Issue 2 - Whether the defendants were negligent
58The plaintiff claims the defendant was negligent in the following respects:
(a)Failing to take reasonable steps to ensure that the premises were safe;
(b)Failing to take reasonable steps to ensure that the tiles on the landing were not excessively slippery;
(c)Failing to take reasonable steps to prevent rain water from reaching the landing, in circumstances where the defendants knew, or ought to have known, that the tiles on the landing were unusually slippery when they became wet;
(d)Failing to warn the plaintiff that the tiles on the landing were unusually slippery when they became wet;
(e)Failing to treat the tiles on the landing with non-slip material, in circumstances where the defendants knew, or ought to have known, that the tiles on the landing were unusually slippery when they became wet;
(f)Failing to place water-absorbent matting, or a similar material, on the tiles in circumstances where the defendants knew, or ought to have known, that it had been raining and the tiles on the landing were therefore likely to have been excessively slippery;
(g)Failing to warn the plaintiff that the tiles were likely to be excessively slippery, in circumstances where the defendants knew, or ought to have known, that the tiles had become wet due to rainwater reaching them;
(h)Failing to install an appropriate handrail;
(i)Failing to install a more extensive awning so as to avoid the tiled porch and stairway becoming wet.
59These matters will be considered shortly along the lines suggested in the formulation set out in the expert opinion of Mr Adams dealing with those matters.
60In order to base a finding of negligence the plaintiff must satisfy the requirements of s 5B of the CL Act.
61Section 5B of the CL Act relevantly provides as follows:
"5B 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."
62There can be no issue that the risk of slipping on wet steps was foreseeable: s 5B (1)(a) of the CL Act. Similarly, there can be no issue that the risk of slipping "was not insignificant": s 5B(1)(5) of the CL Act.
63The real issue is whether, in light of the obvious risk of slipping on a step that was wet, a reasonable person in the position of the defendants would have taken precautions against that risk as was contended by the plaintiff: s 5B(1)(c) of the CL Act.
64That question must be considered in light of, first, the evidence of the defendants to the effect that there had been no prior slipping incidents on the stairs, which evidence I accept, and secondly, in light of the expert opinion evidence of Mr Adams.
65In that regard, Mr Adams stated:
"4.2 As may be expected, considering the prevalence of falls as causes of injury, there have been provisions in various legislation and Standards over the last several decades that were aimed at preventing falls in workplaces, in domestic situations, and in public areas. The porch and stairway provided the only means of people gaining access to and from the front door of the house. It is reasonable to expect that the pedestrians surfaces of those structures would be appropriately safe for normal use during foreseeable conditions of use, including when the outer tiles at least were wet due to a rainfall event.
4.3 It is reasonable to expect property owners to provide for safe pedestrian movement within their property, as far as it is practicable to do so within the built environment, including by adhering to recommendations/requirements with respect to the slip resistance of pedestrian surfaces. As indicated in Section 3 above, there are relevant Australian Standards and other useful documents available to assist property owner in that regard. I am confident that, had the owners effectively implemented a reasonable and relatively basic hazard identification and risk control process in relation to safe access to and from the premises, the combination of all of the relevant characteristics of the situation - including the slippery when wet nature of the tiles and the fact that the would obviously become wet from time to time - would have been identified as a potential hazard to pedestrians, and appropriate preventative measures could have been implemented."
66None of the above general statements by Mr Adams involve controversy.
67The opinion of Mr Adams went on to identify a number of preventative measures that in his view could have been taken by the defendants in order to address the risk in question:
"4.5 Among the reasonable preventative measures that could have been implemented, I would include appropriate combinations of the following:
(i) The porch could have been resurfaced with materials that were more highly slip resistant in wet conditions than the existing tiles;
(ii) Suitable anti-slip products (such as paint-on products or anti-slip strips) could have been applied, at least to the outer sections of the tiled surface of the porch as well as the step nosings, and reapplied from time to time as the treatment became less effective due to wear;
(iii) Suitable matting could have been provided at the top of the stairway;
(iv) At least one handrail could have been installed beside the stairway, to provide a means by which users of that area might retain their balance in the event of experiencing an instance of slipping or tripping on or close to the stairway;
(v) A more extensive awning could have been installed to more effectively ensure that the tiled porch and stairway did not become wet as a result of rainfall events;
(iv) Mrs Schultz could have been warned that the porch tiles could be expected to be slippery when wet, that they were, or could be expected to be, wet due to an earlier rainfall event, and to exercise particular car when walking in that area."
