Schultz v McCormack

[This headnote is not to be read as part of the Judgment] The appellant, Sheran Ann Schultz, was injured when she slipped and fell on a tiled floor, which was, in effect, the top step of the verandah of the home of the respondents, Norman McCormack and Cathryn McCormack. The accident took place at about midnight. The surface of the verandah had become wet due to rainfall earlier that evening, causing the appellant to slip on it whilst turning to walk down the steps having kissed one of the respondents goodbye. As a result of her fall, the appellant fractured her right ankle and sustained various soft tissue injuries. The respondents claimed that since tiling the front porch in about 2004 - 2005, neither had noticed any slipperiness in relation to the porch; nor had there been any other accidents on the tiles. The appellant commenced proceedings in the District Court claiming damages for the respondents' alleged negligence. The appellant's statement of claim pleaded that the respondents ought to have warned her that the tiles on the landing were unusually slippery when they became wet, and that the tiles were likely to be excessively slippery, in circumstances where the respondents knew, or ought to have known, that the tiles had become wet due to rainwater reaching them. The appellant failed in her action in the District Court. The primary judge found that while the risk of slipping on the wet steps was foreseeable and not insignificant, the appellant's fall and injury was the materialisation of an "obvious risk" within the meaning of s 5F of the Civil Liability Act 2002 (NSW) ("CLA") such that the respondents did not owe her a duty of care to warn her of it. Notionally, his Honour assessed the appellant's contributory negligence at 50 per cent. The appellant appealed against his Honour's decision. The following issues arose on appeal: (i) whether the primary judge erred in characterising the risk for the purposes of s 5B, CLA; (ii) whether the primary judge erred in finding that the risk she encountered was an "obvious risk"; (iii) whether the primary judge should have found that the respondents were negligent; (iv) whether the primary judge erred in finding, in the event the respondents were negligent, that the appellant was guilty of contributory negligence; and (v) whether the primary judge erred in his assessment of the appellant's domestic assistance claim. Held: As to issue (i) (1) The primary judge identified the risk as slipping on the landing, or possibly the steps, because it was or they were wet. That was a sufficient description of the risk of harm (at [87]). As to issue (ii) (2) The matters the primary judge attributed to either the appellant, or a reasonable person in her position, were unrealistic. The protected area on which she was standing immediately prior to the accident was dry, and there was no evidence that in the circumstances, the appellant was aware or should have been aware of the discrepancy between that area and the unprotected area on which she slipped. His Honour erred in attributing to a reasonable person in the appellant's position a perception that the porch may be wet due to wind-blown rain (at [92] - [105]). Collins v Clarence Valley Council [2015] NSWCA 263; Wyong Shire Council v Vairy [2004] NSWCA 247; (2004) Aust Torts Reports ¶81-754 applied As to issue (iii) (3) The occupants of a house with tiled surfaces with the degree of slipperiness present on the respondents' verandah ought to have realised that that was the case bearing in mind that the tiles had been in place for five or six years. They ought to have known of the high risk of slipperiness the tiles posed when wet. The risk of harm in such a context was foreseeable and not insignificant. In those circumstances, his Honour should have found that a reasonable person in the respondents' position would have taken precautions, such as providing matting or giving a warning, against the risk of harm. His Honour therefore erred in failing to find the respondents breached their duty of care (at [113] - [118]). As to issue (iv) (4) As the risk to which the appellant was exposed was one of which she did not know, or ought to have known, it was not open to the primary judge to conclude that the appellant had been guilty of contributory negligence (at [120]). As to issue (v) (5) The question whether the appellant had established there was a reasonable need for the services she claimed was essentially an evaluative exercise. The primary judge's findings concerning past and future domestic assistance were open to his Honour, based on observations he was better positioned than this Court to make (at [124] - [127]). Dell v Dalton (1991) 23 NSWLR 528 considered

JUDGMENT

1. McCOLL JA: The appellant, Sheran Ann Schultz, was injured when she slipped and fell on a tiled floor, which was, in effect, the top step of the verandah of the home of the respondents, Norman McCormack and Cathryn McCormack. She commenced proceedings in the District Court claiming damages for their alleged negligence, but failed in her action before His Honour Judge Levy SC. [1] She appeals from that decision. For the reasons that follow I am of the view that the appeal should be allowed with costs. The respondents filed a cross-appeal challenging the primary judge's notional assessment of damages for past and future domestic assistance. I would dismiss the cross-appeal.

Factual Background

1. The accident happened at about midnight on Friday 5 February 2010. The step had become wet due to rainfall earlier that evening. As a result of her fall, the appellant sustained a fracture of her right ankle and soft tissue injuries to her left shoulder, left hip and lower back. [2]
2. The respondents had owned their home since 1980. They had tiled the front porch, which was the entrance to their home, in about 2004 - 2005. The respondents said that from the time the tiles had been laid, neither had noticed anything about the porch area in relation to slipperiness when they either entered or exited their premises. Nor, they said, had there been any other accidents on the tiles.
3. The primary judge set out the circumstances of the accident, in terms neither party challenges, as follows: "[20] At about 6:30pm or 7:00pm on the day of the accident the plaintiff arrived at the home of the defendants for a social visit. The weather had been overcast at that time, but it had not been raining. [21] The plaintiff was not aware of it having rained whilst she was in the premises, but at the time she left, around midnight, she could see the concrete pathway at the front of the house was damp, and that her nearby vehicle looked a bit wet. It was not raining at that time. [22] The photograph appearing immediately below shows the general configuration of the accident scene at the front of the house of the defendants: [23] On leaving the defendant's house, the plaintiff stood near the wall located at the verandah landing at the top of the stairs. After bidding farewell to the defendants, she turned to her left and stepped forward towards the stairs. At that time, she then turned to her right in preparation to descend down the stairs. She then stepped forward and her right foot slipped from under her. She went down onto her bottom, and came to rest on the second step. Before she fell, she did not see that the edge of the step on which she had slipped, was wet. There was no handrail in the vicinity. There were no anti-slip strips or nosings on the steps. [24] The photograph appearing below shows a closer view of the steps. The photograph is marked 'X' to represent the spot from where the plaintiff stepped forward towards that step. The spot marked with an ellipse shows the approximate place where the plaintiff had slipped: [25] After the plaintiff fell she realised that the surface of the steps was wet, but that the top of the landing was dry. [26] The overhanging roof covering the verandah did not protect the steps from becoming wet from windblown rainfall. There was an overhead light on the verandah. This generally illuminated the area where the accident occurred. [27] After the fall, the plaintiff remained sitting on the steps. She experienced pain in her right ankle and she realised it was in a deformed position. She could not get up and she declined all offers to assist her to get up. Instead, she insisted that an ambulance be called. At that time she was experiencing pain in her right ankle, left shoulder, her left hip and in her back. [28] At the time the plaintiff fell her footwear comprised rubber thongs. There was no evidence that her footwear was in an unsafe condition. She had not experienced problems with slipperiness when wearing that footwear beforehand." (Emphasis added.)
4. Following the accident, Mr McCormack purchased a non-slip coating which he painted onto the top of the porch and the steps as an inexpensive precaution against the possibility of similar incidents following the appellant's fall. He said, and the primary judge accepted, that the application of that coating made no real difference to the slipperiness of the steps when wet. [3]
5. The appellant and her husband and the respondents were friends of long standing. [4] The appellant had been to the respondents' home many times before the accident. In the times the appellant had been to the respondents' premises before, she had never experienced any problems going in or out of their premises, in particular, when it had been wet.
6. The appellant's husband also gave evidence that he had been to the respondents' premises many times before in both wet and fine weather and had not had a problem entering via the front stairs; nor, in particular, could he recall experiencing any problem entering on wet days. Neither had ever complained about the front porch area.
7. Mr McCormack gave evidence that on the night of the accident it had been raining quite heavily and was quite windy at one stage. He described the awning over the verandah as covering the landing, but not the stairs. He accepted that if it rained when it was windy there would be some water, not only on the steps, but also at the top of the landing near the steps. He also accepted that on the night in question, he knew when he walked out of the front door it was "pretty likely the edge of the landing, near the steps, would be wet".
8. Mrs McCormack gave similar evidence to her husband. She had noticed no difficulty walking across the tiles to enter her house when the tiles were wet. She had never received any complaints about walking across the tiles on rainy days or when the tiles were wet. After the appellant's accident, when she asked the respondents to call an ambulance, Mr McCormack got an umbrella and a torch and then contacted the ambulance. In cross-examination, she denied knowing, at the time of the accident, that the tiles were slippery. She said nobody had ever fallen on them before. She said that her husband had painted non-slip paint on the tiles as a precaution because they did not "want anybody else to slip." She also was of the view that the material Mr McCormack painted on the steps had not made much difference.
9. The appellant qualified Mr Neil Adams, an ergonomics consultant, to prepare a report into the accident and, in particular, the characteristics of the respondents' home. Mr Adams was not cross-examined, but was the subject of critical submissions made by the respondents. His Honour said "[h]is report therefore stands to be evaluated according to the cogency and persuasiveness of its contents." [5]
10. Mr Adams inspected the site and measured the slip resistance of the tiled porch. Based on those tests, he wrote: "3.1 Physical Ergonomics 3.1.1 While it is not appropriate to infer that a given pedestrian surface is 'safe' or 'unsafe' solely on the basis of measured coefficients of friction, because the probability of a slip occurring on a given surface may be affected by factors other than the characteristics of tat [sic, 'that'] surface, it is possible, usually by undertaking objective measurements, to determine the relative contribution that a given surface might be expected to make to the overall risk that a slip might occur. The total risk that a slip might occur on any given surface is dependent both on the frictional characteristics of that particular surface, as well as on a range of contributing factors, including: the presence of potential lubricants (eg water, loose material such as vegetable matter) … This principle is acknowledged in the relevant Standards - AS/NZS 4586:2004 Slip resistance classification of new pedestrian surface materials, and AS/NZS 4663:2004 Slip resistance measurement of existing pedestrian surfaces - neither of which refer to a certain coefficient of friction as being either 'safe' or 'unsafe'. … 3.1.5 The wet pendulum tests I performed produced an average BPN of 29. With respect to HB 197.1999, a BPN of 29 results in the surface being classified within the category whereby the surface can be expected to make a high contribution to the risk of slipping in wet conditions. A level pedestrian surface on which is obtained slip resistance values within that range would generally be experienced as slippery when wet. It is two categories lower (ie. less slip resistant) than that which is suggested in that guide for level external locations where the routine presence of casual water can be expected (eg. external colonnade, walkways and pedestrian crossings). 3.1.6 It has long been recognised (see for example P Pye, 1994) that for safe pedestrian movement in level conditions the level of friction available, expressed as a dynamic coefficient of friction, should be at least 0.4. Published data have for decades been demonstrating that, even in controlled circumstances (eg. in laboratories where the subjects are required to walk only in a straight line, on a level surface, at a regular pace, and while wearing particular footwear - all requirements likely to eliminate the otherwise inevitable increases in frictional requirements that are associated with normal aspects of human locomotion such as turning, acceleration and deceleration, and footwear choice), peak frictional demand of individual pedestrians varies considerably from the mean figures that are most commonly reported and cited. For example, with respect to the data that were obtained from 60 healthy and fully ambulant individuals and presented by Burnfield JM, and Powers CM (2002) in Influence of Age and Gender on Utilised Coefficient of Friction During Walking at Different Speeds … the overall average peak demand for all walkers at all speeds (expressed as a coefficient of friction) was 0.24. However, peak friction demand for individuals at medium walking speed ranged from COF 0.17 to 0.39, and at fast walking speed ranged from 0.13 to 0.44. At medium walking speed at least two of the 60 individuals had peak friction demands of COF 0.36 or more, and at least six of the subjects had peak demands of COF.030 or more when walking at a face pace. I believe that any wet pedestrian surface on which is obtained a COF of 0.29 cannot be regarded as adequately slip resistant for use in an external location that can be expected to become wet from time to time." [6]
11. In addition, Mr Adams said: "2.2.8 As may be seen in photograph 8, the ceiling of the porch has a light fitting. I understand that light was operating at the material time. However, as Mrs Schultz turned and approached the top of the stairway, that light would have been behind her, and she would have been casting her shadow ahead of her and over the tiled surface."

