Gillies v Saddington [2004] NSWCA 110 | Case summary

Wednesday 31 March 2004 GILLIES v SADDINGTON Judgment 1 GILES JA: The appellant was injured when she slipped and fell on the wet driveway of the respondent's home. She alleged that the steep slope of the driveway and the materials of which it was constructed made it dangerously slippery when wet, and that the respondent was negligent in permitting it to be in that state and not providing other suitable access to his home. The judge was not satisfied that the respondent failed to take reasonable care to avoid foreseeable risk of injury to the appellant. 2 The driveway was constructed in 1987. The respondent's home was on land falling from the road so that the driveway ran downhill from the road to the home. It followed the natural slope of the land, and there were grassed areas on each side also following the natural slope of the land and covering effectively the remainder of the frontage of the respondent's home. At the bottom of the slope there was a flat area constructed of the same materials as the driveway. From the photographs, if a car were driven straight down the driveway it would go into the garage, and if there was pedestrian divergence along the right-hand splayed area of the driveway the pedestrian would end up on the flat area moving towards the front door of the home. 3 The driveway was constructed using exposed river gravel aggregate, a material commonly used for that purpose in the 1980s. It complied with applicable standards of the time, although there was no standard for slipperiness for pedestrian use. The slope of the driveway was 1:4.6. The judge accepted that on test the co-efficient of friction of the driveway when wet was 0.37. Although his Honour did not specifically refer to it, the expert evidence was that when the slope was also taken into account the co-efficient of friction was considerably reduced, to the value of 0.14. According to the expert evidence these figures were below, and in the case of the reduced value considerably below, a desirable minimum of about 0.4 in the case of a flat surface. 4 The judge accepted that with the slip resistance he described the driveway would be hazardous, but he also found that it was typical of driveways to homes in the general area. 5 What the judge said about the driveway being hazardous when wet had, however, to be assessed according to the evidence of difficulties encountered in pedestrian use of the driveway. The appellant had visited the respondent's home many times from 1987 until she fell in 1999, in all types of weather conditions, walking up and down the driveway on each occasion without having slipped on the driveway. The respondent had obviously enough gone up and down the driveway many times since 1987, and his evidence was accepted that he had not experienced any difficulty in doing so. There was some evidence of three persons slipping on the driveway, one of whom said that he had slipped on several occasions and another of whom accepted that his slippage was due to inappropriate footwear. The judge accepted the respondent's evidence that he was unaware of anyone slipping on the driveway. 6 The usage of the driveway was considerable and the occasions of slipping were few. The particular circumstances of the occasions of slipping, save for the one attributed to inappropriate footwear, were not known and may or may not have been aberrant instances attributable to some passing condition of the driveway other than rain: for example, it was suggested that there might have been spillage of lubricant or unsuitable footwear or a failure to take care on the part of the pedestrian. 7 The judge correctly directed himself that the fact that the driveway would be hazardous when wet did not of itself mean that the respondent failed to take reasonable care to avoid foreseeable risk of injury to the appellant. His reasoning thereafter was as follows. 8 He said that there was nothing about the construction of the driveway, its maintenance or its state which gave rise to a hidden danger. He said - "I do not say that the driveway was free of all dangers, but I say that the danger was obvious - as the driveway sloped downwards from the roadway to the house and was laid with exposed river gravel aggregate, it would be obvious to everyone that it would be slippery when wet." 9 After referring to the expert evidence the judge said - " … she had visited the defendant's home on many occasions, she knew the driveway and she had walked down it and up it on many occasions in all types of weather - because the possibility that the driveway might be hazardous (slippery) when wet would have been obvious to her, as, indeed, it would be to everyone. I appreciate that the provision of a flight of steps, with or without provision of a handrail, would have made walking from the roadway to the house and from the house to the roadway safer. But it is not a question of whether something can be provided to make something else safer, it is a question, as I have said already, of what was reasonable in all the circumstances of the case. I reject the plaintiff's counsel's submission that it was reasonable for the defendant to have provided a flight of steps, with or without a handrail. As it as [sic: was] many, many people had walked down and up the driveway over many years and the evidence discloses that only three people had slipped and fallen (and one of them, Mr Johnson, accepted that he was the cause of his slip and fall)." 10 In her written submissions the appellant's position was that the respondent was or ought to have been aware of the hazardous nature of the driveway when wet, but that the appellant was not and should not have been so aware, and that the situation was the same as that in Baker v Gilbert [2003] NSWCA 113. In that situation, the appellant submitted, the exercise of reasonable care for her safety required that the respondent remove the hazard by providing steps or a rail or, as he in fact did after the accident, by putting a varnish like substance and grit on the surface of the driveway. 11 In oral submissions the focus was particularly on what was called the balance at which the judge arrived, meaning the balance referred to in the well known passage in the Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 at 47-8. It was said that the judge had placed undue emphasis on the subjective knowledge of the appellant and the respondent, in the case of the respondent no doubt having in mind that the judge accepted that the respondent had not been told of and was not aware of the occasions of slipping on the driveway of which there was evidence. 12 In my opinion the judge's statement that it would be obvious to everyone that the driveway would be slippery when wet was the critical commencement of his reasoning That did not depend on evidence of the earlier occasions of slipping, still less on other evidence about the respondent's car wheels slipping on hard acceleration up the slope of the driveway from a standing start on the driveway. What the judge meant, in my opinion, was that a steep surface of the materials from which the driveway was constructed would be recognised as slippery when wet by a person going to walk upon it according to ordinary experience of life. That applied to both the respondent and the appellant. It was well open to the judge so to conclude, and in my view it was a correct conclusion. 13 From that point the judge asked what, acting reasonably for the safety of persons coming to his home, the respondent should have done. It was there that the evidence of the quite limited occasions of slipping over a period of some twelve years, and of the respondent's lack of knowledge of occasions of slipping, became significant. So also did the respondent's own experience of walking up and down the driveway over many years. 14 The respondent was entitled to act upon persons coming to his home recognising, in accordance with the obviousness to which the judge referred, that the driveway would be slippery when wet and taking appropriately cautious steps. He was also entitled to regard the risk of a person taking appropriate caution nonetheless slipping as slight, because that had been the experience over the years. He was entitled to take into account that was no need for the person coming to his home to risk such hazard as there was. There were wide expanses of grass on either side of the driveway by which there could be passage down to the flat area and to the front door of the home, or even to the garage, and there was no suggestion that walking on the grass down the same natural ground slope was hazardous. When the driveway had been constructed as the slope of the ground required and from materials in common use at the time for that purpose, and in the circumstances I have related, in my view the judge correctly assessed that there was no occasion for the respondent to do more by way of steps or a handrail or by the treatment of the driveway by a surface coating. 15 That the respondent did apply a surface coating shortly after the appellant's fall shows, of course, that it could have been done earlier. But it was a natural reaction to an injury suffered by a friend, and I do not think it weighs heavily in showing that it was something the respondent should have done. I do not think that error has been shown in the judge's conclusion that he was not satisfied that the respondent had failed to take reasonable care to avoid foreseeable risk of injury to the plaintiff. 16 I propose that the appeal be dismissed with costs. 17 SHELLER JA: I agree. 18 IPP JA: I agree.

Gillies v Saddington

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Judgment (9 paragraphs)

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