Sutherland Shire Council v Safar

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Sutherland Shire Council v Safar [2017] NSWCA 203
Hearing dates:	24 July 2017
Date of orders:	15 December 2017
Decision date:	15 December 2017
Before:	Macfarlan JA at [1] White JA at [17] Harrison J at [60]
Decision:	Appeal dismissed with costs
Catchwords:	TORTS – negligence – occupier’s liability – causation – whether primary judge erred in finding that a reasonable person in the position of the appellant would have taken alleged precautions – whether primary judge adequately considered the matters required under s 5B(2) of the Civil Liability Act 2002 (NSW) – whether respondent’s injury caused by breach of duty by appellant – whether scope of appellant’s liability extended to harm suffered by respondent – where respondent challenged primary judge’s finding that the risk causing injury was obvious
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5G, 5D, 5H
Cases Cited:	Hudson Investment Group Limited v Atanaskovic [2014] NSWCA 255 Laresu v Clark [2010] Aust Tort Reports 82-068; NSWCA 180 Neindorf v Junkovic [2005] HCA 75 Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103 Safar v Sutherland Shire Council [2016] NSWDC 232 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19
Category:	Principal judgment
Parties:	Sutherland Shire Council (Appellant) Christina Safar (Respondent)
Representation:	Counsel: J Sexton SC & R Gambi (Appellant) H Marshall SC (Respondent)   Solicitors: Mills Oakley Lawyers (Appellant) Beilby Poulden Costello Lawyers (Respondent)
File Number(s):	2016/296281
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2016] NSWDC 232 Date of Decision: 28 September 2016 Before: Levy DCJ SC File Number(s): 2014/295621

Judgment

1. MACFARLAN JA:   I agree with Harrison J’s judgment other than in relation to the issue of “obvious risk”. I deal with that issue, and provide supplementary observations in relation to the other issues, as follows.

2. As Harrison J concludes, the appeal should be dismissed on the basis that the appellant breached its duty of care as occupier by not taking reasonable steps to prevent patrons bringing wet umbrellas and coats into the auditorium, or at least to minimise the instances of this occurring.

3. The expert evidence indicated that the parquetry floor of the auditorium was highly slippery when wet. Mr Paul Brien, who was the appellant’s Operations Coordinator, was on duty at the Entertainment Centre on the day of the respondent’s accident, and was aware of a number of previous incidents in which people had slipped as a result of water or other liquid being on the auditorium’s parquetry floor (transcript p 390). Mr Brien appreciated that water coming into the auditorium on umbrellas or by other means gave rise to a safety risk (transcript p 391).

4. The appellant ought reasonably to have provided umbrella bins and ensured that these were conveniently located near the entries to the auditorium. It was insufficient to merely provide a single bin…