bathroom floor.[48] That formulation of the relevant risk of injury was in accordance with what was contended for by counsel for Mrs Nikolich at trial.[49] The respondents conceded that this risk was foreseeable and his Honour concluded that the risk was not insignificant.[50] Subsequently, the primary judge went further, observing that he was satisfied that the wet bathroom floor posed a medium to high slip risk to someone walking on it in bare feet without a bathmat or non-slip surface in place. The probability of physical injury for someone in the position of Mrs Nikolich was high.[51]
[48] See eg Primary reasons [71], [72] (heading above), [77], [83], [86], [92] - [99] (esp [92], [94], [96], [99]). That statement as to the relevant risk of injury is consistent with the duty of care formulation on which the parties were agreed at trial: Primary Reasons [49].
[49] ts 200.
[50] Primary reasons [83].
[51] Primary reasons [86].
Before ground 4 was abandoned, Mrs Nikolich's appellant's case put the 'specific risk' contended for in these terms:
'[T]he risk of slipping on an unusually slippery floor, which had not properly drained or dried, approximately half an hour after utilising the bathroom.'[52]
[52] Appellant's submissions par 97 WAB 21.
There was no evidence or finding that the bathroom floor was 'unusually slippery'. The relevant factual finding, supported by the expert evidence of Dr Chew, was that there was a 'high' or 'very high' risk of slipping in the case of a barefooted person walking on the wet bathroom floor; however, when dry, the risk was no more than very low to moderate.
As developed in written submissions, however, Mrs Nikolich's complaint was not truly as to the correctness of the primary judge's identification of the relevant risk of injury in terms of slipping and falling on the bathroom floor when wet. Rather, on two occasions the written submissions emphasised that the relevant risk needed to be identified with a degree of accuracy or specificity in the context of evaluating whether it was an obvious risk.[53] The written submissions went on to advance the proposition that there were two elements that gave rise to the particular risk which should have been, but were not, considered by the primary judge;[54] and, if he had, the primary judge would have found that the relevant risk was not an obvious risk.[55]
[53] Appellant's submissions pars 51, 100 WAB 13, 21.
[54] Appellant's submissions pars 52 - 56, 101 - 102, 105 WAB 13, 21 - 22.
[55] Appellant's submissions pars 57 - 62, 66 - 68, 70, 103 - 104, 106 - 115 WAB 13 - 15, 21 - 23.
Without ever formulating the nature of the risk for which she contended, Mrs Nikolich said that there were two elements which needed to be considered:
1.First, how wet the bathroom floor would be approximately half an hour after a bath.
2.Second, assuming knowledge of how wet the bathroom floor would be at that time, the likelihood of slipping on that particular bathroom floor.
It may be accepted that, in the application of s 5O of the CLA, much depends on the degree of generality or precision with which the risk (or its constituent elements) is stated.[56] In the context of grounds 1 and 2 it will be necessary to consider this argument in determining whether, as contended therein, the primary judge was incorrect in holding that there was an obvious risk for the purpose of s 5O. For now, however, it is essential to appreciate what his Honour was conveying by the finding that the relevant risk of injury was the risk of a person slipping and falling on the wet bathroom floor. On a fair reading of the primary judge's reasons as a whole, the finding addressed the 'actual risk of injury' faced by Mrs Nikolich[57] (or, in terms of s 5B of the CLA, identified the relevant 'risk of harm'). In so identifying the risk of harm, having identified the duty of care and its content and before considering breach, the primary judge was acting in accordance with principle.[58]
[56] C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 [173]; Collins v Clarence Valley Council [2015] NSWCA 263; (2015) 91 NSWLR 128 [142]; Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65 [48].
[57] See Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 [59].
[58] Schultz v McCormack [85] - [86].
As Gummow J explained in Roads and Traffic Authority of New South Wales v Dederer:
It is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be.[59]
[59] Roads and Traffic Authority of New South Wales v Dederer [59].
Leeming JA has recently emphasised the practical importance of identifying the relevant risk of harm. As his Honour stated (Payne and White JJA agreeing):
The Civil Liability Act makes the specification of the risk of harm important in every case. That applies at the threshold in every case in which a failure to take reasonable care is alleged, by reason of the three mandatory matters in s 5B(1) that a plaintiff must establish, and the four matters in s 5B(2) which a court is required to consider, all of which are addressed to a 'risk of harm' … The importance of identifying the risk of harm has been stressed in [numerous decisions in the New South Wales Court of Appeal between 2012 and 2018].
This is one of the signal changes effected by the Civil Liability Act. While the correct identification of the risk of harm was stated to be essential to identify a reasonable response in decisions to which the statute did not apply (for example, Roads and Traffic Authority of NSW v Dederer), the statute crystallises the position.[60] (original emphasis) (citations omitted)
[60] Menz v Wagga Wagga Show Society Inc [49] - [50].
It is surprising then that in this case, as in many cases which require consideration of the CLA, neither party's respective pleading sought to identify the risk of harm. That course is to be deprecated. Identification of the risk of harm was important to Mrs Nikolich's case for the purpose of indicating how s 5B was satisfied. It was important to the respondents' case so far as they invoked s 5O. A trial judge should have the assistance of a pleaded case which addresses what is contended for in terms of identification of risk of harm. It is for the parties to identify the legal and factual target that is contended for; it should not be something for the trial judge to tease out by questioning of counsel or by after-the-event consideration of how the case was run. Proper articulation of the relevant risk of harm should be the norm whenever the CLA's provisions fall to be applied.
