Sutherland Shire Council v Safar

Court of Appeal (NSW)|2017-07-24|Before: Macfarlan JA, White JA, Harrison J, As Harrison J, MacFarlan JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

MACFARLAN JA: I agree with Harrison J's judgment other than in relation to the issue of "obvious risk". I deal with that issue, and provide supplementary observations in relation to the other issues, as follows.
As Harrison J concludes, the appeal should be dismissed on the basis that the appellant breached its duty of care as occupier by not taking reasonable steps to prevent patrons bringing wet umbrellas and coats into the auditorium, or at least to minimise the instances of this occurring.
The expert evidence indicated that the parquetry floor of the auditorium was highly slippery when wet. Mr Paul Brien, who was the appellant's Operations Coordinator, was on duty at the Entertainment Centre on the day of the respondent's accident, and was aware of a number of previous incidents in which people had slipped as a result of water or other liquid being on the auditorium's parquetry floor (transcript p 390). Mr Brien appreciated that water coming into the auditorium on umbrellas or by other means gave rise to a safety risk (transcript p 391).

Second Issue - Causation: Section 5D

Section 5D of the Civil Liability Act relevantly provides: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
It is not contended that the present case is an exceptional case to which s 5D(2) might apply. Nor is there any issue about s 5D(1)(b), (3) or (4). The only issue relates to the application of s 5D(1)(a), namely, whether the negligence, that consisted in the failure to take the precautions identified above, was a necessary condition of the occurrence of the harm. This is a statement of the "but for" test of causation, namely, in the present case, whether it can be said that but for the failure of the Council to take the precautions identified above Ms Safar would not have suffered her fall and injury, or to put it more directly, whether she would not have slipped and been injured if the Council had taken those precautions.
In its written submissions the Council submitted that none of the precautions referred to by the primary judge would have avoided Ms Safar's slip and fall. It is true that it cannot be said that none of the precautions I have identified above would necessarily have avoided Ms Safar's injury. But the question is whether it is more probable than not that had the precautions been taken, the injury would have been avoided.
There was no dispute that it is not enough for a plaintiff to establish that had reasonable precautions been taken the risk of injury would have been reduced. What must be shown is that on the balance of probabilities had the reasonable precautions been taken, the slip and fall would not have occurred. The question is one of fact to be determined using common sense.
It cannot be known how the water on which Ms Safar slipped came to be where it was. It is a matter of common knowledge that generally umbrellas carry more water that is liable to be dripped on the floor than do shoes or clothes. It is likely, but not certain, that the water came from someone's umbrella. Had a bagging machine been provided with appropriate signage, it is reasonable to expect that umbrellas would have been bagged preventing the dripping of water on the parquetry floor. This is not certain, but it is likely. It is possible that the water came from someone's raincoat or similar covering. It is possible, but no more than possible, that if a storage facility for such clothing had been provided the water would not have fallen where Ms Safar slipped on it. It is possible that the water was deposited by someone coming into the auditorium after the eisteddfod started. There was no evidence as to how many of the 200 persons who were in the auditorium were in their place before the eisteddfod started. But there must have been a significant number present by that time. If the water on which Ms Safar slipped was deposited by someone coming into the auditorium before the eisteddfod started, then the taking of reasonable precautions would have avoided the injury. If the water was deposited from someone's umbrella, then it is likely that, had an umbrella bagging device been provided and appropriate notices drawn to it, the device would have been used and there would have been no water for Ms Safar to slip on. If the water was deposited from someone's coat or raincoat, then the provision of a storage facility would have reduced the chances of the deposit of the water.
It is impossible to say with any certainty what the position would have been had adequate precautions been taken. This is a jury question. In my view it is more probable than not that had the adequate precautions identified above been taken, there would not have been water on the floor where Ms Safar slipped. The primary judge considered that more precautions were required than I have considered to be the case, namely, I have not agreed with his Honour's view in respect of the provision of mats. Nonetheless, I see no reason to depart from his Honour's conclusion that had reasonable precautions been taken, the injury would have been avoided.
In some ways the case is analogous to Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 by reference to quantity rather than time.

Third Issue: Obvious Risk

In the light of my conclusions above, this question need not be considered. I have reservations as to whether the particular risk, being the very slippery nature of the parquetry floor when wet, as distinct from the risk of slipping on other surfaces when wet, was obvious. But even if it were not, I do not think that the Council's providing a warning sign to the effect of "Slippery when Wet" would probably have avoided the injury.
For these reasons I agree that the appeal should be dismissed with costs.
HARRISON J: On 23 June 2013, Christina Safar went to the Sutherland Entertainment Centre in order to watch her daughter perform in a dance competition. It was a rainy day. As Ms Safar was walking from the auditorium at interval, she slipped on the parquetry floor adjacent to the foyer. She sustained serious injuries. She sued the Sutherland Shire Council for damages. Ms Safar alleged that the Council, as the occupier of the premises, breached its duty to her and was negligent in several respects. In summary, Ms Safar alleged that water that had accumulated upon the parquetry floor created a danger of which the Council was, or should have been, aware and that it ought to have taken steps to eliminate or reduce the risks to entrants that existed by reason of the resultant slippery condition of the floor.
Ms Safar succeeded in her claim in the District Court and was ultimately awarded damages of $288,820. The Council appeals to this Court from the decision of his Honour Levy SC DCJ delivered on 28 September 2016: see Safar v Sutherland Shire Council [2016] NSWDC 232. There are five grounds of appeal: 1. The primary judge erred in finding that a reasonable person in the position of the appellant would have taken any, or any further, precautions of the kind which the primary judge found the appellant ought to have taken as required pursuant to s 5B(1)(c) of the Civil Liability Act 2002. 2. The primary judge ought to have found that a reasonable person in the position of the appellant would not have taken any, or any further, precautions of the kind alleged. 3. The primary judge erred in failing correctly to consider the matters required pursuant to s 5B(2) of the Civil Liability Act 2002. 4. The primary judge erred in finding that the respondent's injury was caused by any breach of duty by the appellant as required by s 5D of the Civil Liability Act 2002. 5. The primary judge ought to have found that any breach of duty by the appellant was not a necessary condition of the occurrence of harm suffered by the respondent and/or that it was not appropriate for the scope of the appellant's liability to exist, to extend to the harm suffered by her.
For the reasons that follow, I consider that the appeal should be dismissed with costs.

