Property and Real Estate Gazette (2nd edition)

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Property and Real Estate Gazette
The decision at trial
At trial, the appellant argued that the respondents
ought to have warned her that the tiles on the verandah
were unusually slippery when they became wet, in
circumstances where the respondents knew, or ought
to have known, that the tiles became wet when it was
raining.
The respondents argued that the appellant was injured
as a result of the materialisation of an obvious risk, and
in the alternative, contributory negligence on the part
of the appellant.
The appellant submitted expert evidence that identified
a number of preventative measures that could have
been taken to address the foreseeable risk of injury
including, amongst other things, resurfacing the stairs
with a more slip resistant material and extending the
awning to ensure that the stairs did not become wet as
a result of rain.
In relation to the extension of the awning, the trial
judge held that this suggestion was an unreasonable
and that there was no evidence that would reasonably
suggest that extending the awning would prevent the
stairs from becoming wet due to the presence of rain.
The trial judge also excluded the suggestion of
resurfacing the stairs with a more slip resistant material
in circumstances where there was no evidence that
the respondents knew or ought to have known that the
stairs required the application of an anti-slip coating or
strips on the nosing of the treads prior to the incident.
Accordingly, the trial judge found that the respondents
had not breached their duty of care as occupiers. The
trial judge held that the appellant ought to have known
that the stairs she was about to descend could have
been wet and slippery due to the earlier rainfall, as
such matters were obvious to a reasonable person in
the position of the appellant.
The trial judge concluded that the respondents did
not have a duty to warn the appellant of the risks
associated with stepping onto the wet stairs, as such
risks ought to have been obvious to the appellant.
The appeal
On appeal, the appellant argued that the trial judge:
• Had erred in characterising the risk of harm;
• Had erred in finding that the risk the appellant
encountered was an ‘obvious risk’; and
• Should have found that the respondents were
negligent.
The risk of harm
The trial judge identified the risk of harm as the ‘risk
of slipping on wet steps’ or the ‘risk of slipping on
wet tiles’. The Court of Appeal stated that it was clear
the trial judge was focused on whether there was an
obvious risk of slipping on the wet steps and that, in
the Court of Appeal’s view, was a sufficient description
of the risk of harm.
Obvious risk
The trial judge found that at the time of the incident,
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’. The
Court of Appeal agreed with the appellant that it was
unrealistic to attribute the above to either the appellant,
or a reasonable person in her position.
The Court of Appeal added that the area where the
appellant was standing immediately before the incident
was dry and there was no evidence to suggest that the
appellant was aware or ought to have been aware that
the tiles had become wet due to rain reaching them.
‘An occupier must
take reasonable
precaution to
prevent harm to
entrants including,
if necessary,
warning entrants of
a potential safety
hazard.’