In identifying the risk of harm:[61]
1.The formulation of risk of harm should identify the true source of potential injury and the general causal mechanism of the injury sustained.
2.The risk must be defined taking into account the particular harm that materialised and the circumstances in which that harm occurred.
3.What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning; for example, because:
(a)it obscures the true source of potential injury;
(b)it too narrowly focusses on the particular hazard which caused the injury; or
(c)it fails to capture part of the plaintiff's case.
[61] Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 [22].
The primary judge referred to the risk of slipping on the bathroom floor when it was wet in the context of considering whether there was a foreseeable risk[62] and in assessing breach.[63] There was no error in so doing and in that respect senior counsel for Mrs Nikolich was correct to abandon ground 4. The primary judge's identification of the relevant risk of injury was in accordance with principle and provided an accurate and, with respect, perfectly adequate description of the relevant risk of injury in the circumstances of the present case.
Grounds 1 and 2: Operation of s 5O of the Civil Liability Act and whether the risk as found was an 'obvious risk'
[62] Primary reasons [49], [83].
[63] Primary reasons [83], [86], [92] - [101].
Grounds 1 and 2 can be considered together given the concession that ground 2 was not pressed as a separate ground. They require consideration to be given to s 5O of the CLA. Section 5O is found in div 6 of pt 1A headed 'Assumption of risk'. It 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.
(2)This section does not apply if:
(a)the plaintiff has requested advice or information about the risk from the defendant; or
(b)the defendant is required by a written law to warn the plaintiff of the risk; or
(c)the defendant is a professional and the risk is a risk of harm to the plaintiff from the provision of a professional service by the defendant.
(3)Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.
In div 6 'obvious risk' has the meaning given by s 5E (s 5M). Section 5E states that 'obvious risk' has the meaning given by s 5F. Section 5F provides:
5F.Term 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.
The definition is of significance to s 5H (no liability for harm from obvious risks of dangerous recreational activities) and s 5N (injured person presumed to be aware of obvious risk) as well as s 5O. Section 5N, unlike s 5H, is located in div 6 of pt 1A to the CLA, as with s 5O.
Grounds 1 and 2: Did the primary judge misconstrue s 5O?
The primary judge held that, on its proper construction, s 5O changed the common law by providing expressly that a defendant did not owe a duty of care to a plaintiff to warn of an obvious risk. His Honour acknowledged that the section was within div 6 of pt 1A relating to assumption of risk. Notwithstanding the location of s 5O, the primary judge held that the provision operated more broadly and affected the nature of the duty of care that was owed.
Mrs Nikolich contended that the primary judge was in error in determining that s 5O continued to have application beyond div 6 of pt 1A. The argument was that:[64]
1.The primary judge rejected the respondents' defence of voluntary assumption of risk.
2.Section 5O, appearing as it does in div 6 under the heading 'Assumption of risk', is limited and confined by that heading.[65] Its purpose is only to facilitate proof of a plaintiff's knowledge and awareness of risk in a category of case involving obvious risks in which a volenti non fit injuria defence is pleaded. The provision has no general application outside the defence of volenti. Section 5O, properly construed, provides no more than that a defendant does not owe a duty of care to a plaintiff to warn of an obvious risk where the plaintiff has voluntarily undertaken to assume that risk of injury occurring.[66]
3.Thus, once the volenti defence was rejected, s 5O could have no further application.
[64] Appellant's submissions pars 1 - 12 WAB 6 - 8. See also pars 21, 39 - 42 WAB 9, 11 - 12.
[65] See Appeal ts 4 - 5, 7, 14.
[66] See Appeal ts 5, 14 - 15.
It may be said immediately that the construction contended for makes s 5O a provision devoid of practical content. On this construction s 5O could only apply where a defence of volenti non fit injuria is raised and succeeds. However, in that circumstance the exclusion of any common law duty of care to warn has no practical consequence - the defendant will succeed in any case by reason of having successfully invoked the volenti non fit injuria defence. Moreover, the conclusion that the defendant voluntarily assumes the risk in question (for the purposes of volenti) is readily seen as equivalent to concluding that the defendant owed the plaintiff no duty of care.[67]
[67] Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510 [81].
The respondents referred to a series of cases in New South Wales in relation to s 5H of the Civil Liability Act 2002 (NSW).[68] Section 5H of that Act is in virtually identical terms to s 5O of the CLA. Senior counsel for the respondents submitted that the New South Wales decisions made it abundantly clear that s 5O of the CLA operates independently of any necessity to prove voluntary assumption of risk.[69]
[68] C G Maloney Pty Ltd v Hutton-Potts [71], [101] - [102], [117], [170]; Carey v Lake Macquarie City Council [2007] NSWCA 4 [34]; Angel v Hawkesbury City Council [2008] NSWCA 130 [83]; Liverpool Catholic Club v Moor [2014] NSWCA 394 [52], [72]; Collins v Clarence Valley Council [2015] NSWCA 263; (2015) 91 NSWLR 128 [154] - [156]; Schultz v McCormack [85]; Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308; (2018) 99 NSWLR 98 [11], [15], [37], [72]. To these should be added: Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Rep 81‑952 [40]; Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482 [56] - [57]; Bruce v Apex Software Pty Ltd [2018] NSWCA 330 [29]; Council of the City of Sydney v Bishop [2019] NSWCA 157 [10], [28]; Singh v Lynch [2020] NSWCA 152 [10], [149].