The primary judge's reasons

His Honour identified four issues that arose for determination. 1. First, whether, if wet, the parquetry floor of the auditorium represented an obvious slipping risk, within the meaning of s 5F, s 5G and s 5H of the Civil Liability Act. His Honour concluded that it did and that the Council was thereby relieved from any obligation to warn of dangers associated with the slippery condition of the floor. The Council embraces that finding. 2. Secondly, the nature and the extent of the duty of care owed to Ms Safar, whether there was a relevant breach of that duty, and whether the alleged breach of duty caused Ms Safar to suffer the damage claimed. 3. Thirdly, whether there was contributory negligence on the part of Ms Safar and if so, to what extent. 4. Finally, the assessment of Ms Safar's damages.
For present purposes, only matters thrown up by his Honour's determination of the second issue require consideration in the Council's appeal. However, by her notice of contention, Ms Safar challenges the question of whether the wet floor posed or amounted to an obvious risk. Ms Safar's challenge to his Honour's findings concerning contributory negligence was abandoned by her during the appeal.
Ms Safar's case on liability was that the Council failed to do anything at all about water on the parquetry floor. There was no complaint about the physical integrity of the floor. The issue before the trial judge was what a reasonable occupier of the Centre would have done when the floor became wet. The issue was in respect of precautions: s 5B(1)(c) of the Civil Liability Act. In this regard his Honour made the following relevant findings: 1. At least some of the 200 or so persons who were entering the premises "did so with wet umbrellas, raincoats, shoes and bags that would foreseeably deposit water on the floor": judgment at [131]. 2. "In the absence of appropriate hanging, storage or drying facilities for coats, umbrellas and bags, this meant it was very likely that water would drip from those items onto the parquetry floor of the premises, thereby posing a significant potential slip and fall hazard to persons such as the plaintiff, who would be foreseeably walking on that floor": judgment at [132]. 3. The Council failed to discharge its duty of care "by failing to take reasonable steps to make the floor safe, either by the placement of mats, or by detecting, isolating or mopping up water, that had dropped onto the floor surface": judgment at [133]. 4. The Council had "mats that could have been strategically placed", "it could have arranged the placement of bins and made other arrangements for the safe storage of items of wet apparel that were likely to drip water onto the floor to render it slippery", "the circumstances required vigilant observation and remedial action" and the Council "had personnel on hand to facilitate those steps": judgment at [141]. 5. There was no "umbrella bagging equipment" and "no provision for the hanging of wet raincoats and costume bags away from the parquetry floor in the premises which was foreseeably liable to become very slippery when wet with water": judgment at [142].
His Honour's relevant conclusions and findings thereafter were as follows: "143. I consider that on a prospective view, in the context of the consideration required by s 5B(1) of the CL Act, such precautions were reasonable, and were steps that should have been taken: Vairy v Wyong Shire Council [2015] HCA 62; (2005) 223 CLR 442, at [105]. 144. Having reached that conclusion, it is necessary to then turn to a consideration of the further requirements of s 5B(2) of the CL Act. 145. In my assessment, a reasonable person would have taken the contended precautions against the risk of harm from slipping on the moisture affected parquetry flooring because of the patently high probability of slipping if care was not taken to seek to avoid such occurrences: s 5B(2)(a) of the CL Act. 146. Absent the taking of precautions, serious harm in the form of personal injury was a likely outcome. It is not necessary to show that the precise injuries sustained by the plaintiff were predictable as a likely outcome. It is sufficient that serious injury was a likely consequence if no precautions were taken, or were inadequately taken: s 5B(2)(b) of the CL Act. 147. In large commercial premises where it is anticipated that hundreds of patrons would attend for the eisteddfod, and where the defendant had personnel and other resources available as already described, I consider the burden of taking the precautions contended for on behalf of the plaintiff, were not unduly burdensome. It is difficult to see how the provision of sufficient and strategically placed umbrella storage, with signage, umbrella bagging facilities, wet raincoat and bag hanging areas, including making use of an available cloak room, could be seen to be unduly burdensome in the circumstances: s 5B(2)(c) of the CL Act. 148. Taking an overview of the circumstances, there is significant positive social utility in the defendant providing the council premises it occupies for communal events such as an eisteddfod. Where the defendant ordinarily employs staff to supervise, inspect, clean and maintain such premises, which are hired for a fee covered by an entry fee, there is no social utility in excusing a want of the exercise of reasonable care in such circumstances: s 5B(2)(d) of the CL Act."
His Honour then referred to s 5C of the Act and continued: "150. The cost burden on the defendant in this case is to take appropriate measures for the provision of appropriate receptacles, not just one, to provide for 200 people, for their dripping umbrellas, including umbrella bagging facilities, and to provide reasonable hanging facilities for dripping raincoats and costume bags, and to lay out absorbent mats on the parquetry flooring between the carpeted area and the parquetry flooring of the auditorium where patrons would walk for access and egress in respect of their seats. 151. Absent the provision of those precautions, I consider that in the prevailing wet weather conditions, the risk of water dripping onto the parquetry floor remained inadequately addressed. Mr Brien thought that the carpeted foyer would soak up the water from wet shoes: T398.44 - T398.47. However, that assessment did not address the risk posed by water that would drip from the raincoats and bags of patrons. A facility that had provision for ushers, and cleaners with mops and the like, and the provision of a roving inspector or supervisor, ought to have provided a more appropriately considered response, as was contended on behalf of the plaintiff: s 5C(a) of the CL Act. Such precautions were reasonably required: s 5C(b) of the CL Act. 152. I find that the defendant's system represented an inadequate response to the risk that was identified. An ordinarily vigilant usher, if present, would have recognised the problem and called for remedial help from Mr Brien and the cleaners on site. An ordinarily vigilant roving supervisor, if present, or made aware of the presence of water on the floor, ought to have also recognised the risk of patrons slipping, and addressed it either by remedial action himself, or by directing the application of remedial attention from cleaners on site. 153. The foregoing analysis leads me to conclude that the successive failures to implement the identified reasons should be characterised as a breach of the duty of care the defendant owed to the plaintiff."
The Council's position below was that none of the alleged precautions was reasonable and therefore that there was no breach. Alternatively, none of the precautions would necessarily have prevented Ms Safar's slip and fall, so that it was not caused by any identified breach. In this last respect his Honour found otherwise: "156. In my view, the plaintiff has discharged the onus of proof required for establishing a breach of duty of care, and that the negligence of the defendant was the cause of the harm she has suffered: s 5D and 5E of the CL Act. 157. I reach that conclusion because, but for the failure of the defendant to take the earlier described precautions, the plaintiff would not have been injured (s 5D(1)(a) of the CL Act) and because it is appropriate for the defendant to bear the responsibility for the injuries suffered by the plaintiff as the scope of the defendant's liability should be seen as extending to its occupation of the premises, and because the plaintiff was a lawful entrant onto the premises in question: s 5D(1)(b) and s 5D(4) of the CL Act. This is not an exceptional case: s 5D(2) of the CL Act."

