Fairfield City Council t/as Prairiewood Leisure Centre v Cheryl Petro [2003] NSWCA 150 | Case summary

19 June 2003 FAIRFIELD CITY COUNCIL t/as PRAIRIEWOOD LEISURE CENTRE v CHERYL PETRO Judgment 1 MASON P: I agree with Tobias JA. 2 SANTOW JA: I agree with Tobias JA. 3 TOBIAS JA: This is an appeal from a decision of Cooper DCJ made on 14 May 2002 by which his Honour found the appellant negligent and entered judgment for the respondent in the sum of $106,403.45. The appeal is limited to the issue of liability. 4 The essential facts are as follows. On 30 March 1998 the respondent attended the Prairiewood Leisure Centre (the Centre) which was a swimming pool complex owned and operated by the appellant. The purpose of her visit was to enter her 16 month old son in a "learn-to-swim" class which was due to start at 11.15 am on that day. 5 The respondent had attended the Centre on four previous occasions for her son's swimming lessons. On each of those occasions she had negotiated the relevant parts of Centre to which I shall refer hereafter without difficulty. 6 The Centre, for relevant purposes, comprised a carpeted area located close to the entry which adjoined a concrete concourse (the upper concourse) which led to a set of three steps (the subject steps) down to a lower concrete concourse (the lower concourse) which was level with the main pool in which the swimming lesson was to be conducted. Thus, in order to gain access to the end of the pool where the lesson was to take place, the respondent was required to negotiate the three steps to which I have referred. 7 Interspersed at regular intervals within both the upper and lower concourses were single tile-width strips of what are referred to in the evidence as 'profiled tiles'. These tiles had a raised textured pattern over the majority of the tile's surface. The subject steps which the respondent was required to negotiate and which led from the upper concourse to the lower concourse had tiled treads and risers. The top tread tile comprised a narrow strip of the raised textured pattern tile and then a row of non-textured tiles of dimensions 200mm square which had no pattern but which had at its leading edge three grooves located, successively, 12mm, 32mm and 46mm from, and parallel to, the vertical edge or nosing of the top step. These tiles were described in the expert evidence as having "very smooth surfaces". 8 The respondent successfully negotiated the three steps when she first entered the Centre but, on reaching the lower concourse, she realised that she had left her purse and house keys in her motor vehicle. She then placed her belongings on a seat and returned to her car via the subject steps. Having retrieved the forgotten items she re-entered the Centre, traversed the upper concourse and prepared to negotiate the steps down to the lower concourse. However, when she placed her foot on the tread of the top step it slipped forwards, her feet went out from under her and she fell heavily landing on her buttocks. She then bounced down the balance of the steps injuring the lower part of her back. In essence her evidence was that she had her foot on the top step and it 'just went from under her'. At all times she was carrying her son in her arms, holding him on her hip. 9 When she stopped moving she turned around and observed for the first time that there was a smeary area of water on the top step which was approximately 300mm in dimension. She accepted in cross-examination that prior to observing this smear of water (which, she said, 'wasn't like a big puddle') after she fell, she had not noticed that the top step was wet either when she first negotiated the steps or before she slipped and fell. 10 The learned trial judge accepted the respondent's evidence of how she fell including the fact that at the time her foot slipped there was water on the tread of the top step. He further held that in the light of the close proximity of the subject steps to the swimming pool the risk of the steps being wet was reasonably foreseeable. There is now no challenge to the correctness of these findings. 11 In support of her case that the steps were excessively slippery and constituted a danger of which the appellant was or ought to have been aware, the respondent submitted a report of Mr Neil Adams who was accepted as an expert in the fields of ergonomics and safety management. Mr Adams' report was admitted into evidence over objection but the ground of appeal challenging the admissibility of that report was abandoned. 12 Mr Adams performed tests to establish the coefficient of friction of the top nosing tile upon which the respondent's foot had slipped. He purported to carry out that task in accordance with Australian Standard 3661.1-Slip Resistance of Pedestrian Surfaces (the Australian Standard). He determined that the coefficient of friction of the tile was 0.23 (when wet). The relevance of the coefficient so determined is to be found in clause 2 of the Australian Standard which is in the following terms: "It is intended that this Standard be used as a test method to establish the slip resistance of a pedestrian surface in either the 'wet' or 'dry' condition. A surface with a coefficient of friction equal to or greater than the minimum value specified in Clause 5 is considered to be slip-resistant."