Primary Judgment

1. The primary judge identified three liability issues for determination. First, whether the appellant's fall and injury was due to the materialisation of an obvious risk. Secondly, whether the respondents were negligent. Thirdly, whether there was contributory negligence on the part of the appellant, and if so, to what extent. [7]
2. In summary, the primary judge concluded, relevantly, that the risk of slipping on wet steps was foreseeable, and a "not insignificant" risk. [8] However, his Honour concluded the identified risk was "obvious" such that the respondents did not owe the appellant a duty of care to warn of it. [9] The primary judge accepted the evidence of the respondents that the application of a non-slip coating made no real difference to the slipperiness of the steps when wet. In his Honour's view that evidence was also borne out by Mr Adams' inspection in which he identified a very low co-efficient of friction with an associated high risk of slipping on the area when wet, even after the non-slip coating had been applied to it. [10]
3. His Honour concluded that, having regard to the facts there had been no prior slipping incidents on the stairs [11] and the respondents neither knew or ought to have known there was a very low co-efficient of friction in the area where the appellant fell, [12] there was no reason for them to take precaution against the risk. Accordingly, the respondents did not breach their duty of care as occupiers. [13]
4. Against the possibility he was incorrect in this respect, his Honour would have found the appellant to be guilty of contributory negligence notionally assessed at 50 per cent. [14]
5. His Honour found the appellant to be credible and to have given reliable evidence. [15] He concluded that some of the respondents' evidence had been tailored to suit their case. This related to their denial that they had had a conversation with the appellant on the night of the accident to the effect that she should make a claim on the respondents' insurance in respect of the accident. [16]
6. Some of his Honour's findings should be examined more closely.
7. The primary judge considered the appellant and her husband gave credible and reliable evidence in matters going to both liability and damages. [17]
8. As to the respondents, his Honour said: "[9] I gained the impression that some of that evidence had been tailored to suit the case for the defendants. At first, Mr and Mrs McCormack said in their evidence-in-chief that they could not recall a conversation with the plaintiff on the night in question to the effect that she should make a claim on their insurance in respect of the incident: T54.19; T67.46. In cross-examination they each went further and denied that such a conversation had occurred: T62.5; T63.46. I considered that those denials had been tailored to suit their case. I have therefore preferred the evidence of the plaintiff and her husband on that issue. That said, nothing of significance turns on that conversation. I do not accept as appropriate the description of the evidence of Mr McCormack as 'furtive' and 'cunning', as was submitted by Mr Lidden SC." (Emphasis added.)

Obvious risk

1. In her statement of claim, the appellant pleaded that the respondents ought to have warned her that the tiles on the landing were unusually slippery when they became wet and, too, that the tiles were likely to be excessively slippery, in circumstances where the respondents knew, or ought to have known, that the tiles had become wet due to rainwater reaching them. [18]
2. The respondents' defence pleaded, relevantly, that if the section of the tiled landing and steps on which the appellant fell represented a risk, such features as those of which she complained should have been apparent to a person in the appellant's position so as to be an "obvious risk" within the meaning of s 5F, CLA of which the appellant was presumed to have been aware [19] and, accordingly, the respondents did not owe the appellant a duty of care to warn her of that risk. [20]
3. The primary judge said that it was convenient to address this issue first along the lines suggested in Paul v Cooke. [21] His Honour made the following findings relevant to his conclusion that the risk to the appellant was obvious: 1. that the overhanging roof covering the verandah did not protect the verandah from getting wet from windblown rainfall; [22] 2. that an overhead light on the verandah "generally" illuminated the area of the fall; [23] 3. that just before the appellant fell, when she was preparing to leave the premises, she saw that the concrete pathway leading from the house was damp and she saw that a vehicle parked nearby was wet, so she must be taken to have realised that it had rained earlier in the evening even though she had not noticed that it was raining when she had been inside the house; [24] 4. that at the time she was leaving the house it must have been obvious to the appellant that there was a reasonable prospect or possibility that the steps she was about to descend could possibly have been wet and slippery due to previous rainfall; [25] 5. that the appellant ought to have known of that possibility before she commenced to descend the steps because she was able to see that the roof over the verandah did not have a significant overhang covering the steps and ought to have realised the roof might not have prevented rain falling onto or being blown over onto the steps; [26] and 6. that the appellant "realised [after falling] that the surface of the steps was wet but that the top of the landing was dry." [27]
4. In his Honour's view the matters he attributed to the appellant's personal knowledge would have been obvious to a reasonable person in the position of the plaintiff at that time, just before her fall, within the terms of s 5F, CLA. [28]
5. The primary judge rejected as, in effect, irrelevant, the statement in paragraph [2.2.8] of Mr Adams' report that the light above the verandah would have been behind the appellant such that "she would have been casting her shadow ahead of her and over the tiled surface." This was because the appellant did not give any evidence of such a shadow impairing her ability to recognise that the stairs were wet. Accordingly, in his Honour's view, Mr Adams' opinion constituted "unproven speculation". [29]
6. His Honour concluded that it was "plain that if the [appellant] had looked ahead of her at the time she moved towards the steps, she would have recognised the obvious presence of rainwater on the steps," and, too, "it would have been obvious to a reasonable person in the position of the [appellant] that the wet state of the stairs posed a risk of slipping". [30]
7. Accordingly, the primary judge concluded the respondents did not have a duty of care to warn the appellant of the risks associated with stepping onto the wet stairs as such risks ought to have been obvious to her at the time. [31] His Honour also found that the appellant had not established on the balance of probabilities that she was not aware of the stairs being wet, nor that she was not aware that there was a risk that she might slip on the steps that were wet. [32]