Grounds of appeal 1, 2 and 3 - reasonable precautions

Ms Safar's case below was, in summary, that the Council should have taken a series of precautions to address the risk of water on the parquetry floor. These included a bucket for umbrellas, a place for raincoats and plastic garments to be hung up such as a cloak room or its equivalent, a bagging system for umbrellas and a person with a mop to wipe the water on the floor after people had gone into the auditorium. Ms Safar also said that a yellow sign should have been in place saying "Caution: slippery when wet".
That approach was maintained by Ms Safar in this Court. Mr Marshall of senior counsel, who appeared for Ms Safar, relied upon the well-known passages in the judgment of Gleeson CJ in Neindorf v Junkovic [2005] HCA 75 at [8] and [9] and in the dissenting judgment of Kirby J at [83] and [87]. He contended that in the present case there was a real risk of injury that the Council should have eliminated and that the cost of doing so was clearly proportionate to the risk.
The Council submitted in this Court that none of these precautions was reasonable, particularly given the assumptions the expert was asked to make, including the distance that one had to travel over carpet from the entry or side doors to the doors giving access to the auditorium. The Council contended that the trial judge overlooked such things as the fact that the eisteddfod committee was manning the door, including controlling the entry into the auditorium so as not to disturb performances. Moreover, the side door was an emergency exit door that could only be opened from the inside and most people came through the main entrance where a bin for umbrellas had been placed.
The Council maintained that, when considering what, if any, precautions it should have taken in response to the risk of harm, it was entitled to take into account the fact that the foyer was carpeted, that the only area of relevance that had a hard surface was the parquetry floor in the auditorium, that there was a distance of between 14 and 20 metres to the auditorium from the entrance doors and that the patrons were likely to congregate on the carpeted area before going into the auditorium for the performances.