Clause 5 is headed 'Friction Requirements of Surfaces' and, in respect of horizontal surfaces, clause 5.1.1 provides as follows: " Coefficient of friction - wet When tested in accordance with the methods set out in Appendix A, the pedestrian surface shall have a mean coefficient of friction of not less than 0.4 and no specimen in that sample shall be less than 0.35." 13 It is thus apparent, and his Honour so found, that the tiles upon which the respondent slipped disclosed a coefficient of friction well below the minimum value considered by the Australian Standard to be slip resistant. A ground of appeal challenging aspects of the reliability of Mr Adams' report and the conclusions contained therein was also abandoned. It was ultimately accepted by senior counsel for the appellant that Mr Adams' test results established that the subject tiles were slippery. 14 As I have observed, a number of grounds of appeal were abandoned. Those persisted with were grounds 1, 2, 6 and 9 which asserted that: "1. His Honour erred in finding that the Respondent's injuries, Loss and damage were caused by the Appellant's breach of a common law duty owed by the Appellant to the Respondent. 2. His Honour erred in finding the presence of the likelihood of slipping and falling on the surfaces of the Centre, particularly in the area of and near to the swimming pool, was well known to the Appellant. 6. His Honour erred in finding that the Appellant was negligent in failing to specify non-skid tiles on the step-tread, in failing to take steps to assess the risks of slipping on those treads and in failing to resurface the step-tread with anti-slip material. 9. His Honour erred by drawing an inference about the Appellant's perceived knowledge from His Honour's examination of injury books that did not concern or relate to the actual accident site." 15 In essence, the appellant submitted that: a) his Honour erred in finding that the subject steps were slippery because: i) the steps were not slippery in 'the relevant sense' namely, that in the circumstances, they had the characteristic that persons walking on them with ordinary care will, from time to time, slip; and ii) he wrongly took into account, when determining whether the steps were slippery, the historical evidence of slips or falls within the Centre when there was nothing to indicate that those incidents had occurred on the subject steps; b) even if his Honour was correct in finding that the subject steps were slippery, in the light of the historical evidence with respect to the use of the steps without incident, he erred in failing to find that the reasonable response to their slippery condition was to do nothing. 16 The first leg of the first of the above submissions centred on paragraph 4 of the judgment of Priestley JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 707. In order to appreciate the gravamen of his Honour's finding in that paragraph of the judgment, it is appropriate to also set out paragraphs 2 and 3 thereof which provide the necessary context to that finding: "2. The plaintiff's description of her fall was brief and uninformative. As the trial judge said in his reasons: 'In her evidence the plaintiff merely said that her foot went out from underneath her': Sprowles v Makita [1999] NSWSC 1239 at [205]. 3. The trial judge's conclusion that the plaintiff's fall was because of the slipperiness of a tread on the stairs rather than because she simply lost her footing was based on Professor Morton's expert opinion that the stairs were slippery. It seems clear that without Professor Morton's opinion, the trial judge would not have found the plaintiff fell because of the slipperiness of the stairs. 4. In my view the trial judge erred in accepting Professor Morton's opinion of slipperiness. This opinion contradicted uncontradictable facts that showed that the stairs were not slippery in any ordinary meaning of the word. For the stairs (or any single step) to be slippery in a sense relevant for the present case, they (or it) must in my opinion have the characteristic that persons walking on them (or it) with ordinary care will, from time to time, slip." 17 In paragraph 5 of the judgment Priestley JA recited evidence as to the extent to which the relevant steps had been used without any slip or fall thereon being recorded. He then continued: "One fall in more than 500 uses of a step (or 7000 uses of all the steps in a stairway) is not evidence that the step (or the steps and the stairway) is (or are) slippery in any relevant use of the word. It is evidence of the opposite. The only conclusion, in my opinion, is that Professor Morton's opinion about the slipperiness of the steps in the stairway were so clearly wrong that even his impressive qualifications could not secure it." 18 The appellant submitted that in the present case there was evidence, which the learned trial judge accepted, that not only had the respondent herself utilised the subject steps on previous occasions and on the day in question without incident but also that, up to 30 March 1998, close on a million people, including the plaintiff, had visited the Centre of which at least a substantial proportion would have utilised the subject steps and that they had done so without slipping or falling thereon. It was therefore submitted that the steps were not, 'in the relevant sense' referred to by Priestley JA, slippery in that they did not have the characteristic that persons walking on them with ordinary care would, from time to time, slip. 19 In my opinion there are a number of answers to this submission. The first is that, as was pointed out by Santow JA during the course of argument in the present