[69] Respondent's submissions par 14 WAB 30.
Senior counsel for Mrs Nikolich argued that the New South Wales authorities were all obiter dicta[70] and were, in any case, plainly wrong.[71]
[70] Appeal ts 7, 10, 11,
[71] Appeal ts 7.
It is not the case that the New South Wales decisions are all obiter dicta. In Jaber v Rockdale City Council a finding of obvious risk resulted in rejection of the appellant plaintiff's duty to warn case on the basis that, by virtue of the equivalent provision to s 5O, the respondent defendant did not owe a duty of care to warn of the risk. That is also the case with at least Liverpool Catholic Club Ltd v Moor and Collins v Clarence Valley Council.
Nor is there any merit in the suggestion that the New South Wales authorities are plainly wrong. To the contrary, in our view, for the reasons given by this court in Gors v Tomlinson,[72] they are plainly correct.
[72] Gors v Tomlinson [2020] WASCA 164 [81] - [136].
The argument presented on Mrs Nikolich's behalf in this appeal was recently considered and rejected by this court in Gors v Tomlinson. Gors v Tomlinson was heard before, but delivered after, the appeal hearing in this appeal. The appellant in Gors v Tomlinson presented the same argument (by the same senior and junior counsel) as was presented in this appeal. This court concluded that the contention that s 5O is only engaged in a context where the volenti defence is established is not supported by text, context, purpose or authority.[73] Rather, subject to s 5O(2), on its proper construction s 5O removes any duty of care to warn of an obvious risk.[74]
[73] Gors v Tomlinson [135]. See also at [87].
[74] Gors v Tomlinson [85] - [86].
There is no basis to reconsider the construction of s 5O as found in Gors v Tomlinson. For the reasons given in that decision, Mrs Nikolich's construction of s 5O must be rejected. The only question that remains for consideration is whether, as found by the primary judge, s 5O was engaged because the relevant risk was an obvious risk.
Grounds 1 and 2: Did the primary judge incorrectly find that there was an obvious risk?
Mrs Nikolich contended that the primary judge was in error in finding that the relevant risk was an obvious risk. In coming to that conclusion the primary judge mentioned the relevant principles[75] in terms that have attracted no challenge on appeal. The primary judge then reasoned as follows:
[75] Primary reasons [72] - [75].
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.[76] (emphasis added)
[76] Primary reasons [75] - [76].
Those primary facts are not challenged on appeal. Importantly, they include a finding that a reasonable person in Mrs Nikolich's position would have known that the bathroom floor would still have been wet and slippery on re-entry within 30 minutes after Mrs Nikolich's original exit from the bathroom.
On appeal Mrs Nikolich contended for a narrow formulation of the relevant risk, albeit without articulating what this narrower formulation was. Mrs Nikolich submitted that two elements gave rise to the risk: how wet the floor was 30 minutes post-bath; and how likely it would be to slip on that floor given that degree of wetness. Mrs Nikolich contended that when the risk was so broken down, with a degree of accuracy, there was no obvious risk. First, she had no way of knowing how wet the floor would have been 30 minutes post-bath (having no prior experience of the bathroom). Second, she had no way of knowing the likelihood of slipping on the floor in the circumstances (having no prior experience of the bathroom and having no way of knowing of the innate and unique slipperiness of the floor and the slow draining of the water on the surface of that floor). In the latter respect Mrs Nikolich contended that she could not have had knowledge of the conclusions reached by Dr Chew based on his slip testing of the bathroom floor.[77]
[77] Appellant's submissions pars 51 - 62, 66 - 68, 70, 95, 101 - 111 WAB 13 - 15, 20 - 22.
Senior counsel for Mrs Nikolich focussed on the time that elapsed between exiting and re-entering the bathroom. It was said to be reasonable for Mrs Nikolich to assume, given the time period, that the water on the bathroom floor might have drained or evaporated; and, in any case, it was not reasonable to expect that the possibility that the floor remained wet (and as such 'unusually slippery') was something that Mrs Nikolich turned her mind to.[78]
[78] Appellant's submissions pars 112 - 116 WAB 22 - 23.
Although not expressly articulated, the contentions advanced by Mrs Nikolich appear to reduce to the proposition that the relevant risk was 'the risk of slipping on the bathroom floor half an hour after leaving the floor wet following the use of the spa bath and the shower'. It is necessarily implicit in this formulation that the use of the bathroom floor involved a risk of harm because the floor would or may still be wet after half an hour. In the language of s 5F(4), the 'condition or circumstance' that gave rise to the risk of a person in Mrs Nikolich's position slipping and falling on the bathroom floor was the water on the floor. In other words, in substance the relevant risk, on the arguments advanced in the appeal, is not materially different from the risk found by the primary judge, namely the risk of a person in the position of the plaintiff slipping and falling on a wet bathroom floor: the relevant risk is, in substance, the same risk of harm as was identified for s 5B purposes.
