Wong on Civil Liability

Occupiers' Liability in Australia (with a particular focus on Western Australia and Queensland)

Work-in-progress, 9 November 2024

[A13.1] Occupiers' Duty of Care - OLA (WA): "an occupier owes a duty of care to any person whose presence on the premises, either individually or as a member of a class, is reasonably foreseeable in respect of risks of physical injury arising out of the condition of the premises"/Common Law: 

• Homestyle Pty Ltd v Perrozzi [2007] WASCA 16, [34].  

• "The occupier of business premises owes a duty to a customer or other lawful entrant to take reasonable care to avoid a foreseeable risk of injury to the person concerned" (Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 at 488); and "The occupier is required to exercise reasonable care to prevent injury to a customer or lawful entrant using reasonable care for his or her own safety" (Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 at 345-346 [45]); Arabi v Glad Cleaning Service Pty Ltd [2010] NSWCA 208 at [34] per Sackville AJA, with whom Hodgson JA and Harrison J agreed).": Indigo Mist Pty Limited v Palmer [2012] NSWCA 239, [68].

• Stairs: "As was said by Heydon JA in Wilkinson v Law Court Ltd [2001] NSWCA 196 at [32]: "Stairs are inherently, but obviously, dangerous". In this case, that inherent danger was increased if liquid came upon the stairs. In the circumstances the risk of liquid being spilt onto the stairs causing a patron to slip and fall, must be regarded as "not insignificant". In fact, Mr Hall had slipped when he first used the stairs, although there is no suggestion that liquid was involved.": Indigo Mist Pty Limited v Palmer [2012] NSWCA 239, [73].

• "In Wynn Tressider Management Pty Ltd v Barkho[59] the Court of Appeal (NSW), discussed the content of that duty as follows: It was common ground that the Appellant was the occupier of the Centre. This status arose from its care, control and management of the premises. By virtue of its power of control, it owed the respondent, as a lawful entrant to the Centre, a duty to take reasonable care to avoid a foreseeable risk of injury. The measure of the discharge of its duty was what a reasonable person would, in the circumstances, do by way of a response to the foreseeable risk. The defendant’s duty of care to the first plaintiff, in the subject case, was to take reasonable care to avoid a foreseeable risk of injury to her arising from the physical state of the premises, on the assumption that she used reasonable care for her own safety. Its duty does not extend to making the premises as safe as reasonable care and skill on the part of anyone can make them.": Stringer & Stringer v Westfield Shopping Centre Management Co (SA) Pty Ltd [2017] SADC 35, [142]-[143].

[A13.1.1] Occupiers' Liability at Common Law: Standard of care, see Homestyle Pty Ltd v Perrozzi [2007] WASCA 16, [35]-[47]: "“[35]  In Wyong Shire Council v Shirt (1980) 146 CLR 40, Mason CJ said, at 47 — 48, in the context of negligence generally: In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors. [36]  The standard of care (that is, the measure of the discharge of the duty of care) applicable to an occupier has been described as what a reasonable person in the position of the occupier would, in the circumstances, do by way of response to the foreseeable risk. See Hackshaw v Shaw (1984) 155 CLR 614 at 662 — 663; Australian Safeway Stores at 488; Neindorf v Junkovic (2005) 80 ALJR 341 at 345 [8]. [37]  In Neindorf, Gleeson CJ noted, at 345 [8], that the expression "reasonable response in the circumstances", in the context of the generalised standard of care which has developed in the common law relating to occupiers' liability, raises a question of normative judgment which has to grapple with all the practical problems that the law had earlier attempted to solve by reference to the legal framework which existed before the High Court's decision in Australian Safeway Stores. As his Honour said: People enter dwelling houses for a variety of purposes, and in many different circumstances. Entrants may have differing capacities to observe and appreciate risks, and to take care for their own safety … The problems did not disappear [with the High Court's decision in Australian Safeway Stores]. They now require consideration under a somewhat different rubric. The fundamental problem remains the extent to which it is reasonable to require occupiers to protect entrants from a risk of injury associated with the condition of the premises. That problem is no longer addressed by prescriptive legal rules which attempt to establish precise and different standards of care for different classes of entrant. Yet the problem remains. … [41]  The first issue to be determined is whether it was reasonably foreseeable that a person in the position of the respondent might mistake the glass panel of the closed left-hand door for a passageway and suffer injury as a result of colliding with it. [42]  In my opinion, the appellant's primary contention that it was not reasonably foreseeable that a "careful visitor" would suffer injury from the glass panel of the left-hand door, and its secondary submission that, even if it was reasonably foreseeable that a "careless visitor" might suffer injury from that glass panel, a reasonable response to the foreseeable risk of harm did not require the glass to be marked, do not accurately address the first issue I have identified. That issue is to be determined without dividing the issue into a separate consideration of reasonable foreseeability in relation to: (a)a person in the respondent's position who may be classified as a "careful visitor"; and (b)a person in the respondent's position who may be characterised as a "careless visitor". The appellant's contentions are, however, relevant to another issue, namely: if it was reasonably foreseeable that a person in the respondent's position might mistake the glass panel of the closed left-hand door for a passageway and suffer injury as a result of colliding with it, what, if anything, would a reasonable person in the position of the appellant have done to avoid the foreseeable risk of harm? [43]  A risk of injury will be reasonably foreseeable if it is not far-fetched or fanciful. The risk may be reasonably foreseeable even though it is unlikely to occur or is remote. See Shirt at 48; Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty; The Wagon Mound (No 2) [1967] 1 AC 617 at 641 — 643; Langham v Connells Point Rovers Soccer Club Inc [2005] NSWCA 461 at [34]. [44] The test of reasonable foreseeability, as stated in Shirt, must, of course, be applied without hindsight. The test is, however, undemanding. See Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44 at 64 [54]; Vairy v Wyong Shire Council (2005) 223 CLR 422 at 480 — 481 [213]. … [47]  The second, and critical, issue to be determined concerns what, if anything, a reasonable person in the position of the appellant would have done to avoid the foreseeable risk of harm. It involves an assessment of what would have been reasonable and practicable for the occupier to do. As Hayne J said in Neindorf at 361 [93]: This inquiry about what would have been reasonable and practicable is not to be undertaken in hindsight (Vairy v Wyong Shire Council (2005) 80 ALJR 1). Nor is it to be confined to what could have been done to eliminate, reduce or warn against the danger. Asking what could have been done will reveal what was practicable. It is necessary to ask also: would it have been reasonable for the occupier to take those measures? [48]  The relationship between the occupier and the entrant is relevant to a judgment about what reasonableness requires of the occupier. In Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234, Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ said, at 243 [24]: That is not to say, however, that the law now disregards any aspect of the relationship between the parties other than that of occupier and entrant. On the contrary, other aspects of the relationship may be important, as considerations relevant to a judgment about what reasonableness requires of a defendant, a judgment usually made in the context of deciding breach of duty (negligence). Their Honours also noted, at 244 [26]: The purpose for which, and the circumstances in which, the appellant was on the respondent's land, constituted a significant aspect of the relationship between them.” 

[A13.1.2] Scope of Duty of Care, OLA: “[403]  Section 5, s 6 and s 7 of the OLA replace the common law in determining the care that an occupier of premises is required to show towards a person entering on the premises in respect of dangers to that person which are due to the state of the premises or to anything done or omitted to be done to the premises and for which the occupier of the premises is by law responsible: Department of Housing and Works v Smith (No 2) [2010] WASCA 25; (2010) 41 WAR 217 [60]. [404]  In cases of alleged breach of duty by an occupier a number of matters must be considered: Department of Housing and Works v Smith (No 2) [87] (Buss JA): [405]  Firstly, the determination of what, if anything, a reasonable person in the occupier’s or lessor’s position would have done involves an assessment of what would have been reasonable and practicable for the occupier or lessor to have done. Secondly, this inquiry is not to be undertaken in hindsight. It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury. Thirdly, contemporary standards within the community are relevant in determining what is unreasonable in the circumstances of a particular case. Fourthly, reasonableness may require no response to a foreseeable risk that is not insignificant. Fifthly, the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness. [406]  An occupier’s duty to exercise reasonable care varies with the circumstances including the degree of knowledge or skill which may reasonably be expected of the invitee and the purpose for which the invitee enters upon the premises: Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7 , 20 (Mason J). [407]  Deciding what is reasonable involves an ‘interplay of considerations’ including the reasonableness of an expectation that any invitee will exercise reasonable care for his own safety and the possibility that the invitee will sometimes be inattentive or even negligent; the obviousness of the relevant risk of harm and the remoteness or otherwise of the likelihood that others will fail to observe and avoid it: Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 [37]. [408]  The obviousness of the risk of injury is relevant to the reasonableness of a reasonable person’s response to the risk involved: Thompson v Woolworths (Qld) Pty Ltd [36]. However, that does not relieve an occupier’s duty to take reasonable care to see that that person will not suffer injury or damage by reason of any such danger. [409]  The defendant is not liable for harm caused by their fault in failing to take precautions against the risk of harm unless a reasonable person in their position would have taken those precautions.… [412]  ‘Danger’ is not defined in the OLA. However, in McLachlan v Purchas (Unreported, WADC, 12 February 1998, Library 980038) O’Sullivan DCJ effectively equated a danger due to the state of the premises with a condition or activity that presents a ‘foreseeable risk’ of injury, observing that it was not possible to conceive of a foreseeable risk which did not constitute a danger. The subsequent appeal was dismissed McLachlan v Purchas (Unreported, WASCA, 21 December 1998, Library No 980749) . In Bryant v Fawdon Pty Ltd (1993) Aust Tort Rep 81–204;; (Unreported, WASCA, Library No 930037, 22 January 1993) Murray J referred to the relevant danger as that the cistern (the object in question in that case) might fall upon a reasonably foreseeable plaintiff using the toilet in the circumstances such as arose in that case. This seems to me to be applying the same test. [413]  What is safe for one class of people may, of course, be unsafe for others: Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 [8] (Gleeson CJ).”: Thompson v J-Corp Pty Ltd [2018] WADC 164 (Bowden DCJ).

[A13.1.3] The Occupier's Liability DOC is NOT: “to ensure that the premises are as safe as reasonable care and skill on the part of anyone can make them, relying on Watson v George (1953) 89 CLR 409, 415.” The principle referred to in Watson v George does not relate to the nature of a tortious duty owed by an occupier to a contractual entrant. Rather, the proposition is that contractual entrants can rely upon a warranty implied into the contract with the occupier to the effect that reasonable care has been taken to ensure the premises are safe for their intended use. Because the basis of liability is contractual, the obligation falls upon the contracting party such that the nature of the relationship between the occupier and others upon whom the occupier may have relied to discharge the contractual responsibility would be irrelevant: The Town of Port Hedland v Hodder [2012] WASCA 212 [90]; French v Van Der Giezen [2013] WADC 173, [105] (Scott DCJ).

[A13.1.4] DOC under the OLA, CLA and Common Law - Explained: “[86]  In Department of Housing and Works v Smith (No 2) [2010] WASCA 25, Buss JA gave consideration to whether the provisions of the OLA or the CLA reflect, supplant or modify the common law. [87]  His Honour observed that at common law an occupier owes a duty of care to any person whose presence on the premises, either individually or as a member of a class, is reasonably foreseeable in respect of risks of physical injury arising out of the condition of the premises and cited Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, 488; Phillis v Daly (1988) NSWLR 65, 76; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 [17] and [102]. [88]  His Honour considered that despite the heading “Duty of Care”, s 5B of the CLA relates to a breach of a duty of care and does not modify or supplant the common law principles which determine whether a duty of care exists or not. See also Shoalhaven City Council v Pender [2013] NSWCA 210 [55] and Murphy JA in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (No 2) [2010] WASC 45 [456]–[458]. [89]  His Honour concluded that by s 4 of the OLA, s 5 has effect in place of the rules of the common law, for the purpose of determining the standard of care applicable to an occupier of premises. The criteria being embodied in s 5(1) and s 5(4). [90]  In addition his Honour said that the criteria in s 5(1) and s 5(4) of the OLA must be read with s 5B of the CLA. In Smith (No 2) his Honour said that there was no relevant inconsistency between the criteria in these sections. That is, in my view, the position in this case. [91]  In Smith at [87] his Honour said: In my opinion, some well-established propositions concerning the notion of a “reasonable person” and the standard of “reasonableness” generally, under the common law of negligence, remain relevant in considering cases of alleged breach of duty by an occupier or lessor. First, the determination of what, if anything, a reasonable person in the occupier’s or lessor’s position would have done involves an assessment of what would have been reasonable and practicable for the occupier or lessor to have done. Secondly, this inquiry is not to be undertaken in hindsight. It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury. Thirdly, contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case. Fourthly, reasonableness may require no response to a foreseeable risk that is not insignificant. Fifthly, the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness.”: French v Van Der Giezen [2013] WADC 173 (Scott DCJ). More detailed history: Homestyle Pty Ltd v Perrozzi [2007] WASCA 16, [17]-[30]: “... [19] In 1987, the High Court, in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, abandoned the traditional approach of the common law to occupiers' liability. The High Court decided that it was no longer necessary to classify entrants on premises as invitees, licensees or trespassers. An occupier owes a duty of care to any person whose presence on the premises, either individually or as a member of a class, is reasonably foreseeable in respect of risks of physical injury arising out of the condition of the premises. [20] The relationship between the Act and the common law of negligence was considered on numerous occasions by the Full Court of the Supreme Court of Western Australia. Different opinions were expressed. I will provide some examples. It is not an exhaustive review. [21] In Bryant v Fawdon Pty Ltd (1993) A Tort Rep 81-204, Murray J referred, at 62,005, to ss 4 — 7 of the Act, and said that those provisions are a "statement of the standard of care owed by an occupier of premises to an entrant thereon". His Honour added:The statute is to displace [the rules of the common law] as to the duty of care only in the sense that it is the statutory rules which are to set out the standard of care necessary to discharge the duty imposed by law.Later, at 62,006, his Honour said: So not only is the Act concerned to leave to the common law the definition of the circumstances in which a duty of care will be held to exist, but it does not seek to displace in any special way the need to resolve the question of fact of causation which the common law would impose to link the finding of a duty of care owed by the occupier in respect of his or her premises to the plaintiff with the harm suffered by the plaintiff. If that finding of fact can be made, then the Occupiers' Liability Act will supply the answer to the question whether in respect of the harm so caused, the plaintiff may recover from the defendant upon the basis that there is established to have been a falling short or breach of the requisite standard of care imposed by the statute having regard to s 5(1) and (4). In my opinion, what I have written above is consistent also with the view of the place of the Act and its operation taken by the Full Court in Wallis v Town of Albany (1989) Aust Torts Reports 80-283. In other words, his Honour held that the common law continues to determine whether an occupier owes a duty of care to an entrant and also governs the issue of causation. The Act prescribes the standard of care required to discharge any duty of care imposed by the common law. [22] In Tonich v Macaw Nominees Pty Ltd unreported; FCt SCt of WA; Library No 940119; 11 March 1994, Anderson J (with whom Malcolm CJ and Ipp J agreed) held that the Act imposes on an occupier a duty of care to entrants and that the Act covers the field. A concurrent duty is not owed at common law. His Honour said, at 13: … the Occupiers' Liability Act leaves no room for the operation of the doctrines of the common law as regards the duty of care that is owed by an occupier to an entrant. It is no longer the common law that imposes the duty but the statute and the nature and extent of the duty is defined by the statute. Insofar as par 6 of the statement of claim seeks to plead a separate cause of action based upon common law principles, or seeks to invoke those principles in aid of the action based upon the statute, it is misconceived and discloses no cause of action. The duty upon the respondent was the duty imposed by the statute. It is a question of fact in any particular case whether the occupier has observed the standard required by the statutory duty … Bryant was not cited in Tonich. [23] Subsequently, many cases have been litigated on the basis that an occupier owes an entrant concurrent duties at common law and under s 5 of the Act. [24] In Coatz v WestCourt Ltd [2003] WASCA 49, Murray J said, at [2]: The claim was put alternatively on the ground of a breach of the statutory duty imposed upon the respondent as an occupier of the site within the meaning of the Occupiers' Liability Act 1985 (WA) s 5. The trial Judge thought the content of that duty was the same as that imposed on the respondent in respect of negligence at common law. His Honour therefore found it convenient to deal with the matter within the framework of the pleaded particulars of negligence. No attention was given to this aspect of the case on the appeal and I would propose to say no more about it (cf Jones v Bartlett (2000) 205 CLR 166). [25] In Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298, the appellant brought a claim against the third respondent ("ANI") for damages in respect of personal injuries allegedly suffered in consequence of ANI's negligence, further or alternatively, its breach of the statutory duty allegedly imposed under the Act. Malcolm CJ (with whom Murray and Parker JJ agreed) said, at [54]: Her Honour rightly concluded that ANI was the occupier of the relevant premises, so that the statutory duty of care applied as between ANI and the appellant. Hence, there were not separate causes of action by the appellant against ANI in negligence and [for] breach of the Occupiers' Liability Act. ANI operated its business from the premises and it continued to operate that business while work was being carried out extending the premises. By s 5(1) of the Act, ANI owed to persons entering on the premises, in respect of dangers which were due to the state of the premises, or anything on the premises and for which ANI was responsible, a duty to take such care as, in all the circumstances of the case was reasonable, to see that a person would not suffer injury or damage by reason of any such danger. [26] In Uzabeaga v Town of Cottesloe (2004) A Tort Rep 81-739, Murray ACJ expressed the view, at 65,628 [14], that "the reliance by the appellant, in addition to pleading negligence at common law upon the provisions of s 5 of the Occupiers' Liability Act 1985 (WA) added no additional dimension of law to the legal framework in which the case fell to be decided". [27] In Howells v Murray River North Pty Ltd [2004] WASCA 276, Malcolm CJ said, at [27], that the appellant's claim under s 5 of the Act "added nothing" to his claim in negligence at common law. Similarly, according to Murray J, at [64]: This claim of breach of statutory duty was, in my view, rather a red herring and an unnecessary distraction because, at best, it added nothing to [the appellant's] claim in negligence … Wheeler J (as her Honour then was) referred, at [150], to the appellant's common law claim, and his claim for breach of the Act and of the Occupational Safety and Health Act 1984 (WA), and observed: It was not contended that there was a relevant difference in the nature or scope of the duty created by either statute, which would lead to a different result from that which would apply at common law. Assuming either or both statutes to apply, the claim in respect of them therefore would stand or fall with the finding in respect of the particulars of the common law claim. [28] In Geroheev Pty Ltd v Wheare [2004] WASCA 206, McLure J (as her Honour then was) said, at [51]: The Commissioner's analysis and findings concerning the accident are in terms of the requirements of the general law. However, the findings and conclusions are also applied to the claim for breach of statutory duty. No party contends that there is a material difference between the statutory and general law claims. There is authority for that view: Jones v Bartlett (2000) 205 CLR 166 at [226] per Kirby J. As the matter is conceded, I proceed on that basis. Also see, to similar effect, her Honour's comments in Town of Mosman Park v Tait (2005) 141 LGERA 171 at 181 [39]. [29] Bryant and Tonich were not cited in Coatz, Kschammer, Uzabeaga, Howells, Geroheev or Tait. [30] It is unnecessary, in consequence of the manner in which the litigation was conducted at trial and before this Court, to determine, in this appeal, the proper relationship between the Act and the common law of negligence. It is an issue which will, no doubt, require consideration and resolution in an appropriate case."