appeal, the 'test' propounded by Priestley JA at the end of paragraph 4 of the judgment in Makita was in the context of the relevant steps being slippery 'in a sense relevant for the present case'. Accordingly, that "test" was expressed by his Honour as being apposite only to the particular circumstances of the case before him. 20 Secondly, Professor Morton's evidence in Makita had established that the relevant treads were adequately slip resistant in respect of certain types of footwear in that the coefficient of friction thereof exceeded the minimum 0.4 required by the Australian Standard. As Priestley JA pointed out in paragraphs 2 and 3 of the judgment, Ms Sprowles' description of her fall was both brief and uninformative and, therefore, gave rise to doubt as to whether her fall was because of the slipperiness of a tread on the relevant stairs or because she simply lost her footing. It was only because of Professor Morton's opinion that the stairs were slippery that the trial judge had come to the conclusion that her fall was due to her slipping rather than losing her footing. In other words, it was only on the basis of the Professor's evidence that he found that Ms Sprowles actually slipped. Accordingly, that sense of slipperiness was expressed by Priestley JA as deriving its relevance from the particular circumstances of the particular case before him and must be so understood. Here, the circumstances differ in four respects: the likelihood of water from the swimming pool being dripped onto the subject steps giving rise to a greater risk of slipping thereon; the fact of recorded slips in the general area though not shown to be on the subject steps; the fact that the relevant treads were not adequately slip-resistant according to an objective standard; and the uncontradicted evidence that the respondent did in fact slip and did not merely lose her footing. 21 Thirdly, if the criteria or 'test' referred to by Priestley JA at the conclusion of paragraph 4 of the judgment is to be applied to every case where there is no history of persons slipping upon the relevant steps, then it will become a rule of universal application which, quite properly, senior counsel for the appellant eschewed. It cannot be correct that steps can never be found to be slippery unless there is a prior history of persons slipping upon them. Accordingly, in my opinion the first leg of the appellant's first argument should be rejected. 22 The second leg of the first argument asserts that his Honour erred in finding that the tiles were slippery by reference to the previous history of slips and falls within the Centre and which he found did not occur on the subject steps. However, his Honour did not reason from that fact to the conclusion that the subject steps were slippery. His conclusion that the steps were excessively slippery when wet was based upon the expert evidence of Mr Adams which was neither challenged before him in cross-examination nor the subject of contradictory evidence called on behalf of the appellant. In my opinion, this aspect of the appellant's first argument also fails. 23 The second submission of the appellant was that, even if the steps were properly found by the trial judge to be slippery, nonetheless a reasonable response to that fact was to do nothing. Like the first submission, the second submission relied upon, firstly, the history of the extensive use of the Centre and, therefore, of the presumed use of the steps and, secondly, upon the fact that although there had been some 17 incidents involving slips or falls within the Centre, none had occurred on the subject steps. 24 His Honour had found on the basis of Mr Adams' evidence that reasonably practical means were available to the appellant to have obviated the danger constituted by the slipperiness of the steps when wet. That finding was not challenged before us. However, his Honour properly recognised that it was also necessary for the respondent to satisfy the court on the balance of probabilities that one or more of these means ought, with the exercise of reasonable care, to have been adopted by the appellant. Before him the appellant had submitted that notwithstanding the evidence of Mr Adams that the coefficient of friction of the relevant tiles when wet was very low, that did not mean that they were dangerous or hazardous given the lack of any history of persons slipping upon them. It was thus submitted that the appellant was not negligent in failing to alter or resurface the subject steps. 25 His Honour responded to this submission in the following terms: "The answer to this submission is that the defendant knew of the high degree of probability that the horizontal pedestrian surfaces of the treads would be wet. The injury books, exhibit 5, show a significant number of slips and falls in the two years before 30 March, albeit not on the subject tread. The subject tiles were no less likely to be wet than other areas where slips and falls had taken place. Yet there is no evidence that the defendant took any steps to evaluate the risks and to take any remedial action. I am satisfied on the balance of probabilities that the defendant was negligent in failing to specify non-skid tiles on the step tread, in failing to take steps to assess the risks of slipping on those treads and in failing to resurface the step tread with anti-slip material." 26 In support of its submission to this Court, the appellant placed reliance upon the joint judgment of the High Court in Sullivan v Moody (2001) 207 CLR 562 at 576 and, in particular, upon the following passage from paragraph 42: "That the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results." 