The respondents relied on the primary judge's unchallenged factual findings[79] (being those findings referred to in [25], [26] and [83] above). The respondents emphasised that:
1.The primary judge made findings that:
(a)at the time she left the bathroom, Mrs Nikolich knew of the water on the floor, that it was substantially more than would be expected, and that the floor had not drained although the bathroom had been in use for about two hours;
(b)the time lapse between exiting and re-entering the bathroom was no more than 30 minutes and probably closer to 15 minutes.
2.Contrary to Mrs Nikolich's submissions, there was no finding that the bathroom floor was unusually, innately or uniquely slippery.
[79] Respondents' submissions pars 15 - 19, 34 - 35 WAB 30 - 31, 34 - 35.
The respondents' second contention must be accepted. The primary judge's finding was in terms that a barefooted person walking on the wet bathroom floor would have had a 'high' or 'very high' risk of slipping. But there was no finding or evidence that the bathroom floor was unusually, innately or uniquely slippery (those variations contended for in Mrs Nikolich's written submissions apparently intended to refer to the findings based on Dr Chew's evidence).[80] The slipperiness of the bathroom floor - and the risk of injury in slipping and falling - was a function of the water on the floor rather than the floor being unusually, innately or uniquely slippery. There was no evidence and no finding that the bathroom floor when wet was more (or less) slippery than other bathroom floors when wet. The primary judge's unchallenged finding was that, when dry, a person walking on the bathroom floor in bare feet would have a very low to moderate risk of slipping. Accordingly, only the first of Mrs Nikolich's suggested refinements to the formulation of the relevant risk had a basis in fact. The second suggested element need not be considered any further.
[80] Appeal ts 20.
The obviousness of a risk is a question of fact.[81] It will turn on the evidence of what occurred and why the risk is one that is obvious.[82]
[81] Singh v Lynch [137], [140]; Carter v Hastings River Greyhound Club [114].
[82] Menz v Wagga Wagga Show Society Inc [74].
In broad terms, an 'obvious risk', as defined in s 5F of the CLA, is one which is clearly apparent or easily recognised or understood.[83] The risk must be obvious in the sense that, in the circumstances, it would have been obvious to a reasonable person in the position of the plaintiff.[84] Thus the test of obviousness is objective and does not turn on the subjective knowledge or beliefs of the plaintiff (although taking into account personal characteristics of the plaintiff; for example, whether he or she was a child).[85] However, the plaintiff's actual knowledge of matters which constitute the risk of harm may be relevant in two ways. First, the way in which the knowledge was acquired may be relevant to the prospective inquiry as to whether the risk would have been obvious to a reasonable person in the position of the plaintiff. Second, it may be relevant to know the extent to which the plaintiff was actually aware of the risk, in whole or part, so far as the obvious risk inquiry is into the knowledge that a reasonable person in the plaintiff's position should be taken to have had.[86]
[83] Liverpool Catholic Club v Moor [23].
[84] CLA s 5F(1). See also Jaber v Rockdale City Council [27], [35]; Collins v Clarence Valley Council [136]; Kempsey Shire Council v Five Star Medical Centre Pty Ltd [12]. By contrast, s 5B of the CLA characterises the risk from the perspective of the defendant: Menz v Wagga Wagga Show Society Inc [56].
[85] Jaber v Rockdale City Council [27] - [28]; CG Maloney Pty Ltd v Hutton-Potts [109]; Collins v Clarence Valley Council [136]; Kempsey Shire Council v Five Star Medical Centre Pty Ltd [11].
[86] Liverpool Catholic Club v Moor [32] - [33]; Collins v Clarence Valley Council [139]; Schultz v McCormack [93].
The inquiry must take account of the objective circumstances of the plaintiff.[87] The nature of the conduct or hazard that caused the harm also informs the obviousness of the risk.[88] The surrounding circumstances which occurred immediately prior to the plaintiff suffering the relevant harm must be identified[89] as it is necessary to identify the factual scenario facing the plaintiff.[90] However, the process of determining whether a risk that has materialised is an obvious risk should not be over-intellectualised.[91] The language in s 5F (ie risks that are 'patent' or 'common knowledge' even if of 'low probability' or 'not prominent, conspicuous or physically observable') is not technical and does not invoke a legal concept.[92]
[87] Jaber v Rockdale City Council [28]; Collins v Clarence Valley Council [136].
[88] Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 [54].
[89] Fallas v Mourlas [98].
[90] Schultz v McCormack [92].
[91] Singh v Lynch [51].
[92] Singh v Lynch [51].
The term 'obvious risk' is also used in s 5H of the CLA. That statutory provision, in effect, exculpates a defendant from liability for harm caused where a plaintiff is engaged in a dangerous recreational activity if the harm is the result of the occurrence of something that is an obvious risk of that activity. It is accepted that identification of the risk asserted to be an obvious risk is an essential preliminary task in the determination of a defence under s 5H.[93] Moreover, the degree of particularity or generality with which the risk is defined may dictate the outcome of the defence.[94] In both respects that is also the position for s 5O.
[93] Carter v Hastings River Greyhound Club [113].
[94] Fallas v Mourlas [51] - [55], [165]; Singh v Lynch [45]; Carter v Hastings River Greyhound Club [113].