Whether the respondents were negligent

1. The primary judge then turned to the second issue he had identified, whether the respondents were negligent in respects other than failure to warn.
2. The appellant relied upon a lengthy list of the respondents' alleged breaches of their duty of care, almost all of which rested on the premise that the respondents knew the tiles became "excessively" or "unusually" slippery when wet and ought to have taken various precautions to obviate the risk Mr Adams had identified in his report.
3. The primary judge described the risk of harm for the purposes of s 5B, CLA as the "risk of slipping on wet steps" or the "risk of slipping on wet tiles". [33] His Honour determined there could "be no issue" that the risk was both foreseeable and not insignificant. [34] He said that the "real issue" was whether, in light of the obvious risk of slipping on a step that was wet, a reasonable person in the position of the respondents would have taken precautions against that risk. That question had to be considered in light of, first, the respondents' evidence, which he accepted, to the effect that there had been no prior slipping incidents on the stairs, and secondly, Mr Adams' evidence. [35]
4. The primary judge found that re-surfacing the porch with more slip-resistant materials or applying suitable anti-slip products (paint-on products or anti-slip strips) could be excluded from consideration. This was first, because Mr McCormack's application of a slip-resistant coating had made little difference to the slipperiness of the stairs, as was borne out by Mr Adams' testing, which "revealed the same slippery condition of the steps when wet." [36] Secondly, in any event, the respondents, in substance, were unaware the stairs were in such condition as to require the application of such products. [37] His Honour also rejected the suggested precaution of a more extensive awning to cover the stairs as "an unreasonable and unnecessary hindsight suggestion based on a counsel of perfection rather than being based upon prospective notions of reasonableness". [38]
5. Matting or a hand rail were also hindsight suggestions, in his Honour's view, having regard to the respondents' long experience of the steps which gave them no reason to suspect that such measures might be required. [39] In any event, his Honour said that it was difficult to conclude non-slip matting would have made a material difference, as it was not readily apparent how such matting could have covered any more than the edge of the verandah. Furthermore, on the evidence, the presence of matting was unlikely to have altered the fact that the appellant did not look where she was placing her feet and walking when she fell. [40]
6. As to Mr Adams' opinions about the slipperiness of the tiles, his Honour said: "[71] Mr 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 [sic, become] 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. [72] A 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. [73] Mr 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. [74] In 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. [75] This 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." (Emphasis added.)
7. Accordingly, his Honour concluded that the appellant had not established that the respondents were in breach of their duty as occupiers, so they were not negligent as alleged. [41]
8. Against the possibility that those findings were erroneous, his Honour addressed the remaining issues of contributory negligence and damages.

Contributory negligence

1. The primary judge found that a significant contributory cause of the accident was the appellant's failure to look where she was about to place her foot. Had she paused before stepping, she would have seen the wet edge of the steps and she would have then appreciated there was an associated risk of slipping which required that she take care for her own safety. This could have been done by taking greater care in placing her leading foot when transitioning from the dry to the wet area, including by taking small steps, as well as by placing her hand against the adjacent wall to steady herself. [42]
2. Accordingly, his Honour concluded that the appellant's failure to look ahead had deprived her of the opportunity to see the wet steps and to take precautions accordingly. He therefore considered the appellant to be guilty of contributory negligence to the extent of at least 50 per cent. [43]

Damages

1. The primary judge assessed damages against the possibility his liability finding was incorrect.
2. The primary judge concluded that the appellant's disabilities from her ankle injury were extensive and significant. In addition to surgical scarring to her right ankle from multiple procedures, she continued to suffer pain in that ankle, sharp at times, together with discomfort and restriction of movement in her right foot, ankle and knee. She was left with an equinus deformity consequent upon a fusion operation to her ankle which left her with an altered gait, and she walked with a permanent limp. As a result, she had developed soreness in her left hip. These problems afflicted her on a daily basis and caused her also to suffer back pain. [44]
3. His Honour also found that the appellant had difficulty performing her housework on a sustained basis and could not undertake home maintenance tasks. His Honour said that the uncontradicted medical opinion was "to the effect that she should not perform tasks requiring repeated bending, crouching, kneeling, prolonged standing in one position or stair climbing." She felt "as if she has difficulties with balance when walking on uneven ground and she is concerned about the possibility of falling." Her ankle swelled when she stood for sustained periods. [45] His Honour accepted the appellant's prognosis was "poor and guarded" and her evidence that she felt the pain in her ankle was worsening. [46] Accordingly, his Honour would have assessed the appellant at 38% of the most extreme case. [47] The respondents do not challenge that assessment.
4. The appellant claimed for 12 hours per week domestic assistance provided by her husband for the 12 weeks following the accident and six hours per week paid domestic assistance for the future.
5. The appellant and her husband live in a sizeable house which, his Honour found, had cleaning and maintenance requirements the appellant substantially carried out before her accident. Prior to the accident, the appellant's husband worked full time and rarely undertook housework. He did mow the lawns and maintain the garden, although the appellant also did some weeding and tidying there. [48]
6. His Honour found that: "After the plaintiff's injury that domestic dynamic changed in that Mr Schultz attended to housework tasks, including cleaning, vacuuming, washing and the like. The plaintiff also required personal assistance, including with tasks such as showering, dressing and the like when she was in a cast and when she was required to wear a moon boot." [49]
7. His Honour accepted that in the 12 months post-accident Mr Schultz undertook compensable housework in the order of two hours per day, seven days per week. [50]
8. The primary judge also concluded that the appellant was entitled to damages for domestic assistance at the rate of seven hours per week for the remainder of the period from after the first year post accident until the time of hearing. This was because she continued to be unable to carry out her allotted housework in a single day and needed to "space things out over the week," which was unsatisfactory. [51]
9. Accordingly, the primary judge awarded the appellant $51,378 for past domestic assistance. [52]
10. The appellant sought six hours per week for future domestic assistance. The primary judge rejected the respondents' submission that her claim was not supported by the medical evidence. His Honour was of the view that the opinions of Dr Conrad and Dr Rea provided "a measure of support" for this claim but, too, considered the appellant's evidence reasonably justified the claim. His Honour said that as he accepted the appellant's evidence in this respect, there was no need for that evidence to be "validated by objective evidence or medical evidence". [53]
11. Accordingly, for future assistance, his Honour found: "[138] In my view the evidence of the plaintiff and that of her husband provides a satisfactory basis for the acceptance of the claim for 6 hours of domestic assistance per week into the future. On the evidence it seems unlikely that this accident-related need is likely to decrease in the foreseeable future. [139] Against this is the fact that the plaintiff has a pre-existing cardiac condition. Whilst that condition does not contribute to her disability, it does impair her ability to perform certain activities involving elevation of her arms as this causes her to become breathless. I consider this factor is best accommodated by a slightly higher than conventional allowance for vicissitudes, namely 20 per cent rather then [sic, "than"] the convention discount of 15 per cent."
12. The primary judge concluded that the appellant was entitled to claim the commercial cost of domestic assistance for the future having regard to the fact that her husband had a full time job and was "not always in the mood to do additional household tasks well." [54] Accordingly, his Honour assessed the appellant's damages for future domestic assistance in the amount of $155,443. [55]
13. If the appellant had been successful in establishing liability on the part of the respondents, the primary judge would have assessed her damages in the amount of $782,415.65. However, it appears the appellant had not sought to claim an amount in excess of the District Court's jurisdictional limit of $750,000. [56] The appellant did not seek an amount greater than that in her notice of appeal.

Grounds of appeal

1. The appellant complains that the primary judge erred in finding that the risk she encountered was an "obvious risk" within the meaning of s 5F, CLA, erred in characterising the risk for the purposes of s 5B, CLA, erred in formulating the test for negligence, should have found that the respondents were negligent and erred in finding, in the event the respondents were negligent, that she was guilty of contributory negligence.
2. She seeks orders allowing the appeal, orders setting aside the verdict and judgment for the respondents, and judgment in the sum of $750,000, or, alternatively, that the matter be remitted to the District Court on the issue of liability.
3. By way of cross-appeal, the respondents complain that the primary judge erred in notionally assessing past and future care without having regard to all of the evidence and s 15 of the CLA.

