Dillon v Hair

The background facts 28In 2008 the plaintiff commenced working as a property manager at Century 21 in Katoomba. The appellant's property was one of the properties that came under the plaintiff's management. When the plaintiff commenced her employment at Century 21, the cottage was already occupied by Ms Munro pursuant to a lease between her and the appellants. 29On 26 April 2010 Ms Munro wrote to the plaintiff informing her that she was bringing the tenancy to an end, that she would be handing over vacant possession of the cottage on 21 May 2010 and that she had booked removalists for 14 May 2010. The removalists attended the property on 14 May 2010 and removed the bulk of Ms Munro's possessions. Arrangements were made for a final property inspection to be conducted by the plaintiff in the company of Ms Munro on 21 May 2010. The appellants were informed of the foregoing. 30The cottage comprised a two storey timber structure. In the proceedings below, an expert report was tendered which appended a number of photographs which, relevantly, revealed a deck of untreated timber slats adjoining the front entrance of the cottage which led directly into its lounge. There were two doors at the entry point leading into the cottage. The first was a flyscreen door which opened outwards. The second was a more solid front door which opened inwards. The photographs reveal that there was a raised timber strip attached to the floor across the entry which stood proud of the floor by approximately 10 to 20 millimetres. Attached to the bottom of the front door was a draught excluder, which was locked in place by the timber strip when that door was closed. 31The primary judge found that prior to the plaintiff's fall on 21 May 2010, Mr Dillon had taken a mat that was originally on the deck and had placed it immediately inside the front entrance to the cottage. Although Mr Dillon denied so placing the mat, the primary judge rejected his evidence and that finding is not challenged. Mr Dillon disposed of the mat immediately after he became aware of its involvement in the plaintiff's fall.

The nature of the plaintiff's accident 32There was no dispute as to how the accident occurred. On 21 May 2010, the plaintiff, in the company, relevantly, of Ms Munro, entered the cottage and conducted the final property inspection as planned. As the plaintiff was exiting through the front door she stepped onto the mat, which slipped out behind her causing her to fall forwards onto her left knee. In this respect, the mat could only move one way, namely, backwards and towards the inside of the cottage as it was prevented from moving onto the deck by the timber strip across the entry. 33Although there was a dispute between the plaintiff and Ms Munro in the proceedings below as to whether the former fell when she was exiting through the front door for the first or second time, as the primary judge noted at [20] of his reasons, this difference between the accounts of the plaintiff and Ms Munro had no bearing upon the success or otherwise of the plaintiff's claim. On the appeal it was not suggested otherwise. 34Two factual issues require some reference to the evidence. The first relates to the nature of the floor of the deck on the one hand and the inside of the cottage at the entry point on the other. The second relates to the nature and condition of the mat with particular reference to the composition of its underside.

The nature and condition of the floor of the cottage 35There was no contest, and the photographs reveal, that the deck was uncovered and comprised of untreated timber slats or floorboards which were exposed to the elements. The internal flooring of the cottage comprised milled pine timber floorboards the surface of which, according to the plaintiff, had been treated with polyurethane so as to present as a clear gloss or polished finish. The evidence was that the floor was in good condition and had been thoroughly cleaned by Ms Munro shortly before 21 May 2010. In her evidence Ms Munro was shown two close-up coloured photographs of the floor immediately inside the entry point. She acknowledged "the highly polished and sealed state of the floor inside...the premises". When asked whether it was "pretty obvious" to her that she was dealing with a "very smooth floor" she responded: "In very good condition, yes". 36The primary judge did not describe the internal flooring as highly polished but only as polished. However, there can be no doubt from the reflective nature of the surface depicted in the photographs that it presented as a very smooth surface in good condition.