The preferred approach is to recognise that the identification of an obvious risk is a matter to be undertaken prospectively and without the benefit of hindsight. The prospective nature of the task therefore requires formulation of the risk at a reasonable level of generality as to the kind of risk involved.[95] Stamping the character of the risk by reference to the 'fine-grained detail' available in hindsight as to how the event occurred is to defeat the evident object of s 5O.[96] That said, however, for the purpose of s 5O, the specification of the risk must nevertheless be of sufficient particularity to capture, fairly, the harm which resulted from the risk materialising on the facts of the particular case.[97] Determining the appropriate level of particularity in the formulation of the relevant risk of harm involves having an eye to hindsight.[98] In this respect, hindsight may be used in selecting the relevant risk from a range of possible risks otherwise ascertained by reference to foresight. The correct approach is one which requires a balance to be drawn on the evidence in a particular case.[99]
[95] Singh v Lynch [65]. See also Fallas v Mourlas [55]; Kempsey Shire Council v Five Star Medical Centre Pty Ltd [12]; Menz v Wagga Wagga Show Society Inc [70] - [71]; Singh v Lynch [195(a) - (b)].
[96] Singh v Lynch [50], [65].
[97] Menz v Wagga Wagga Show Society Inc [71].
[98] Menz v Wagga Wagga Show Society Inc [72].
[99] Singh v Lynch [49] - [50].
The principles are illustrated in a trilogy of New South Wales cases. The first, CG Maloney Pty Ltd v Hutton-Potts, was an occupiers' liability case. The first defendant operated a hotel. It engaged the second defendant, a cleaning company, to clean its floors. The cleaner polished the floor on which the plaintiff slipped. The cleaner had not fully buffed the liquid polish applied to the floor, and the residual unbuffed liquid polish lay hidden. The plaintiff sued the hotel and the cleaning company. The trial judge apportioned liability as to 80% to the hotel and 20% to the cleaning company. The plaintiff was also found to be contributorily negligent to the extent of 20%. On appeal, the hotel argued that the risk which led to injury was an obvious risk. The contended for 'obvious risk' was that cleaners can leave unbuffed polish. The hotel said that there was a not insignificant probability of the risk materialising because the floor was rendered slippery by unbuffed polish.
The Court of Appeal found that there was no obvious risk. Bryson JA (McColl JA agreeing) said:[100]
The course of argument requires consideration whether [the plaintiff's] injury was caused by an obvious risk of such an injury occurring.
Much depends, in the application of provisions dealing with obvious risk, upon the degree of generality or precision with which the risk is stated. Rejecting more highly generalised statements, such as that bad things sometimes happen in hotels or that people sometimes fall over when walking on floors, the risks which confronted [the plaintiff] can be stated at several different degrees of intensity. In a room in a hotel where a cleaner is polishing the floor with a buffing machine there is a risk that a recently polished floor will be slippery, because it is polished. I do not think that it would be correct in fact to see this as the risk which matured …
However [even if that were the risk] that would not be enough to show that [the plaintiff] suffered harm from an obvious risk, because it was not the recent polishing of the floor which caused her injury. A higher degree of intensity is required in stating the risk. Her injury was caused by there being polishing material on the floor which was not visible, and had not been removed in the buffing process. The finding that the risk which caused her injury was an obvious risk involves attributing to the reasonable person in her position discernment, as an obvious matter, that there may (even with a low degree of probability) be polishing material on the floor which was not visible. This is the risk which matured and caused her injury. Involved in this is not only advertence to what [the cleaner] was doing, but advertence to the risk that he was not doing it properly. (emphasis added)
[100] CG Maloney Pty Ltd v Hutton-Potts [172] - [174].
As Leeming JA observed in Menz v Wagga Wagga Show Society Inc,[101] Bryson JA's point was that a fairly high degree of specificity was required in order to fairly capture the risk which materialised causing harm to the plaintiff in that case. When that was done, it was not an obvious risk.
[101] Menz v Wagga Wagga Show Society Inc [62].
In Menz v Wagga Wagga Show Society Inc, the plaintiff was a participant in an equestrian event at the Wagga Wagga show. At the 'warm up' for the event, her horse was 'spooked' when some children made contact with a metal sign, causing a loud noise. The plaintiff's claim was dismissed at first instance. Her appeal was also dismissed. An issue in the appeal was whether the trial judge had erred in characterising the relevant risk as an 'obvious risk'. Leeming JA said:
While the precise mechanism of [the plaintiff's] horse being spooked may not have been obvious, the fact that her horse could be spooked by some stimulus at any time was obvious.
There will, inevitably, be difficult cases. But the present is, to my mind, quite clear. There were three basal and inescapable facts in this litigation. The first was that, as it was put, there was 'no such thing as a bomb proof horse'. The second was that horses may at any time be spooked by a noise, or a shadow, or some other stimulus. The third was that a rider runs a risk of serious injury in the event that a horse is spooked and behaves unpredictably. Those facts make it appropriate to characterise the harm suffered by [the plaintiff] as the materialisation of the obvious risk of her horse being spooked by some stimulus. It is not necessary in order fairly to describe what occurred to provide the additional particularity that the noise made by children spooked the horse.[102]
[102] Menz v Wagga Wagga Show Society Inc [78] - [79].
The third case is Singh v Lynch. In that case, the plaintiff was a jockey whose horse fell in a race. The fall was caused by another jockey. The other jockey had ridden his horse into a second horse, which in turn caused the plaintiff's horse to fall. The other jockey had been found guilty by the Stewards of careless riding. The trial judge found that the other jockey had deliberately rode the other horse so as to come into contact with the second horse, but did not accept that the other jockey was reckless in what he did.[103] The trial judge was satisfied that the defendant's action was 'careless riding contrary to the Australian Rules of Racing'.