[A13.2] Rubrics for Determination of Duty/Breach of Standard of Care in WA - OLA/CLA: see Tarbotton v Citic Pacific Mining Management Pty Ltd [2015] WADC 159, [87]-[93] (Wager DCJ).

[A13.2.1] "As Professor Fleming points out in The Law of Torts, 6th ed (1983) at 435n 18: “The relevant distinction is that between structural hazards and active operations subjecting the invitee to a new risk, not between static and dynamic conditions.”: Gorman v Williams (1985) 2 NSWLR 662, 669.

[A13.3] obvious risks - concrete ridge - grass/dirt path - duty to warn - consideration of Callinan J's opinion in Ghantous (HCA) "persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes": Pinker  v Shire of Boddington [2023] WADC 47 (Barbagallo DCJ). Approach to decision - "What was the nature of the risk of harm? What were the factual circumstances of the plaintiff's fall? Was the risk of harm an obvious one so that there was no duty to warn? If there was no duty to warn, has the defendant otherwise breached the required standard of care, particularly considering ... foreseeability, risk of harm posed by alleged danger not insignificant" and Sullivan v Moody factors: Ibid, [49]. Discussion of Occupiers Liability Act 1985 (WA): Ibid, [112]-[127], [163], [204], [223]-[224]. Parallel regimes of duties of care; criteria for breach of duty of care (standard of care) - difference in the language used in CLA vis-a-vis OLA - "risk of harm" vis-a-vis "danger": Ibid, [114]-[127].

[A13.4] Legislative Effect of OLA: “The main significance of the OLA is that the common law rules which set different standards of care depending upon the classification of the entrant as an invitee or licensee no longer apply. Even if the OLA had not been passed, the same effect was brought about by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7 ; (1987) 162 CLR 479, 487–488, holding that the old common law rules no longer applied.”: M R and R C Smith Pty Ltd T/As Ultra Tune (Osborne Park) v Wyatt [no 2] [2012] WASCA 110, [46]. Relationship between common law and OLA: “[65]  In Westralian Caterers Pty Ltd v Eastmet Ltd (1992) 8 WAR 139 Malcolm CJ (Franklyn and Murray JJ concurring) said at 145–146: The common law, as it was then understood to be, had developed special rules regarding the duty of care owed by an occupier to persons entering his premises depending on whether the entrant was a contractual visitor, invitee, licensee or a trespasser. In Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 the High Court of Australia held that the relevant duty of care should be based on the principles stated by Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580. In doing so, it abandoned the artificial distinctions and special risks regarding the duty of care which had been developed in the line of cases from Indemaur v Dames (1866) LR 1 CP 274 at 288 … The purpose of the Occupiers' Liability Act was to achieve by statute what was achieved by the development of the common law by the decisions of the High Court. The statutory provisions did not create a new cause of action for breach of statutory duty. What they did was to replace the former common law rules regulating the standard of care owed by occupiers to persons entering the premises in given situations, by a single standard of care in terms of the general duty of care referred to in Donoghue v Stevenson. In other words, the statute did no more than reform the content of the duty of care at common law in the case of occupiers for the purpose of the common law action for negligence. Thus, s 5(4) sets out a number of considerations relevant to 'determining whether an occupier of premises has discharged his duty of care'. That duty of care is the duty, the content of which has been defined by the statute, but only for the purposes of simplifying the law governing the cause of action in negligence against occupiers. There is nothing in the statute which would have the effect that the cause of action in negligence at common law against occupiers has been converted into a cause of action for breach of statutory duty. [66]  In Bryant v Fawdon Pty Ltd (1993) A Tort Rep 81–204 at 62,005 Murray J referred to s 4(2) of the Act and said: That provision makes it clear that regard is to be had to the rules of the common law to determine when a duty of care is owed by an occupier to an entrant upon his or her premises. The statute is to displace those rules as to the duty of care only in the sense that it is the statutory rules which are to set out the standard of care necessary to discharge the duty imposed by law. … [71]  There was also some limited discussion of this issue by Kennedy J in Baker v Shire of Albany (1994) 14 WAR 46 at 49 where he said: Insofar as the indorsement relates to a breach of statutory duty, it may well be that it extends beyond a claim in tort. We were informed, however, that it was intended only as a reference to the Occupiers' Liability Act 1985 (WA). That Act merely modified the common law rules as to the standard of care owed by occupiers. Any action relying upon that Act remains an action in tort. It is unnecessary, for the present purposes, to consider the consequences which could ensue in this case from joining an action in tort with a non-tortious action.”: McKrill v Lincoln Constructions (WA) Pty Ltd [2003] WADC 84.

[A13.5] Not Settled as to whether OLA covers the field and replaces common law occupier's DOC: “[252]  I note that it has not been resolved definitively whether the OL Act covers the field and that there is no longer any common law duty of care owed by an occupant to an entrant. In Department of Housing and Works v Smith (No 2), the Court of Appeal of Supreme Court of Western Australia decided in that case that it was unnecessary to determine if the OL Act or the Civil Liability Act 2002 (WA) (the CLA) reflects, supplants or modifies the common law.”: Miloradovic v Osborne Park Commercial Pty Limited [2017] WADC 129.

[A13.6] Duty to maintain a system of inspection in relation to immovable hazards, occupier: 

• Concealed hazards (akin to traps) distinguished from obvious/unconcealed hazards: See Bujnowicz v Trustees of the Roman Catholic Church of the Archdiocese of Sydney [2005] NSWCA 457; See also, Falvo v Australian Oztag Sports Association & Anor [2006] NSWCA 17, [23]-[24] (Ipp JA): "[23]  Firstly, the case at trial was not run on the basis that the Oztag Assn and the Council were negligent in failing to compact or compress the sand used to top up the worn areas. Thus, the question whether it would have been a reasonable response for them to take steps to prevent the sand from sinking was not investigated. No point in regard to this issue may be made on appeal. [24]  Secondly, this case is very different to Bujnowicz v Trustees of the Roman Catholic Church of the Archdiocese of Sydney [2005] NSWCA 457. In Bujnowicz a boy running in the course of a school touch rugby game stepped into a pothole on the school’s rugby field. He caught his foot in the hole and he sustained severe injuries to his leg. The hole in Bujnowicz was not obvious and could not be categorised as a depression in the ground or a mere alteration in levels. It was in effect a trap and the respondent in that case did not dispute that if the hole existed the rugby field was unsafe.". See also, Elisabeth Ford, 'How Flat is Your Playground: Bujnowicz v Trustees of the Roman Catholic Church of the Archdiocese of Sydney [2005] NSWCA 457' (Paper) <https://www.emilford.com.au/imagesDB/wysiwyg/Howflatisyourplayground.pdf>. See also, Justice Margaret McMurdo, 'Dangerous Liaisons with the Civil Liability Act 2003 (Qld)' (Paper, LexisNexis Development Conference, 26 April 2006) <https://archive.sclqld.org.au/judgepub/2006/mcmurdo260406.pdf>. 

• Ghantous (HCA) dealt with an obvious/unconcealed hazard - distinguishable: "[6]  As an occupier’s lawful duty is to take reasonable care, then an occupier is unlikely to be liable if there is not a completely level area of surface or something close to it in an area where a pedestrian falls. As an example, on the facts in Ghantous, the 5cm difference in level between the concrete footpath and the verge was not sufficient to support a finding of negligence against the Hawkesbury City Council. The 5cm difference, however, in Ghantous was not concealed.": Townsville City Council v Hodges [2023] QCA 136, [6] (Mullins P and Mitchell AJA and Crow J).

• Concealed hazards: "[16]  The above authorities show that for a concealed hazard a local authority may only be liable for hazards of which it knows or ought to have known. The question of what hazards a local authority ought to be responsible for, as it ought to have known of those hazards, depends upon what is reasonably required of a local authority in terms of a system of inspection in order to locate hazards. It is not sufficient, as Holmes J said at [35] in Spencer, for there to be a broad reference to a necessary, effective and appropriate risk assessment program but more appropriately precisely what form, type and regularity of system of inspection is reasonable. [17]  It is critical that the characteristics of the hole, depression, or tripping hazard be identified so that an assessment can be made whether the hazard was concealed or unconcealed and if the hazard is concealed then the inquiry must seek to determine what system or inspection would have brought it to the attention of the local authority.": Townsville City Council v Hodges [2023] QCA 136, [16]-[17] (Mullins P and Mitchell AJA and Crow J).

> See also, Kingswood Golf Club Ltd v Smith [2005] VSCA 224, [34]. 

> See also, Town of Mosman Park v Tait [2005] WASCA 124. 

> See also, No breach of duty of care: Byrnes v Burdekin Shire Council [2024] QDC (unreported as at 27 October 2024), but see summary at <https://www.schultzlaw.com.au/case-summaries/byrnes-v-burdekin-shire-council-2024-qdc/>, archived at <https://perma.cc/JAB4-BRSW>.  

• No contributory negligence where concealed hazard: "[47]  It cannot be negligent of a person inspecting for hazards to fail to discern a hole when, as the primary judge postulated, even in the circumstances where a person is shown the hole they would still have difficulty discerning it was in fact a hole. In those circumstances where Council employees do not have the benefit of the hole being pointed out to them, it cannot be concluded that those employees and officers were in any way at fault for failing to detect the presence of the concealed hole. This case therefore differs from Staines where the majority concluded, in absence of evidence from the occupier, that a person keeping a reasonable lookout would have observed the hazard.": Townsville City Council v Hodges [2023] QCA 136, [47] (Mullins P and Mitchell AJA and Crow J). See also, Guides Australia Inc v McMartin [2006] NSWCA 20, [131]. 

[A13.7] Pedestrians in Broad Daylight, obvious, non-concealed hazards; occupier: 

[A13.7.1] "The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this. The applicant herself admitted in cross-examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the earthen verges. There was no negligence on the part of the respondent either in the construction of the footpath or in not keeping the concrete strip and verges level.": Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29, [355[ (Callinan J). 

[A13.7.2] "The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian.  In general, such persons are more able to see and avoid imperfections in a road surface.  It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces.  As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v The State of South Australia[299]), or the surrounding area (as in Buckle, where the hole was concealed by grass[300]).  In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety.  These hazards will include dangers in the nature of a "trap" or, as Jordan CJ put it, "of a kind calling for some protection or warning"[301].  In Romeo, Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger[302].  Kirby J pointed out in the same case that even an occupier of premises "is generally entitled to assume that most entrants will take reasonable care for their own safety"[303].  Each case will, of course, turn on its own facts[304].": Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29, [163] (Gaudron, McHugh and Gummow JJ). 

[A13.8] E-scooters: 

[A13.8.1] Duty of care: e-scooters lying on path: "admitted that ... it owed a duty ‘to take reasonable steps to protect persons from injury arising from the presence of e-scooters’, which duty it claimed to have discharged by engaging Beam to monitor and manage the location of the e-scooters and whether any scooters had fallen over.": Mayes v The City of Adelaide [2020] SADC 126. [see aside, Mark Giancaspro and David Brown, 'Who’s liable if you’re injured or killed riding an e-scooter?' (The Conversation, 26 July 2022) <https://theconversation.com/whos-liable-if-youre-injured-or-killed-riding-an-e-scooter-187436>.

[A13.9] Obvious Risks - Stationary Objects - Camouflaged / not particularly obvious (but not concealed): 'where the trial judge found that the risk of tripping on the petrol bowser plinth when it was painted black was not insignificant on the basis of inferences that other patrons had stumbled or tripped on it – where there was a lack of incident reports detailing prior tripping incidents': The Thistle Company of Australia Pty Ltd v Bretz [2018] QCA 6.  

[A13.10] Duty of Care w.r.t maintaining a reasonably adequate system of inspection and cleaning is distinct from the duty of care in the performance of an inspection and cleaning: See generally approach in Thompson v Cranetrans Pty Ltd [2013] QSC 250, [93]-[94], [107]-[108] (Applegarth J).

• Performance of the inspection and clean in circumstances where staff was off-duty and off-work (no breach found): Gomez v Woolworths Group Limited [2024] NSWCA 121, [38]-[46]: "38. It is said that the “negligent act of Mr Cheong in failing to inspect the front of store area and clean the piece of mango at 5:03 pm and 5:06 pm when he was in close proximity to the object, occurred in the course of, or within the scope of, his employment because he was, at those times, on his employer’s premises”. Reference was made to the statement by Gleeson CJ in State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 at [40]. There are several difficulties with this submission. ..."

• [Woolworths] duty of competence and duty to maintain 'clean as you go' system - "no material difference" (but they were seperate heads of obligations: "On Mr Cheong’s evidence, which the primary judge accepted, the “clean as you go” system did not impose upon Stanley an obligation to inspect the front of store area for hazards created by others when he walked down the checkout area in that direction at 5:09 pm; that was because Stanley did not create any hazard. Nevertheless, Woolworths accepted that hazards not created by employees themselves were addressed by the “sweep log” inspections three times a day, by the hourly “service zero” inspections, and by the instruction to all staff to keep a constant lookout for spillages on the floor, as pleaded in its defence. There is no material difference between the instruction by Woolworths to all staff to keep a constant lookout for spillages on the floor, which Stanley was required to implement, and to do so competently in the performance of his duties, and Mr Wagstaffe’s wider description of the “clean as you go” system that all employees are instructed to inspect the floor surface as they walk through their work area and between work areas.": Gomez v Woolworths Group Limited [2024] NSWCA 121, [53]. 

> Interestingly, the Court held that hourly inspections of the front of the store were acceptable when paired with a policy where all staff are constantly on alert for hazards, such as with the “clean as you go” policy. This affirms the position in Woolworths Ltd v McQuillan [2017] NSWCA 202. Where a policy like “clean as you go” is not enforced, a system of cleaning and inspection is required between every 15-20 minutes (as proposed in Strong v Woolworths Ltd [2012] HCA 5): https://www.hopgoodganim.com.au/news-insights/fruit-sparks-insurance-claim-yet-again-spotlight-on-supermarket-cleaning-policies/ 

• "94. On the evidence, I accept the submission of the Plaintiff and Coles that the system adopted by Millennium embraced inspection at each WAND station of up to 15 minutes apart and further that such a system was reasonable. 95. I accept that the evidence supports a failure to detect the spillage either in the inspections that were undertaken or the implementation of Millennium’s system of inspection after 11:55:22 and prior to the Plaintiff’s fall. Accepting these findings, consideration turns to the precautions identified by the Plaintiff that a reasonable person in Millennium’s position ought to have taken for the purposes of s 5B(1) of the 2002 Act. 96. Effectively, these were to detect the spillage and attend to its removal and failure to implement a reasonable system of cleaning and inspection. I accept that the probability that harm would occur if care were not taken was high and the likely seriousness of the harm was also high. I do not accept Millennium’s submission that there was difficulty in detection of the spillage. The burden of the precaution was minimal and no question of social utility arises. It follows that having regard to the matters is s 5B(2) of the 2002 Act, I am satisfied within the terms of s 5B(1)(c) of the 2002 Act that a reasonable person in Millennium’s position would have taken the precautions identified.": Azzo v Sun; Azzo v Harrington Custodian Pty Ltd, Millennium Hi-Tech Group Pty Ltd and Coles Supermarket Australia Pty Ltd [2022] NSWDC 45."

[A13.11] Discharge by delegation - Duty of Care to Third Parties - Occupier - engagement of competent tradesman: 

• Harris v Briggs (1994) Aust Torts Repp 81-301;

• Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16, [53] (Hodgson JA, with Giles AJA and Nicholas J agreeing).