Appellant's Submissions

1. Mr R Sheldon of Senior Counsel, who appeared for the appellant on appeal with Mr M Sciglitano, but not at trial, submitted that the primary judge's process of fact-finding miscarried in that, although his Honour made credit findings adverse to the respondents and credit findings favourable to the appellant, he nevertheless held that the example that he gave of the unreliability of the respondent did not have a role to play in the determination of the case.
2. Mr Sheldon submitted that it was relevant that, on the sole issue on which the appellant was able to call direct evidence to contradict them, the respondents were disbelieved. He contended that the primary judge ought to have taken that matter into consideration in evaluating the respondents' evidence that they never noticed the tiles to be slippery when wet. He contended that the respondents' evidence was dubious at best by reference to the adverse credit finding but was undermined completely by the "utterly irrational, on the respondents' case, decision to apply a non-slip treatment to a surface that was not slippery" when, according to Mrs McCormack, the appellant's thongs had been identified as the cause of the fall. Accordingly, he contended, the respondents' denial that they knew the tiles to be slippery was implausible and, further, was rendered entirely improbable by Mr Adams' analysis the effect of which was to explain why a home owner would seek to reduce the slipperiness of the surface by the application of a non-slip product.
3. Mr Sheldon submitted, accordingly, that the primary judge's failure to engage in that reasoning process invalidated his Honour's conclusion that there was no evidence to support an inference that the respondents knew or ought to have known that the tiles were slippery.
4. Mr Sheldon submitted that it would be open to this Court to find in favour of the appellant, but accepted that as there was a credit issue concerning the respondents' knowledge of the slipperiness of the tiles on the verandah, remitter for a new trial may be necessary.
5. Secondly, Mr Sheldon submitted that the primary judge erred in analysing the issue of "obvious risk" by reference to the appellant's observations rather than by enquiring into the perceptions, in all the circumstances, of a hypothetical reasonable person in the appellant's position. He was particularly critical of the primary judge's rejection of Mr Adams' evidence concerning the position of the light on the verandah. He argued that it was not open to his Honour to reject that unchallenged evidence on the basis that the appellant had not said that her ability to perceive the steps were wet had been impaired. Rather, his Honour had to address that enquiry by considering the perceptions of the hypothetical reasonable person in the appellant's position.
6. Mr Sheldon argued that, had the primary judge conducted the "obvious risk" inquiry as required, his Honour would have found that the general layout of the respondents' premises was not conducive to the wetness of the steps coming to the attention of a pedestrian about to descend them.
7. Thirdly, Mr Sheldon submitted that to the extent the primary judge appreciated the "obvious risk" inquiry required considering the perceptions of the hypothetical reasonable person in the appellant's position, his Honour applied the insight and actions of an overly cautious person with an inherent expectation of trouble, that is to say, a counsel of perfection.
8. Fourthly, Mr Sheldon submitted that the primary judge erred in rejecting Mr Adams' evidence that "as [the appellant] turned and approached the top of the stairway, that light would have been behind her" and, rather, finding "that the lighting was from above." [57] Mr Sheldon submitted first, that that finding was contrary to the factual evidence of Mr Adams who, unlike the primary judge, had inspected the respondents' home and whose evidence of that inspection substantially accorded with Mr McCormack's evidence. Further, his Honour's finding was at odds with his conclusion that the roof of the verandah would not have provided protection from the steps becoming wet because it did not extend that far. [58] The primary judge's finding was also contrary to photographs of the area and to Mr McCormack's evidence that he had to get a torch after the appellant fell.
9. Fifthly, Mr Sheldon submitted that the primary judge's conclusions as to what would have been apparent to a reasonable person in the appellant's position were starkly inconsistent with his findings concerning the actual or imputed knowledge of Mr and Mrs McCormack. They had daily experience of the premises, yet his Honour found neither knew, nor ought to have known, that the steps were apt to become slippery when wet.
10. Sixthly, Mr Sheldon submitted that the primary judge's finding that the appellant "was able to see" that the roof over the verandah did not have significant overhang covering the steps had an air of unreality. He asked rhetorically why someone departing another's home at midnight, acting reasonably, would make an inspection of the roof in order to determine the extent to which it might provide shelter from inclement weather that had occurred while the person was within the home. Further, how would such a person have the means of knowing from which direction the wind was blowing so as to determine whether there was a risk of rain "being blown over" the steps under the roof? He further queried whether it could be expected that a reasonable person in the appellant's position would, or could, assess the alignment of the roof's edge with the step in order to consider whether it "could possibly" have been wet.
11. Seventhly, Mr Sheldon submitted that the knowledge the primary judge said the appellant would have acquired had she looked ahead as she moved towards the steps, "that the wet state of the stairs posed a risk of slipping", was knowledge even Mr McCormack, with daily experience of the premises, did not have. He did not recall seeing water on the top of the steps and thought there was no risk of slipping. Mr Sheldon again pointed to the incongruity of a finding that a visitor to premises acting reasonably would have perceived as obvious a risk of which the occupiers and owners of the premises denied all knowledge.
12. Eighthly, Mr Sheldon submitted that the mechanism of the appellant's accident was that of a continuous act: having kissed her friend goodbye, she turned and her foot slipped and she slipped down the stairs. Accordingly, the opportunity to look where she was about to walk never arose.
13. Ninthly, Mr Sheldon complained that the primary judge erred in characterising the "risk of harm" for the purposes of s 5B, CLA. He contended the relevant risk must have been of slipping on the landing (or possibly the steps) because it was (or they were) wet. He contended that unless "slipping" was included in the formulation of risk, there was no relevant risk of injury. Mr Sheldon submitted that even if the primary judge was entitled to find, contrary to her evidence, the appellant knew the landing and/or steps would or could be wet, the evidence could not support the conclusion that she knew of their slipperiness.

Respondents' Submissions

1. Mr Cavanagh of Senior Counsel, who appeared on appeal with Mr S Torrington for the respondents, but not at trial, submitted that his Honour's conclusion as to obvious risk was in one respect unnecessary because the respondents had established that they were not in breach of their duty of care. He submitted, nevertheless, that there was no serious contradiction between his Honour's conclusion as to obvious risk and his findings in respect of the respondents' knowledge and conduct with respect to the risk. He argued that the risk of slipping on a wet surface was patent and a homeowner could not owe a duty of care to warn of every risk, no matter how significant or insignificant.
2. Otherwise, Mr Cavanagh submitted the primary judge's factual findings both on liability and contributory negligence were open to him.
3. On the cross appeal, Mr Cavanagh submitted that the appellant was not entitled to any allowance for past or future care. He argued she required past assistance only for a short time, and that the evidence did not support an entitlement to care at two hours per day for seven days per week for the twelve months after the accident. He contended that his Honour did not have regard to all of the evidence, and that there was "no basis for the finding of 6 hours [future] commercial care per week based on the need for ironing, cooking, washing, hanging the clothes on the line or any of the normal domestic activities." He argued that, contrary to his Honour's findings, on the evidence, the statutory thresholds were not met.

Duty of care

1. The primary judge did not identify the duty of care the respondents owed the appellant, save obliquely insofar as his Honour found that the appellant "had not established that the [respondents] were in breach of their duty as occupiers." [59] Rather, his Honour commenced his inquiry into liability by addressing the issue of "obvious risk".
2. While, no doubt, the duty of care the respondents as occupiers owed the appellant was uncontroversial at trial, to begin the inquiry by focusing only upon questions of breach of duty invites error because the assumption that is made about the content of the duty of care may fail to take fundamental aspects of the relationship between the parties into account. [60] Rather, it was appropriate to identify and define the scope of the duty of care the respondents owed the appellant, and then proceed to the issue of breach. [61]
3. The broad principles which addressed the issue of the duty of care the respondents owed the appellant and its scope can be briefly stated.
4. As occupiers, the respondents owed the appellant, as an entrant to their home, a duty to take reasonable care to avoid a foreseeable risk of injury to her, on the premise that she was exercising reasonable care for her own safety. [62] The duty included the obligation to take precautions a reasonable person in the circumstances would have taken by way of response to the risk that a person may slip on tiles on the porch or the stairs. [63]
5. The scope of the duty occupiers owe entrants has been identified in numerous cases which reflect the latter premise, that is to say, the obligation of the entrant to take reasonable care for his or her own safety. [64] Thus, it is emphasised that the occupier's obligation is one of reasonable care, not to make the premises as safe as "reasonable care and skill on the part of anyone can make them". [65] It is not an insurer of entrants. [66] What constitutes the exercise of reasonable care depends on the circumstances of each case. [67]
6. Just as stairs are inherently but obviously dangerous and the risks of misjudging footing or tripping are ordinarily avoided by people taking reasonable care for their own safety, [68] so too are wet surfaces, or surfaces which may be wet by reason, among other matters, of rainfall. Thus, the mere fact of a fall on wet steps is not sufficient to establish that an occupier has been negligent. [69] Further, it does not follow from the fact that the porch was wet, that there was some precaution that the respondents did not take that a reasonable person in their position would have taken. [70]
7. The issue of breach had to be addressed with those principles in mind.