Umbrella storage and/or bagging

Christine McCarthy was called to give evidence in Ms Safar's case. She was a dance adjudicator and a member of the committee of the Sutherland Shire Eisteddfod which had organised the events of that evening. It was her expectation that if a receptacle, such as a bin, had been placed near the main entrance when it was raining then patrons would leave umbrellas there. Ms McCarthy did not see such a bin, even though one had been placed there earlier that morning.
Paul Brien was the manager of the auditorium. He said that he put a bin out for umbrellas as follows: "Q. At the time of this incident and leading up to it, you were aware that there had been a number of complaints, or at least reported incidents about water or liquid on the parquetry floor resulting in slips. I take it that's correct? A. That is correct. Q. That accords with your own general knowledge that when water or liquid is applied to the surface of parquetry flooring, it provides a high notional risk of slippage. That is your understanding, isn't it? A. With my background at the Entertainment Centre, I would have to say a combination of the two potentially could cause a slippage, certainly. Q. That's the reason why you put the garbage bin near the box office, with the intention of people putting their umbrellas into it. Isn't that right? A. Yes. Q. Because you didn't want them traipsing water into the auditorium, particularly at the entrance area. Isn't that right? A. Well not so much at the entrance area, if I can specify. Also I didn't want them laying umbrellas in aisles as well. Q. Because that would have been a safety risk, wouldn't it? A. Most certainly. Q. Equally a safety risk if water had been spilt on the floor and it would be difficult to be seen by patrons walking out. Isn't that right? A. If their view was obscured, the lighting level is still at a low level, certainly it would be difficult to detect. I accept that." [T 390-391]
Mr Brien was asked more on this topic as follows: "Q. At least you have the foresight against the possibility of rainwater, or probability of rainwater being on the parquetry floor, you put out a bin for brollies to be put in. A. Correct. Q. I take it you put up a sign that says, 'Please put brollies in bin,' did you? A. I did not. Q. Other than the one umbrella that you've said you put in the bin, was there any indication that people should put their brollies in the bin? A. There was not. Q. You would have been aware from the three documents you received this morning, particularly your friend Mrs Feinbier, that there was a corrective or preventative action prescribed that patrons were to be encouraged to leave umbrellas at the box office. You would be aware of that from reading it this morning, surely? A. I am aware of it from reading it this morning, correct. Q. It certainly makes good sense, doesn't it? A. Most definitely." [T395-396]
The Council contended in this Court that "the primary judge failed to deal with Mr Brien's evidence on this issue". The Council submitted that there was no evidence to suggest that the single garbage bin was inadequate to accommodate the number of umbrellas carried into the Centre.
It became evident during the proceedings in this Court that the Council's proposition with respect to this issue was not so much concerned with the reasonableness of the precaution of placing a bin for the deposit of umbrellas as with the question of causation. So much appears from the following portion of the transcript of the appeal proceedings: "WHITE JA: Except the plaintiff didn't see it, nor did Ms McCarthy. SEXTON: They didn't see it but - WHITE JA: That perhaps could be understandable. SEXTON: I don't think he was challenged on the proposition that he put it there. WHITE JA: But people would go into the hall from the entrance without going past the ticket box or the receptacle. SEXTON: Our point is not that that was a reasonable precaution - sorry, that putting it at the ticket box rather than putting it somewhere else more reasonable than putting it somewhere else. We've got two different points about that; whether there was any precaution required but, more importantly, if there'd been a bin put either just inside the doors from outside or just near the door or doors in the auditorium, whether as a matter of causation that would have made any difference and I need to explore that in submissions. MACFARLAN JA: Well, it would have been easy enough, wouldn't it, for the usher on the door to direct people or at least suggest to them to put the wet umbrellas into the bins if they were placed near the doors? SEXTON: When your Honour says direct, that suggests that that would give that usher the power to compel people to do that; that's not- MACFARLAN JA: Or suggest. SEXTON: Suggest is as high as it could go and that usher was not an employee of the appellant. MACFARLAN JA: But that wouldn't exempt the appellant from performing the duty, if that was an appropriate step to be taken. SEXTON: But our point about that is one of causation. I'll expand on this but the evidence - as we'll see shortly - was that there were a few small drops of water that the respondent slipped on; that's consistent with one, perhaps two people carrying their umbrellas. There was 200 people in the hall so as a matter of causation, you cannot find that putting bins or having bagging machines would have resulted in everybody who went into the hall doing the right thing, if I can put it that way."
It seems to me that the Council's argument on the issue of the reasonableness of this precaution is entirely without merit. It would, as Macfarlan JA has intimated, have been a matter of inexpensive simplicity for the Council to have placed bins or receptacles at some appropriate location or at several locations near the entrance to the auditorium that were suitable for the deposit of wet umbrellas. The provision of one bin near the box office was inadequate for that purpose. The same applies to what have been described as umbrella bagging devices. I am unable to accept that the provision of these items was unreasonable. It remains unclear to me how the Council maintains that his Honour failed properly to deal with Mr Brien's evidence on this issue.
Mr Sexton of senior counsel, who appeared for the Council, also argued that Ms Safar's case concerning the bagging of umbrellas, and the provision of a cloakroom, was unreasonable and additionally amounted to "hindsight reasoning". I also do not understand this submission. Mr Brien identified the need to provide a bin for umbrellas in advance of Ms Safar's fall. A device to bag umbrellas is no more and no less than a slightly more sophisticated method of constraining patrons from taking wet umbrellas into the auditorium. It does not seem to me to be an unreasonable extension for Mr Brien to have turned his mind prospectively to this solution, in the same way that he considered the provision of a garbage bin.
His Honour did not err in finding that the Council ought to have taken this precaution.

Wet raincoat and bag hanging areas

The Council's written submissions emphasised that, as a matter of common sense, not everyone utilises a facility such as a cloakroom or its equivalent. Given the significant area of the floor covered by carpet, which the Council's expert Dr Cooke considered was adequate to capture water or moisture on patrons' clothing and umbrellas, the Council contended that it was not unreasonable in the circumstances for it not to use the cloakroom in accordance with the Centre's original design. Moreover, if a patron refused to use such a facility, how could the Council enforce compliance? The Council contended that the eisteddfod committee was responsible for manning the doors and that it had no power to insist that patrons leave wet rainwear with an attendant to be hung on a rack or in a dedicated room.
Mr Brien was asked about the extent of available facilities for dealing with wet clothing: "Q. What system was in place as at Mrs Safar's accident to persuade patrons to remove wet clothing so it wouldn't drip on the floor? A. No facility provided at the Sutherland Entertainment Centre for such a situation. Q. There's a cloakroom on the floorplan that we looked at. A. The cloakroom was installed at the construction of the building in 1976. I began working at the building in 1981 and since that time it has never been used as a cloakroom. Q. It begs the question, what it is or was being used for at that time? A. Storage. … Q. For storage of anything but people's wet coats, brollies, shoes et cetera? A. Yes"
Limited only to the issue of the reasonableness of the precaution, it was clearly within the Council's power, as the occupier and body in possession and control of the premises, to specify or restrict what items could be taken into the auditorium. It was not in issue in the proceedings below that wet raincoats and similar items could possibly deposit water in the auditorium if they were permitted to be taken inside. As his Honour noted at [137], the Council accepted that the relevant risk of harm in this case was that of a person slipping on the wet floor of the auditorium and sustaining injury. The Council also conceded both that there was a reasonably foreseeable risk of slipping on wet parquetry and that the risk was not insignificant: see judgment [138] to [139].
There is in these circumstances a considerable tension between the prospect that water may have become dangerously deposited upon the parquetry floor of the auditorium from wet raincoats that patrons were permitted to take with them on the one hand and the Council's submission that it was unreasonable to prohibit them doing so on the other hand. In particular, I observe that his Honour's finding at [140], that such a precaution was not unduly burdensome, is not the subject of challenge in this appeal.
It would have been in my view entirely reasonable for the Council to have insisted that wet coats or other items that carried the risk of depositing moisture on a parquetry floor should be left outside the auditorium. The reasonableness of this step is itself largely informed by the significance of the risk. There was no dispute between the parties that water deposited upon a parquetry floor was associated with a not insignificant risk of slipping. As Mr Gambi of counsel for the Council indicated in final submissions before his Honour at [T417]: "I think…Mr Brien and Ms Turner both agreed that water on the parquetry floor would make it slippery, paraphrasing, and if people are allowed into the auditorium with items that may drip water onto the floor then there's a risk of harm and it's probably not insignificant."
Senior counsel for the Council adequately encapsulated the proposition for which Ms Safar contended in these terms: "…so there was a space that could have been used as a cloakroom, for that matter, one could probably hire some sort of container, or what have you, or just put up racks somewhere in the building, but it wasn't a question of a dedicated cloakroom not being used on that day. The cloakroom was being used for storage, but that's not the point that's being put against us. The point that is being put against us is that there should have been some facility for storing all of the items that might be wet."
So understood, it is difficult to accept that the precaution was unreasonable. His Honour did not err in finding that the Council ought to have taken this precaution.