[103] Singh v Lynch [57].
The trial judge identified the risk in two ways. His Honour's preferred characterisation of the risk was 'the risk of [the plaintiff's] mount falling, bringing him to the ground and causing him injury'.[104] The trial judge also considered the plaintiff's characterisation of the risk, which was advanced in the following terms:
[T]he risk … that another rider would deliberately ride [his] horse so as to cause reckless or deliberate contact with an adjoining horse, in circumstances where the [plaintiff's] horse was 'boxed' or 'pocketed', in a manner that was plainly contrary to the rules of racing.[105]
[104] Singh v Lynch [56].
[105] Singh v Lynch [56].
The trial judge treated the alternative characterisation of risk as, in effect, a risk that another jockey 'would ride carelessly in breach of [the Rules] by riding out from the rail, carrying another horse … with him, thereby causing the second horse … to intrude on the rightful running of the plaintiff's mount and bring him down, causing injury'.[106] The trial judge found that on either characterisation of the risk, the risk was an obvious risk.[107]
[106] Singh v Lynch [57].
[107] Singh v Lynch [58].
An issue in the appeal was whether the trial judge should have found the other jockey's riding as 'reckless' rather than merely careless. The plaintiff contended that the evidence did not establish that reckless riding was an obvious risk in professional racing. Basten JA (Leeming and Payne JJA agreeing) said:
Was the appellant's challenge to the judge's characterisation of the respondent's conduct as careless, but not reckless material to the outcome? If the conduct had been identified as reckless, it was submitted that the evidence did not establish that such conduct was an obvious risk in professional horse racing. However, that depended on whether there was error in the formulation of the alternative risk.
…
The preferred approach is to recognise that the identification of an obvious risk is a matter to be undertaken prospectively and without the benefit of hindsight. It therefore requires a level of generality as to the kind of risk involved, as recognised in Fallas at [55] …
A prospective assessment of the obviousness of a risk should not reflect fine distinctions differentiating aspects of unsafe riding. It is clear from a consideration of the Rules of Racing that breaches are likely to be common in circumstances where jockeys are subject to obligations to ride competitively throughout and to maximise the opportunities for their horse, whilst not riding carelessly or improperly.
…
Applying this approach, the preferred characterisation adopted by the trial judge may be too broad in that it fails to identify a risk arising from potentially negligent conduct. The relevant elements of the risk which materialised in this case were not merely the jockey falling from his mount, but a fall caused by contact with another horse, being contact which in turn resulted from the negligent riding of another participant. The precise degree of negligence was not material. Accordingly, describing the conduct of the respondent as reckless rather than careless was not an essential element of the characterisation of the risk. The alternative characterisation considered by the trial judge was apt; his conclusion that it involved an obvious risk was well supported on the evidence and was correctly made.[108] (emphasis added)
[108] Singh v Lynch [62], [65] - [66], [68].
Basten JA also said that he agreed with what Leeming and Payne JJA had written on the question of the materialisation of an obvious risk.[109] Leeming JA said 'there is no reason for fine distinctions differentiating species of unsafe riding to play a role in the characterisation of risk, which is to be considered prospectively from the perspective of the plaintiff'.[110]
[109] Singh v Lynch [69].
[110] Singh v Lynch [136]. Payne JA also agreed with Basten JA (and Leeming JA).
Payne JA, the third member of the majority, said:
I agree with Basten JA that it may be concluded that the respondent's riding in the race where the appellant fell was properly to be characterised as reckless. That conclusion, however, does not avail the appellant here. The relevant risk which materialised in this case was that the appellant fell from his mount. That fall was caused by contact with another horse, being contact which in turn resulted from the riding of the respondent. The precise degree of negligence of the respondent's riding, including whether it is characterised as 'gross negligence' or even 'reckless', was not an essential element of the characterisation of the risk. The primary's judge's conclusion was that the alternative formulation he proposed involved an obvious risk; the same conclusion is reached even if the respondent's negligence is described as 'gross' or his conduct characterised as 'reckless'.
On this alternative formulation of the relevant risk, including the conclusion that the respondent's conduct was 'reckless', there was abundant evidence at the trial that the risk was obvious … It is not correct that if the risk is proven to be a rare one, or not within the scope of what a participant was entitled to have 'expected', it is therefore not an obvious risk.[111]
[111] Singh v Lynch [156] - [157].
Consistently with that last observation, in Collins v Clarence Valley Council, McColl JA (Macfarlan & Emmett JJA agreeing) said:
'Obvious' means that both 'the factual scenario facing the plaintiff' and 'the risk are apparent to and would be recognised by a reasonable [person], in the position of the [plaintiff] exercising ordinary perception, intelligence and judgment'. That means the court will take into account, for example, the age and level of experience of the plaintiff. Whether or not a risk is 'obvious' may well depend upon the extent to which the probability of its occurrence is or is not readily apparent to the reasonable person in the position of the plaintiff. A risk may be 'obvious' even though it has a low probability of occurring and is not prominent, conspicuous or physically observable.[112]
[112] Collins v Clarence Valley Council [138].