• "It is trite that an occupier such as the defendant may satisfy its duty of care by engaging a competent contractor to fulfil the defendant’s duty to an entrant to the premises. See Jones v Bartlett [2000] HCA 56 at [190]-[1914]; and Laresu Pty Ltd v Clark [2010] NSWCA 180 at [60]. There is an evidentiary onus upon the defendant to establish that it used reasonable skill and care in, (a) selecting that contractor – in this case, Reflections; (b) by imposing appropriate terms and conditions upon Reflections [the contractor]; and (c) by monitoring the compliance by Reflections with its obligations under the cleaning contract.": Stringer & Stringer v Westfield Shopping Centre Management Co (SA) P/L [2017] SADC 35, [168]-[169]. SEE approach to analysis in that case, at [200] et seq. Affirmed on appeal: Stringer & or v Westfield Shopping Centre Management Co (SA) Pty Ltd [2017] SASCFC 138. 

[A13.12] Duty to maintain a system of Inspection and Cleaning - Slips and Trips from spills, etc - Breach - Standard of Care: 

• Aisle of supermarket stocked with liquid items, 15 minutes: "In Alat v Franklins Pty Ltd [2012] NSWDC 104; 15 DCLR (NSW) 203 a judge of the New South Wales District Court was addressing a slip on some thickened cream on the floor of a supermarket. The issue was the frequency of any cleaning and inspection system. The finding of the court was that, as at 2008, a reasonable person would have instituted a system of cleaning and inspection of an aisle such as that in question (which contained numerous liquid items) with a minimum frequency of every 15 minutes: at [50]": Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTCA 71, [38].

• "In Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104 the New South Wales Court of Appeal was addressing a slip and fall in fruit and vegetable sections of a shop. In the course of allowing an appeal, Handley JA (with whom Priestley JA agreed) referred to the fact that “the law imposes a high duty of care on the occupiers of shops such as supermarkets to protect the public from the risks associated with the presence of material which has been spilled or dropped in areas used by the public”: at 68,942. He went on to say that the duty remains one of reasonable care and that an occupier “cannot reasonably be expected to prevent material being dropped in areas being used by the public” or “remove material the instant it is dropped”. He continued: What can be expected is that a system will exist for routine inspection and cleaning of busy high-risk areas during the times they are in use by the public. It can also be expected that dropped material coming to the notice of staff will be reported immediately and that one or more staff members will be available to take prompt action to remove the material.": Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTCA 71, [36].

• Vicinity of a food court, common sidewalk area adjacent to sidewalk sales area, hot chip, 20 minute intervals (failure to have in place an adequate system of inspection and cleaning):  Strong v Woolworths Ltd t/as Big W [2012] HCA 5; 86 ALJR 267, [32]: "32The appellant was required to prove on the balance of probabilities that Woolworths' negligence was a necessary condition of her harm. Woolworths' negligence lay in its failure to employ a system for the periodic inspection and cleaning of the sidewalk sales area. Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W". 

> "Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 involved a disabled person who was using crutches slipping and falling on what had been a hot chip or grease deposited by such a chip in a “sidewalk sales area” outside a department store in a shopping centre. So far as the sidewalk sales area was concerned, it was part of the duties of a “people greeter” to keep an eye out for spillages in that area. There was no system in place on the day of the incident for the periodic inspection and necessary cleaning of the sidewalk sales area. The evidence established that the common area adjacent to the sidewalk sales area was cleaned every 20 minutes. The principal issue so far as the High Court was concerned was how long the chip had been on the ground before the slip occurred. In addressing that issue, the court said (at [38]) that reasonable care required inspection and removal of slipping hazards at intervals not greater than 20 minutes in the sidewalk sales area. That statement must be seen to have been made in the context of the evidence that this was the inspection and cleaning regime in place in adjoining areas. It was, therefore, clearly anchored in the evidence available in the case before it.": Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTCA 71, [39].

> Although, causation in Strong v Woolworths was assessed by reference to a 15 minute periodic inspection regime over a four and a half hour period: Victorian WorkCover Authority v Spotless Facility Services Pty Ltd [2024] VSC 237, [62]. 

• Busy fruit store where re-packing, re-stocking and moving of fruits were taking place: "45. Mr Pace agreed the defendant’s shop was busy and it had five or six checkouts operating at the time. Product was re-stocked in the stands from about 3.00 or 4.00 pm on a Friday, the day of the accident to the plaintiff, in preparation for weekend trading and that involved staff wheeling trolleys of product around the aisles – he agreed mats were therefore moved and pushed under the display stands. The plaintiff said other customers were present around her at the time. In that situation, I think the defendant was required, in order to exercise reasonable care, to have a system of almost constant inspection to ensure the aisles in the premises had clean floors, were clear of obstacles and non-slip floor mats were appropriately positioned. 46 The issue then becomes whether the defendant had the necessary cleaning system and that it was in operation at the time of the plaintiff’s accident.": Varela v Harris Farm Markets Pennant Hills Pty Ltd [2008] NSWDC 116, [45]-[46].

• (obiter) plaintiff in busy shopping mall slipped on jelly on the floor of a common walkway: "When many people are using public premises, reasonable care may require a system of almost constant inspection and cleaning-up of spillages and other rubbish unless the risk of injury is slight. In that class of case an inference of negligence may arise from proof of the occurrence, even though the plaintiff is unable to prove how long the spillage existed, because the occurrence gives rise to the inference that a failure to provide or maintain the required system caused the injury to the plaintiff. But when the risk of injury is slight or few people use the premises less care is required; reasonable care may require no more than that the premises be inspected and cleaned at regular intervals. In that class of care failure to prove the time between spillage and accident may be fatal; for the occurrence itself raises no inference that the accident was caused by the failure to have a proper system of inspection and cleaning. The accident may have occurred despite the existence of the appropriate system. ... The presence of the Mr Whippy store and the other stores made it inherently likely that from time to time slippery substances and rubbish would be thrown or left on the common ways.  The risk of injury was no doubt increased by reason of the school holidays and the presence of children buying ice creams and other products.  Moreover, in the centre of the walkway was a rotunda where people might sit and eat or drink.  The risk of injury to users of the Mall from rubbish and slippery substances was both constant and real.  Many people could be expected to use the premises.  Each of them was immediately at risk once injurious material was thrown, placed or dropped on the floor.  Reasonable care, therefore, required a system of continuous inspection and cleaning to eliminate accidents as far as was reasonably possible. ... A real risk of injury should be eliminated unless the costs of doing so is disproportionate to the risk.… The cost of employing a full-time cleaner or the installing of an electronic surveillance system was not out of proportion to the risk of injury involved at Minto Mall.": Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 254-5.

• "The presence of an inherently slippery substance on the floor may itself show a lack of adequate supervision.": Ragnelli v David Jones (Adelaide) Pty Ltd [2004] SADC 393, [91] referring to  Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21.

• If the occupier has under his control a substance, such as cooking oil, which is known to be highly slippery and dangerous if it should get on to a floor in a public part of the store, then he may well be negligent in allowing that substance to get onto the floor irrespective of any evidence as to the length of time it was there.": Ragnelli v David Jones (Adelaide) Pty Ltd [2004] SADC 393, [92] referring to Griffin v Coles Myer Ltd (1991) Aust. Torts Reports 68-997 at 69-000, [1992] 2 Qd R 478 at 482.

• liquid substance in aisle of supermarket, where no dedicated cleaners: "Prasad v Woolworths Limited [2017] NSWDC 79 involved a slip on a liquid substance in the aisle of a Woolworths store. Woolworths had no dedicated cleaners during trading hours and relied on a “clean as you go” approach. The approach did not involve any obligation on staff to look for hazards, only to act when they were observed. The District Court judge found that in the absence of some evidence of the effectiveness of the clean as you go approach, it was not a reasonable system and hence there was a breach of duty of care (at [13]-[17]).": Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTCA 71, [40].

• (no breach): "Fatma Abdel Razzak v Coles Supermarkets Australia Pty Ltd [2017] NSWDC 183 involved a slip in the produce area of a Coles supermarket. Nonslip mats were put in high-risk areas. There was evidence of a “clean as you go” policy. The factual conclusion was that “the Coles system of cleaning, reinforced by training and supervision, resulted in the floor of the fresh produce area being checked, and if necessary cleaned, at least every 10 minutes”: at [113]. That was sufficient to amount to reasonable care.": Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTCA 71, [42].

• (no breach) spill 10 minutes prior to fall - clothing store: Ryland v QBE Insurance (Australia) Ltd [2013] NSWCA 120. 

• Fall in front of a Target Store on common mall area ("Target Passive Zone"), Saturday morning, where spill occured between 1 and 6 minutes prior to fall -- held 20 minute interval considered adequate: "Grounds 7-8 go to the findings made as to any duty of care on the part of Target to inspect and monitor the Target Passive Zone. His Honour, addressing the submission that if there had been a requirement for periodic inspection by Target of the Target Passive Zone, and compliance with that requirement, the liquid would have been detectable, suggested that if Target had been required to have a periodic inspection that requirement would be no greater than that of QIC (i.e., for inspection at 20 minute intervals) and that this fall had occurred within a twenty minute period. The appellant contends that his Honour erred in failing to find that Target's duty of care "required an almost constant system of inspection and monitoring of the passive zone", having regard to the size of the area of that zone; that Target had an employee stationed there; and that Target did not prohibit customers bringing drinks into the store. I have referred above to the evidence of Mr Mazzullo as to the duties of Target employees in relation to monitoring of potential hazards. The conclusion by his Honour that it would be onerous to expect Target to fulfil, in effect, the same task as employed by QIC's contract cleaners in the Target Passive Zone is not surprising. In circumstances where there was no criticism of the system of cleaning and inspection put in place by QIC, and his Honour found that Ms Billows was not in a position from which she could have seen the spillage, his Honour did not err in rejecting the proposition that Target should have implemented a system of constant monitoring of the area. The submission made for Mrs Reid was that it would not have been onerous for Ms Billows to look over the relevant entrance area, at the floor, every 30 seconds or so. Had she done so, on his Honour's findings, she would not have seen the liquid on the floor. Whether she could have seen the actual spillage occurring is pure speculation, since it is not known how it occurred. Criticism was made as to the way his Honour postulated it might have occurred, but his Honour was there illustrating the difficulties of speculation of this kind. Ultimately, his Honour's conclusion was that a reasonable person in the position of Target would not have taken any other precautions against a customer slipping on liquid in the Target Passive Zone. I see no error in such a conclusion.": Reid v Target Australia Pty Ltd [2014] NSWCA 60. [86]-[87].

• Grapes, Woolworths Supermarket - no greater than 20 minute intervals: Woolworths Limited v Grimshaw [2016] QCA 274.

• Inspection at every WAND station of up to 15 minutes apart was a reasonable system of inspection: Azzo v Sun; Azzo v Harrington Custodian Pty Ltd, Millennium Hi-Tech Group Pty Ltd and Coles Supermarket Australia Pty Ltd [2022] NSWDC 45, [94]. 

[A13.13] Performance of the Duty of Competence - Performance and/or implementation of a system of Inspection and Cleaning - Breach - Standard of Care: 

• Failure to implement the system of cleaning and inspection: "Ms Sarkis saw the elderly man go to the service desk and then heard Chantelle paging “call service to front for a spillage to clean”. Thereafter, Ms Sarkis continued doing her job. Sometime later Ms Sarkis stated that she heard someone fell on the floor. She came and looked and saw the Plaintiff on the floor. She said “oh, sugar” to herself and “no one cleaned the spill”. She said it took a while because she totally forgot and that she was busy with customers. Ms Sarkis then described “so it was long, long after paging that that incident happened”. She was asked to describe how long it was and she stated “I’m not sure. Maybe 20 minutes, more, less. I’m not sure. But it took a long time”. She stated she didn’t see the Plaintiff slip but saw him already on the floor. She knew the Plaintiff as a customer having seen him in the store before. Later she was asked to clarify how long between the person reporting to her about the spillage and the time the Plaintiff was on the floor stating “more than 20 or less – 25, 20 minutes or less”. ... In cross-examination by Millennium, Ms Sarkis confirmed she was the only person in the assisted checkout area on the day. She accepted it was a busy job. She described speaking Assyrian and Arabic and that customers would approach her because they didn’t understand or needed assistance. She couldn’t estimate the distance to the service area and conceded that sometimes she could go to the end of the assisted checkout area and call the service attendant to come over when she was not busy but that was not so on this occasion. Ms Sarkis accepted that the paging was of the Coles store and was not Centre wide.  ...94. On the evidence, I accept the submission of the Plaintiff and Coles that the system adopted by Millennium embraced inspection at each WAND station of up to 15 minutes apart and further that such a system was reasonable. 95. I accept that the evidence supports a failure to detect the spillage either in the inspections that were undertaken or the implementation of Millennium’s system of inspection after 11:55:22 and prior to the Plaintiff’s fall. Accepting these findings, consideration turns to the precautions identified by the Plaintiff that a reasonable person in Millennium’s position ought to have taken for the purposes of s 5B(1) of the 2002 Act. 96. Effectively, these were to detect the spillage and attend to its removal and failure to implement a reasonable system of cleaning and inspection. I accept that the probability that harm would occur if care were not taken was high and the likely seriousness of the harm was also high. I do not accept Millennium’s submission that there was difficulty in detection of the spillage. The burden of the precaution was minimal and no question of social utility arises. It follows that having regard to the matters is s 5B(2) of the 2002 Act, I am satisfied within the terms of s 5B(1)(c) of the 2002 Act that a reasonable person in Millennium’s position would have taken the precautions identified.": Azzo v Sun; Azzo v Harrington Custodian Pty Ltd, Millennium Hi-Tech Group Pty Ltd and Coles Supermarket Australia Pty Ltd [2022] NSWDC 45.

• Duty to exercise reasonable care and skill (Cleaner) -- Water from cleaner's performance of the cleaning, when she emptied refuse bag into her cleaners' trolley, 3 minutes prior to incident: "In one sense, it does not matter which of them was the source. In each case the liquid deposit was a hazard created by the cleaner. I find that it is less likely to have been deposited from the mop. That mop had fallen from the trolley and landed in a clear area. I have no doubt that the cleaner would have seen the liquid when she picked up the mop, had it been there. In my opinion it is probable from the facts, as a whole, that the liquid was deposited on the floor by the cleaner when she emptied the refuse bag into the trolley. I find on the balance of probabilities that when she did clean the floor behind the trolley, she did not adequately clean it under the trolley. This is not mere speculation. She would not have been able to look under the trolley because of its position. Had she moved the trolley, she would have observed the liquid which was left. It is probable that she was distracted from that exercise by having to collect the mop. In my opinion there can be no doubt that the first Reflections cleaner had created the hazard and had failed to properly clean it up. Until that event the aisle was free of spillages. Accordingly this negligence by the cleaner was ‘a singular event of carelessness’ by her. The defendant did not know and could not have known of the deposit on the floor. Further it was present on the floor only seconds before the plaintiff fell. The question remains as to whether the defendant was liable for the cleaner’s negligence. I will first deal with any duty of care of Reflections. ... It is trite that Reflections was obliged to exercise reasonable care and skill in the performance of its cleaning duties. In the subject case there was an obvious risk of harm that customers, walking through the shopping centre, may slip and fall, if the floor of an aisle had liquid deposited on it. I repeat that the first plaintiff’s accident was caused solely by the negligence of Reflection’s cleaner, in creating the hazard and not properly cleaning it up. While she also failed to put warning signs up when purporting to clean the floor, the latter failure was not causative of the fall. Reflections, as employer of the cleaner, was vicariously liable for the negligent acts of its employee, in carrying out her cleaning duties in the course of her employment. I do not need to consider whether Reflections itself may have been negligent in failing to roster adequate staff on the hot day. This issue was not raised by the parties, and I will not speculate about it.": Stringer & Stringer v Westfield Shopping Centre Management Co (SA) P/L [2017] SADC 35, [105]-[112], [121]-[134].

[A13.14] Causation: 

• Test: "Ms Palmer was required to prove, on the balance of probabilities, that the occupiers' negligence was a necessary condition of her harm. The occupiers' negligence lay in their failure to have signs prohibiting the movement of drinks between floors, a failure to have staff enforcing such a prohibition and a failure to have system of regular inspection and cleaning of the stairs. Proof of the causal link between such omissions and the occurrence of harm required consideration of the probable course of events had the omissions not occurred. Most particularly, it was not necessary for Ms Palmer to prove that the taking of such action would have prevented her fall. It was sufficient if she proved that the taking of such action would have minimised the risk of such a fall. That was the approach followed by his Honour when he said "the absence of any system of control or placing of signs, or perhaps even the use of a mat to cover the glass stairs, created a situation which allowed the plaintiff to come upon a hazard. This failure "was a necessary condition of the occurrence of the harm"." (Red AB 67K-L) Put another way, these precautions if taken, would have prevented, or minimised, the chance of a dangerous situation coming into existence. In slipping cases there have been traditionally two types of responses to a risk of injury. The first is to prevent, or minimise, the chances of the slippery substance getting onto the floor. The second has been to accept the inevitability of a slippery substance coming onto the floor but to then institute a system to rapidly detect and remove the substance. The latter approach is that which is usually followed in the case of supermarkets. His Honour's conclusions in this case related to a response of the first kind. His Honour clearly regarded such a response as feasible since the occupiers were not dealing with a large supermarket but a set of stairs between two floors. At common law that approach to causation has been approved on many occasions. In State of Victoria v Bryar and Anor (1970) 44 ALJR 174 Barwick CJ, with whom McTiernan, Owen and Walsh JJ agreed, said at 175: "To satisfy the element of causation, generally speaking it would be necessary to identify the nature of the step which the jury on the available evidence could conclude that a teacher ought to have taken but did not take. That act, if the failure to take it is to be accounted negligent, must be such as the foreseeable risk of injury would require having regard to the nature of the risk and the extent of injury should the risk mature into actuality. It is necessary that the jury could conclude as a matter of evidence and inference that more probable than not the taking of that step or steps would have prevented or minimised the injury which was in fact received."": Indigo Mist Pty Limited v Palmer [2012] NSWCA 239, [95]-[98]. 