Credit

1. Before addressing the breach issue, it is necessary to resolve the appellant's complaint about the primary judge's assessment of the respondents' credit. That assessment clearly substantially informed his Honour's findings about breach, in particular his acceptance of the respondents' denial that they knew the tiles to be slippery.
2. His Honour's finding in this respect was that the respondents tailored their evidence in denying they had told the appellant she should claim on their insurance in respect of the incident. However, his Honour dismissed this finding as irrelevant on the basis that "nothing of significance turns on that conversation". [71] His Honour does not appear to have turned his mind to the wider significance of his finding.
3. Depending on the circumstances, when a party lies, the conduct can be variously described as an implied admission or circumstantial evidence permitting an adverse inference. [72]
4. In Tobin v Ezekiel, [73] Meagher JA described the significance of a witness lying as follows: "Whilst the fact that a witness has lied about some matter does not prove the opposite of the lie, the fact of the lie may indicate a consciousness that the truth in respect of those matters would not have assisted his or her case. Depending upon the subject matter of false or fabricated evidence and its significance in a case, such an inference may be available in relation to a specific fact: … The fact of a lie may also constitute an admission of criminal guilt or evidence which is corroborative of other evidence." (Emphasis added.)
5. The respondents tailoring their evidence was capable of indicating they were conscious that to be seen as having told the appellant to make a claim would not have assisted their case. The most obvious reason for that would be that they realised it would be seen as an admission to the appellant that some act or omission on their part had caused her accident. Thus, this aspect of their evidence was capable of having a wider significance than that stated by the primary judge.
6. His Honour's failure to appreciate this casts a cloud of doubt over his findings favourable to them that they were unaware the tiles were slippery or that this was the first time anyone had slipped on the tiles. It was a substantial issue his Honour ought to have addressed. It was clearly a material factor in determining whether favourable, as opposed to adverse, findings should be made.
7. If resolution of the case turned substantially on acceptance of the respondents' evidence, that fact would militate in favour of a new trial.

Breach

1. The primary judge commenced his inquiry about breach by considering the issue of obvious risk first, "along the lines suggested in Paul v Cooke". Paul v Cooke was a case involving inherent risk, a matter dealt with by s 5I, CLA. Pursuant to s 5I, a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. It was plainly appropriate in Paul v Cooke to address s 5I first because, if it was an available defence, it was a complete answer to the plaintiff's claim, as Leeming JA (with whom Ward JA agreed) held in the passages to which his Honour referred.
2. A finding of obvious risk under s 5F, however, does not have that effect. It merely eliminates that part of a defendant's duty of care which involves warning of such a risk. [74] There is a view that, because s 5H cuts across the scope of the duty of care, logically it should be addressed after considering whether any such duty exists and its prima facie scope and before considering breach. [75] The appellant did not complain about the order in which the primary judge addressed the issues and I will not take the issue further.
3. However, in my view, after identifying the duty of care and its content, his Honour should have considered what constituted the "risk of harm" for the purposes of s 5B, CLA. It is only through the accurate identification of the risk the appellant faced that one can assess what a reasonable response to that risk would be. [76] The identified risk of harm provides the framework for considering the issue of breach and "obvious risk". [77]
4. At the time he considered the issue of "obvious risk", his Honour had not identified the "risk of harm" he was addressing for the purposes of the "obvious risk" enquiry. Elsewhere, and later in his reasons, he identified the risk of harm for the purposes of s 5B, CLA as the "risk of slipping on wet steps" or the "risk of slipping on wet tiles". [78] In the course of dealing with the "obvious risk" issue, his Honour focused on the question of whether "it must have been obvious to the plaintiff that there was a reasonable prospect or possibility that the steps she was about to descend could possibly have been wet and slippery due to previous rainfall." [79]
5. Leaving aside the question of how his Honour came to reach his conclusion adverse to the appellant in this respect, it is tolerably apparent that he was addressing the risk of harm he identified later in his reasons.
6. Mr Sheldon complained that his Honour identified the wrong risk, which he argued must have been slipping on the landing (or possibly the steps) because it was (or they were) wet. That appears to me to be the risk the primary judge identified. It is plain that his focus was whether there was an obvious risk of slipping on the wet steps. In my view that was a sufficient description of the risk of harm. [80]
7. The principles concerning the determination of what constitutes an "obvious risk" for the purposes of CLA, s 5F were set out recently in Collins as follows (footnotes omitted): [81] "[136] The question of obvious risk in CLA, s 5F involves the determination of whether the plaintiff was exposed to a risk of harm which would have been obvious to a reasonable person in his or her position. The focus of the enquiry is not upon the putative tortfeasor but upon the person who has been injured or, more accurately, a reasonable person in his or her position. [82] The test is an objective one and must take account of the objective circumstances of the person whose conduct is being assessed. In that inquiry "the plaintiff's state of mind is [not] determinative, but [rather] what a reasonable person in his or her position would regard as obvious". [137] 'Risk' in s 5F(1) 'refers to the chance or possibility of an occurrence which results in 'harm', which is defined in s 5 to include 'personal injury or death'. Whether or not a risk is 'obvious' may depend upon the extent to which the probability of its occurrence is or is not readily apparent to a reasonable person in the position of the plaintiff. [138] 'Obvious' means that both 'the factual scenario facing the plaintiff' and 'the risk are apparent to and would be recognised by a reasonable [person], in the position of the [plaintiff] exercising ordinary perception, intelligence and judgment.' That means the Court will take into account, for example, the age and level of experience of the plaintiff. Whether or not a risk is 'obvious' may well depend upon the extent to which the probability of its occurrence is or is not readily apparent to the reasonable person in the position of the plaintiff. A risk may be 'obvious' even though it has a low probability of occurring and is not prominent, conspicuous or physically observable. [139] As I have said, prima facie, the plaintiff's actual knowledge of matters which constitute the risk of harm is irrelevant, except to the extent that how any such knowledge was acquired may be relevant to the forward looking inquiry as to whether the risk would have been obvious to a reasonable person in his or her position. However, as the 'obvious risk' inquiry is into the knowledge that a reasonable person in the appellant's position should be taken to have had, it may be relevant to know the extent to which he or she was actually aware of the risk in whole or in part. That 'would be a circumstance to be taken into account when considering what would have been obvious to a reasonable person in the position of the respondent.'"
8. It is clear from the primary judgment that the primary judge found the appellant slipped on the wet tiles at the edge of the verandah. [83] Accordingly, the primary judge's finding that after she fell the appellant "realised that the surface of the steps was wet, but that the top of the landing was dry", [84] cannot stand. Mr Cavanagh did not contend to the contrary.
9. In order to determine the issue of "obvious risk" it was necessary to identify correctly the "factual scenario facing the plaintiff". [85] I have set out the findings the primary judge made concerning that scenario above. [86] The appellant challenges, in particular, the primary judge's finding that the overhead light on the verandah "generally" illuminated the area of the fall and, too, his Honour's assessment that the appellant ought to have realised that the verandah roof did not protect it from getting wet from wind-blown rain, so that she must have appreciated the possibility of the porch being wet. [87]
10. As is apparent from the passages from Collins I have set out above, the plaintiff's actual knowledge of matters which constitute the risk of harm may be relevant to the extent that it informs the enquiry as to whether the risk would have been obvious to a reasonable person in his or her position. In my view that is how the primary judge sought to use the matters he attributed to the plaintiff as having been those a reasonable person in her position ought to have perceived as she left the respondents' home.
11. However, in my view, Mr Sheldon's submission that the matters the primary judge attributed to either the appellant, or a reasonable person in her position, were unrealistic, should be accepted.
12. One of Mr Sheldon's criticisms was addressed to the primary judge's finding that the appellant ought to have been able to see that the roof over the verandah "did not have a significant overhang covering the steps", and accordingly, "ought to have realised the roof might not have prevented rain falling onto, or being blown over, onto the steps." [88]
13. The appellant was cross-examined about the extent to which she appreciated the risk of the porch being wet. She said, as I read her evidence, immediately before her fall, the area in which she was standing was dry. That was clearly a reference to the time immediately before she turned to leave the premises. In response to a question as to her appreciation that if she walked on a wet surface it could be slippery, she responded: "Like I said, the landing wasn't wet, it's undercover."
14. It was then put to her that the landing "was only partially covered by the awning" to which she responded "most of it".
15. To that extent, it is apparent the appellant appreciated that there may have been a risk of rain having wet the porch, and it might be inferred a reasonable person in her position would have the same perception. However, there was no cross-examination of the appellant to indicate that she had any appreciation of the extent to which there was a discrepancy between the area of the verandah the awning protected and the porch itself.
16. In this respect, it is relevant, in my view, to have regard to Mr McCormack's evidence. As I have said, he gave evidence that the awning covered the landing, but not the stairs. It was his evidence that when it was windy that water would get onto the top of the landing but, as I understand his evidence, not otherwise.
17. The primary judge did not refer to that evidence, nor is there any sense in his Honour's findings on the obvious risk issue that his Honour had regard to it.
18. In my view, that was evidence his Honour ought to have taken into account. It was evidence from a person familiar with the premises and was significant in assessing the extent to which the verandah was protected by the awning. It was not, however, a conclusion one would infer a reasonable person in the appellant's position would draw. The appellant's evidence, which, to the extent I have explained, might be relevant to the determination of what a reasonable person in her position would have appreciated at the time, was what one might expect. That is, the awning protected the landing by providing cover, and to her observation, the landing was not wet. Accordingly, in my view, the primary judge's finding that a reasonable person in the appellant's position should have appreciated the limitations of the roof protecting the verandah from rain was not open to his Honour.
19. The next question addresses the utility of the light fitting.
20. Mr Sheldon's complaint that the primary judge erred in rejecting Mr Adams' evidence concerning the utility of the light on the porch is also persuasive. His Honour's rejection of that evidence on the basis that the appellant did not give evidence to that effect so that Mr Adams' opinion lacked a factual foundation demonstrated a misapprehension of the manner in which his Honour was to approach the "obvious risk" analysis.
21. Although Mr Adams' opinion concerning the lighting at paragraph 2.2.8 of his report [89] was expressed in terms of Mrs Schultz's experience, it was clearly referrable to a person in her position on the night in question. Accordingly, in my view, the primary judge ought to have concluded that the ability of a reasonable person in the appellant's position to perceive the condition of the porch was obscured to the extent that that person's shadow would fall on the area he or she was approaching.
22. To some extent, this enquiry is academic as the appellant's evidence was, in substance, that she turned and slipped almost immediately so that there was no real opportunity for her to see the state of the porch in the circumstances of her fall. On the premise that s 5F(1) requires the Court to have regard to the mechanics of the accident, Mr Adams' opinion may not be of any utility.
23. In my view, the most cogent criticism of the primary judge's finding on obvious risk is his attribution to a reasonable person in the appellant's position of a perception the porch may be wet due to wind-blown rain. It is apparent that that was a matter which would have only been apparent to a person in the respondents' position, with experience of the premises.
24. In my view, his Honour erred in finding that it would have been obvious to a reasonable person in the appellant's position that the wet state of the porch posed a risk of slipping such that the respondents did not have a duty to warn the appellant of the risks associated with stepping on that area. [90]
25. The finding that the risk to which the appellant was exposed was not an obvious one, such that the respondents owed the appellant a duty of care to warn her of the risk does not, however, answer the question whether, in all the circumstances, the respondents breached their duty of care. [91] Rather, it brings the question back to whether the respondents breached their duty of care to the appellant.
26. As I have said, the primary judge considered that question in the light of his acceptance of the respondents' evidence that there had been no prior slipping incidents on the stairs. His Honour clearly also took into account his finding that there was no evidence that either of the respondents knew, or ought to have known, that the steps were, I infer, of such a degree of slipperiness as to require the precaution of anti-slip coating. [92]
27. The weight the Court should attach to the fact the respondents said there had never been an accident on the steps before "involves a question of fact to be determined in the light of all the relevant circumstances". [93] However, even accepting the respondents' evidence that there had never been an accident on the steps and/or verandah before does not necessarily answer the appellant's case, that they ought to have known the tiles were dangerously slippery when wet.
28. Mr Sheldon submitted that in making that finding, the primary judge failed to pay proper, or any, regard to paragraph 3.1.5 of Mr Adams' report, [94] to the effect that the slip resistance values he obtained conducting wet pendulum tests at the respondents' premises on the tiles, demonstrated that those tiles "would generally be experienced as slippery when wet". That, in my view, was evidence from which a reasonable inference could be drawn that the respondents either knew or ought to have known that fact. On this approach, the question of the respondents' credit does not militate against the Court finding the respondents were aware of the foreseeable risk posed by the extreme slipperiness of the tiles.
29. Mr Cavanagh accepted that the respondents should have been taken to have known that in very windy conditions a portion of the front of the landing could have become wet. However, he submitted that Mr Adams' report did not provide a basis for a conclusion that the respondents "ought to have known" that the tiles were especially slippery when wet. He said that there was no suggestion that a home owner had a duty to commission an expert to do a co-efficient of friction test on their premises. He also contended that the Court could not make a finding of constructive knowledge in the face of the respondents' evidence that they had not experienced the conditions of which Mr Adams spoke. He argued that Mr Adams' opinion should be rejected in the face of the respondents' evidence and, too, the appellant and her husband's evidence of their experience of the tiles when wet.
30. The primary judge referred to Mr Adams' opinion in paragraph 3.1.6 of his report that any wet pedestrian surface with a co-efficient friction of 0.29 could not be regarded as being adequately slip resistant for use in an external location that can be expected to become wet from time to time. Although his Honour observed that that opinion did not appear to be based on any recognised standard that applied to domestic premises, he does not appear to have rejected it on that basis so far as it was relevant. Rather, the basis on which his Honour appears to have rejected the relevance of that opinion was because it had not been established that there was "either … actual or … 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." [95]
31. It is not apparent how his Honour reached the conclusion that knowledge of the slipperiness of the tiles as opined by Mr Adams could not be imputed to the respondents. His Honour made similar findings elsewhere in his reasons but, again, did not in my view identify any basis for his rejection of the proposition that the respondents ought to have known of the excessive slipperiness of the tiles on their porch and front stairs. [96]
32. In my view, Mr Adams' unchallenged evidence did provide support for the proposition that the occupants of a house with tiled surfaces with that degree of slipperiness ought to have realised that that was the case bearing in mind that the tiles had been in place for five or six years.
33. It is also significant in this respect to note Mr Adams also observed: "[3.1.7] … Slips occur most commonly when there is some mismatch between the pedestrian's expectations about the level of friction likely to be available to them, and the level that is actually available. Pedestrians can walk on even quite slippery surfaces, provided they are aware of the surface conditions and can adjust their gait appropriately. The risk that a slip might occur on a given surface is increased if a pedestrian unexpectedly encounters a sudden reduction of the level of friction while they are walking on an otherwise apparently slip-resistant surface … On the basis of Mrs Schultz's descriptions of the incident and considering the other relevant characteristics of the situation, I believe that it is reasonable to infer that Mrs Schultz slipped on the wet tiles due to their inherently slippery when wet nature, and when she stepped from a dry to a wet section of the surface without being aware that she was making that type of transition."
34. It is consistent with that explanation by Mr Adams that the respondents did not actually experience the tiles as extremely slippery because they were aware of its conditions and had adjusted to it. However, Mr Adams' evidence supported the finding, in my view, that they "ought to have known" of the high risk of slipperiness the tiles posed when wet. [97]
35. As the primary judge accepted, the risk of harm in such a context was foreseeable and was not insignificant.
36. In those circumstances, in my view, his Honour ought to have found that a reasonable person in the respondents' position ought to have taken precautions against the risk of harm, the most obvious of which was to warn the appellant that the porch could have become wet if the rain had been wind‑blown and, if it had, that it would have been abnormally slippery. They could have also used mats on the verandah to provide a non-slip surface.
37. The respondents failed to take this precaution and, in my view, ought to have been found to have breached their duty of care to the appellant by reason of that omission.
38. There was no issue of causation in the event the respondents were found to have breached their duty of care.
39. In light of my conclusion that the risk to which the appellant was exposed was one of which she did not know or ought to have known, it was not, in my view, open to the primary judge to conclude that the appellant had been guilty of contributory negligence. [98]

