Crosthwaite v Pietila [1999] VSCA 110

5. At about 9.20 a.m. on Wednesday 16 August 1995 the respondent went by car to the subject premises to help the daughter of the tenant complete cleaning out the house, which the tenant was vacating. After parking her car in the driveway the respondent entered through the front door. This required her to walk up the front path and negotiate a single step between the path and the floor of the front verandah, all of which were of painted concrete. The step, exposed to the elements, because the verandah roof did not extend over it, was wet from morning frost or dew and, as his Honour found, slippery. There were no grooves in the surface, a device not uncommonly seen towards the nose of a concrete step, nor was there affixed a carborundum strip or something similar, to afford added grip. Shortly after entering, the respondent came out of the house carrying a bag of rubbish, which she put in the boot of her car after descending the step and walking across the front lawn for a few feet to reach the car. She returned to the house, via the lawn and the step, and picked up two, three or four relatively large photograph frames containing old family photographs. These she carried in front of her in outstretched arms across the verandah and, putting one foot on the step, slipped. Her legs went forward and her buttocks hit, first, the verandah, then the step and finally the path. It was a severe fall, causing painful injury to her lower back.

8. The house is of brick and single-storeyed, built in 1973, which the appellant and her late husband purchased in 1974. Their three sons were then teenagers. The path, step and verandah were then unpainted. Shortly afterwards all were painted green. The appellant's husband died in 1985, but she and two of her sons remained in occupation until she remarried in May 1990. During her 16-odd years of residency numerous visitors used the front entrance without mishap on the step. The path, step and verandah floor were painted a second and possibly a third time before the appellant moved out in 1990. A series of tenants had since occupied the house. Between tenancies, in September or October 1994, the path, step and verandah floor were uniformly repainted by a tradesman whose quotation for the work simply stated that two coats of paint were to be applied.

11. The appellant swore that prior to August 1995 she had inspected the step, when it was not smooth, and that, had it been otherwise, she felt sure she would have done something about it. There had been no complaints about it from tenants.

14. By s.14A of the Wrongs Act a reference in Part IIA to the occupier of premises includes a reference to the landlord of premises let under a tenancy who is under an obligation to the tenant to maintain or repair the premises, or is, or could have put himself, in a position to exercise a right to enter on the premises to carry out maintenance or repairs. It was common ground below and on appeal that the appellant was such a landlord of the premises at 255 Lawrence Street. By s.14B (1) the provisions of Part IIA apply in place of the rules of common law which determined the standard of care that an occupier was required to show to persons entering on the occupier's premises in respect of dangers to them. The critical provisions in Part IIA are s.14B(3) and (4), which provide:

"(3) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises. (4) Without restricting the generality of sub-section (3), in determining whether the duty of care under sub-section (3) has been discharged consideration shall be given to -

(a) the gravity and likelihood of the probable injury;

(b) the circumstances of the entry onto the premises; (c) the nature of the premises; (d) the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises; (e) the age of the person entering the premises; (f) the ability of the person entering the premises to appreciate the danger; (g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person."

By s.14D the provisions of the Act relating to contributory negligence apply in relation to a claim under Part IIA.

21. It was common ground that the respondent's injury resulted from her slipping on the step. The appeal is confined, therefore, to the question whether the slipping was caused or contributed to by a breach of the duty owed by the appellant to the respondent; and that in turn depends on the question whether the standard that the duty required had been met.

24. At the forefront of his argument counsel for the appellant submitted that the learned County Court judge had erred in that he had apparently failed properly to apply s.14B (4) (f) of the Wrongs Act 1958. The submission was that the respondent conceded in her evidence that she knew the step was wet before setting foot on it, and hence had "the ability...to appreciate the danger" of doing so; and that the judge apparently ignored this circumstance in determining whether the appellant had been in breach of her statutory duty. It was said that the judge had evidently failed to give consideration to the subject matter of paragraph (f) of s.14B(4) because he did not mention it in his reasons, and that the case should therefore be sent back for a new trial.