The nature and condition of the mat 37The primary factual issue which arose at trial related to the nature and condition of the underside of the mat and its potential, when stepped upon, to slip backwards when a person was exiting the cottage through the front door. 38There was agreement that the mat was rectangular in shape. There were some differences between the witnesses as to the size of the mat. According to the plaintiff, its size was probably 18 x 24 inches; Ms Munro thought it was about the size of a large tea towel having dimensions of approximately 45 x 30 centimetres; Mr Dillon thought that the width of the mat was the same as the door: approximately 90cm wide and probably 60cm deep. It would be a fair inference that the mat would not have been any thicker than the thickness of the timber strip so as to provide clearance for the front door to close and the draught excluder to lock flush against the strip. 39According to Ms Munro's evidence (which was accepted in all respects by the primary judge), the mat had at all times during the course of her tenancy been located outside the front door on the timber deck. 40Although the plaintiff denied in her evidence in chief that the mat had any type of rubber backing or anything to stop it sliding on the floor, in cross-examination she conceded that she only felt it did not have rubber backing because she had slipped on it. However, there is some significance in the following exchange in the plaintiff's cross-examination: Q: You made no particular observation of there being no rubber backing? It is something you've assumed because it slipped on the floor; is that right? A: It moved very quickly underneath my feet, yes. [Emphasis added.] 41Ms Munro's evidence as to the composition of the mat was that it was a "synthetic of some sort". Importantly, her evidence, which was not challenged, was that: It was a slightly textured felty surface on top and a slightly more plasticy or rubbery surface on the underside. 42When Mr Dillon was asked what the mat was made of, he responded: It was a hard textile type - probably artificial - synthetic rather and it had a rubber backing on it.

Was the mat liable to slip? 43Ms Munro gave evidence that when she stepped on the mat as she entered the cottage it did not move. She was cross-examined by counsel for Mr Dillon with respect to this matter in the following exchange: Q: And you had a distinct recollection of [the mat] feeling firm and safe underfoot. Is that right? A: Yes. I was surprised to see it there so I, yeah. Q: But you've got a clear recollection of seeing it, stepping on it and believing that it was fine? A: Yes. Absolutely. Q: It didn't move at all under your foot did it? A: No. Q: You didn't think there was any problem with the mat being there? That is to say that it might [sic] slip or move? A: No I didn't. Q: And you didn't experience anything that would suggest it to you. Is that right? A: No. That's right. Q: So far as you were concerned by looking at it, it looked like a standard kind of a mat for cleaning your feet on. A: Mm-hmm. Q: Is that right? A: That's right. 44Ms Munro accepted that when the plaintiff trod on the mat "it slipped out from under her". The following exchange then occurred: Q: Now you had stepped on that mat on some occasions while it had been inside? A: That's right. Q: And you'd count yourself lucky that the same thing had not happened to you, wouldn't you? A: Yes. Q: Did you think it might be a good idea to have a look at that mat and see, by putting your foot on it and seeing if it slipped on the floor, moving your foot backwards and forwards? Did you think that might be a good idea? A: No cause I'd never felt that the mat was dangerous. Q: But it was on a different surface-- A: Yes. Q: --outside, wasn't it? A: Yes. But if you moved it backwards and forwards, you would've hit the, hit the door jamb. Q: Well you had a whole room to move it on one direction, don't you? A: Yes, you're right. 45As I have noted at [31] above, Mr Dillon had in fact disposed of the mat immediately after he became aware that it was the cause of the plaintiff's fall. He said that his "first instinct" was "to get rid of [the mat] so it didn't cause any further problem". He did this notwithstanding that in his view there was nothing wrong with it. 46The primary judge (at [30]) did not believe Mr Dillon. In particular, his Honour rejected (at [33]) as lacking credibility Mr Dillon's reason for throwing the mat out especially as Mr Dillon had said the mat was in good condition. His Honour then said (at [34]): I am satisfied that his action in throwing out the mat is consistent with his wish to avoid blame for the injury that had been caused by his placing of the mat on the floor and to prevent any conclusions being drawn from an inspection of the mat...It is consistent with a desire to dissociate himself from the mat knowing he might have been responsible for the accident. 47Having said that he believed the mat had "a nice intact rubber backing", Mr Dillon conceded that he did not look at it particularly closely, "just reasonably" and that it "seemed to be okay." He was then questioned about the Blue Mountains climate, and he accepted it was "pretty harsh" and sometimes very hot and sometimes very cold. 48In that context the following exchange occurred: Q: [The mat had been] out in the rain and the cold and the heat and so on, is that right? A: Yep. Q: What happens to rubber over a period with extremes of temperature, Mr Dillon? A: If we're talking-- Q: Goes a bit hard? A: Yes. Q: And loses its elastic properties, doesn't it? A: Yeah. [Emphasis added.]