68In my view, the matters set out in sub-paragraphs (iv) and (v) of paragraph [67] above can be excluded from the consideration. This is because first, where the risk of slipping on wet tiles was obvious, a warning was not required (s 5F(1) of the CL Act) and secondly, the suggestion that a more extensive awning could have been installed to cover the stairs seems to me to be an unreasonable and unnecessary hindsight suggestion based on a counsel of perfection rather than being based upon prospective notions of reasonableness: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422. Furthermore, there is no evidence that would reasonably suggest that such a wider awning would necessarily prevent the steps from becoming wet due to the presence of windblown rainwater.
69In my view, the suggested precautions issue paragraphs (i) and (ii) of paragraph [67] above can also be excluded from the consideration. This is because, first, the evidence of Mr McCormack at T64.9 was to the effect that the application of a slip-resistant coating made little difference to the slipperiness of the stairs, and secondly, the result of the testing of the non-slip coated area by Mr Adams after the accident revealed the same slippery condition of the steps when wet. Furthermore, there is no evidence that either of the defendants knew or ought to have known that the steps required the application of an anti-slip coating, or anti-slip strips or nosings.
70Mr Lidden SC argued, without a basis in the evidence, that the protective coating which had been applied by Mr McCormack after the plaintiff's accident, had worn off by the time Mr Adams had carried out his tests: T74.25. In the absence of supporting evidence to that effect, I do not accept that submission.
71Mr Adams expressed the opinion that any wet pedestrian surface with a co-efficient of friction of 0.29 cannot be regarded as being adequately slip resistant for use in an external location that can be expected to because wet from time to time: Exhibit "A", p 10, par 3.1.6. It is noteworthy to observe that opinion did not appear to be based on any recognised standard that applied to domestic premises.
72A critical matter to be established in order for the above opinion to be engaged is either an actual or an imputed knowledge on the part of the defendants that the stairs were the subject of such a low co-efficient of friction when they were wet. That knowledge on the part of the defendants has not been established on the evidence in this case.
73Mr Adams expressed the truisms that a slip can easily occur if a pedestrian encounters a surface that is inadequately slip resistant, and that a slip is more likely to occur when there is a mismatch between the expectations of a pedestrian concerning the likely level of friction and the level that is actually available, such as walking in a zone of transition from a dry to a wet surface where the person walking is not aware of the transition from a dry surface to a wet surface: Exhibit "B", pp 10-11.
74In view of my findings on Issue 1 with regard to obvious risk, the opinion of Mr Adams suggesting that the defendants should have provided a warning (Exhibit "B", p12, per 3.2.1.3 and pp 13-14, para 4.5) is not relevant to the consideration.
75This is because the plaintiff ought to have realised, by keeping a proper lookout, and from the surrounding circumstances of her observations of the damp path and the wet car, that it was possible the steps on which she was about to walk, were wet.
76As to the suggestion in subparagraph (iii) of paragraph [67] above that the defendants should have provided matting or a hand rail, I consider those arguments to be convenient hindsight arguments that do not satisfy the prospective test required by Vairy v Wyong Shire Council. This is because the defendants had previous long experience of the steps, in both dry and wet conditions, and they had no notice or reasonable cause to suspect that such measures were required as an incident of reasonable care arising out of their duties as occupants to the premise.
77If it had been established that the defendants knew the stairs could be slippery a case for the provision of matting may arise, although it is difficult to conclude that non-slip matting would have made a material difference as it is not readily apparent from evidence as to how such matting could have covered any more than the edge of the verandah. It would have been difficult to safely cover the tread surface of each step with matting. Furthermore on the evidence, the presence of matting was unlikely to have altered the fact that the plaintiff did not look where she was placing her feet and walking when she fell.
78As to the prevision of a handrail as suggested in subparagraph (iv) of paragraph [67] above, on the required prospective analysis, absent knowledge of undue slipperiness, the stairs do not appear to have been unduly steep or numerous so as to have required the defendants to have installed a handrail before the plaintiff's fall.
79I therefore conclude that the plaintiff has not established that the defendants were in breach of their duty as occupiers. I therefore find that the defendants were not negligent as alleged.
80Notwithstanding my findings on the negligence issue, lest it be found on an appeal that those findings are erroneous, and in accordance with convention, I will proceed to address the remaining issues of contributory negligence and damages.