The provision and use of mats

This was not a precaution suggested by Ms Safar's expert. This was so notwithstanding the fact that the failure to provide mats on the floor surface near the main door to the foyer was specifically pleaded as an original particular of negligence. However, in the court below there was no evidence as to what type of mats should be used, how many were required, how much they cost and perhaps most significantly, where they should be placed within the auditorium. As the Council emphasised in submissions, his Honour also did not address any of these issues or make relevant findings in relation to them. The burden of the Council's response to Ms Safar concerning this precaution was to say that it effectively created a need to place mats throughout the entire area where parquetry floor was present, because people with wet clothes and umbrellas would be walking there without restriction. However, that issue was not explored in either the evidence or his Honour's reasons.
Mr Brien gave evidence in cross-examination about mats as follows: "Q. Within the Entertainment Centre as at the time of Mrs Safar's accident, there were mats, weren't there? A. Yes. Q. Mats could have been put down as a precaution against people bringing their brollies and wet coats into the entrance area of the auditorium, surely? A. No, not in there - when the mats are utilised, they are utilised on a carpeted area, the rationale being carpet on fabric is non-slip, carpet on a parquetry floor introduces yet another or possible slip feature in its very self, so with intentions to prevent a slip, you could well cause a slip to occur. HIS HONOUR: How would that occur if the underside of the carpet was of a friction creating format, such as rubber base or silicone base? A. I'm sorry, I need that to be repeated, please. Q. Yes. If one assumes that the underside of a piece of carpet had a rubberised base or similar type of material, how would that create a slip risk? A. Against a carpeted…surface, it's…in a fixed position. On a smooth surface, it doesn't maintain its place…or moves underfoot."
The Council emphasised that the problem with this aspect of Ms Safar's case was that there is no expert or other evidence that mats would not slip on a parquetry floor. The expert qualified, in the sense that her report was tendered by Ms Safar, did not say anything about mats. To the extent that there was any evidence about why it was not reasonable to put mats down on the parquetry floor in the auditorium, it was limited to what fell from Mr Brien in cross-examination. This included his lay opinion that an absorbent mat with a rubberised under-surface would move if placed on a parquetry floor.
His Honour found that the Council failed to discharge its duty of care by failing to take reasonable steps to make the floor safe, including by the strategic placement of mats. His Honour specified that this should have consisted of laying out "absorbent mats on the parquetry flooring between the carpeted area and the parquetry flooring of the auditorium where patrons would walk for access and egress in respect of their seats".
The Council contends that this would, in reality, have required it to cover the whole floor of the auditorium if the mats were intended to prevent an injury of the kind suffered by Ms Safar. In that sense the Council argued that the use of mats was hardly a reasonable precaution in the circumstances, especially having regard to the matters referred to in s 5B(2) of the Civil Liability Act.
Moreover, the Council submitted that one would need to have mats throughout the auditorium because it was foreseeable, if a patron were to walk in with a wet umbrella, that they may drip water at any point in the auditorium. In circumstances where there was something in excess of 15 metres of carpet between the entrance to the Centre and the entrance to the auditorium, having a mat which covers another metre is unlikely to make any difference. This submission essentially maintained that the apparent utility of mats from the point of view of safety was in fact illusory. The Council emphasised uncontroversially that the issue must be addressed prospectively, not retrospectively.
Although understandably not formulated as such, properly understood, this contention essentially calls for the floor of the auditorium to have been been carpeted. There are other problems with it. The proposed location and placement of the mats are unspecified and unknown. The size and characteristics of the mats are not addressed. There is no evidence of expert opinion that deals with any dangers or risks associated with the use of mats in order that a reasoned comparison of their net safety contribution could be made.
I do not consider that in these circumstances it was reasonable to impose an obligation upon the Council to provide them. His Honour's conclusion that the Council should have done so was an error.