27. Evidence of the time at which the respondent first knew the step was wet was a little equivocal. Although she swore in cross-examination that she noticed it to be wet "probably as soon as I got there"- that is to say, when she reached the house at about 9.20 a.m. on the day - she later admitted that she really did not know when she first noticed it. The judge was by no means bound to conclude that the respondent knew before the accident that the step was wet. It is, we think, not perfectly plain that his Honour did so conclude. Maybe he did. Whether he did or not the submission, as it appears to us, misapprehends the operation of sub-s.(4) of s.14B. It is true enough that the sub-section provides, apparently imperatively, that "consideration shall be given" to the subjects enumerated in paragraphs (a) to (g). The paragraphs are not in our opinion, however, to be treated as a check-list against each item of which the tribunal of fact is required to place a tick or a cross in the course of the fact-finding exercise. Plainly enough the designated matters are to be taken into account if appropriate, among the others that are relevant, in an assessment of the whole of the evidence that bears on the question whether the duty described in sub-s.(3) has been discharged in the case at hand. It is not appropriate to isolate, for example, the matter of the plaintiff's "ability...to appreciate the danger" and to conclude that a failure by the tribunal of fact to treat that as a separate item for consideration demonstrates error. We do not find it necessary to attempt an exhaustive statement of the ambit of paragraph (f) of s.14B(4). It is sufficient to say that its subject matter, if relevant, can only be usefully considered in the context of the evidence as a whole. This will necessarily include the evidence of the acts or omissions of the defendant-occupier upon which the plaintiff relies with a view to proving a failure to discharge a duty of care: cf. Stusser v City of Melbourne (Court of Appeal, 16 September, 1997). We accordingly reject this submission in the terms that it was made.

30. Counsel was prompted to contend alternatively for the appellant that certain specific and critical findings by the judge were unsustainable. His Honour found that -

"... a reasonable landlord ought to have known that this exposed concrete step because of its history of repeated paintings and lack of anti-slip components, would become slippery when wet and present a hazard in that condition to pedestrians entering and leaving the premises by the front door."

That finding is no doubt to be understood as referring to a reasonable landlord in the position of the appellant. His Honour went on to conclude that -

"A landlord taking reasonable care as required by s.14 [sic] Wrongs Act should therefore have either had the step painted with recommended additives or had the concrete grooved or had anti-slip material such as carborundum applied to the surface of the step. Any of these safety precautions would have cost very little and would have prevented the plaintiff's fall. I further find that the defendant was therefore in breach of the statutory duty imposed upon an occupier by s.14 [sic] of the Wrongs Act which breach was a cause of the plaintiff's fall".

Again, the reference to "A landlord taking reasonable care as required..." is presumably to be understood as indicating a reasonable landlord in the appellant's position.

37. The judge reasoned, in effect, (1) that the appellant ought to have known that the concrete step, because of (a) its history of repeated paintings and (b) its lack of "anti-slip components" (as his Honour called them), would become a slipping hazard when wet; and (2) that she should therefore have caused one of the "anti-slip components" to be incorporated - an inexpensive precaution that would probably have prevented the respondent's fall; and (3) that a failure by the appellant to cause one or other of three specified "anti-slip components" to be incorporated was inconsistent with the exercise of reasonable care on her part.

40. The respondent had in her statement of claim alleged quite an extensive range of shortcomings of the appellant amounting to a breach of duty that was a cause of the accident. The judge's finding, however, was based only on the failure to cause one or other of the "anti-slip components" to be applied to the step.