• Query whether omission was the cause of the Incident, and no no other cause of slipping, such as inattention, excessive speed or failing to take advantage of a handrail: "[87]  If the question were precisely how much more slippery the formply was when wet than dry, then that objection would have had substance. But as in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [49], exactness was not required. Mr Burn had the expertise based on experience of the hazardous nature of treated formply when wet to express the opinions he did, and there was no need for greater precision. [88]  Calcono submitted that the primary judge's findings that he did not require expert evidence for the straightforward proposition that smooth items are inherently slippery and such items are more slippery when they are wet was contradictory to decisions of this Court in Jackson v McDonalds Australia Ltd [2014] NSWCA 162 at [119]-[123] and Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 at [81]-[91]. [89]  Had the slipperiness of the formply surface been the only reason for Mr Kabic's sustaining his injury, that is, had he simply slipped and fallen onto the formply surface, then the question of whether the slipperiness of the surface was not only causative of the fall, but should have been prevented by the taking of other steps, would have loomed large. That was the question posed in Jackson v McDonalds Australia Ltd and Murray v Sheldon Interiors Pty Ltd. In Jackson v McDonalds Australia Ltd, the plaintiff claimed that he slipped on stairs after walking across a floor of a McDonalds Restaurant that had been mopped. The primary judge found that the plaintiff had overstated the amount of water on the floor across which he had walked, and the extent of the area of mopping, that the plaintiff had not proved that there was any water left on his shoe when he reached the steps on which he fell and rejected the plaintiff's evidence of the mechanics of the fall (at [113]). Those findings were accepted on appeal. In relation to the first finding, Barrett JA observed (at [119]) that: But there is nothing in common experience that tells us that someone with wet shoes who traverses a floor having the particular characteristics of the McDonald's floor is more likely to slip because of water on their shoes than for any other reason, such as inattention (because engaged in conversation or for any other reason), excessive speed or failing to take advantage of a handrail. People wearing dry shoes walk on wet stairs every day and do not slip. People wearing wet shoes walk on dry stairs every day and do not slip. People wearing dry shoes slip on dry stairs every day. And, as Heydon JA observed in Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [32], stairs are, in any event, 'inherently, but obviously, dangerous'. [90]  In the present case there was expert evidence that water on the formply would materially increase the risk of slipping and no other cause of slipping, such as inattention, excessive speed or failing to take advantage of a handrail was raised.": Kabic v Aai Ltd (t/as Gio) [2019] NSWCA 247.

• Even if system of inspection and cleaning complied with, still would have slipped since the fruit was dropped 2 minutes after scheduled cleaning time: "[Headnote] On 31 May 2021 at approximately 5:11 pm, the appellant, Ms Gomez, slipped and fell on a piece of fruit on the floor at the entrance to the MetCentre Woolworths store in Sydney. Having suffered personal injury as a result of the slip and fall, she commenced damages proceedings against Woolworths as the occupier of the store. Woolworths conceded that it owed Ms Gomez a duty of care, and admitted that a piece of fruit was dropped on the floor by a customer at approximately 5:02 pm. However, Woolworths denied that it breached its duty of care, and argued that it had taken reasonable precautions by way of a system of inspection and cleaning of the store which included (i) hourly floor inspections called the “service zero” policy, and (ii) a “clean as you go” system, which required all employees to tidy up as they worked in an area. Woolworths also admitted in its defence that all employees were instructed to keep a constant look out for spillages on the floor. Woolworths conceded that the “service zero” hourly inspection was not carried out at 5:00 pm on 31 May 2021. In the District Court, the primary judge held that Woolworths’ failure to conduct a “service zero” inspection at 5:00pm on 31 May 2021 was a breach of its duty of care, and further, Woolworths’ failure to ensure that the hourly “service zero” system included that a staff member inspect the front of store area was a breach of duty. However, his Honour held that, even if the “service zero” system was complied with and a floor inspection of the front of store was carried out at 5:00 pm on 31 May 2021, Ms Gomez’s injuries would not have been prevented. He found that causation was not made out, and dismissed Ms Gomez’s claim. Ms Gomez appealed. Woolworths’ breach of duty in not complying with the “service zero” system was not causative of Ms Gomez’s injuries. Even if Woolworths had complied with that system of inspection and cleaning, by conducting a “service zero” inspection at 5:00 pm on 31 May 2021, Ms Gomez would still have slipped and fell, since the fruit was dropped at 5:02 pm": Gomez v Woolworths Group Limited [2024] NSWCA 121 (Decision did not express any view about whether the "service zero" system was inadequate). 

[A13.15] Apportionment between Centre, Tenant, Employer, etc: 

• Meat shop, common back entrance: eg, Brannigan v Westfield & Ors [2007] NSWDC 99, [117]-[120]. 

• Roof leak, apportionment between owner, managing agent and expert cleaners: "The third defendant [Cleaners] has submitted that it is only 50% responsible for this accident and the other 50% of liability, once contributory negligence has been taken into account, ought rest with the second defendant [managing agent]. The second defendant submits to the contrary and submits that the lion's share of any liability should rest with the third defendant, an expert cleaner, who failed to do what the expert cleaner should. There is force in that submission, but there is a countervailing factor in the present case. Most slip hazards are due to things such as spillages, to for example, a child dropping an icecream or a walking customer dropping a drink or the dropping of food near a food court or by a customer walking along eating chips, who drops a chip onto the floor. Here there is a leaking roof which needed to be repaired, and the only person who could put repairs into motion relevantly is the second defendant [managing agent]. I have already pointed out that the second defendant ought to have perceived that a leak might be a dynamic thing and that things could change. Perhaps it might have been prudent for the second defendant to have staff call in and do some "spot checks" over the weekend, when there were a leaking roof and heavy rain. I agree that the major responsibility ought lie with the contracted cleaner. However, the second defendant was required to make sure the third defendant did its job properly and could not merely do nothing, not absolve itself of responsibility at 5pm on Friday and resume responsibility at 9am the following Monday. It left, with there being a foreseeable risk, a leaking roof after heavy rain and during heavy rain, and that is different to the casual spill or spillage often caused by errant visitors to a shopping centre. I come to the view that as between themselves, I ought apportion one third of liability to the second defendant and the remaining two thirds of liability to the third defendant.": Awad v ISPT Pty Limited & Jones Lang LaSalle (NSW) Pty Limited & Glad Cleaning Services Pty Limited (No 1)  [2015] NSWDC 329, [161].

• Common mall area, entrance of Coles, where Coles was aware of the spill: "Millennium had primary responsibility for the common area, dedicated staff responsible, engaged in casual negligence and a failure to conduct rotations within a reasonable time. Coles had had actual knowledge of the spillage, and did nothing to warn customers of it, failed to remove the contaminant or contact centre management notwithstanding the area’s proximity to the entrance to the store. Nevertheless, I am of the view that Millennium’s responsibility is relatively greater bearing in mind the significance of the matters I have referred to. Overall, I would find Millennium 60% responsible and Coles 40%.": Azzo v Sun; Azzo v Harrington Custodian Pty Ltd, Millennium Hi-Tech Group Pty Ltd and Coles Supermarket Australia Pty Ltd [2022] NSWDC 45, [114]--[115]. 

[A13.16] Importance of making claim against the right party (eg, Occupier vis-a-vis cleaning company):  

• relationship of vicarious liability may not exist: see, importantly, Stringer & Stringer v Westfield Shopping Centre Management Co (SA) Pty Ltd [2017] SADC 35. 

[A13.17] Lifts, escalators, travellators: see Wong on Civil Liability, main page.

[A13.18] Potholes: 

• Jones v White [2008] VSC 551 (Harper J): "On 27 February 2005, the plaintiff, Helen Jones, was seriously injured when she fell in the driveway of 17 Burke Street Wangaratta. Although this property has since been sold, it was then owned by the defendant, Sharyn White. Mrs Jones says that she tripped on the edge of a pothole in the driveway, which was in a state of disrepair for which Ms White is responsible. This, she argues, gives rise to two causes of action. One is based upon Part IIA of the Wrongs Act 1958. The other is founded in negligence. The particulars of negligence include both failing to warn of the existence of potholes, and failing to keep the driveway under repair. ... It is at this point that the accounts given by each side diverge significantly. Mrs Jones maintains that, after the bike came to a halt, she dismounted, removed her gloves and then her helmet, and took a few steps towards her host. She did not then realise, she said, that the driveway might as well have been in an Iraqi war zone. Not knowing how rough was its surface, and therefore not anticipating the danger it posed, she overbalanced in a pothole the existence of which was unknown to her before she fell in it. Not only that, but the pothole would not have been there had the defendant not been in breach of s.14B(3); that is, in breach of her duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises, or of things done or omitted to be done in relation to the state of the premises. Ms White takes a very different position. She contends that the surface of the driveway had nothing to do with the accident. First, Mrs Jones’ description of it as equivalent to a bombed-out track in Iraq was wildly exaggerated. The driveway may have been unsurfaced, but it was not uneven – certainly, not so uneven as to constitute a danger. Secondly, its condition was in any event irrelevant. It had no role to play in the circumstances giving rise to the plaintiff’s injuries. Mrs Jones did not stumble into a pothole of which she was unaware and then, having been thrown off balance, fall. She did not stumble into a pothole at all. There were no potholes into which she could stumble. On the contrary, she slipped while dismounting from the pillion seat of the motor bike. It was that slip, the result of her own carelessness, which caused her to fall. ... A pothole six inches deep is, for a pothole over which vehicles travel, very deep indeed. I nevertheless accept the balance of his description of the driveway. It had been carelessly maintained. It included the wheel marks of the vehicles that had driven along it; and these wheel marks contained individual potholes that were deep enough to be a hazard to those who were not watching where they placed their feet. There was evidence, which I also accept, that pedestrians regularly used the driveway without incident.  Children played on and around it, with the occasional fall to which the uneven surface possibly contributed; but children at play will fall no matter what the condition of the surface on which their activities take place.  Adults generally negotiated the driveway without difficulty, just as adults commonly walk over rough ground without difficulty, at least when the light is good. ... It may be that the potholes described by Mr Harrigan would be obvious to anyone walking into the driveway from the street. It does not follow that they were obvious to Mrs Jones. She entered the property not on foot but as a pillion passenger on a motor bike. As a passenger, she had no particular reason to look at the driveway, still less examine its condition. Having dismounted, the possibility that she might be distracted by Mr Hartnel’s presence into looking at him rather than at her footfall was clearly open, and therefore foreseeable. The next link in the chain – that she might trip in a pothole – was equally possible and equally foreseeable. So was a subsequent injury such as she incurred. I find that Mrs Jones was not aware of the state of the driveway at the time she alighted from her husband’s bike and took a few steps towards her host.  I also find that she was then watching him, not her feet.  This, however, was the natural thing for her to do.  It was to be expected, and therefore to be foreseen.  It did not involve any contributory negligence on her part. Ms White ought therefore to have taken reasonable steps to remove or at least reduce the risk constituted by the potholes. As soon as it was known, or should have been known, (a) that visitors might arrive by motor bike; (b) that they might be unfamiliar with the driveway; and (c) that they might have their attention focussed on someone waiting to greet them, reasonable steps should in my opinion have been taken to ensure that the visitor would not stumble into such a trap. The second factor (the circumstances of the entry onto the premises) is in this case aligned with the first.  I need not examine it further, save to say that the possibility of some distraction drawing a visitor’s attention away from the terrain must be taken into account.  The fact that Mrs Jones was concentrating on Mr Hartnel is, accordingly, very relevant;  and it is no answer to assert, albeit correctly, that she was not looking where she was going.  It cannot be negligent to walk forward while looking at someone and, therefore, while not concentrating on where one’s feet will land (a very different thing from – for example – walking forward onto a roadway and into traffic while looking at a person on the other side of the road). It must be anticipated that the circumstances in which Mrs Jones found herself will frequently arise. It must likewise be anticipated that, where the terrain includes potholes, falls will happen. If those potholes occur on your property, and have been caused by you (by, for example, driving vehicles over the property), and it is not difficult or expensive to fill the holes, you may be in breach of the duty imposed upon you by s.14B(3) of the Wrongs Act.  There may, in the particular circumstances, be no obligation to warn, because to the particular person entering the premises the danger may be obvious.  Mrs Jones was not such a person. ... The final issue to which s.14B(4) refers is the comparative burden on the occupier of eliminating the danger, or protecting the entrant from it, when set against the risk.  Here, the answer must in my opinion be that the burden was small, and was not proportionately enlarged when compared to the risk of a fall that might result in a nasty injury.  That risk, in other words, while not great, was not negligible; but the ease with which it could be avoided was such that this latter consideration took precedence. I find that steps to avoid the risk were not taken in this case.  I also find that this failure (a) was a breach of the duty the subject of s.14B(3) of the Wrongs Act; (b) was a cause of Mrs Jones’ fall; and (c) resulted in her injuries.  She did not, as the defendant claims, slip off the passenger foot peg while dismounting from the motor bike. Given these findings, it is necessary to assess the damages to which Mrs Jones is entitled. ...".

• Jenkins v Sydney Markets Limited [2004] NSWSC 630, [7] (Shaw J): "... It is said by the first defendant that the plaintiff was going about his work in a way which was unsafe and which deprived himself of the right to look ahead, particularly by driving backwards, and by driving (it is alleged, unnecessarily) on the asphalt area of the markets (which contained potholes) whereas the concrete area did not. However, I regard the obligation of both the occupier and the employer as a significant one to provide an appropriate safe working environment for employees and, although there are injuries which are not reasonably foreseeable, nevertheless proof that a danger could possibly occasion some harm is sufficient to impose an obligation on an employer/occupier to take sufficient care with regard to obvious risks: see Roads & Traffic Authority of NSW v McGuinness [2002] NSWCA 210. In my opinion, a more thorough cleaning program and the rectification of potholes would have minimised the risk to a forklift driver such as the plaintiff. It is only in relation to the third incident where, it is conceded by counsel for the plaintiff, there is some scope for an argument about contributory negligence. I would propose to deduct from any award of damages in respect of the third accident 30% on the basis of contributory negligence."

• Tarbotton v Citic Pacific Mining Management Pty Ltd [2015] WADC 159, [93]: "93 Citic Pacific conducted regular inspections, regular grading and immediate repairs once notified of a concern from a Take Five or a JHA. Mr Tarbotton was aware of his obligation to report the creation of any hazard. This is a case where reasonableness required no response to the foreseeable risk. The hole or rut should have been obvious to Mr Tarbotton and he was aware of the dangers of an unsealed surface and had been trained to deal with those dangers. Had he kept a proper lookout when moving from the forklift towards Mr Iraia he would not have fallen and sustained injury."