The primary judge's reasons 49At [55] the primary judge noted Mr Dillon's knowledge of the weather conditions to which the mat had been exposed outside on the deck for at least four years prior to the accident. His Honour then concluded in the same paragraph that the placing of a worn mat on a recently and thoroughly cleaned polished surface such as that immediately inside the front entrance to the premises would give immediate concerns about its safety. His Honour therefore found that Mr Dillon simply disregarded any aspect of the safety of the mat when he placed it inside, a finding consistent with his evidence to which I have referred at [47]-[48] above. 50His Honour acknowledged that the provisions of s 5B of the Civil Liability Act 2002 applied to the present case. That section is in the following terms: General Principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 51At [57] of his reasons his Honour held that he was satisfied (for the purposes of s 5B(1)(a)) that a risk of an unsecured small mat sliding on a polished floor when a person walked on it was foreseeable. He concluded that to a person giving reasonable thought to the matter, it was foreseeable that there was a risk of slippage when force was applied to a mat placed on a polished floor. 52At [58] his Honour further indicated his satisfaction that that risk was not insignificant and that a reasonable person in Mr Dillon's position would have taken precautions against the risk of harm. He therefore found that s 5B(1)(b) was satisfied. 53His Honour also found that s 5B(1)(c) was satisfied. The precautions which he identified included an inspection of the underside of the mat; "perhaps" the placing of a "non-stick" (agreed during argument to be a typographical error for "non-slip") material beneath the mat; or simply not using it at all but leaving it outside if it appeared to possibly pose a danger when placed inside. However, Mr Dillon chose to remove it from its position on the rough outdoor deck and place it on the smooth polished floor immediately inside entry to the cottage. 54His Honour then addressed s 5B(2) (at [59]), indicating that he was satisfied that harm was a significant probability if precautions were not taken. He continued: Allowing a person to walk on a mat which might reasonably slide from beneath their feet was easily preventable and a person falling onto a hard surface would have been known to Mr Dillon as being susceptible to cause significant injury. The burden of taking precautions was not onerous.

Mr Dillon's submissions on the appeal 55In oral submissions counsel for Mr Dillon accepted that the requirements of s 5B(1)(a) and (b) were satisfied. What was in issue was the requirements of s 5B(2)(a) and (b), namely, whether it was probable that harm would occur if care was not taken and the likely seriousness of the harm. In essence, it was submitted that notwithstanding that there was a risk of harm which was foreseeable and that that risk was not insignificant, nevertheless in the circumstances a reasonable person in the position of Mr Dillon would not have taken any precautions, let alone realised that the mat had the potential to slip when trodden upon. 56Counsel for Mr Dillon commenced his oral submissions by stating the following five propositions: (1)The duty of care owed by an occupier is not to make premises perfectly safe as there can be many things, including objects, in premises which can present a danger but to which a duty of care does not extend: Phillis v Daly (1988) 15 NSWLR 65 at 74B-C per Mahoney JA; (2)In a slipping case it is not enough to establish by the fact of an occurrence that a surface is slippery or that the object (in this case the mat) was capable of moving. What the plaintiff was required to establish was that the floor surface was unreasonably slippery; (3)In the present case there was no evidence that a worn mat was less slip-resistant than a new mat or that a worn mat did not meet some objective standard for slip resistance; (4)Even if the rubber backing on a mat might harden and become less elastic over time as the primary judge found, that did not establish that such a mat was less slip-resistant than a new mat; (5)The primary judge made no finding about what the subject mat was made of or whether it had rubber backing and in failing to address that issue his Honour ignored critical evidence that he needed to address in order to determine the issue of liability. 57In my view the statement of Mahoney JA in Phillis v Daly upon which reliance is placed has no application to the facts of the present case. Furthermore, the second and third propositions defy common sense. The evidence established, and his Honour found, that the mat was placed on a smooth, polished floor. He also found that the mat was worn, this being in my view, a reference back to his rejection of Mr Dillon's evidence that notwithstanding that he disposed of the mat immediately after the accident, it had rubber backing which was in good condition. 58It is true, as counsel for Mr Dillon submitted, that the primary judge did not expressly deal with the evidence of Ms Munro that she never thought of the floor as slippery or that the mat was dangerous given that she had stepped on it and it had not moved. On the other hand, she conceded in cross-examination that she did not know how the mat was going to behave on the internal timber floor the first time she stepped on it inside. However, the most significant evidence was her description of the underside of the mat as "slightly more plasticy or rubbery" as compared to the topside of the mat.