43. There was no evidence that the appellant actually knew that the step was liable to become a slipping hazard when wet "because of its history of repeated paintings and lack of anti-slip components"; or that she actually knew that "anti-slip components" of the kind specified by the judge were available for application to the step. The question arises whether there was evidence from which it might fairly be concluded that she ought reasonably to have known those things. Presumably a person in the appellant's position could fairly be taken to know that a slippery step is a potential slipping hazard to a user of it, and that a painted concrete step that is wet is likely to be more slippery than a painted concrete step that is dry. So much would seem to be common knowledge. A person in the appellant's position might also fairly be taken to know both that the step in question had not been grooved and that an adhesive carborundum strip or the like had not been applied to it: either of these would have been conspicuous. The judge's reasoning indicates, however, that he would not have found the appellant to be in breach of her duty for want of her adoption of either of those expedients had she had the step "painted with recommended additives". There was no evidence that the appellant knew that "recommended additives" were available to be applied as "anti-slip components". What evidence was there that a person in her position ought reasonably to have known of their availability for the purpose? None, so far as we can see.

46. The evidence upon which the learned judge apparently founded his conclusion that the appellant had been in breach of her duty in not having had the step "painted with recommended additives" came from Dr L.J. Cubitt, an engineer called to give expert evidence on behalf of the respondent. He deposed that he had tested the coefficient of friction of the step in its dry state and found that it was well within the limits prescribed by the relevant Australian Standard. He made no test with a view to discovering the step's coefficient of friction in its wet state, and there was no other evidence indicating it. Dr Cubitt described the three different means of providing extra friction that the judge enumerated, namely grooving the concrete, the application of an adhesive carborundum strip and the addition of roughening material to the paint. He deposed that "Manufacturers of the paint such as Berger Jet Dry or Vipond, which is another manufacturer, recommend that pumice or a sand or glass beads be added to the final coat of the paint to roughen the surface and to increase the friction of the surface". His opinion was that the paint on the step "had no special treatment in it". By that we take him to have meant (as he explained in cross-examination) that he was able, by feeling the painted surface with his hand, to detect no roughness suggestive of the incorporation of sand, pumice or the like. It appears from one part of the judge's reasons that he similarly understood that aspect of Dr Cubitt's evidence. An analysis of the composition of the paint could have been made but Dr Cubitt did not make one. He produced written technical material that he had obtained by facsimile from two paint manufacturers, and it was tendered in evidence. The material indicated that the paint known as Berger Jet Dry, suitable as paving paint, was made in three grades or kinds: Gloss, Low Sheen, and Heavy Duty. For each of these the manufacturer provided specifications with recommendations for use. The recommendations for the Gloss specified that "Sloping pathways may be slippery to walk on when wet. This can be reduced by using Berger Jet Dry True Grip non-slip additive", whereas the recommendations for Low Sheen indicated the need of nothing by way of precaution against slipping. Of the tendered material, only that provided by Berger relating to the Heavy-Duty quality recommended the roughening of sloping pathways or the incorporation of sand into the paint film to reduce the tendency to slipperiness. The tendered data relating to Vipond's Paving Paint stated that "For areas that may become slippery when wet such as paths and steps it is recommended to use the anti-skid additive in the final coat". There was no recommendation in the tendered material issuing from Vipond that any roughening or abrasive substances be added or applied. Dr Cubitt, when asked about the knowledge of the general community of the increased risk of wet painted concrete, said "I'm sure if you asked a hardware store paint person, if you are going to paint a concrete path, they would recommend roughening and putting in additives. I would say the average handyman would know painted concrete surfaces, when wet, are slippery. It's almost common knowledge."

49. There was, unsurprisingly, no evidence that the paint on the concrete step in question was or should have been Berger Jet Dry Heavy Duty, or anything equivalent to it, for which the incorporation of sand or some other roughening or abrasive substance is recommended. The litigation was concerned, after all, with a modest dwelling of a conventionally simple suburban kind, not an industrial or commercial installation or a municipal or other public thoroughfare. Nor was there any evidence indicating that the step had been painted with gloss paint, or indeed what kind, grade or quality of paint had been used. For all that the evidence showed, it might have been Berger Jet Dry Low Sheen (for which, so far as appears, no additive is recommended) or some equivalent; and it might have contained Berger Jet Dry True Grip non-slip additive or Vipond's anti-skid additive, or an equivalent of either of them.