• Markey v Scarboro Surf Life Saving Club Inc & Anor [2007] WADC 194: "1 YEATS DCJ: The plaintiff seeks damages for injuries he claims he suffered when he came off his bike on a dual use pedestrian/bike path adjacent to the premises of the Scarboro Surf Life Saving Club on 24 February 2004. The plaintiff claims he came off his bike because he went through a pothole in the path obscured by water flowing down from the Scarboro Surf Life Saving Club premises. ... 89 The plaintiff's case was not properly pleaded. There was no pleading of a duty of care; the plaintiff pleaded only the accident and damage. While damage is the essence of the tort of negligence, a plaintiff is required to particularise the duty it alleges is owed by a defendant. That did not happen in this trial until the final submissions of counsel appearing for the plaintiff when he formulated the plaintiff's duty as: "It has a duty to ensure that water escaping from its premises does not cause a hazard, either by itself or in combination with some other event." 90 I note that there is no pleading of the exercise of reasonable care despite reasonableness being the essence of this duty. I have reformulated the duty of care based on the law of negligence. Whatever way the duty is formulated I am quite satisfied it has not been breached. 91 The plaintiff failed entirely to provide any evidence of what it suggested a reasonable defendant in the position of the first defendant would have done. In his submissions Mr Offer suggested on behalf of the plaintiff that the first defendant was obliged to prevent water flowing down from the wash down area to the path. There was no suggestion as to how that might be done. Evidence was given that the wash down area was part of the area leased to the Scarboro Surf Life Saving Club by the City of Stirling but the lessor retained access to and use of the facility. This accident occurred late on a weekday afternoon and I am satisfied anyone washing down a surf boat would have been an employee of the second defendant and not a volunteer lifesaver from the first defendant who only worked on weekends. The issue of whose responsibility it was to prevent the flow of water and how that flow could reasonably have been prevented was not addressed in evidence in the plaintiff's case. 92 The plaintiff's case was run in a manner inconsistent with the law of negligence which has been conveniently summarised recently in the High Court case of Roads & Traffic Authority of New South Wales v Dederer [2007] HCA 42 by Gummow J at [18]: "These principles may be restated shortly. First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt." 93 In this case the plaintiff has argued his case on the basis that the first defendant had a duty to prevent potentially harmful conduct and has not addressed the fundamental rule that the obligation of the first defendant is simply to exercise reasonable care taking account of the risk and all the circumstances. The plaintiff has done nothing to assist the Court in identifying the relevant risk of injury. The plaintiff's case depends on a retrospective assessment and has not looked at the breach prospectively as is required. No attention has been given to the assessment of breach in the manner described by Mason J in Shirt's case. This has made it very difficult for the Court to properly deal with the case and to properly assess the plaintiff's case. Second particular of negligence "Allowing or permitting water to flow from the Surf Life Saving Club onto the premises thereby covering the said hole in the bicycle path and preventing the Plaintiff from identifying the danger posed by the said hole when it knew or ought to have known of the hole's existence." 94 The first defendant did not have any responsibility for the path. The path was entirely the responsibility of the second defendant. There was no basis in the evidence on which I could be satisfied that this plaintiff either knew or ought to have known of the existence of the hole in the path adjacent to the driveway coming down from the defendant's premises. I have already held that there was no negligence on the part of the defendant in allowing or permitting the small amount of water to flow from the Surf Life Saving Club wash down area to the path. The plaintiff suggests that the combination of the pothole and the water created a trap. Because of my findings of fact as to the amount of water I do not accept that. There was plenty of room for the plaintiff to have avoided the water and proceeded along the path. This was not an entrapment case. 95 All of the problems previously mentioned as to the plaintiff's failure to properly plead and argue his case in negligence are also relevant to this particular of negligence. On the evidence in this case and the factual findings I have made I am satisfied that there was no breach of any duty owed by the plaintiff in allowing or permitting this water to flow from the wash down area and I am satisfied that the first defendant neither knew or ought to have known of the hole's existence. Third particular of negligence "Failing to warn the Second Defendant of the presence of the said hole in the bicycle path." 96 This pleading presents a novel and unsustainable proposition. The defendant has no duty or responsibility arising from a path passing along by its property. There is no evidence the first defendant knew or ought to have known of the existence of the small pothole at the edge of the path adjacent to its driveway. There is no factual basis on which any duty to warn the second defendant of the presence of the hole in the bicycle path could arise. Therefore this particular of negligence has not been made out. Fourth particular of negligence "Failing to warn the Plaintiff of the presence of the said hole in the bicycle path when covered by water." 97 This again suggests quite a novel proposition that the first defendant was under a duty to warn a bicyclist on a path over which it had no control of the presence of a hole on the bicycle path when covered by water which ran down from its premises. Again, the plaintiff has simply not established any basis for this particular of negligence. The first defendant had no responsibility with respect to the bicycle path and no duty to warn anyone about anything on the path. In the factual circumstances that I have found the small amount of water accumulating in the pothole did not present any danger that would require any warning. A bicyclist proceeding along the path had ample room to pass the hole and the water without any danger or risk. ... 118 I accept that the second defendant might reasonably expect that from time to time edges of a path such as this bitumen dual use path might break away so as to form a "pothole" such as in this case. There is no evidence the second defendant knew of the existence of this pothole. The issue for me is whether the second defendant's system to ascertain the existence of any such defects was reasonable in all the circumstances. That system involved an annual inspection supplemented by reports from time to time from its employees or from members of the community of defects in the path. Considering the responsibilities of the second defendant for all roads and thoroughfares within the City I am satisfied this system met its obligation to take reasonable steps to ascertain the existence of any such potholes. 119 The particulars of negligence pleaded against the second defendant can be dealt with based on the judgment of Mason J in Shirt's case referred to above and s 5B of the Civil Liability Act. The principle issue is whether a reasonable person in the defendant's position would have foreseen that his conduct involved a risk of injury to cyclists on the path. The conduct complained of in the particulars sets out the plaintiff's views on this. In assessing a reasonable person's response I need to consider the magnitude of the risk and the degree of probability of its occurrence along with the expense difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have: Shirt at pp 47-48. I also take account of the provisions of s 5B(2)(a), subsection (b), subsection (c), and subsection (d) of the Civil Liability Act. I do not accept that the size of the pothole or its position on the footpath created any hazard for bicyclists who used the path in a normal way. There is no evidence of a large number of people or anyone else coming to grief in this hole. Nor do I accept the plaintiff's evidence that the hole combined with the water flowing down from the first defendant's premises created a hidden danger. I adopt all the findings of fact that I made in relation to the allegations of negligence regarding the first defendant. Although the risk to a bicyclist may be so remote as to be far-fetched and fanciful and therefore not a foreseeable risk of injury, I nevertheless will consider the other factors I am required to consider. ... Particular (c) – Allowing or permitting the said hole to be and/or to become and/or to remain in the bicycle path and thereby to be in an unsafe or dangerous condition and by reason of such state and condition to be and/or to become and/or to remain a danger and a trap to the plaintiff who was lawfully riding a bicycle on the said path - 122 I accept the evidence of the manager of engineering operations at the City of Stirling, Mr Ronald Spragg. I accept that the evidence given of the servicing and maintenance of the path by the various departments involved was reasonable in all the circumstances. The path was inspected each year and was regularly swept of sand and debris. His records were not sufficient to allow him to determine exactly when the pothole was repaired, but it clearly has been repaired. There is no evidence before me that satisfies me that the second defendant either knew or ought to have known of the existence of this pothole. Its very small size and the fact that it was not part of the path that would normally be used by either pedestrians or cyclists is a matter of some significance. Section 5B(1)(a) of the Civil Liability Act has direct effect in this area in showing that in these circumstances the second defendant is not liable for any harm caused because the second defendant neither knew or ought to have known of the risk. For these reasons this particular of negligence fails. ... 128 It is clear from my findings of fact that the plaintiff has been the author of his own misfortune. It is clear that he was peddling very hard and trying to get up a speed so as to go up the driveway and cut through the Scarboro Surf Life Saving Club premises. If he had not been doing that, he could easily have slowed down and stopped and made his way slowly around the chicanes and proceeded along the path. I am not satisfied that the pothole posed any particular risk to a bicyclist who was proceeding along the path in a reasonable manner looking out for his own safety. There was no reason for the plaintiff to ride through the pothole. I am unable to make a finding as to whether the pothole was visible but I am satisfied the water did not cover the entire path and he need not have ridden through it. It was only because of his intention to avoid the chicanes and avoid the need to slow down that he took this sudden action, peddling at speed up the driveway. While doing that he has cut the corner and gone through the pothole. It was entirely unnecessary. I consider it entirely his own fault that he drove through water when it was not necessary to do so. He was not keeping a proper lookout for his own safety. ...".

[A13.19] Effective Delegation of Duty of Care - Landlord/Property Manager - Negligence - Scope of Duty - Building Maintenance: see Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196; Yeung v Santosa Realty Co Pty Ltd [2020] VSCA 7, [80].

[A13.19.1] Discharge by delegation - Duty of Care to Third Parties - Occupier - engagement of competent tradesman: Harris v Briggs (1994) Aust Torts Repp 81-301; Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16, [53] (Hodgson JA, with Giles AJA and Nicholas J agreeing). 

[A13.20] Risk of Injury - Foreseeability: 

•  risk of a customer suffering personal injury by slipping and falling when walking over that portion of the surface of the carpark which was of smooth polished finish when wet: Bridge v Coles Supermarkets Australia Pty Ltd (No 3) [2017] NSWSC 1800, [45]. 

[A13.21] Duty to Warn - Height Differential marked by same colour, no visible differentia - no breach: 

•  Devic v AMP Capital Investors Limited [2022] NSWDC 371, [106]: "In my opinion, a reasonable person in the defendant’s position did what was necessary in the circumstances. It painted the strip of pavement adjacent to the walkway in yellow, which ought to have alerted the plaintiff that there was a variation in height of the kerb approaching the walkway which was (obviously) raised. In so doing, it drew attention to the change in level between the pedestrian walkway and the pavement outside the mall. It was a sufficient visual cue to pedestrians. There was no concealment of the difference in height. The incident took place in daylight and was plain to be seen. In my view it was an ordinary hazard that a person walking from the mall into the carpark would be expected to encounter and could be expected to watch out for. It is trite to say that the occupier’s duty was to exercise reasonable care to make their premises safe for entrants exercising reasonable care for their own safety: Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330. In my view, the risk of a person who was exercising reasonable care for her own safety misstepping was low, so that it cannot be said that a reasonable person in the defendant’s position would have taken the precautions pleaded. That the defendant “might” have taken those steps which “might” have avoided the accident is not significant: see section 5C(2) of the Act: Council of the City of Sydney v Bishop [2019] NSWCA 157 at [30] per Macfarlan JA.". 

• No duty to warn: Council of the City of Sydney v Bishop [2019] NSWCA 157, [10]: "If that analysis be correct, there is no need to consider questions which depend upon identification of an appropriate duty imposed on the Council as the owner (or occupier) of the roadway, and without reference to Pt 5 of the Civil Liability Act 2002 (NSW). However, on the assumption that the case run below turned on the failure of the Council to place (and presumably maintain) a bright yellow strip along the kerbing, I agree with Macfarlan JA that (i) the risk was an “obvious risk” for the purposes of s 5H of the Act, and therefore no duty to warn arose; (ii) if there were a duty to warn, there was no breach within the terms of s 5B(1)(c), and having regard to s 5C(b), in failing to take the proposed precaution; and (iii) if there were a breach by failing to provide a bright yellow strip, the omission was not factually causative of the plaintiff’s trip and therefore of her injury, as required by s 5D(1)(a)."