Cross appeal

1. I have earlier set out the primary judge's findings on which he based his assessment of the appellant's domestic assistance claim. [99]
2. In addition to the matters set out above concerning the appellant's disabilities, the primary judge based his assessment of the appellant's need for assistance on the fact that she and her husband lived in a sizeable house which had cleaning, domestic and maintenance requirements substantially carried out by the appellant before the accident. Prior to the accident the appellant's husband did not do much in the way of housework and did so only rarely. After the appellant's injury, "the domestic dynamic changed in that Mr Schultz attended to household tasks including cleaning, vacuuming, washing and the like." He also assisted the appellant in the period immediately after her accident with matters such as showering, dressing and the like when she was in a cast and when she was required to wear a moon boot. [100]
3. There is no doubt the appellant suffered a serious injury. There is also no doubt that after the accident Mr Schultz assumed the burden of domestic duties - a reversal of the previous situation. The primary judge was entitled to find the role reversal (and the need for Mr Schultz's services) arose because of the injury to which the damages related, and that they would not have been provided but for the injury. [101] Those disabilities were, as his Honour described, clearly "extensive and significant". [102]
4. The question whether the appellant had established there was a reasonable need for the services was essentially an evaluative exercise. [103]
5. The primary judge, as Mr Sheldon submitted, also found that the appellant had developed soreness in her left hip as a result of her altered gait and walked with a permanent limp and that those problems, which afflicted her daily caused her to suffer from back pain. These findings are not challenged on the cross-appeal.
6. Insofar as future domestic assistance was concerned, the primary judge accepted that not all medical practitioners supported the appellant's claim. However, he concluded that the opinions of two doctors, Dr Conrad and Dr Rea, did provide a measure of support for the claim made. His Honour observed, in any event, that medical opinions are not prescriptive in relation to future domestic assistance. The cross-appellants accept that proposition. However, they submit that there had to be objective evidence to support the appellant's claim that there is, or was, a reasonable need for the gratuitous attendant services to be provided that had arisen solely because of the injury to which the damages related, and would not have been provided to the appellant but for the injury. [104]
7. In my view the primary judge's findings concerning past and future domestic assistance were open to his Honour. They were based on his observations of the appellant primarily and, presumably, to some degree, her husband. However the significance of her injuries and disabilities were matters he was in a better position than this Court to assess. His conclusion involved questions of fact and degree, and matters of opinion, impression, speculation and estimation calling for the exercise of common sense and judgment. [105]
8. In my view, the cross-appellant has not demonstrated that the primary judge erred in a way attracting appellate review

Orders

1. I propose the following orders: 1. Appeal allowed. 2. Verdict and judgment for the respondents entered on 23 June 2014 set aside. 3. Judgment for the appellant in the sum of $750,000 to date from 23 June 2014. 4. Cross-appeal dismissed with costs. 5. Respondents to pay the appellant's cost in this court and in the court below and to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.
2. MACFARLAN JA: I agree with the judgment of McColl JA and add the following observations.