52. There are several observations especially to be made about the evidence - or lack of it - with respect to "anti-slip components" which the judge found that the appellant, in breach of duty, had not incorporated in the step. First, the evidence fell short of entitling the judge to find - as he appears ultimately to have done in the passages we have quoted in paragraph 9 above - that the paint applied to the step lacked "recommended additives". All that could be said was that, accepting Dr Cubitt's evidence, there was no roughening component, such as sand, pumice or the like. Secondly, the evidence does not reveal that the paint used was not of a kind for which an additive, whether of a roughening kind or otherwise, was not recommended by the manufacturer. Thirdly, it was not made to appear that manufacturers' recommendations about additives were common knowledge, so that a person in the position of the appellant might reasonably be taken to know of them. One could presumably fairly attribute the knowledge to an artisan painter or a hardware retailer, and perhaps to an "average handyman" - though even Dr Cubitt did not in terms attribute it to the last. Attribution of the knowledge to a person in the appellant's position, however, is in my opinion not fairly justified by the evidence. Finally, the evidence did not prove that a non-slip or anti-skid additive, of a kind manufactured under a trade name by Berger or Vipond, was not incorporated in the paint that was used. It was not alleged, and in any event it could not have been properly held, that this was a case in which the respondent's slipping spoke for itself to demonstrate a breach of the appellant's duty. If a breach of duty were to depend on a failure to incorporate one or other of three "anti-slip components", there ought to have been some evidence that none of the three was incorporated in the step. The appellant here bore no onus to prove that one of them was incorporated.

55. Even without attributing to the appellant a knowledge of "anti-slip components", a breach of duty on her part might no doubt be properly found if, for example, she were shown to have ignored an obvious need to attempt some measure of precaution against slipping by users of the step. The case was not so put below for the respondent, and the judge was not called on so to consider it. The evidence showed no such obvious need but was, indeed, all the other way. The appellant swore - and there was no apparent reason to doubt - that she had lived in the house for some 16 years until 1990, raising three sons there, and had let it from 1990 until August 1995, without incident referable to the step. She had relied on an apparently competent letting agent to advise her on matters of repairs and maintenance and, as the judge took the trouble to point out, had been assiduous in complying with the agent's recommendations. It is to be noted in particular that the front verandah, the step and the path leading to it had been painted by a tradesman in September or October, 1994.

58. By reference to the foregoing analysis we consider that the learned judge was not justified in holding, on the grounds that he did, that the appellant was in breach of her admitted statutory duty. Nor, in our opinion, did the evidence justify a decision against the appellant on any other basis. We would accordingly allow the appeal, set aside the judgment below and order that in its place there be judgment for the defendant. It follows that the cross appeal, which is concerned only with the finding of contributory negligence, should be dismissed. In any event, we have been unable to see a basis for disagreeing with his Honour that the respondent, having failed to keep a proper lookout, was appreciably responsible for her own misfortune.

63. I agree. The trial judge found that, in that she attempted to negotiate the step while wearing high heels and carrying an armful of photographs which obscured her vision, the respondent's own conduct was a cause of the accident. The question presently relevant is whether it was established at trial that the appellant was guilty of a breach of duty under s.14B of the Wrongs Act 1958 which also was a cause of the accident.