• Baker v Bunnings Group Limited [2020] NSWDC 310, [211], [228]-[231], [247]: "I make the following findings of fact in the proceedings: The plaintiff was born in August 1950 which made her 69 years of age at the final hearing and 67 years of age at the date of the accident. She resides in Port Macquarie with two of her grandchildren; The plaintiff has five daughters, all of whom are adults. At various stages, she has, to her credit, looked after three grandchildren for each of two of her children. These have been foster care arrangements. The plaintiff currently cares for two grandchildren, a grand-daughter born in January 2007 and a grandson born in October 2008. She is compensated financially by Uniting Burnside for the care costs of the two grandchildren who reside with her at her home. This caring is the plaintiff’s only occupation; After the accident on 25 October 2017, it appears the plaintiff's daughter Michelle attended the plaintiff's house daily and took the three grandchildren who were then living with the plaintiff to and from school and their activities for a week. When the plaintiff came home from hospital on about 30 October 2017, Michelle continued to provide the plaintiff with domestic assistance. The plaintiff also had personal and domestic assistance from staff at ComPacks, a care provider. From about 8 November 2017,the plaintiff's daughter Melinda moved in with the plaintiff at the plaintiff’s home for a period of about three months (T89.27), providing the plaintiff with personal and domestic assistance and childcare assistance for the three grandchildren; On 25 October 2017, the plaintiff attended the defendant’s store at Lake Road in Port Macquarie to have three fence palings cut and reduced in size. I accept the plaintiff's evidence that she had not previously crossed the concrete island in question as a pedestrian and entered into the timber yard of the defendant's premises but rather had usually entered in through the main entrance of the store and on occasions had exited through the timber yard. I also accept the plaintiff's evidence that she had exited through the timber yard on one or two occasions yearly from 2002 to about 2015: T61.29; T62.43 cf T98.20; T99.49; T102.37; There were a number of possible entrances and exits to the defendant’s Bunnings store at Lake Road. The main entrance was some distance away from the entrance to the timber yard and was through red doors. The kerb near the main entrance was painted in yellow: Exhibit A page 138. There was also a timber yard designated pedestrians only entrance near the boom gate exit from the timber yard to the roadway of the car park. There were also vehicular entry/exits at the timber yard which some pedestrians used to access the timber yard from the car park; There were raised concrete islands on each side of the vehicular entrance and exit to the timber yard. They are depicted in a number of photographs in Exhibit A from page 131. On each raised concrete island were placed gas bottles in cages for barbecues or welding. The gas bottles on the concrete island to the left of the timber yard exit are shown in the photograph at Exhibit A page 134. The gas bottles on the raised island entrance to the right (as looking at the Bunnings timber yard) vehicular entrance to the timber yard may be seen in the distance in Exhibit A page 136 and in the photograph in Exhibit 1 at photograph D2.1.3. In addition, there were often goods, particularly bags of pool salt, on a pallet, placed at or near the two raised concrete islands; The plaintiff gave evidence that on the day of the accident there was no pallet with salt or other goods on it at or near the island at the time she was injured. The photograph immediately behind the Bunnings Incident Investigation Report shows a pallet of goods just off the relevant concrete island closer to the building than the gas bottle cage. Although both Mr Hines and Ms Inskip were cross-examined to the effect that this was not present at the time of the accident and in relation to Ms Inskip, that it may have been moved there after the accident, I find, contrary to the plaintiff’s submissions, that it was very likely there at the time of the accident. This is consistent with Mr Hines' initial evidence (T192.3-.13). Although Ms Inskip could not recall whether the pallet of salt may have been moved into position after the accident (T232.25) and she conceded that it may have been moved after the accident (T232.15), I accept her evidence that generally product gets set up at the start of the day and then removed at the end of the day: T232.15. This is consistent with her evidence that “we always have a pallet of salt out the front of our timber yard”: T232.34. Considering all the evidence, including the evidence of Mr Ragno as to what he saw, I think it is more likely than not that it was there at the time of the accident as indicated in the photograph taken by Ms Inskip or Mr Ragno on the day of the accident which photo is immediately behind the Bunnings Incident Report in Exhibit 1 Part D2.1. I find that on the day of the accident, the plaintiff approached the timber yard entrance from the car park and saw that a vehicle was likely to be leaving through the boom gate exit. She therefore retraced her steps, went around the island near the gas bottle cage and then walked across the disabled carpark place to the left of the island, took a step up on to the island, crossed the island and did not see the drop from the kerb on the other side of the island closer to the boom gate. I accept the plaintiff's evidence that she thought that the concrete continued without a change in its height. She simply did not see or perceive the height differential. This is despite her having walked around the concrete island which has a clear kerb without going down a step, taking a step onto the concrete island at the kerb and there being an expansion joint near the kerb she stepped onto and an expansion joint near the kerb on the other side of the island where she fell. The kerb and ramp on the island are not painted in a different colour similar to the yellow paint at the main entrance. The kerb and the island and the roadway ramp are constructed from similar coloured materials. It appears the island has been constructed in a way which allows a pallet jack or trolley or possibly a wheelchair to go on to the concrete island through a lower part of the kerb where there is a ramp to place or move goods. A photographic depiction of this in relation to the island in question is at Exhibit A page 138. The edge of the relevant kerb closer to the pedestrian designated entry appears to have been cut away as a design feature to make a ramp; As indicated, I find that the plaintiff walked across the island in a general diagonal fashion without seeing the step down from the concrete island. The evidence does not permit me to find precisely where the plaintiff fell. Mr Hines gave evidence that when he turned around after hearing the thud of the plaintiff’s fall he saw the plaintiff lying on the ground positioned between the wheel arch and door of the car depicted in the photograph behind the Bunnings Incident Report. I accept this evidence. The plaintiff could not provide clear evidence as to where she fell. She accepted that she walked in a diagonal fashion generally as indicated in the photograph number five at Exhibit A page 119 and believed she fell in the area marked by a red circle in photograph four on page 119. I consider this to be likely; On balance, I consider it likely and I find, having regard to the plaintiff’s description of the mechanism of the fall and her pathway of travel, the limited height of the ramp area and Mr Hines’ evidence as to where he first saw the plaintiff, that the plaintiff fell in the area where the kerb was not constructed as a ramp which allowed access by a pallet jack to the island, but probably the fall occurred from the kerb along from the ramp some limited distance and somewhat closer to but not near the kerb where the adjacent salt pallet had been placed. No greater precision can be given. I prefer the defendant’s oral submission as to the general location of the fall; I accept Mr Andriessen’s evidence that from his observations, the roadway continued very gradually upwards on a gradient from the carpark to the building yard floor such that the kerb of the island closer to the yard exit where the plaintiff fell reduced in height as it approached the Bunnings building. This evidence was consistent with the photographic evidence. The kerb height was similar at the end of the concrete island furthest away from the Bunnings building and on the side of the concrete island near the disabled parking spot. However, on the side closest to the pedestrian designated entrance the kerb gradually reduced in height until it reached the ramp designated area and then increased in height slightly at the end of the ramp for a very short distance until the kerb met the Bunnings building; I accept the evidence of Mr Hines and Ms Inskip that from their observations working in the timber yard at various times (including Mr Hines from 2016-2019), customers often crossed the island as the plaintiff did to access the timber yard entrances. This is consistent with Mr Andriessen’s evidence as to his observations after the accident. I also accept their evidence that they had never observed or become aware of any other person falling from the island as the plaintiff did. This was also the evidence of Mr Andriessen and Mr Ragno which I accept; There were differences between the witnesses as to the frequency of customers crossing the island. Ms Inskip assessed that it would be “easily 30 people” who would do that in an hour from her observations particularly in 2010 – 2011 when she worked in the timber yard: T226.4. Mr Hines suggested that on average he would see six to ten people access across the island per hour: T195.42-.49. Mr Andriessen in his observations in about an hour, saw about 10-20 people crossing the island. He said 18,000 people went to the Bunnings Lake Road store per week when he was there and about 35% used the timberyard/trade entrance although some of these were in vehicles: T259; The evidence does not allow me to find accurately the frequency of people crossing the island in the direction the plaintiff did prior to the accident. However, it seems clear from the various accounts of the defendant’s witnesses that people regularly did cross the island on foot as the plaintiff did to go to the timber yard. There is no evidence of any person falling from the island as the plaintiff did prior to the plaintiff's fall or thereafter. See Exhibit 2 as to the period 25 October 2016 to 25 October 2018. Mr Hines worked there from 2016 to 2019: T195.35. Mr Hines also said in his position as a supervisor in the timber section he would as a matter of practice have been made aware of any other falls near the entrance to the timber section: T204.3. Mr Andriessen gave similar evidence as to the period when he was complex manager: T257.4. There was no evidence before the court of any other person falling from the concrete island or near it as the plaintiff had done, prior to the accident; Neither Mr Hines nor Ms Inskip nor Mr Ragno had any clear recollection of shadowing on the island on the day of the accident: see for example T202.25. The photographs depict different degrees of shadowing. The evidence is in my view not clear as to whether the relevant part of the island was in shade or shadow at the time of the accident. The plaintiff had no clear recollection on this issue. I find that the weather was fine and sunny at the time of the accident; I accept the plaintiff's evidence that her foot went forward on the edge of the kerb of the island and she fell onto the roadway with excruciating pain in her left foot: T66.40; I accept that Mr Hines initially attended the plaintiff followed by Ms Inskip and later Mr Ragno. That is different to the plaintiff’s evidence who believed the first person who attended her was female. In my view, this is a minor matter. I find that Mr Hines called an ambulance which took some time to arrive and then the plaintiff was taken to hospital. I accept that the Bunnings Incident Investigation Report was prepared by Mr Hines, Ms Inskip and Mr Ragno in the way described in their evidence. In the end, Mr Ragno seems to have prepared the final version. I accept that Mr Ragno undertook observations of the area after the accident on the day of the accident. I accept Mr Andriessen undertook careful observations of the area for about an hour soon after his return from leave; In my opinion, there is no satisfactory evidence which allows me to find to the requisite standard that the plaintiff fell from the island because of any wear on the edge of the kerb of the island closest to the pedestrian entrance as opposed to her simply not seeing the kerb and believing the island continued on the same level to the roadway entrance; I also accept the evidence of Mr Hines, Ms Inskip, Mr Andriessen and Mr Ragno that in the time they were at Bunnings at Lake Road they had no difficulty in differentiating between the concrete island and the roadway beyond as requiring a step down from the concrete island after taking a step onto the concrete island to cross it. Of course, they likely crossed the island many times in the course of their employment and thus had a familiarity with it. This has to be taken into account. They also all inspected the kerb after being notified that a fall had occurred and assessed it with this knowledge in mind; I accept Mr Andriessen’s evidence that after the fall he considered whether to paint the island kerb like the kerb at the main entrance and decided it was not necessary as to him the kerb was obvious where the plaintiff fell; I find that the plaintiff was conveyed to Port Macquarie Base Hospital where she undertook medical treatment as described in the medical findings. ... The plaintiff submits in summary that a reasonable person in the position of Bunnings having regard to the tapering height of the relevant kerb and the difficulty in a customer perceiving the existence and varying height of the kerb in the circumstances, would have taken precautions such as painting the kerb of the island with bright paint to warn of the kerb and the varying height. It was said that the raised concrete island had a number of unusual features being a vertical kerb face on one side of the island and a tapering kerb face on the other side of the island where the fall occurred with variations in height including where there was the cutaway ramp. It was submitted that the variations in height were not readily discernible and posed a hazard. It was submitted the long expansion joints on the island were not visual cues of a step down as there were expansion joints also in the concrete in the carpark. I consider the elements in s 5B of the CLA in the light of s 5C as applied to the present case involving the plaintiff: The risk was foreseeable, that is, it is a risk of which the defendant knew or ought to have known – in my view, it was foreseeable, in the sense of being a risk of which the defendant ought to have known, that a customer of the Bunnings store may have walked across the concrete island in question and not seen or perceived the step down and variation in height of the kerb closer to the entrance. I accept the plaintiff’s submission on this issue; The risk was not insignificant – as the Court of Appeal made clear in Bruce v Apex Software Pty Ltd [2018] NSWCA 330 at [26], the question is whether the risk of harm was “not insignificant” and not whether the risk of harm was “not significant”. The plaintiff submits that the risk in question was not insignificant. The defendant submits that this was not established and the risk of the plaintiff not seeing the kerb and falling was insignificant. The court had the benefit of the plaintiff's testimony, the testimony of the four witnesses called on behalf of the defendant, the report of Mr Dimopoulos and many photographs in Exhibits A and 1. As stated by Sackville AJA (with whom McColl JA agreed) in Argo, above, great care must be exercised in relying on photographic evidence, particularly in relation to perspective and distance. Here, however, the court had the benefit of the evidence of the various witnesses as to the photographic evidence as well as their own independent observations. I take into account all the evidence I have referred to, including the fact that there were no previous falls recorded or reported as far as the defendant’s witnesses were aware. I also take into account that a person crossing the island would have taken a step up to begin with thus alerting them to the potential for a step down. I take into account the varying height of the relevant kerb and the similar colour of the kerb and the roadway beyond. I take into account the regular use of the island by patrons to access the pedestrian designated access to the timber yard. Taking all of these matters into account, in my view the risk of a fall was insignificant in the present case. This was the first time, to the knowledge of the defendant’s witnesses, that anyone had fallen as the plaintiff had; Whether a reasonable person in the position of the defendant would have taken the precautions indicated – I consider this issue in the light of the evidence I have already referred to. I take into account the degree of pedestrian traffic which the defendant's witnesses have indicated they observed crossing the island. I take into account the similar colour of the various surfaces and the cutaway and tapering nature of the kerb. However, all the evidence indicates that there were no prior falls at or near the vicinity of the island of which the witnesses were aware. Even taking into account Mr Dimopoulos’ view and the “damage” he refers to, in my view a reasonable person in the position of the defendant in the present case would not have taken the precautions pleaded and particularised. This includes painting or otherwise delineating the kerb or preventing people walking across it in particular. I do not accept that the measures indicated in paragraph 7.14 of Mr Dimopoulos’ report were steps which a reasonable person in the position of the defendant would have taken. In my view, in the light of the oral evidence and the photographs, the step down from the kerb was obvious to a reasonable person in the position of the plaintiff. The relevant senior employees of the defendant were not aware of any previous falls from the island; The probability that the harm would have occurred if care were not taken – in my view the probability is very low. In my opinion it was not probable at all that a reasonable person exercising care for their own safety, having stepped up onto the island, would not have seen the stepdown from the kerb; The likely seriousness of the harm – a person not seeing the kerb and falling down may involve serious injury to themselves; The burden of taking precautions to avoid the risk of harm – there was not a significant burden on the defendant in taking the specific precautions which Mr Dimopoulos refers to in paragraph 7.14 of his report. This is in the plaintiff’s favour. I also take into account the particulars of negligence in paragraph 15 of the Statement of Claim and the response to the request for further and better particulars which was provided by the plaintiff's solicitors dated 14 December 2019; The social utility of the activity that creates the risk of harm – it is important that people have safe access to shopping stores including in the car park. This is a relevant factor; The risk of injury in falling from the kerb is in my view from all the evidence obvious; Taking into account all of the matters I have indicated, in my view a reasonable person in the position of the defendant in the present case would not have taken any of the precautions recommended or pleaded. There were no prior accidents recorded in evidence involving the kerb. Any person mounting the kerb closer to the disabled car spot would have reasonably expected the possibility of there being a step down. All of the defendant’s witnesses said that the kerb was obvious to them. I take into account that they worked there, had crossed it many times, and when they examined it after the fall, did so with knowledge that a fall had occurred. I take into account the similar colour of the areas and the materials used. There was simply no history in evidence of any falls involving the area. In addition, I take into account my own views of the photographs in the light of the oral evidence recognising that care must be exercised in doing so. I also note the variation to the kerb by the design cutaway and the effect this has on appearance of the kerb face. In my view, the step down is readily apparent on all the evidence. Taking into account all of the matters I have set out above, in my view there was no breach of duty of care by the defendant. I have considered each of the particulars of breach in the Statement of Claim and the report of Mr Dimopoulos in coming to that conclusion. I have also considered the various detailed submissions made by the plaintiff in favour of there being a breach in the present case. ... I have found no breach of the duty of care pleaded. In case I am in error, I will consider the question of damages. Damages issues are not straightforward in this case."

• Stallard v Sunbury Shopping Centre Pty Ltd [2015] VCC 1890.

[A13.22] Occupier has no duty to prevent a third party from harming another by their deliberate wrongdoing: see 

•  Ryan v Dearden [2023] QCA 20, [17]-[28], [35]-[36]. See summary at <https://www.qlsproctor.com.au/2023/03/negligence-occupiers-liability/>, archived at <https://archive.is/VF0kX>.  

[A13.23] Elevators/Travellator/Escalators:

[A13.23.1] Entrapment, malfunction, negligence, DOC to repair and maintain lift: Massouras v Kone Elevators Ptd Ltd [2020] ACTSC 66; Winford v Permanent Nominees (Aust) Ltd ACN: 000 154 441 & Ors [2002] ACTSC 21. 

[A13.23.1.1] Tripping on exiting lift - failed to level accurately at the floor: Schneider v AMP Capital Investors Ltd [2016] NSWSC 333; Winford v Permanent Nominees (Aust) Ltd ACN: 000 154 441 & Ors [2002] ACTSC 21; Wilson v Emanuel Group of Companies & Otis Elevator Company Pty Ltd (SASC, Unreported, No 2701 of 1998, Legoe J) BC9100397; Emanuel Group of Companies v Wilson (SASC, Unreported, No 2701 oof 1988, King CJ, Bollen and Prior JJ) BC9200482. 

[A13.23.1.1.1] Lift door closing on person: City Elevator Services Pty Limited v Burrows [2004] NSWCA 26.

[A13.23.1.1.2] Lift collapsed, lift found to be unsafe for carriage of people: Hillcoat v Keymon Pty Ltd & Anor [2002] QCA 527.

[A13.23.1.1.3] Lift ceiling falling: Valeondis v Permanent Trustee Aust Ltd [22008] SADC 143.

[A13.23.1.1.4] Lift allegedly moan and jolt and then jerk; fall - claim not made out: Dimitrelos v 14 Martin Place Pty Limited and 3 Ors [2007] NSWCA 85.

[A13.23.1.1.5] Slip on travellator while walking down when wet - foreseeability of risk - breach - obvious risk rejected - contributory negligence rejected turns on facts: Akgun v Stockland Property Management Pty Ltd and Anor [2024] NSWDC 253 (Newlinds SC DCJ): " ... [45]  By the conclusion of submissions, I think it is fair to say that it was common ground that the relevant risk of harm for the purpose of the CLA was the risk that people, when walking upon the travelators when wet, would slip and fall and suffer injury. ... [49]  I do not think either point is right for the following reasons. Firstly, the relevant risk which I consider was foreseeable was in my opinion not insignificant. It is not to the point that of the ten or eleven million people who come to The Mall each year, only about five reported to the centre an incident of slipping on liquid on a travelator. That might be said to be an insignificant risk in the context of five people out of eleven million, but to each individual who slips the risk is not insignificant in the sense that, once they fall, there is a very high degree of at least possibility that they will be injured. [50]  It is only the reported instances of slipping and falling which occurred that can be counted, so these figures obviously understate things significantly. As reported, there were still five slips and falls in a period of slightly more than a year. That is a slip and fall on a travelator when wet approximately every two months. If there is only a 50% reporting rate, then that would equate to a slip and fall on a wet travelator at a rate of about once a month. By reference to s 5B(2)(a), it seems to me that there is not just a probability that harm would occur if the alleged care was not taken, it actually becomes a certainty. As far as s 5B(2)(b) is concerned, there is a reasonable likelihood of serious injury being caused and the burden of taking the precautions was a cost to a very large organisation running an enormous shopping mall of at most $250,000. The social utility of shopping malls (s 5B(2)(d)) would not in any way be impacted by the suggested precautions, as the shopping mall could continue to exist and function and, on the Plaintiff’s case, would be a safer place for everyone and the convenience, if it be a social utility, of pedestrians being mechanically assisted when walking can be retained. [51]  The question of liability really boils down to a consideration of s 5B(1)(c) of the CLA. [52]  As discussed during final submissions, this does involve me effectively second-guessing the decision that was taken by Stockland in 2022 when, having identified the very risk which is the subject of this case, and having identified a method of reducing that risk (the application of Chemrex), a decision was made to treat some, but not all, of the travelators. The travelator upon which the Plaintiff slipped and fell was one of the travelators left untreated. Stockland’s submission is that if that precaution was reasonable in 2022, then there would be no basis to conclude that anything more needed to be done prior to the accident. I do not accept this submission. [53]  Having considered the evidence of Dr Cooke and having listened to the evidence of Mr Farhat as to at least his thought process when making the decision to treat only some of the travelators, I am not satisfied that the precautions taken to reduce the identified risk were sufficient. To put it in the words of the statute, in my judgement in all the circumstances a reasonable person in Stockland’s position would have treated, if not all of the travelators, at least those which sloped down, which would have included the one upon which the Plaintiff slipped. It should have done that prior to the Plaintiff’s fall. [54]  Accordingly, in my judgement the identified duty of care owed by Stockland to the Plaintiff was breached. ... [57]  A useful summary regarding the approach to causation is contained in Gomez v Woolworths Group Pty Ltd [2024] NSWCA 121 at [65] –[69]. [58]  In my judgement, the probabilities are satisfied in this case. In the circumstances, Stockland’s failure to treat the travelators with Chemrex was a necessary condition for the occurrence of harm and that s 5D(1)(a) is made out. It was the breach of duty that probably caused or significantly contributed to the Plaintiff’s slip and fall. Dr Cooke said that in the absence of water being on the travelator, the travelator would have been safe from a slip perspective, but when wet it was dangerously slippery. There is no evidence that the Plaintiff had a propensity to fall or misstep. Further, the Plaintiff and his father gave evidence that he had used the travelator before without incident. The CCTV footage shows the Plaintiff walking normally and without hurrying when his feet suddenly go out from under him. I think it was the presence of liquid on the travelator that probably caused the Plaintiff to slip and fall. I have found it was a breach of duty to permit the surface of the travelator to be in the state it was when the Plaintiff suffered his injury, and that state was a necessary condition for the occurrence of harm within the meaning of s 5D(1)(a). [59]  Stockland pleads that the presence of water on the travelators was an obvious risk for the purpose of Part 1A Division Four of the CLA. [60]  A significant hurdle for Stockland in relation to this submission is that it is common ground and obvious that any clear liquid on the surface of the travelator would simply not be observable by a person taking reasonable care for their own safety. [61]  In other words, whilst it may be accepted it is an obvious risk that wet floors may be slippery, the particular risk in this case, being that travelators whilst safe when dry become dangerously slippery when wet, is to my mind not one that would have been obvious at all. Certainly, the requirement in s 5F(1), that such a risk has to be obvious to a reasonable person in the position of the Plaintiff is not made out. Moreover, the risk cannot have been that obvious to Stockland itself, who was familiar with the history of slips and falls, because there was no warning sign to the effect that travelators could become extremely slippery in circumstances where it might be very difficult to predict when and where that might happen. [62]  Stockland also pleads that the Plaintiff was guilty of contributory negligence. In essence the submission is that the Plaintiff ought to have been taken reasonable care for his own safety to prevent damage from the risk I have identified and that he breached that duty because he did not make use of the moving handrails when walking down the travelator. [63]  I do not think that failing to hold onto the moving handles is conduct which could satisfy the requirements of s 5R of the CLA. [64]  As was explained in Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 : The question whether a person has been guilty of contributory negligence is determined objectively, the question being whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take… [65]  As a necessary element for any finding of contributory negligence, I must first find that the relevant risk of harm was foreseeable by the Plaintiff, that such risk was not insignificant, and in circumstances a reasonable person in the Plaintiff’s position would have taken precautions against the risk (s 5B(1)). The relevant risk of harm in this case is the risk of slipping on a wet travelator and falling causing injury. This is not a matter that was foreseeable by the Plaintiff in the circumstances as the Plaintiff was not on notice of that fact ie, that wet travelators are dangerously slippery, nor was he on notice that there was any water on the travelator. In all the circumstances it is not a risk that the Plaintiff knew or ought to have known of. Moreover, s 5B(1)(c) also requires a finding that a reasonable person in the Plaintiff’s position would have taken precautions against the risk of harm. Embedded in that proposition is an assumption that the Plaintiff, and the notional reasonable person, must have been aware of the very risk before he could be expected to take steps to avoid it. [66]  I have viewed 15 minutes worth of CCTV footage of many people using the relevant travelator before and after the Plaintiff’s fall. While some of them hold the handrail while standing stationary on the travelator, the vast majority of them do not do so and instead walk on the travelator, often carrying multiple shopping bags or pushing shopping trolleys or prams. Whilst the question for me is objective, I do not think it is irrelevant to observe that many of those people ought to be taken to have been ordinary reasonable people and hardly any of them are taking the precaution suggested by Stockland. ... [130]  As I have explained, whilst I am satisfied that there was some liquid on the travelator at the time of the fall, and that the cause of the Plaintiff’s injuries was that he slipped on that liquid, I have made and cannot make any finding as to how the liquid got there, for how long it had been there, and whether any actions by Assetlink as cleaner could have possibly identified its presence and cleaned it up prior to the Plaintiff’s fall. [131]  For that reason alone, Stockland’s cross-claim against Assetlink fails."