Usher or roving supervisor

The Council drew attention to the fact that once the competition commenced inside the auditorium, the doors were closed. They were manned or controlled by an usher provided by the eisteddfod committee. That person became the party physically responsible for controlling patrons entering and leaving the auditorium. Ms McCarthy in fact assumed that role for much of the time on this day. The timing of patrons entering and leaving was organised so as not unduly to disturb the performances. Additionally, the lights within the auditorium were dimmed during the performances and did not come on until the morning tea break, which is when the incident occurred. That was the first opportunity that anyone performing the mopping would have had to inspect the floor of the auditorium and carry out any necessary cleaning of excess water on the floor.
The Council submitted in these circumstances that the provision of someone to monitor or maintain constant supervision and surveillance of the floor and to clean or mop water that was found was simply entirely impractical and unreasonable. I agree. The Council accepted that if one of its employees had observed water laying on the floor of the auditorium it would not have been unreasonable to expect him or her to clean it up. However, Ms Safar's contention goes further and purports to impose upon the Council a continuing and continuous obligation of vigilance, apparently uninformed by the length of time the water may have been on the floor in fact or the period that the Council employee may have taken to respond to it once notified. The Council submits that it is unreasonable to impose any such obligation upon it. Such an analysis would mean that the Council's liability for failing to engage a roving monitor arises from the moment that the water is deposited upon the floor.
In the particular circumstances of this case, it was also practically impossible to expect that such a person could have monitored the floor in the auditorium when the performances were taking place and the lights were dimmed. If the content of the suggested duty is explored in any detail, it must be taken to include an obligation to clean the auditorium floor between the rows of seats arranged for the audience. I do not accept that it was reasonable in these circumstances to expect the Council to employ a roving cleaner constantly to monitor the floor of the auditorium in such circumstances.

Grounds 4 and 5 - causation

The Council submitted that his Honour failed to consider the following evidence: 1. Patrons had already left ahead of Ms Safar and had begun walking out of the auditorium as she approached the door. 2. To a similar effect, other patrons were leaving the auditorium at the same time. 3. Ms Safar could not say whether there was anything unusual about the floor as she was walking out immediately before she slipped. There were a lot of feet on the floor before her. 4. Ten or fifteen people were ahead of Ms Safar. 5. No other person slipped or fell. 6. Other patrons continued walking from behind Ms Safar towards the exit after she had fallen.
The Council contended that the water that is alleged to have been on the floor, and which was causative in a factual sense of Ms Safar's fall, was more likely to have come from one of the patrons who preceded her, and not from any failure to take reasonable precautions. In any event, the Council submitted that none of the precautions referred to by his Honour would have avoided Ms Safar's fall for the following reasons: 1. There was no reasonably practical way of preventing the bringing in of wet umbrellas, or patrons entering the auditorium while wearing or carrying wet clothes or wearing wet shoes; 2. Putting out bins of the kind suggested would not have done the job, given the usual practice of people not leaving their umbrellas unattended; 3. Similarly, there was no way of guaranteeing that patrons would leave their overcoats or raincoats at a cloakroom; 4. Providing umbrella bagging would only be a suggestion, and it is more than likely that patrons would still carry their umbrellas into the auditorium without bagging them, or at least there was no reasonable or practical way of preventing them from doing so; 5. Cleaning the floor as and when it got wet would be impractical and would require constant supervision and inspection, which in turn created another issue, namely, that once the doors were shut the lights were dimmed so that it would be almost impossible to monitor what was happening inside, and there was no way of preventing patrons from entering even once the performance started; and 6. The placement of mats was also impractical and, in effect, would have required the whole floor to be covered, otherwise, there was no way of preventing such an incident from occurring anywhere within the auditorium; otherwise, such a precaution incorporated within it a degree of hindsight reasoning.
Mr Sexton also made the following submission: "But in respect of all of the precautions that have been identified, there is a significant causation issue because we simply do not know when the water got onto the floor or, in relation to the mats, precisely what area needed to be covered. You need to make a finding about what the area that had to be covered in additional to the carpeted area ought be, and then make a finding about whether where the plaintiff fell was inside or outside that area. And simply plucking 1 metre as a figure out of the air, as it were, because that was the area in which the respondent fell, is not a principled way of addressing that placement. When we get to the umbrellas and the cloak room, the submission, and I've already made it, is that you can't compel it. Yes, your Honour's right, you can encourage it, but where there's 200 people in the auditorium, and there's only a few drops of water, you cannot conclude that having bins closer to the doors or a bagging system or a cloak room would have prevented this particular injury. And that's working backwards from the injury, because it requires an assessment of how many of those people would have utilised any of those precautionary measures, it's just not something that can be calculated in the circumstances. … …it's just entirely speculative because there's no evidence about when the water got on the floor, whether there was any more water than a few drops. In those circumstances, one out of 200 people may have brought that water in. And it's a fair inference that there wasn't a lot more water than the plaintiff identified because a whole lot of other people walked out of the auditorium at the time the respondent fell without coming to grief. So, it's a fair inference from that, but also it localised a couple of drops of water, one umbrella."
Section 5D(1) of the Civil Liability Act provides as follows: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation'), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."
The Council contended that Ms Safar could not establish that a failure by it to take any precaution that found favour with his Honour was a necessary condition of the occurrence of her fall. It is only necessary in this context to consider the precautions of umbrella storage and bagging and wet raincoat and bag hanging areas.
The evidence from Ms Safar was that people with wet umbrellas and raincoats entered the auditorium and that water was deposited on the floor as a result. In Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19, the High Court held that the determination of causation under s 5D(1)(a) was entirely factual. Evaluation of factual causation should not incorporate policy or value judgments as part of the consideration as these are matters for s 5D(1)(b). Determination that negligence was a necessary condition of the occurrence of the harm is a determination that the harm that in fact occurred would not have occurred in the absence of the negligence.
In the present case, there was no evidence to suggest that water became deposited on the floor of the auditorium by any means apart from that described by Ms Safar. There were no competing factual possibilities suggesting that the water emanated from another source. Ms Safar's case was that precautions that prevented wet raincoats and umbrellas from entering the auditorium would simultaneously foreclose the prospect that the floor would be rendered slippery. The burden of Ms Safar's contentions concerning the appropriate precautions was that the Council had the power and the authority to prevent these wet items from being taken into the auditorium and a proper exercise of that power would have ensured that the floor remained dry.
The Council raised the prospect in the course of argument that patrons may choose to ignore requirements imposed by it that wet items not be taken into the auditorium, but that umbrellas be placed in bins or bagged and that wet coats be placed on racks or similarly stored outside the auditorium. It is an inherent and necessary characteristic of the precautions for which Ms Safar contends that the Council would have applied them. The Council did not suggest that it could not have insisted upon universal compliance with the precautions in question, either for want of authority or the availability of resources. The Council's position on this issue was, in effect, to say that there could be no assurance that the precautions identified by Ms Safar would have succeeded to keep the floor dry.
This Court recently summarised the proper approach to determining factual causation under s5D(1)(a) in Hudson Investment Group Limited v Atanaskovic Hartnell & Ors [2014] NSWCA 255 at [103]: "[103] The effect of s 5D(1)(a) is that factual causation is to be determined by the 'but for' test: 'but for the negligent act or omission, would the harm have occurred?': Adeels Palace at [45]; Strong v Woolworths at [18]. The test requires the Court to determine whether, if the defendant had not breached its duty of care, the harm complained of would have been prevented. The test is not satisfied merely by showing that taking the steps the plaintiff alleges should have been taken might have made a difference: Adeels Palace at [50]. The plaintiff must show that it is more probable than not that, if the defendant had taken reasonable care, the harm would have been prevented: Adeels Palace at [53]. However, if the defendant's negligent act or omission is necessary to complete a set of conditions jointly sufficient to account for the occurrence of the harm, the test of factual causation will be satisfied: Strong v Woolworths at [20]."
In my opinion it is more probable than not that the water upon which Ms Safar slipped would not have been deposited inside the auditorium if the relevant precautions had been taken. There were no competing causes for its presence, in the sense that there is an equally likely and available explanation to account for the presence of the water. It is trite to observe that on a wet and rainy day such as the day in question there could be no guarantee that the floor might not have become wet for some other reason. The test is, however, not so onerous. The probabilities in my opinion favour the floor remaining dry if the precautions had been adopted.