In the present appeal, as noted in [85] - [86] above, based on CG Maloney Pty Ltd v Hutton-Potts, Mrs Nikolich contended that the relevant risk was to be identified (for the purpose of determining whether it was an 'obvious risk') with more specificity, but without articulating what she contended the relevant risk to be in that regard. Also, as noted in [87] above, the unspoken formulation of the risk, on Mrs Nikolich's case, is in substance no different from the risk identified by the primary judge. Even if that conclusion were not correct, the submissions on behalf of Mrs Nikolich fail to point to an appellable error in any event, for the reasons which follow.
The written submissions on Mrs Nikolich's behalf in challenging the finding of obvious risk are largely couched in terms that she did not know, and had no way of knowing, how wet the bathroom would be 30 minutes post-use of the bathroom. There are two difficulties with that argument:
1.First, for reasons already given, Mrs Nikolich's subjective knowledge and appreciation of the risk is, at best, of secondary relevance. That is because the inquiry required by s 5F is objective; it requires consideration of whether that risk of harm would have been obvious to the hypothetical reasonable person in the circumstances of the plaintiff.
2.Second, while it is correct that the primary judge made no findings as to Mrs Nikolich's state of knowledge specifically as to how wet the bathroom would be 30 minutes post-use, his Honour made critical factual findings as to the state of the bathroom, and Mrs Nikolich's knowledge thereof, as at the time she exited the bathroom and entered the bedroom. Those findings, among others, provided a proper platform for the primary judge's unchallenged findings as to what a reasonable person in Mrs Nikolich's position would have known, as are reproduced at [83].
This was not a case where water had accumulated in an unexpected location. The position might be different had Mrs Nikolich encountered a slippery floor, due to wetness, at a location where such an event could not reasonably have been anticipated. The relevant risk was slipping and falling on the wet bathroom floor in circumstances where Mrs Nikolich knew, on exiting, that the floor was wet - substantially so - and had not drained despite the bathroom being used for over two hours; and a reasonable person in Mrs Nikolich's position would have known that 'on re-entry to the bathroom that night the floor would still be wet … and thus slippery'.[113]
[113] Primary reasons [75] (dotpoint 8).
Once that position is reached Mrs Nikolich's contention that the relevant risk was not an obvious risk is without merit. A reasonable person in the position of Mrs Nikolich, exercising ordinary perception, intelligence and judgement, appreciating the state of the bathroom floor on exiting the bathroom, would have realised - on re-entry no more than 30 minutes later - that the floor would remain wet (at least in part). On appeal it was never suggested, and it could not sensibly be suggested, that the risk of slipping and falling on a wet bathroom floor was not an obvious risk. In all the circumstances the finding that there was an obvious risk for the purpose of s 5O of the CLA should be upheld, essentially for the reasons given by the primary judge.
Grounds 1 and 2 should be dismissed.
Ground 3: The finding that the respondents did not breach the required standard of care
Ground 3, as presented at the appeal hearing, only challenged the primary judge's finding that it was not a reasonable response to the risk for the respondents to make the bathroom floor permanently non-slip. In that regard, Mrs Nikolich advanced as reasonable precautions either that the floor could have been abraded or it could have been coated with a non-slip finish.
In written submissions Mrs Nikolich contended that, in terms of s 5B of the CLA, it was 'not unreasonable' for the respondents to take such precautionary measures to ensure that a person in Mrs Nikolich's position was not injured.[114] That misstates the nature of the issue. The relevant question on appeal is whether the primary judge erred in finding that, in the circumstances, a reasonable person in the respondents' position would not have taken those precautions.[115]
[114] Appellant's submissions par 88 WAB 19.
[115] See CLA s 5B(1)(c).
Otherwise, excluding a catch-all submission that there was no social utility in excluding the taking of reasonable precautions, Mrs Nikolich's written submissions went no higher than to contend that the application of a non-slip coating could have been done by the respondents at a reasonable cost. Moreover, it was submitted that doing so would not change the aesthetic appeal of the bathroom as there are many commonly available non-slip coatings that have no visible change to a floor on application.[116] However, at the appeal hearing senior counsel for Mrs Nikolich submitted that the primary judge had misapplied s 5B(2)(b) - (d) of the CLA.[117] Senior counsel directed attention to [98] of the primary reasons:
It was not a reasonable response to the risk for [the respondents] 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.
[116] Appellant's submissions par 82 WAB 18.
[117] Appeal ts 3 - 4, 15.
Senior counsel for Mrs Nikolich emphasised the primary judge's reference to the aesthetics of the bathroom. Senior counsel contended that the 'aesthetics' of a reasonable precaution were not part of the test under s 5B(2)(c) and (d) of the CLA, the primary judge did not apply the concept of burden, and in those respects there had been a misapplication of the statutory provision.[118]
[118] Appeal ts 4, 15 - 16.
Initially the contention was put in terms that the aesthetics were 'not relevant'.[119] It was difficult to be certain whether this contention was pressed, as a little later senior counsel suggested that s 5B(2)(c) and (d) probably did not exclude anything and the aesthetics of the bathroom was 'not irrelevant'.[120] In any case it was submitted that the additional steps as identified were reasonable steps which could have been taken to avoid the risk, which were not burdensome, and would not in any significant way have affected the social utility of the activity.[121]
[119] Appeal ts 15.
[120] Appeal ts 16.