• See also, 'Akgun v Stockland Property Management Pty Ltd & Anor [2024] NSWDC 253' (Webpage) <https://www.schultzlaw.com.au/case-summaries/akgun-v-stockland-property-management-pty-ltd-anor-2024-nswdc-253/>, archived at <https://perma.cc/SU28-LMP3>. 

• See also, 'Wet and slippery travelators- reasonable precautions – Akgun v Stockland Property Management Pty Ltd and Anor [2024] NSWDC 253' (Webpage) <https://www.millsoakley.com.au/thinking/wet-and-slippery-travelators-reasonable-precautions-akgun-v-stockland-property-management-pty-ltd-and-anor-2024-nswdc-253/>, archived at <https://archive.is/lpLv7>.

• cf : Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 289 (McColl JA): "[5]  The only notice of appeal which has been filed so far is that filed on behalf of Glad Retail in which it raised numerous grounds of appeal including as to the content of its duty of care to the first respondent, an issue concerning a finding unfavourable to it as to whether or not it should have been obvious to the first respondent that in stepping in an area which was apparently obviously wet then walking on a travelator she should have appreciated that there was an obvious risk that she might slip in so doing; and also as to the steps his Honour concluded ought reasonably have been taken by the appellant to obviate the risk to the first respondent. ... [26]  In this respect Glad Retail drew attention, in particular, to the grounds in relation to the primary judge’s finding as to obvious risk and the precautions his Honour said the cleaner should have taken to prevent the first respondent walking on the travelator. In my view those grounds have some prospects of success. Mr Reynolds said that any notice of appeal Mirvac would seek to rely upon would in essence raise the same grounds insofar as they applied to Mirvac’s position below."

[A13.23.1.2] DOC to install and maintain escalator

• Huynh v Public Transport Authority of Western Australia [2016] WADC 65; 

• failure to maintain escalator, handrail stopped moving but steps did not (Judge found that plaintiff did not fall as a result of the momentary interruption to the operation of the handrail, [68]): Mclean v Star City Pty Ltd [2008] NSWDC 143;  McLean v Power [2013] NSWSC 193. -- see judgment text for explanation of handrail mechanics and expert evidence on it. 

• intentionally cut off the power supply to the elevator as part of a scheduled maintenance and testing programme, failure to warn, risk of a person becoming injured from an elevator dropping or stopping without notice: Cox v DAC Finance (NSW/QLD) Pty Limited & Anor [2024] NSWDC 22.

[A13.23.1.2.1] Res ipsa loquitor rejected - elevators: Dimitrelos v 14 Martin Place Pty Limited and 3 Ors [2007] NSWCA 85; BCS Strata Management Pty Ltd T/as Body Corporate Services v Robinson and Anor [2004] NSWCA 80, [11].

[A13.23.1.3] Anti-slip treatment to travellators - reasonable precautions: " [39]  In 2022, after the risk assessment, Stockland decided, and Mr Farhat gave evidence before me that he was part of that decision-making process, to treat some, but not all, of the travelators with Chemrex or some related product. This took place in 2022, two years after the accident, however the Chemrex material was only applied to those travelators going down from level five (undoubtedly because it was identified that it was likely that water would come into the centre from the uncovered car parks on level five) and the travelator going down from level four, the food court, to level three, no doubt because it was identified that there was a risk of water or other liquids getting on the surface of the travelator by people spilling drinks and the like, having purchased them from the food court. [40]  The cost of application of the Chemrex-like material to each travelator was approximately $9,500. The evidence is that there was a total of twenty-six travelators in the Mall as of 2022. The total cost of the treatment of four of them in 2003 was approximately $50,000. If all the travelators sloping downward, which would have included the one the Plaintiff fell on, had been treated in the same way, that cost would have been about $250,000.... [52]  As discussed during final submissions, this does involve me effectively second-guessing the decision that was taken by Stockland in 2022 when, having identified the very risk which is the subject of this case, and having identified a method of reducing that risk (the application of Chemrex), a decision was made to treat some, but not all, of the travelators. The travelator upon which the Plaintiff slipped and fell was one of the travelators left untreated. Stockland’s submission is that if that precaution was reasonable in 2022, then there would be no basis to conclude that anything more needed to be done prior to the accident. I do not accept this submission. [53]  Having considered the evidence of Dr Cooke and having listened to the evidence of Mr Farhat as to at least his thought process when making the decision to treat only some of the travelators, I am not satisfied that the precautions taken to reduce the identified risk were sufficient. To put it in the words of the statute, in my judgement in all the circumstances a reasonable person in Stockland’s position would have treated, if not all of the travelators, at least those which sloped down, which would have included the one upon which the Plaintiff slipped. It should have done that prior to the Plaintiff’s fall. [54]  Accordingly, in my judgement the identified duty of care owed by Stockland to the Plaintiff was breached.": Akgun v Stockland Property Management Pty Ltd and Anor [2024] NSWDC 253.

[A13.23.1.4] Body Corporates, duty to keep lift in safe and proper working condition, servicing of lifts: Puflett v Proprietors of Strata Plan No 121 (1987) 17 NSWLR 372; BCS Strata Management Pty Ltd T/as Body Corporate Services v Robinson and Anor [2004] NSWCA 80.

[A13.23.1.5] Children

• moving escalators dangerous to children, shoe caught in escalator, unaccompanied child, foreseeability, whether system of supervision or lackof caused by breach: State Rail Authority of NSW v Madden [2001] NSWCA 252: "Per Handley JA, Ipp AJA agreeing: (1) The case law confirms the conclusion, which a tribunal of fact could reach independently as a matter of commonsense and ordinary experience, that moving escalators are dangerous to young children. (2) The trial Judge was correct in finding that a duty of care existed: the question is not whether the reasonable person would have foreseen that the child could be injured because his loose shoelace became caught in the escalator and jammed his foot between the escalator and comb plate - it is sufficient that he could reasonably foresee that an unaccompanied five year old might be injured in some way on the moving escalator. (3) A duty of care arose because of the foreseeable risk of injury to these young children if they were allowed to play unsupervised in the station - questions of breach and causation must be approached on this basis. (4) The Judge was not shown to be wrong in concluding that the appellant breached its duty of care: the respondent's evidence established a prima facie case and the appellant had the evidential burden of establishing that the exercise of reasonable care could not have prevented this group of children from entering the station when they did - there was no such evidence; the possibility that they entered when the station assistant was so busy that he could do nothing to stop them was entirely speculative. (5) Where a breach of duty occurred, which allowed the children to enter the station without supervision, an injury of the kind that was foreseeable was the very thing that was likely to result. Since an injury of that kind did result, the injury should be found to have been caused by the breach."

• David Jones (Canberra) Pty Ltd v Stone (1970) 123 CLR 185, referred to in Beardmore v Franklins Pty Ltd [2002] QCA 60 [82]: "In David Jones (Canberra) Pty Ltd v Stone (1970) 123 CLR 185 it was held that the store proprietor in that case was entitled to assume that a child of tender years using the escalators would be accompanied by an adult who would take reasonable care to safeguard the child against inherent hazards on an escalator, and was not liable to a child for an injury to her finger when she inserted it into a part of an escalator which was in operation. Such an approach however, would be inappropriate in present case because it is clear on the evidence that Franklins staff were, or should have been, well aware from their observations of the conduct of the child and his mother that his mother was not in fact taking reasonable care to ensure that he did not injure other shoppers in the supermarket (or indeed for that matter himself) by the manner in which she allowed him to use the loaded shopping trolley."

[A13.23.1.6] DOC system of inspection and maintenance, failure to ensure that the escalator proceeded at a speed that made it safe for a pedestrian to walk on: South Sydney Junior Rugby Leagues Club Ltd v Gioia & Ors [2000] NSWCA 249.

[A13.23.2] WHS: Franklin v Kone Elevators Pty Ltd [2011] VSC 108.

[A13.23.3] Australian Standards AS 1735, Lifts, Escalators, and Moving Walks: 

• Legislative recognised standard, see eg, Design and Building Practitioners Regulations 2021 (NSW) div 2, reg 9(e)(iii). 

• now repealed Occupational Health and Safety Regulations 2001 (NSW): "Lifts, escalators and moving walks AS 1735.1 — 1999 Lifts, escalators and moving walks Part 1: General requirements AS 1735.2 — 1997 Lifts, escalators and moving walks Part 2: Passenger and goods lifts — Electric AS 1735.3 — 2001 Lifts, escalators and moving walks Part 3: Passenger and goods lifts — Electrohydraulic AS 1735.4 — 1986 SAA Lift Code Part 4: Service lifts — Power operated AS 1735.5 — 2001 Lifts, escalators and moving walks Part 5: Escalators and moving walks AS 1735.6(Int) — 1996 Lifts, escalators and moving walks Part 6: Moving walks AS 1735.7 — 1998 Lifts, escalators and moving walks Part 7: Stairway AS 1735.8 — 1986 SAA Lift Code Part 8: Inclined lifts AS 1735.9 — 1994 Lifts, escalators and moving walks Part 9: Special purpose industrial lifts AS 1735.10(Int) — 1998 Lifts, escalators and moving walks Part 10: Tests AS 1735.11 — 1986 SAA Lift Code Part 11: Fire-rated landing doors AS 1735.12 — 1999 Lifts, escalators and moving walks Part 12: Facilities for persons with disabilities AS 1735.13 — 1986 SAA Lift Code Part 13: Lifts for persons with limited mobility — Manually powered AS 1735.14 — 1998 Lifts, escalators and moving walks Part 14: Low rise platforms for passengers AS 1735.15 — 1990 Lifts, escalators and moving walks Part 15: Lifts for people with limited mobility — Restricted use — Non-automatically controlled AS 1735.16 — 1993 Lifts, escalators and moving walks Part 16: Lifts for people with limited mobility — Restricted use — Automatically controlled AS 1735.17 — 1995 Lifts, escalators and moving walks Part 17: Lifts for people with limited mobility — Restricted use — Water drive".

• Kone Elevators Pty Ltd v Elex Pty Ltd [2000] FCA 711. 

• Negligence cases citing AS 1735: 

> Massouras v Kone Elevators Ptd Ltd; Pattinson v Kone Elevators Ptd Ltd; Shipton v Kone Elevators Ptd Ltd; Soesman v Kone Elevators Ptd Ltd [2020] ACTSC 66. 

> Schneider v AMP Capital Investors Ltd; Schneider v Kent Street Pty Ltd [2017] NSWCA 40.

> VWA v Probuild & Ors [2016] VSC 102: "[8]  The VWA pleads that the incident causing Mr Griffin’s injury was caused by the acts, default and/or negligence of Probuild, Tubeway and/or Higgins. The particulars of negligence of the defendants are pleaded at paragraph 10 of the Further Amended Statement of Claim and are as follows: ... (bb) failing to comply with Australian Standards and/or WorkSafe Victoria guidelines to ensure the swing stages are safe for use by the worker including but not limited to: ... AS 1735.2–2001 Australian Standard — Lifts, escalators and moving walks, and in particular Section 12; (iii)AS 1735.9–1994 Australian Standard — Lifts, escalators and moving walks — Part 9: Special Purpose Industrial Lifts, and in particular Section 12; ... ".

> Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482: "[38] The travelator is a modular structure consisting of sections known as pallets. The accident occurred after the plaintiff stepped onto the travelator, which was descending. Unlike an escalator, a travelator does not have steps, but is effectively a moving walkway. The travelator was constructed with a gradient of 12 degrees to the horizontal. This was the upper limit of the permitted gradient specified in a 1996 Interim Australian Standard: Lifts, escalators and moving walks — Moving walks(AS 1735.6(Int)–1996) and recommended in a 2008 report prepared by the Monash University Accident Research Centre commissioned by the Australian Building Codes Board."

> Dimitrelos v 14 Martin Place Pty Limited and 3 Ors [2007] NSWCA 85.

> Travellator speed: South Sydney Junior Rugby Leagues Club Ltd v Gioia & Ors [2000] NSWCA 249, [6]: "[6]  The obstacle to escaping his Honour's finding is the report of an expert, Mr Burfitt, who examined the escalator in detail, although two or three years later. At that time, Mr Burfitt concluded that the speed was within the limits set out in Australian Standard AS 1735.5 1986 escalators. But, bearing in mind the time which elapsed between the accident and Mr Burfitt's inspection, particularly as the Court was left in total ignorance as to what happened on the occasional inspection which might have taken place in this interval, I do not think any safe reliance can be placed on Mr Burfitt's conclusion."

> City Elevator Services Pty Limited v Burrows [2004] NSWCA 26: "[24]  The report does not purport to be one made from observation at the time of the accident but some four years later. The author of the report had, it appears, inspected the 1997 and 1998 records and, in particular, “The Report of Findings and the Record of Service Calls”; see para 6 and App A of the report. [25]  Dr Shafaghi described visiting the site of the accident and inspecting the function of the elevator against a standard being AS 1735.2–1997. This was for “Passengers and Goods Lift” – “Electric Australian Standard”, extracts from which are attached to his report as App B. He described his inspection as “purposely limited to the design of the doors and their closing functions, overlaps, passenger protection devices and dimensions”. [26]  The appellant rightly observes that there was no evidence showing that the lift was operating outside the Australian Standard. That is a matter of some significance when it comes to considering the basis for contending that the adjustments made by Mr Hoogvliet were actually necessary to render the lift safe, as distinct from being done out of an abundance of caution following an accident as Mr Hoogvliet in his evidence asserted. It must be fundamental to establishing negligence in circumstances of the present kind to demonstrate not merely that the accident would not have occurred had the adjustments been made, but also that (a)the appellant’s conduct by act or omission in neglecting to make such adjustments would have led a reasonable man in the appellant’s position to have foreseen that such conduct involved a risk of injury to the respondent or to a class of persons including the respondent, (b)applying the Shirt calculus, making the adjustments must be what a reasonable person would do by way of response to the risk; that is to say, judging that risk according to its magnitude and probability “along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities the defendant may have”.".

• Some excerpts from AS 1735:

> AS 1735.1.1:2022: "3.76.12 Inspection operation maintenance operation ... facility to operate a lift for inspection and maintenance purposes at a speed of not more than 1m/s .. Note 1 to entry: Inspection is done from on the car roof, within the car or within the machine room. .. 3.88 rated speed contract speed ... <electrohydraulic lifts> speed at which rated load is designed to be carried in the upward direction. ... <passenger, goods and service electric lifts> mean of the speeds in the upward and downward directions when carrying rated load, acceleration and retardation being disregarded. <escalator and moving walk> design speed for unloaded running conditions."

> AS 1735.5: Lifts, escalators and moving walks: 

> AS 1735.5.1:2019 Lifts, escalators and moving walks, Part 5.1: Safety of escalators and moving walks - Construction and installation (EN 115-1:2017, MOD): " .... 5.2.2 Angle of Inclination  The angle of inclination of the escalator shall not exceed 30 degrees, but for risees not exceedingg 6m and a nominal speed not exceeding 0,50m/s the angle of inclination is permitted to be increased up to 35 degrees (see alpha in Figure 5). The angle of inclination of moving walks shall not exceed 12 degrees. ... 5.4.1.2.2 The nominal speed of an unloaded escalator shall not exceed -- 0.75 m/s for an escalator with an angle of inclination of up to 30 degrees; -- 0,50m/s for an escalator with an angle of inclination of more than 30 degrees up to 35 degrees. 5.4.1.2.3 The nominal speed of moving walks shall not be higher than 0,75 m/s. Deviating from the above a nominal speed up to 0,90 ms is permitted provided the width of the pallets or the belt does not exceed 1,10, and at the landings, the pallets or the belt move horizontally for a length of at least 1,60m before entering the combs. The before mentioned requirements do not apply to moving walks with acceleration paths or moving walk systems with direct transition to moving walks travelling at different speeds. ... 5.7 Landings ... 5.7.3 Combs ... [further technical dimensions and requirements]"

= AS 1735.5.2:2019 Lifts, escalators and moving walks, Part 5.2: Safety of escalators and moving walks - Rules for the improvement of safety of existing escalators and moving walks (EN 115-2:2017, MOD): " .... 5.4.2.6 The stopping distances for unloaded and downward moving loaded escalators shall be indicated in Table 2: Nominal speed v / Stopping distances between: [0.50m/s / 0.20m and 1.00m]; [0.65m/s / 0.30m and 1.30m]; [0.75m/s / 0.40m and 1.50m]... The stopping distances for unloaded and horizontally or downward moving loaded moving walks shall be indicated in Table 3: [0.50m/s / 0.20m and 1.00m]; [0.65m/s / 0.30m and 1.30m]; [0.75m/s / 0.40m and 1.50m]; [0.90m/s / 0.55m and 1.70m]."

= AS 1735.5.3:2019 Lifts, escalators and moving walks, Part 5.3: Safety of escalators and moving walks - Correlation between AS 1735.5:2015 and AS 1735.5.1:2019 (CEN/TR 115-3:2017, MOD).

= AS 1735.5.4:2019 Lifts, escalators and moving walks, Part 5.4: Safety of escalators and moving walks - Interpretations related to AS 1735.5 series of standards (CEN/TS 115-4:2015, MOD).

• Kone Manual: <https://www.transportcenter.org/images/uploads/publications/KonePacket.pdf>. 