Did the primary judge err? 59Although it is true that the primary judge did not set out in his reasons the evidence of Ms Munro and Mr Dillon which in fact supported his findings, in my view it is more than apparent from his findings at [58] and [59] that he made those findings on the basis of their evidence. I would therefore reject Mr Dillon's submission that his Honour ignored critical evidence. 60The primary complaint made by counsel for Mr Dillon, apart from the primary judge's asserted failure to deal directly with the evidence of Ms Munro and, I would add, Mr Dillon, was that in order to conclude that the mat had the potential to slide from beneath a person's feet, his Honour needed to explain why a mat with a "slightly more plasticy or rubbery surface on the underside" (as described by Ms Munro) might reasonably be expected to slide or slip. The difficulty with this submission is that the evidence of the plaintiff herself supports a finding that whatever backing it did have was inadequate to prevent the mat slipping. She said, when describing the accident in cross-examination, that when she stepped on the mat it "moved very quickly underneath my feet". 61The evidence of Ms Munro and Mr Dillon established that the "plasticy or rubbery" nature of the surface of the underside of the mat had become hard due to its exposure to the elements over a period of years and thus would have lost its elastic or slip-resistant properties and that this would have been obvious to Mr Dillon had he been acting reasonably. The asserted failure of his Honour to refer to that evidence does not, in my view, undermine the ultimate findings to which he came. The same comment applies to Mr Dillon's submission that there was no evidence, either lay or expert, that a rubber backing that has lost its elastic properties would be more likely to slip on a polished timber floor than if it retained those properties. In my view, such a submission defies common sense and experience. 62Mr Dillon's evidence that I have extracted at [48] above is relevant to his knowledge of the condition of the mat at the time of the accident. In particular, it enables the inference to be drawn, as his Honour essentially did, that the mat was worn and not in good condition and, in particular, that if it did have at one stage any form of rubber backing, that backing had ceased to be slip-resistant particularly when placed on polished floorboards with a high gloss surface. In any event, the evidence of Ms Munro that its underside was "slightly more plasticy or rubbery", when combined with Mr Dillon's concession that rubber exposed to extremes of temperature goes hard and loses its elastic properties, was capable of justifying a finding that a reasonable person in Mr Dillon's position would have inspected the condition of the mat, which would have revealed to such a reasonable person that it was at least likely that it had substantially lost its slip-resistant properties. 63In his cross-examination Mr Dillon practically conceded as much in the following exchange: Q: Well before you put one of those outside mats in, you'd have a pretty good look at it, wouldn't you, to make sure the rubber hadn't gone hard over six years out in the sun and the rain and the different temperatures? That'd be pretty obvious to do, wouldn't it? A: A reasonable suggestion, yes. 64In the foregoing circumstances, and on Mr Dillon's own evidence, it was open to the primary judge to find that a reasonable person in Mr Dillon's position, having the knowledge of the condition of the underside of the mat to which reference has been made, would take precautions before placing it on a smooth polished timber surface. Such precautions would include the placing of a non-slip material beneath the mat, or not placing it in such a location where it was likely to slip backwards when a person exiting the cottage placed their foot upon it. As his Honour found at [59], acting reasonably before he placed the mat immediately inside the front entrance, Mr Dillon would have been aware that allowing a person to walk on a mat that might reasonably slide from beneath his/her feet when stepped on was easily preventable given that if the mat slipped when walked on, a person falling onto a hard surface would be susceptible to sustaining significant injury. 65Finally, it should be noted that no submission was made, and no ground of appeal was asserted, that his Honour had failed to give adequate reasons for the findings that he made. In my view, his finding that a reasonable person in the position Mr Dillon would have taken precautions against the risk of harm, which was conceded would be caused by an inadequately slip-resistant mat slipping on a smooth polished timber floor, was clearly open to his Honour and was inevitable on the evidence to which reference has been made. No error on the primary judge's part has, therefore, been demonstrated. 66For the foregoing reasons, I would reject the appellant's submissions and dismiss the appeal with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2014