[121] Appeal ts 17.
An additional submission was made that there was no evidence as to the aesthetic effect of these precautions.[122]
[122] Appeal ts 19.
There is, in many cases, room for reasonable minds to differ as to whether a given set of facts reveals negligence on the part of the defendant. Nevertheless, this court must decide the question of negligence for itself, without the appellate restraint that applies to discretionary decisions and to some evaluative decisions.[123] For the reasons below, the primary judge's finding as to what reasonable precautions were required, in the circumstances as found by his Honour, was correct.
[123] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551 - 552; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [41] - [44]; Lightfoot v Rockingham Wild Encounters Pty Ltd [2018] WASCA 205 [57].
As advanced at the appeal hearing, ground 3 appeared to be little more than an after-thought. The submissions in support of the ground suffer from several flaws and cannot be accepted:
1.The primary judge concluded that the reasonable response to the risk of slipping on the wet bathroom floor was to do what the respondents did; they provided guests in the position of Mrs Nikolich with a bath mat and towels. The primary judge held that the bath mat was effective for its purpose and, even when wet, provided a non-slip surface on which people entering the bathroom could have walked and stood.[124] A claim in negligence based on failure to provide additional precautions had to confront the forensic difficulty that the burden associated with taking those additional precautions needed to be assessed in circumstances where the respondents had already taken reasonable precautions to the slip risk posed by the wet bathroom floor. Senior counsel for Mrs Nikolich did not at any stage confront that difficulty.
2.There was no evidence to support the assertion that a non-slip coating could be applied at a reasonable cost (no like express assertion being made as to abrading the floor). In that respect, as mentioned at [52] above, at the appeal hearing senior counsel accepted that there was no evidence or finding that the measures could be undertaken at a reasonable cost (the contrary having been advanced in support of ground 3 in the written submissions). Accordingly, there was no evidence or finding to meet Mrs Nikolich's persuasive onus in addressing the burden of taking the precaution to avoid the relevant risk. Senior counsel for Mrs Nikolich was unable to suggest any reason to identify error in terms of the assessment of burden, having regard to the absence of evidence as to cost.[125]
3.The written submission that the application of a non-slip coating would not change the aesthetic appeal of the bathroom floor is inconsistent with the oral submission that there was no evidence as to the aesthetic effect of these precautions. There was, however, evidence from Dr Chew that:
The application of anti-slip sealant would alter the appearance of the floor. Whether the treatment is considered adverse would depend on the sealant chosen and the desired aesthetic.[126]
4.In any case Mrs Nikolich does not, by a ground of appeal, challenge the factual finding that the contended for permanent non-slip precautions would change the aesthetic of the bathroom.
5.The calculus required by s 5B(1)(c) of the CLA is not confined by the matters specified in s 5B(2)(c) and (d). In determining whether, in the circumstances, a reasonable person would have taken a particular precaution against a risk of harm, the court is to consider the matters in s 5B(2)(a) - (d) 'amongst other relevant things'. Section 5B(2) contemplates that there will be other permissible considerations to be taken into account.
6.Before the introduction of the CLA it was accepted that aesthetic factors had their place in the calculus of negligence.[127] The aesthetic effect of the contended for precautions was undoubtedly relevant in the present case given: (a) s 5B(2)(d)'s express reference to the social utility of the activity creating the risk of harm; and (b) the nature of the target market of the short‑stay accommodation provided by the respondents. Among other things, to the extent that the precautions adversely affected the aesthetic appeal of the short-stay accommodation the unchallenged social utility occasioned thereby was impacted.
[124] Primary reasons [92], [99], [101].
[125] Appeal ts 19.
[126] ts 111 (referring to Exhibit 5 - Dr Chew's report dated 7 December 2018).
[127] Phyllis v Daly (1988) 15 NSWLR 65, 68; Romeo v Conservation Commission of the Northern Territory[1998] HCA 5; (1998) 192 CLR 431 [130].
In any case, so far as the primary judge raised the aesthetics of the additional precautions the subject of ground 3, the passage reproduced at [113] above makes it plain that the finding as to aesthetics is in addition to his Honour's initial finding that the contended for permanent non-slip precautions were not reasonable. The finding is in terms that, assuming the measures could be undertaken at a reasonable cost: (1) it was not reasonable to do so (the reasonable precaution, as previously described, being to provide a bath mat and towels); and (2) it would change the aesthetic appeal of the bathroom. Even if, contrary to our earlier conclusions, s 5B was misapplied by reason of the primary judge having had regard to the aesthetic effect of the precautions, the overall finding stood that it was not a reasonable response for the respondents to make the bathroom floor permanently non-slip. Were the primary judge to be in error in having referred to the aesthetic effect of the permanent non-slip precautions it would not result in ground 3 being upheld.
There was no error in the reasoning or conclusion of the primary judge as to the permanent non-slip precautions in the manner as contended for by Mrs Nikolich. On the facts found by the primary judge, his Honour was correct to find that a reasonable person in the respondents' position would not have made the bathroom floor permanently non-slip in response to the risk of harm by a person slipping and falling on the wet bathroom floor. Ground 3 should be dismissed.
Conclusion and orders
For these reasons the appeal should be dismissed. The parties should be heard on the question of the costs of the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GD
Research Orderly to the Hon Justice Vaughan
21 OCTOBER 2020
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