South Eastern Sydney and Illawarra Area Health Service v O'Rourke

The South Eastern Sydney and Illawarra Area Health Service (the appellant) appealed a decision of the District Court of New South Wales in favour of Ms. O'Rourke (the respondent). The dispute concerned injuries sustained by the respondent when she slipped and fell on brick pavers at the entrance to the appellant's hospital emergency department. The fall occurred during rain and at night-time, and the respondent was unable to identify the specific paver on which she slipped. However, her husband observed a mossy substance, identified as cryptogams, scattered over the area the following morning.

The primary legal issues before the Court of Appeal were whether the trial judge was entitled to find that wet cryptogams were the cause of the respondent's slip, and whether such a risk was an obvious risk. The court considered the evidence regarding the slipperiness of wet cryptogams and the expert examination of the area conducted some time after the event, noting evidence that the conditions of the cryptogams remained the same on both occasions. The court also had to determine the main contributing factors to slipping accidents in such circumstances.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings. The court reasoned that it was open to the judge to conclude that the wet cryptogams were the cause of the slip, based on the available evidence, including the husband's observations and the expert evidence regarding the conditions. The court found that the presence of wet cryptogams on pavers, particularly in conditions of rain and at night, constituted a foreseeable risk of slipping. The appellant was ordered to pay the respondent's costs of the appeal.