The expert evidence

1. Mr Neil Adams' report was the only expert evidence before the primary judge. Its contents were not challenged by way of cross-examination and counsel for the respondents' attack on its principal conclusion in this Court was not made before the primary judge.
2. As McColl JA points out, Mr Adams' report states that the tests that he conducted on the landing tiles produced an average coefficient of friction ("COF") of 0.29 and that "any wet pedestrian surface on which is obtained a COF of 0.29 cannot be regarded as adequately slip resistant for use in an external location that can be expected to become wet from time to time".
3. On appeal, the respondents argued that Mr Adams' reasoning did not support that conclusion and sought to have this Court draw, from studies to which Mr Adams referred, a different conclusion to that drawn by Mr Adams. The Court is unable to, and should not, second guess Mr Adams in this manner when he has not had the opportunity to respond to such an attack. In these circumstances, I consider that the Court must accept Mr Adams' conclusion.
4. The respondents also relied upon their own lay oral evidence and the appellant's and her husband's lay oral evidence to support a submission that Mr Adams' evidence should be rejected.
5. However, the appellant's and her husband's evidence did not support this argument. If they had ever traversed the landing when it had rained, there was no evidence that they did so at night when water could not readily be seen, or when there was wind that made the landing, as well as the steps, wet.
6. As McColl JA points out, the respondents' evidence was that they had not noticed any slipperiness of the landing or steps. The primary judge accepted this. However, that does not mean that the landing was not excessively slippery when wet as the expert evidence indicated. The respondents may have grown accustomed to the slipperiness over time or come, subconsciously, to take particular care in using the steps and landing as a result of some past incident or incidents now forgotten. Alternatively, they may simply have had a different view to the expert as to what constituted slippery tiles. Mr Adams' unchallenged evidence is a sound foundation for a conclusion that the tiles were excessively slippery. The respondents' evidence does not dictate a contrary view.

Breach of duty

1. In these circumstances, consideration of breach of duty must begin with the proposition that the landing, being part of the main thoroughfare into the house and immediately outside the front door, was excessively slippery when wet. Its slipperiness when wet was a hazard according to the uncontradicted and effectively unchallenged expert evidence. If the respondents did not realise that it was a hazard given the conditions on the occasion in question, they ought to have done so as a result of their five or six years using the landing prior to the appellant's accident.
2. The risk of someone slipping on the landing was significant and it was foreseeable that the injuries that might be suffered if the risk eventuated could be severe, particularly as the landing and upper steps were elevated well above ground level. The absence of effective lighting at night increased this risk. Mr Adams said that someone leaving the home at night would cast a shadow over the outer edge of the landing and, as McColl JA points out, the primary judge gave no sufficient reason for rejecting that evidence.
3. In these circumstances, a reasonable person in the respondents' position would have sought to reduce or eliminate the risk of someone slipping by, at least, warning visitors such as the appellant about it.
4. The risk that the appellant should have been warned about would not have been obvious to a reasonable person in her position. Her evidence was that she was not aware of any excessive slipperiness of the landing when wet and there was no basis for concluding that she ought to have been aware. In any event, she had no reason to know that the part of the landing near the top of the steps could become wet when there was rain and wind or that it was in fact wet when she fell. The former was knowledge that the respondents, as owners and occupiers of the home for some years, had or ought to have had and the latter was knowledge that the first respondent had on the night in question and did not communicate.

Contributory negligence

1. The appellant was not guilty of contributory negligence as she had no knowledge of the particular slipperiness of the tiles on the landing, nor that part of it was wet. There is no reason why she ought to have had that knowledge, especially given that the lighting was inadequate, restricting her ability to see what was in front of her. It is reasonable to expect her to take particular care descending steps that she knew would be wet but, on the other hand, she could reasonably have expected to have a sure footing and stable surface whilst crossing the level landing at the top of the steps.
2. BEECH-JONES J: I have had the benefit of reading the judgments of McColl and Macfarlan JJA. I agree that the primary judge erred in failing to find negligence by reason of the failure of the respondents to warn Mrs Schultz that the tiles on the top of the landing were wet and potentially slippery. My reasons for that conclusion are as follows.
3. As noted by Macfarlan JA, the report of Mr Adams was tendered and not the subject of any attack before the primary judge. The primary judge correctly noted that "his report therefore stands to be evaluated according to the cogency and persuasiveness of its content". Two matters of particular significance emerge from Mr Adams' report, both of which accord with common sense.
4. The first is that there was a significant difference between the slipperiness of the tiles when they were dry compared with when they were wet. After examining the tiles on the steps and the landing Mr Adams concluded that the tiles "would be adequately slip resistant when clean and dry" which in the context of his report is a reference to a coefficient of friction of higher than 0.4. Mr Adams stated that it has "long been recognised … that for safe pedestrian movement in level conditions the level of friction available, expressed as a dynamic coefficient of friction, should be at least 0.4". Mr Adams measured the coefficient of friction of the tiles when wet and found it to be 0.29. He stated that a "level pedestrian surface on which is obtained slip resistance values [of 0.29] would generally be experienced as slippery when wet".
5. The second is the significance of a pedestrian being unaware of the likely level of friction they will encounter. Mr Adams stated that "[s]lips occur most commonly when there is some mismatch between the pedestrian's expectations about the level of friction likely to be available to them, and the level that is actually available". Earlier in his report Mr Adams explained that "even in controlled circumstances … frictional demand of individual pedestrians varies considerably from the mean figures that are most commonly reported and cited". He cites various studies in which peak frictional demand for many but not all of the subjects was much less than 0.4.
6. Much of the debate at trial and on appeal concerned whether the tiles were "dangerously slippery" or particularly "slippery" when wet. However, in my view, what emerges from Mr Adams' report is that a surface with a co-efficient of friction of less than 0.4, and even at 0.29, is not necessarily dangerous and would not necessarily be described by a pedestrian as dangerously or excessively slippery. Whether it is or not may depend on a number of matters including the resistance of their footwear, their physical characteristics and their expectation of the surface. However a surface with a co-efficient of friction of 0.29 measured during wet conditions certainly has the potential to be a hazard if the relevant pedestrian has previously experienced a higher resistance on that surface in dry conditions and does not know and cannot be reasonably expected to know that it is wet.
7. The existence of a "mismatch" of the kind referred to by Mr Adams is at the heart of the circumstances that transpired on the evening of Mrs Schultz's fall. The mismatch was a consequence of the configuration of Mr and Mrs McCormack's house, specifically the fact that the roof of the landing did not cover the stairs that led to the landing so that there was a propensity for rain to pool on the top of the steps on the landing when it was windy.
8. As she departed the premises Mrs Schultz did not know and could not reasonably be expected to have known that the tiles on the top of the landing were wet, whereas Mr McCormack knew that was likely. In her evidence Mrs Schultz said that as she was leaving the premises she stood on the landing and kissed Mrs McCormack. At that point the landing was dry but as she moved to the point on the top of the landing just before the steps it was wet and she slipped. In cross-examination she agreed that she knew that if she "walked on a wet surface, it could potentially be slippery under foot" but she said that she did not see that it was wet and was not expecting it to be wet as it was "undercover" (see [96]).
9. In his evidence Mr McCormack stated that the roof covered the landing of the premises but not the stairs. He agreed that if there was rain and it was windy "there would be some water at the top of the landing". He agreed that during the evening it rained heavily and it was windy. He stated that he did not recall seeing water on the top of the steps that evening but agreed with the cross examiner that "… because it was windy, you knew when you walked out the front door of your premises that it was pretty likely the edge of the landing, near the steps, would be wet?".
10. The primary judge found that the evidence did not demonstrate that Mr and Mrs McCormack either knew or ought to have known "that there was a very low co-efficient of friction in the area in question before the plaintiff fell". To the extent that finding involves an acceptance of their denials of any knowledge that the tiles were "especially slippery" when wet, then I do not consider that any basis for interfering with the primary judge's finding has been established. However if the primary judge's finding involved a rejection of the proposition that Mr and Mrs McCormack ought to have known that the tiles were more slippery when wet or at least potentially more slippery when wet then it cannot be sustained. It is contrary to Mr Adams' uncontradicted evidence. Given the duty of care they owed, they ought to have been aware that when the tiles on the landing became wet from the ingress of rain they posed a particular risk to visitors such as Mrs Schultz who may not be aware of that circumstance.
11. As noted by McColl JA (at [84]), the primary judge commenced his analysis by considering whether the accident involved the materialisation of an obvious risk. I agree with her Honour's findings on that topic and her Honour's identification of the relevant risk of harm (at [84] to [107]). I also agree that risk was foreseeable and not insignificant (Civil Liability Act 2002, s 5B(1)(a) and (b)). In particular I agree that the primary judge erred in concluding that a reasonable person in the plaintiff's position would have been aware of the potential for water to have pooled on the top of the landing due to the configuration of the awning (at [101]). To the contrary I consider it unlikely that such a person would have. However that was a matter known to at least Mr McCormack. A reasonable occupier in his and Mrs McCormack's position should have appreciated the potential for a person such as Mrs Schultz to be unaware that the tiles on the top of the landing were wet and the potential for there to be a slip as a consequence. In circumstances where Mrs Schultz was departing from the premises in the dark, the lighting was inadequate and it had rained since she arrived, a reasonable person in the respondents' position would have at least warned Mrs Schultz accordingly (Civil Liability Act 2002, s 5B). As noted by McColl JA (at [121]) causation was not in issue
12. I agree with the reasons of McColl JA at [122] and Macfarlan JA at [143] in relation to contributory negligence. I agree with McColl JA's reasons for rejecting the cross appeal.
13. I agree with the orders proposed by McColl JA.

