Property and Real Estate Gazette (2nd edition)

Property and Real Estate Gazette

The Court of Appeal concluded that the trial judge

erred in finding that it would have been obvious to a

reasonable person in the appellant’s position that the

wet state of the verandah posed a risk of slipping such

that the respondents did not have a duty to warn the

appellant of the associated risks.

The respondents’ negligence

The trial judge rejected the opinion of the appellant’s

expert that the slip resistant values that were obtained

when testing the tiles demonstrated that those tiles

‘

would generally be experienced as slippery when wet’

The Court of Appeal considered that this was evidence

from which a reasonable inference could be drawn that

the respondents knew or ought to have known that the

tiles were slippery when wet.

The respondents argued that the appellant’s expert

had provided no basis for their opinion that the

respondents ought to have known that the tiles were

slippery when wet and a home owner should not

have to engage an expert to conduct tests on their

property to determine the slip resistant qualities of

certain surfaces. The respondents also submitted

that the Court of Appeal could not make a finding of

constructive knowledge given the evidence of the

respondents of their experience of the tiles when wet.

The Court of Appeal held that the unchallenged expert

evidence provided support for the proposition that

the respondents, as occupants of a house with tiled

surfaces that have been found to be slippery when

wet, ought to have realised that this was the case

given that the tiles had been in place for a period of

five or six years before the incident.

Accordingly, the Court of Appeal held that the trial

judge should have found that a reasonable person in

the position of the respondents ought to have taken

precautions against the risk of harm (the risk of slipping

on wet steps or the risk of slipping on wet tiles), the

most obvious of which was to warn the appellant that

the tiles would have been ‘

abnormally slippery’

if the

rain had blown onto them and they were wet. The

Court of Appeal added that the respondents could

have also placed mats on the verandah to provide a

non-slip surface.