27 Reliance was also placed upon what McHugh J said at paragraphs 98 and 99 of the judgment of the High Court in Tame v New South Wales (2002) 76 ALJR 1348 and by Hayne J in paragraph 250 of the same case. In paragraph 99 of the judgment McHugh J, having commented upon the undemanding nature of the current foreseeability standard and the lack of difficulty in a plaintiff showing that the risk of injury or damage was reasonably preventable, noted the failure of the courts to ask the decisive question in a negligence case: did the defendant's failure to eliminate that risk show a want of reasonable care for the safety of the plaintiff? 28 Hayne J in the paragraph of the judgment referred to, in reference to what the High Court had held in Sullivan, observed: "As five members of the Court have recently held, foresight of harm does not suffice to establish the existence of a duty of care. Or, to put the same proposition another way, the common law does not provide a remedy for all who suffer negligently inflicted harm, even if the actor could reasonably foresee that carelessness may cause harm of a kind which in fact is suffered. The common law confines recovery to those to whom a duty of care is owed." 29 In the present case, there was no issue but that the appellant owed the respondent a duty of care. The issue contested before the trial judge and before us was whether there was a breach of that duty. Accordingly, the passages relied on from Sullivan and from the judgment of Hayne J in Tame are not to the point. 30 This Court has on numerous occasions pointed out that stairs are inherently, but obviously, dangerous and that many measures might be taken to make them safe. This notwithstanding, it is well recognised that the duty is only to take such care which is reasonable under the circumstances: see, for example, Wilkinson v Law Courts Ltd (2001) NSWCA 196 at [32]; Owner Strata Plan 30889 v Perrine (2002) NSWCA 324 at [31 and 54]; Francis v Lewis (2003) NSWCA 152 at [41]; Campbelltown City Council v Frew (2003) NSWCA 154 at [25]. So much is consistent with the 'decisive question' referred to in by McHugh J in Tame. 31 True it is that there are cases where it has been held that the requirement to take reasonable care for the safety of users of a stairway is fulfilled where there is evidence of the plaintiff's prior usage without incident and a lack of evidence of other slips or falls thereon. Thus, in North Sydney Council v Plater (2002) NSWCA 225 Giles JA (with whom Handley JA agreed), after noting that the coefficient of friction of the steps in question complied with the Australian Standard in both wet and dry states, continued as follows (paragraph 43): "The claimant was not obliged to take care to ensure that the stairs offered as much friction at the nose as possible. It was required to take reasonable care for the safety of users of the stairway. From the evidence of the opponent's prior usage without incident, and the lack of evidence of other slips or falls, the stairs fulfilled that requirement. From the expert evidence of the friction offered, they met that requirement and there was no evidence on which it could properly have been found that the surface at the nose of the steps was unreasonably slippery. As has been said on a number of occasions, no stairs are perfectly safe (see for example Baulkham Shire Council v Pascoe (1999) NSWCA 431) and the opponent's description of her fall did not point to any deficiency." 32 However, it is trite law that although the fact that there was no evidence of prior falls on the subject steps is relevant, it is in no way determinative: see Francis at [57] Frew at [26]; 33 The difference between a case such as Plater and the present is that in this case there was expert evidence, which his Honour accepted (and which was not challenged), that the coefficient of friction of the tread tiles of the subject steps did not comply with the requirement of the Australian Standard but in fact fell well below that requirement. Accordingly his Honour was entitled to find, as he did, that the top tread of the steps on which the respondent slipped was, when wet, excessively slippery to the point of constituting a potential hazard or danger. 34 In the foregoing circumstances, what response, in all the circumstances, did the taking of reasonable care for the safety of users of the steps require? Or, to pose the 'decisive question' in terms of that adumbrated by McHugh J in Tame: did the appellant's failure to eliminate the risk constituted by the excessive slipperiness of the tread of the top step show a want of reasonable care for the safety of the respondent? His Honour answered this question in the affirmative and, in my opinion, he did not err in so doing. The reasonable response of the appellant, notwithstanding the history of the use of the steps and the lack of any reported incident with respect thereto, did not require that the appellant do nothing. His Honour accepted that the history of slips and falls at the Centre in the two years prior to 30 March 1998 was a relevant circumstance in determining a reasonable response to the risk of injury to users of the subject steps posed by the slipperiness of the top tread and was such as to require a positive, rather than a negative, response to the elimination of that risk. In my opinion the learned judge did not misuse the evidence of other slips and falls within the Centre or otherwise commit any appealable error. 35 For the foregoing reasons, I am of the opinion that the appeal should be dismissed with costs. **********

Fairfield City Council t/as Prairiewood Leisure Centre v Cheryl Petro

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