Notice of contention

Sections 5F, 5G and 5H of the Civil Liability Act are in the following terms: "5F Meaning of 'obvious risk' (1) For the purposes of this Division, an 'obvious risk' to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person ('the defendant') does not owe a duty of care to another person ('the plaintiff') to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection."
His Honour dealt with the issue of the obviousness of the risk at [119] to [129] as follows: "119. The determination of the obviousness of a risk of harm requires an objective test to be applied by reference to the position of the plaintiff: s 5F(1) of the CL Act. This means that it is not what the plaintiff had in mind at the time, but rather, what a reasonable person in her position would regard as obvious: Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482, at [59], [61]. 120. In this case, the slipping risk posed by the partially wet and therefore slippery condition of the floor would only be obvious if it was either known to the plaintiff that the floor had water on it, or if it was observable that this was so to a reasonable person in the position of the plaintiff when walking over the area of the floor in question. On either of those two scenarios, it was incumbent on the plaintiff to proceed with due care. 121. The plaintiff gave evidence, as cited at paragraph [13] above, that she knew that the floor had upon it water that had been dropped or dripped from umbrellas, raincoats, or bags brought into the premises in circumstances where there were no cloakroom facilities, and no umbrella drying or storage facilities. 122. In those circumstances, I consider that it must have been obvious to the plaintiff, and obvious to a reasonable person in the position of the plaintiff, that the condition of the floor was likely to have been affected by water that had been dropped or dripped onto its surface, so as to render the surface of the floor slippery, thus rendering identifiable, a risk of slipping on that floor. 123. In my view, the plaintiff's pre-existing awareness of the obviousness of the risk of slipping on a floor that was wet in places has been established on the evidence: T152.5-T152.45. I find that this awareness extended to knowledge of the floor being wet in the general area comprising the parquetry where she had fallen, although she was not thinking about it at the time of her fall: T153.9-T154.16. 124. In those circumstances, I consider that a reasonable person in the position of the plaintiff ought to have realised that the water that she had observed to have dripped onto the parquetry floor had created a risk of harm from slipping on that water: S 5F(1) of the CL Act. 125. The recognisability of the risk of slipping on a parquetry floor with water on it was patent, or a matter of common knowledge, that did not require particular expertise: s 5F(2) of the CL Act. 126. The fact that the plaintiff saw water dripped onto the floor obviates a consideration of whether the wet condition of the floor was not prominent, conspicuous, or physically observable: s 5F(3) of the CL Act. 127. Although the defendant did not display warning signs or objects, such as witches hats or other signage, to draw attention to the slippery condition of the floor, I consider that such omissions are irrelevant to the circumstances of this case. This is so because the slippery condition of the parquetry floor was something that was obvious to the plaintiff by reason of her observations, as cited in the preceding paragraphs. In those circumstances, any such warnings as to the risk of slipping on the floor with water on it, whilst they would have been prudently placed for the benefit of other patrons, were unnecessary or superfluous so far as the plaintiff was concerned, because it must be presumed that she was aware of the risk of slipping: s 5G(1) of the CL Act. 128. Given the plaintiff's acknowledged awareness that water was on the parquetry floor of the premises, she is unable to prove on the balance of probabilities, that she was unaware of the risk of slipping on the floor onto which water had dripped: s 5G(2) of the CL Act. 129. Accordingly, as the risk of slipping on the wet portions of the floor was an obvious one, in this case, I find that the defendant did not owe this particular plaintiff (as distinct from others in the premises at the relevant time), a duty to warn her of that obvious risk: s 5H(1) of the CL Act."
Ms Safar submitted that the factual basis for his Honour's conclusion was clearly a finding that the presence of droplets of water on the parquetry floor was known to her. Ms Safar in fact made that concession. However, Ms Safar maintained that that was insufficient because the concession concerned the time when she entered the auditorium, namely 8.30am. Ms Safar's fall occurred at 10.45am when she was leaving the auditorium, at which time she was unaware of the condition of the parquetry floor. He evidence about this was as follows: "GAMBI: You were aware also, were you not, from your own life experiences, that water on a timber floor can be slippery? HIS HONOUR: You mean water on a timber floor could make the floor slippery? GAMBI: Sorry, thank you, your Honour, yes. Q. Could make the floor slippery, weren't you? A. Yes. Q. You told us in answer to Mr Marshall's questions that when you went into the auditorium, you observed people going in with wet umbrellas. Do you remember that? A. Yes. Q. You observed people with wet raincoats. Do you remember that? A. Yes. Q. You observed, on your evidence, that moisture from either or both of those items was falling on the floor, that's the parquetry floor inside the auditorium. Correct? A. Yes. Q. Those observations were made from where you were sitting towards the back of the auditorium on the left-hand side. Correct? A. No, it was when I was walking in. Q. When you were walking in those observations, that is, water falling on the floor, was near the entrances, near the door into the auditorium. Correct? A. Yes. Q. On making that observation, you were aware, were you not, bearing in mind only an hour and a half or so had passed since the performance had started and the coffee break, that there was a likelihood of water still being on the floor? A. I wasn't consciously thinking about it. … Q. When you got up to walk out of the auditorium, you were aware, weren't you, that water could still be on the floor? A. I was not aware at the time that I walked out that water was still on the floor, no. Q. When you saw the water on the floor as you were coming into the auditorium, did that cause you any concern? A. I was thinking more of the dances that were coming up."