66. So far as the evidence went, there was nothing in the history of this simple concrete step, which had been painted more than once over the years, to occasion any particular concern to the appellant, as the "occupier" within s.14B. The house had been purchased by her and her husband in 1974; it was then occupied by them with their three teenage sons. The appellant's husband died in 1985, but the family stayed on until 1990, by which time one of those sons was in the airforce. According to the appellant in evidence, during the period in which it was their home this house had seen a multitude ("thousands") of visitors, including her mother, then in her eighties, and her mother's brother who lived next door and called in on a regular basis ("every day", she said). The concrete was painted in the year after the family moved in and was painted at least once more - possibly twice more - before they moved out. The house was then let, and from 1994 let through a local real estate agent. The agent inspected the premises from time to time and gave advice to the appellant on maintenance, advice which she followed. No complaint had ever been made about the step and in all the years since the house was first purchased nobody had ever fallen on this step. So far as the evidence went, this was the first such accident.

69. In my opinion, there was no basis, then, on which it could be said that the appellant had failed to take due care to see that no harm came to visitors "by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises": s.14B(3). But the trial judge found otherwise. He said that -

"... a reasonable landlord [scil. in the appellant's position] ought to have known that this exposed concrete step because of its history of repeated paintings and lack of anti-slip components would become slippery when wet and present a hazard in that condition to pedestrians entering and leaving the premises by the front door."

Of course, as was acknowledged in the course of the evidence, the painting of concrete steps like this one has been a common practice for many, many years in Victoria. Further it is fairly common knowledge that an exposed concrete step which has been painted may be more slippery when wet than when dry, though it depends upon how rough the surface remains notwithstanding the painting. But his Honour did not find that the appellant was in breach of her duty under s.14B simply because the step had been painted: rather it was "because of its history of repeated paintings and lack of anti-slip components". Apparently the judge was of the view that on account of these two factors the appellant should have taken extra precautions against the risk of persons' slipping. But with respect, there was no sufficient basis in the evidence for that conclusion.

74. As for the first of the two factors mentioned by the judge, according to Mr. Kuisma, one of the two experts called at the trial, "repeated paintings" need not make a concrete step more slippery than otherwise: it depends, he said, "on whether they remove the previous paint coatings". Furthermore, according to the other expert called, Dr. Cubitt, a concrete step that is painted is more slippery in the first week after painting than later; for wear and tear will serve to roughen the surface. This step was last painted in October 1994, between tenancies, when path, verandah and step were all painted by a local painter and decorator. The respondent slipped on the step some ten months afterwards; there had been no such incident in the meantime. The two experts examined the step more than twelve months after the respondent's fall and by then, they said, it was worn.

77. As for the second factor, the absence of "anti-slip components", there was no analysis made of the paint actually used in October 1994. Certainly Dr. Cubitt said that no roughening material, such as sand or pumice, was apparent to the touch when he felt the step in 1996, and so none was used, he said. But the evidence did not extend to the type of paint used, and in particular it did not extend to the use or not of other recommended additives, according to the literature put out by the manufacturers of such paints. Nor was it explained how the appellant might be supposed to know of such things; whatever a tradesman might know or be supposed to know, the position of the householder is surely different. There was no evidence that the appellant, or indeed a householder in the position of the appellant, might reasonably be supposed to know of "anti-slip components" that could be included in the painting. On the other hand, Dr. Cubitt`s evidence was that the co-efficient of friction of this particular step, though painted, was significantly better, when dry, than the relevant Australian standard. He did not test the step when wet and so he was able to say only that when wet the co-efficient of friction would be lower; by how much he could not tell.

80. In short, in my opinion it was not open on the evidence for the judge to conclude, as he did, that the appellant, acting reasonably, ought to have taken further precautions against a visitor's slipping on this painted concrete step when it was wet (as it was on this occasion) through early morning dew or frost. Had there been such an obligation to take further precautions, it would be relevant to consider his Honour's conclusion about what should have been done - and in this regard I simply observe that grooving the concrete itself was mentioned by Dr. Cubitt only as something that might be done at the time of construction. (The appellant and her late husband bought the house after construction.) But I need not pursue that. In my opinion there was no duty on the appellant to take any more care in respect of this particular step than she did and on that account I agree in the disposition proposed by the other members of the Court of both the appeal and the cross-appeal.