Endnotes

1. Schultz v McCormack [2014] NSWDC 67.
2. Primary judgment (at [2]).
3. Primary judgment (at [29] - [30]).
4. Primary judgment (at [5]).
5. Primary judgment (at [11]).
6. As I understand Mr Adams' report, the BPN of 29 to which he referred in [3.1.5] was the equivalent of the COF of 0.29 to which he referred in [3.1.6].
7. Primary judgment (at [4]).
8. Primary judgment (at [62]); s 5B, Civil Liability Act 2002 (NSW) ("CLA").
9. Primary judgment (at [47] - [56]); s 5F, s 5H, CLA.
10. Primary judgment (at [30]).
11. Primary judgment (at [64]).
12. Primary judgment (at [31]).
13. Primary judgment (at [79]).
14. Primary judgment (at [83] - [84]).
15. Primary judgment (at [6]).
16. Primary judgment (at [9]).
17. Primary judgment (at [6]).
18. Primary judgment (at 58 and (g)).
19. See s 5G, CLA.
20. See s 5H, CLA.
21. Primary judgment (at [47]), referring to Paul v Cooke [2013] NSWCA 311; (2013) 85 NSWLR 167 (at [53] - [54]).
22. Primary judgment (at [26]).
23. Primary judgment (at [26]).
24. Primary judgment (at [48]).
25. Primary judgment (at [49]).
26. Primary judgment (at [50]).
27. Primary judgment (at [25]).
28. Primary judgment (at [50]).
29. Primary judgment (at [51] - [53]).
30. Primary judgment (at [54] - [55]).
31. Primary judgment (at [56]), s 5H(1), CLA.
32. Primary judgment (at [57]), s 5G(1), CLA.
33. Primary judgment (at [62], [68]).
34. Primary judgment (at [62]).
35. Primary judgment (at [63] - [64]); his Honour set out the precautions Mr Adams recommended (at [67]) albeit referring to what should have been paragraph (vi) as (iv), a mistake identification of which makes [68] more comprehensible.
36. Primary judgment (at [69]).
37. Primary judgment (at [69], [72]).
38. Primary judgment (at [68]); referring to Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422.
39. Primary judgment (at [76]).
40. Primary judgment (at [76] - [77]).
41. Primary judgment (at [79]).
42. Primary judgment (at [83]).
43. Primary judgment (at [84]).
44. Primary judgment (at [37] - [39]).
45. Primary judgment (at [41]).
46. Primary judgment (at [42]).
47. Primary judgment (at [92]); CLA, s 16(1).
48. Primary judgment (at [124]).
49. Primary judgment (at [125]).
50. Primary judgment (at [126] - [127]).
51. Primary judgment (at [130]).
52. Primary judgment (at [133]).
53. Primary judgment (at [135] - [137]), referring to Coles Supermarkets Australia Pty Ltd v Haluka [2012] NSWCA 345 (at [55]).
54. Primary judgment (at [142]).
55. Primary judgment (at [145]).
56. Section 44, District Court Act 1973 (NSW).
57. Primary judgment (at [51], [53]).
58. Primary judgment (at [50]).
59. Primary judgment (at [79]).
60. Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 ("Koehler") (at [19]) per McHugh, Gummow, Hayne and Heydon JJ; see also Kuhl v Zurich [2011] HCA 11; (2011) 243 CLR 361 ("Kuhl") (at [19]) per French CJ and Gummow J.
61. Koehler (at [21] - [22]).
62. Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 488); Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 ("Dederer")(at [45]).
63. Jackson v McDonald's Australia Ltd [2014] NSWCA 162 ("Jackson") (at [82]) per Barrett JA (Ward JA agreeing).
64. Phillis v Daly (1988) 15 NSWLR 65 (at 74) per Mahoney JA.
65. Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 (at [92]) per Gleeson CJ.
66. Kocis v SE Dickens Pty Ltd [1998] 3 VR 408 (at 429) per Hayne J.
67. Wilkinson v Law Courts Ltd [2001] NSWCA 196 (at [32]) per Heydon JA (Meagher JA and Rolfe AJA agreeing); Kocis v SE Dickens Pty Ltd (at 409) per Ormiston JA; (at 415) per Phillips JA.
68. Wilkinson v Law Courts Ltd (at [32]).
69. Cherry v Jaymardo Pty Ltd [1998] NSWCA 57 (at 3) per Beazley JA (Powell and Stein JJA agreeing); Jackson (at [91]).
70. Jackson (at [92]).
71. Primary judgment (at [9]).
72. Kuhl (at [64]) per Heydon, Crennan and Bell JJ.
73. Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 (at [60]).
74. Section 5H,CLA.
75. Collins v Clarence Valley Council (No 3) [2013] NSWSC 1682 (at [100]) per Beech-Jones J, referring to Action Paintball Games Pty Ltd (In liquidation) v Barker [2013] NSWCA 128 (at [29]) per Basten JA (Hoeben and Ward JJA agreeing).
76. Dederer (at [59]) per Gummow J.
77. Collins v Clarence Valley Council [2015] NSWCA 263 ("Collins") (at [120] - [122]) per McColl JA (Macfarlan and Emmett JJA agreeing).
78. Primary judgment (at [62], [68]).
79. Primary judgment (at [49]).
80. Cf Jackson (at [88]) per Barrett JA (McColl and Ward JJA agreeing).
81. Collins (at [136] - [139]).
82. Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Rep ¶81-952 (at [35]) per Tobias JA (Campbell JA and Handley AJA agreeing).
83. Primary judgment (at [23]).
84. Primary judgment (at [25]).
85. Wyong Shire Council v Vairy [2004] NSWCA 247; (2004) Aust Torts Reports ¶81-754 (at [161] - [162]) per Tobias JA (Mason P agreeing).
86. See [23] above.
87. The primary judge referred repeatedly to the "stairs" or "steps", but as his Honour found she slipped on the verandah, his Honour must have intended to include that area as well.
88. Primary judgment (at [50]).
89. See [12] above.
90. Cf Primary judgment (at [55] - [56]).
91. Cf Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482; (2013) 86 NSWLR 191 (at [57]) per Sackville AJA (Barrett and Gleeson JJA agreeing).
92. Primary judgment (at [69]).
93. Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (at 309).
94. See [11] above.
95. Primary judgment (at [72]).
96. See primary judgment (at [31] and [69]).
97. Section 5B(1)(a), CLA.
98. See s 5R(2)(b), CLA.
99. See [38] to [50] above.
100. Primary judgment (at [124] - [125]).
101. Section 15(2)(b) and (c), CLA.
102. Primary judgment (at [37]).
103. Section (2)(a), CLA.
104. Section 15(2), CLA.
105. Dell v Dalton (1991) 23 NSWLR 528 (at 533 - 534) per Handley JA (Kirby P and Priestley JA agreeing).

Amendments 20 March 2017 - 20 March 2017 [85] Minor typographical error corrected. 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: 20 March 2017