As Ms Safar left the auditorium at this time she was in the leading group of the 200 or so patrons seeking to leave the auditorium through a narrow doorway. There were some 15 or 20 people ahead of her as she was moving with the crowd funnelling its way towards the exit. Ms Safar was looking ahead in the direction she was proposing to walk, remaining aware of the presence of fellow patrons, but not looking at the floor.
Ms Safar submitted that his Honour failed to take into account a series of factors which, if they had been properly considered, would have compelled a conclusion that the risk that his Honour identified was not an obvious risk within the meaning of s 5F(1) of the Act. Those factors were said to include: 1. The time differential between when Ms Safar first became aware of the water droplets on the floor and the time of her fall more than two hours later. 2. The fact that it was likely in that time that the water droplets may have evaporated, if not completely, then at least to such an extent as no longer to amount to an obvious risk.
Ms Safar submitted in these circumstances that the Council had not discharged its onus of establishing on the balance of probabilities that Ms Safar was aware, or ought to have been aware, of the risk. This was because the droplets of water at the time Ms Safar left the auditorium would not have been observable by a reasonable person in her position. It followed on this analysis that the Council should have placed appropriate warning signs referring to the risk but that it breached its duty by failing to do so.
The Council submitted that these submissions conflated actual knowledge of something existing with the risk that it exists. Accordingly, Ms Safar illegitimately contended that if she did not actually know that there were water droplets on the floor when she was leaving the auditorium, then there was no risk of water droplets being on the floor. The Council submitted that this contention ignored not only all of the indicia identified by his Honour at [122] and [123] of his judgment, but also the relevant provisions of s 5F(3) and (4) of the Act.
It seems to me that the relevant obvious risk, of which the Council had no duty to warn, was the risk that a wet parquetry floor may be slippery. That is, in the words of s 5F(2), a matter of common knowledge. Even if it were not, Ms Safar agreed in cross-examination that she was aware "from [her] own life experiences" that "water on a hard surface could be slippery". However, that risk is to be distinguished from the question of the presence of water on the parquetry floor as a simple matter of fact: that factual question is neither properly nor relevantly to be described as a risk at all and clearly not as an obvious risk. Ms Safar's fall and injuries were the result of the manifestation of a risk, being the slipperiness of the floor. That was a combination of two facts, being the pre-existing characteristics of the floor and the presence of water. The relevant obvious risk is therefore whether a wet parquetry floor is or may be slippery, not whether the parquetry floor is or may be wet.
This analysis accordingly focuses attention upon precisely what factual findings his Honour actually made in this case. At [122] his Honour "considered" that it must have been obvious to Ms Safar, and to a reasonable person in her position, "that the condition of the floor was likely to have been affected by water that had been dropped or dripped onto its surface, so as to render the surface of the floor slippery, thus rendering identifiable, a risk of slipping on that floor." Although it is not expressed with as much clarity as it might have been, I take his Honour to be saying that Ms Safar was aware that there was water on the floor at the time that she slipped. I am comforted in this view by the fact that his Honour speaks at [123] in terms of Ms Safar having an "awareness" that "extended to knowledge of the floor being wet in the general area comprising the parquetry where she had fallen, although she was not thinking about it at the time of her fall." His Honour must necessarily be taken to have rejected Ms Safar's evidence that she "was not aware at the time [she] walked out that water was still on the floor."
Properly understood, Ms Safar's challenge to this aspect of his Honour's judgment must be a challenge to his finding that she knew or ought to have known that the floor where she fell was wet at that time. It is apparent that his Honour made such a finding. Ms Safar's evidence was that she observed people with wet raincoats and umbrellas going into the auditorium and that she observed moisture to have fallen from them on the parquetry floor inside it. It was in my opinion open to his Honour to find that Ms Safar knew that the water was still present on the floor or that she should have known that it might have remained there until the time of her fall.
It follows in my opinion that his Honour was correct to conclude that the risk in question was an obvious risk and that by reason of the terms of the Civil Liability Act the Council had no obligation to warn of it.

Conclusion

In my opinion the appeal should be dismissed with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2017

(Civil Liability Act 2002(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (14 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (11)

Cited By (1)