• Schindler Manual: <https://au.schindler.com/content/dam/website/au/docs/escalators-moving-walks/schindler-escalator-moving-walk-planning-guide-au.pdf/_jcr_content/renditions/original./schindler-escalator-moving-walk-planning-guide-au.pdf>. 

• 'Lifts, escalators and moving walkways' (Webpage, Safework NSW) <https://www.safework.nsw.gov.au/hazards-a-z/lifts-escalators-and-moving-walkways>, archived at <https://archive.is/Y4Li1>. 

[A13.23AA] Carparks - Street Parking - Design

• Street Parking: Australian Standards AS 2890.5 1993: <https://pdfcoffee.com/as-28905-pdf-free.html>, archived at <https://perma.cc/4M24-6V58>. 

• Off Street Carparks: Australian Standards AS 2890.1 2004: <https://images.carexpert.com.au/app/uploads/2023/04/Australian-Car-Park-Standard-Document-AS-NZS-28901-2004.pdf>, archived at <https://perma.cc/4N8X-WG3K>.  

[A13.24] Stairs: 

[A13.24.1] Causation - wetness of shoe from spill or elsewhere - whether wetness of shoe would have caused slip on particular surface: Jackson v McDonald’s Australia Ltd [2014] NSWCA 162: "[119]  The appellant was required to prove on the balance of probabilities that there was water on his shoes and that this caused him to slip. He did not say that he knew that his soles were wet; he merely surmised that they were. Even if it be assumed that there was water on his soles when he slipped on the particular surface, it does not follow, as a matter of “common experience”, that it is more probable than not that he slipped by reason of the wetness of his shoes. The appellant submitted that it was more probable that, if his shoes were wet, he slipped because of the water on them rather than for any other reason. But there is nothing in common experience that tells us that someone with wet shoes who traverses a floor having the particular characteristics of the McDonald’s floor is more likely to slip because of water on their shoes than for any other reason, such as inattention (because engaged in conversation or for any other reason), excessive speed or failing to take advantage of a handrail. People wearing dry shoes walk on wet stairs every day and do not slip. People wearing wet shoes walk on dry stairs every day and do not slip. People wearing dry shoes slip on dry stairs every day. And, as Heydon JA observed in Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [32], stairs are, in any event, “inherently, but obviously, dangerous”. [120]  The appellant, having walked through a wet area of the floor, stepped back over the pile of rubbish and then traversed either about one metre or about two to three metres of dry surface which included the white bubble tiled area at the top of the stairs. He lost his footing either at the top of the stairs (where the white bubble tiles were installed) or on the second or third stair of the nine stairs equipped with handrails which had slip preventing strips along their outer edges. The McDonald’s employees who gave evidence referred to non-slip qualities of the floor tiles themselves, the white bubble tiles and the strips on the edges of the stairs. Mr Shalen, who was involved in the renovation of the premises some three years earlier, gave evidence that the particular flooring materials had been chosen because of their slip-resistant qualities. [121]  It was for the appellant to prove that water on his shoes, if present, would have caused, on the particular floor surfaces, slipping that would not have occurred if no water had been present. The task of proof was facilitated, if at all, only by s 144 of the Evidence Act 1995 (NSW) which, as the High Court recognised in Gattellaro v Westpac Banking Corporation [2004] HCA 6 ; 78 ALJR 394 at [17], dispenses with the need for proof only as to matters which are “common knowledge”. The need to prove the effects of wetness on one’s soles when traversing flooring materials of the particular kinds would therefore be avoided if those effects were “common knowledge”. It cannot be said that “common knowledge” provides an answer to the question whether a person wearing shoes of the particular kind the appellant was wearing is more likely to slip on flooring materials of the particular kinds within the McDonald’s premises when the soles of the shoes are wet than when they are dry. [122]  The appellant did not call any evidence from persons qualified to express an opinion on the issue of slip resistance of the particular surfaces and the effect that wetness on soles might be expected to have had: compare the plaintiffs in, for example, Cherry v Jaymardo Pty Ltd (above), Glad Retail Cleaning Pty Ltd v Alvarenga (above) and Riley v The Owners - Strata Plan 73817 [2012] NSWCA 410. Nor did the appellant call any expert evidence as to the likely state of a sole of the kind he was wearing after it had traversed a wet area and then a dry area of between one and three metres consisting of the particular surface in fact installed at the top of the stairs. He thus chose to leave an evidentiary vacuum on the issue of, first, the extent to which soles of the particular kind, having encountered wetness on the floor surface, were likely still to be wet at the time of his fall and, second, the propensity of soles of the particular kind, if wet, to cause slipping to a greater degree than if dry when traversing surfaces of the particular kinds. ... [125]  It follows from what I have said about lack of proof of causation that neither McDonald’s nor Holistic incurred liability for any breach of duty of care on its part. ... [184]  The relevant risk was that explained by Barrett JA at [96], to which I would add the risk that the soles of the shoes of someone crossing the mopped floor might retain not just moisture but also (or instead) some residue from the non-slip detergent. [185]  I agree with Barrett JA that mopping the floor in sections was a simple precaution that would have prevented any such risk. It was not suggested that this was an onerous precaution to take. It was in fact the direction given by McDonald’s to its own staff as to the protocol in relation to mopping of floors. [186]  I am not convinced that McDonald’s and Holistic were entitled to assume that a person in the appellant’s position would appreciate the possibility that if he or she walked across the mopped floor there could be some moisture or residue of non-slip detergent on the soles of his or her shoes and would take the opportunity to wipe that off the shoes before reaching the top of the stairs, so as to obviate the need for any further precaution to be taken by them."

> See also, '[A13.1] Occupiers' Duty of Care' and '[A13.14] Causation' in Occupiers' Liability. 

[A13.24.2] Contributory Negligence?: Stavrakijev v Ready Workforce & Anor [2018] VSC 690: "How fast was Mr Stavrakijev walking as he approached the steam chamber stairs? [55]  The defendants submitted that Mr Stavrakijev was moving too quickly, and that this was the reason for the fall. [56]  It was put to Mr Stavrakijev that he was ‘moving beyond a normal walking pace’, and that was the reason he was unable to control his movements when he fell, and he said that was not true, and that he was going down the stairs like he did every day. Mr Stavrakijev was cross-examined on a history contained in Mr Waddell’s report, ‘As he slowed his pace at the top of the stairs his foot slipped forwards, and he fell down the stairs’, and it was put to him this indicated he was moving at a fast pace and he said, ‘Like I always go there. It was the same’. Mr Stavrakijev said he frequently had to rush to complete his work, he did not run, but you had to keep up, and everyone works at that pace. [57]  Before preparing an addendum report on 8 February 2018, Mr Waddell telephoned Mr Stavrakijev to ask him how quickly he was moving at the time of the fall, and said he could not remember. Mr Stavrakijev explained that a gentleman called him on a Sunday, he was not sure who he was, that he was a bit reluctant to give him information, but that he told him something because he did not want to hang up on him. I accept Mr Stavrakijev’s explanation for the manner of his response to Mr Waddell. [58]  Mr Cavka said when he spoke to Mr Keogh the day after the fall, he told him Mr Stavrakijev was going too fast and that was a cause of his fall. Mr Cavka had his back to Mr Stavrakijev, did not see him before he fell and only saw a reflection in the control panel of Mr Stavrakijev falling. He did not give evidence of any observation he made that indicates Mr Stavrakijev was going too fast and this was a cause of his fall. Mr Keogh said, had Mr Cavka told him something about the cause of the fall, he would have recorded it in the worksheet. There is nothing in the worksheet to indicate that Mr Stavrakijev was going too fast. I do not accept the evidence given by Mr Cavka. [59]  I conclude that immediately before he fell, Mr Stavrakijev was walking quickly from the steam chamber apron to the steam chamber stairs, and that this was the usual pace at which he worked. ... Contributory negligence [124]  The defendants allege contributory negligence, first, because Mr Stavrakijev knew there was water and debris on the platform and was rushing; second, Mr Stavrakijev failed to hold the handrail; and third, he failed to clean the platform or to complain about the state of the steam chamber stairs. [125]  I conclude that immediately before he fell Mr Stavrakijev was walking quickly. The pace at which Mr Stavrakijev was moving was a product of Holcim’s system of work, which I have concluded was unsafe. I reject the allegation that Mr Stavrakijev was guilty of contributory negligence because he was rushing when he fell. [126]  Mr Stavrakijev was aware that there was water and debris on the landing, and that he should use the handrail when descending the steam chamber stairs. Failure to use an accessible handrail would, in those circumstances, lead to a finding of contributory negligence. However, I have been unable to reach a conclusion as to whether Mr Stavrakijev was holding the handrail when he slipped and fell, or whether he had reached a position where he was readily able to take hold of the handrail. Accordingly this allegation fails."

[A13.24.3] Intermediate Step; Unlit: "Mrs Carusi now appeals against the dismissal of her claim against St Mary's.  For the following reasons, while some of Mrs Carusi's grounds of appeal are established, the appeal must be dismissed.  In summary: 1.           In relation to breach of duty, the trial judge properly formulated the relevant risk of harm.  The trial judge ought to have found that risk of harm to be foreseeable and not insignificant.  However, the evidence did not establish that a reasonable person in St Mary's position would have installed an intermediate step or additional lighting as a precaution against that risk of harm. 2.           In relation to causation, having rejected Mrs Carusi's account of the incident, the trial judge ought to have considered the inferences which might nevertheless be drawn as to the cause of Mrs Carusi's injury.  However, the evidence did not establish, on the balance of probabilities, that the absence of an intermediate step or additional lighting materially contributed to Mrs Carusi's injury. Therefore, the trial judge was correct to conclude that St Mary's had not been shown to have breached its duty of care, and that any alleged breach of duty had not been shown to be a cause of Mrs Carusi's injury.": Carusi v St Mary's Anglican Girls School [2024] WASCA 137, [5].

[A21A.3] Obvious Risk - Stairs - Wet: 

• Small, unremarkable helical stairway — Risk of falling slight, inherent and obvious — Installation of handrail not a reasonably required precaution: "[37]  In summary, the stairs were made from a material that the experts agreed was safe and non-slippery even when wet; there was no proper basis for concluding that they were mossy; the fact that Mr Walsh had slipped on some other decking was not relevant; and in fact the respondent himself seems to have slipped by his own, human error in overstepping. The risk of a person slipping and hurting themselves on the stairs — whether from a slippery surface and/or from overstepping — was slight, inherent and obvious. ... [50]  The case in this Court of Wilkinson v Law Courts Ltd [2001] NSWCA 196 concerned a claimant who fell down the steps outside the Law Courts building and contended that the steps were unsafe by virtue of their varying rise heights. Heydon JA said the following at [32], with the agreement of Meagher JA and Rolfe AJA: Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: “persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety”: Stannus v Graham (1994) Aust Torts Reports 81–297 at 61 ,566 per Handley JA. [51]  In this case, a reasonable person considering the identified risk of harm presented by the stairs would not have concluded that a handrail should have been erected as a precaution against that risk. The appellants did not breach their duty of care. The appeal should be upheld on that basis.": Russell v Carpenter [2022] NSWCA 252.

• "[10]  Each tread was a single smooth board. The treads were exposed to the weather and at different times they would have been covered with dew, frost, rain, snow and ice. That smooth wet timber is slippery is a matter of common experience. There was an obvious risk that a person using the steps could slip and injure themselves, and this should have been anticipated. The treads should have been constructed with a non-slip surface or such a surface should have been added to them. Some time subsequent to the plaintiff's fall, galvanised chicken wire was stapled to the treads. That action recognised the need to reduce the risk associated with the treads becoming slippery and shows that alleviating action did not involve significant inconvenience or expense. [11]  I am satisfied that at the time of the plaintiff's fall the slipperiness of the treads presented an obvious risk of injury, and as nothing was done to alleviate that risk, the defendant was in breach of its duty of care to the plaintiff. The defendant was also in breach of its implied warranty that the premises were as safe for the plaintiff's use as the exercise of reasonable care and skill could make them. ... [15]  The defendant's breach of its implied warranty as to the safety of the premises was a breach of contract and the plaintiff's damages for this breach cannot be reduced on the basis of contributory negligence. Astley and Others v Austrust Ltd (1999) 161 ALR 155. [16]  Should others form a different view to me on the defendant's breach of warranty, it would still be open to the plaintiff to succeed with her claim based on the defendant's breach of its duty of care. As to that claim, a defence of contributory negligence is open, so I deal with it. [17]  The plaintiff had used the steps to the cabin at least four times before she fell. She sat upon the bottom step as she fed a possum the evening before her fall. She was aware the steps were made of smooth wood and she observed that they were wet as she began her descent. Notwithstanding this, her momentum as she placed her foot on the first step and slipped was sufficient to carry her forward from the steps far enough for her shoulder blades to land on the tread of the steps when she fell. [18]  Under cross-examination, the plaintiff said that having seen that the steps were wet, she knew she needed to be careful and look where she was going. In my view, she should have done more. It should have been obvious to the plaintiff that they were slippery. It was foolhardy of her to descend the steps without taking a firm grip of both rails and testing her way. For her to slip as she did, she must have put her weight on her front foot and released her back foot before testing that her front foot was secure. [19]  In comparing the degree of departure of the parties from the standard of care expected of them, I am conscious that the defendant created the risk and was responsible for alleviating it. I assess the plaintiff's portion of responsibility for her loss at 20 per cent.": Henderson v P & O Resorts Pty Ltd [1999] TASSC 58 (Evans J). 

• Obvious risk / obvious hazard - absence of slip strip: "Finally, the appellants claimed that the absence of the strip was plain and obvious and nothing was required by the occupier to address the risk of harm asserted by Mr Farmer. This claim should be rejected. It is inconsistent with Mr Williams’ evidence, as described above.": Broadspectrum (Australia) Pty Ltd v Farmer [2024] NSWCA 81, [82]. 

[A13.24.4] Obvious Risk - Stairs - Tripping while ascending: 

• "31 The stairway was comprised of five steps giving access to a doorway located at the centre of the stairs. In the ordinary course, a user of these stairs, apart from someone who may have been infirm or disabled, would not have found it necessary, and in my opinion would have been unlikely, to move up the side of the stairway in close proximity to the handrail. Ordinary human experience would indicate that most able bodied people would access the building using the centre of the stairs and ignoring the handrail. The appellant was an able bodied person and his Honour was entitled to conclude that it had not been demonstrated that the presence of a handrail would have protected the appellant from injury. It may have been different for persons descending the stairs, in which case some people might hold the handrail or move to a position where they could grab on to it if they stumbled. 32 In Stannus v Graham (1994) Aust Tort Reports 81-293 Handley JA said: "The remaining ground on which the liability of the defendant was supported was her failure to install a handrail next to the steps. Since in my view there was no negligence in failing to observe and remedy any defect in the step it cannot, in the circumstances of this case, have been negligent for the defendant and her caretaker to fail to install a handrail. The steps were not otherwise dangerous and there were but four of them. Persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety." 33 His Honour's remarks are relevant to the present case. The risk that a person may trip or slip when ascending the stairs was an every day risk which an able bodied person could avoid by taking appropriate care for his or her own safety.": Foresti v Ace Ceramics Pty Ltd [2004] NSWCA 202. 

• "111 It is necessary to have regard to the general principles stated in Pt 1A of the Civil Liability Act, including that a person is not negligent in failing to take precautions against a risk of harm, unless the risk was foreseeable, the risk was not insignificant and a reasonable person in the person’s position would have taken those precautions (s 5B). A subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability and does not of itself constitute an admission of liability (s 5C(c)). 112 It is also necessary to apply authoritative statements which had been made about the extent of an occupier’s liability and particularly in relation to stairs on the premises of the occupier. “…an occupier of premises is only required to take such care as is reasonable in the circumstances. The duty is not to make the premises as safe as reasonable care and skill on the part of any one can make them” ( Wilkinson v Law Courts Limited [2001] NSWCA 196 at 21 per Heydon JA). 113 In the same case Heydon JA said at 32:- “…Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: “persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety”…” 114 In the present case I find that the circumstances include that the stairs were old; that, contrary to the plaintiff’s evidence (par 35 of her statement) the stairs were not “very steep”; that each part of the stairs contained only a few steps; that at the time the plaintiff was using the stairs the stairs were well lit; and that there was no feature of the design of the stairs which would not have been obvious to any user of the stairs. I will make further findings about the stairs later in the judgment. ... 148 In my opinion, I should not find that there was a foreseeable risk of a person slipping on the stairs which was not insignificant, such that a reasonable person in the position of the defendants would have taken precautions against the risk. Alternatively stated, I do not consider that it has been established that the defendants failed to take such care as was reasonable in the circumstances. I find a verdict for the defendants.": Youkhana v Di Veroli [2009] NSWSC 942.

[A13.25] Duty of Care - Customer injured by another customer's negligence: 

• Marmara v Kmart Australia Limited [2024] NSWDC 89. 

> "The Court noted that the defendant was aware of the need for a system to assist customers with heavy and bulky items and had developed such a system. However, the implementation was flawed due to insufficient staff training, lack of enforcement, and the absence of signage informing customers of the assistance available to them.": Carroll & O'Dea: <https://www.codea.com.au/publication/case-summary-marmara-v-kmart-australia-limited-2024-nswdc-89-the-importance-of-providing-a-safe-shopping-environment/>. 

> "This decision reinforces the duty of care owed by a retail occupier to have a sufficient, operative and effective system to ensure that customers are not at risk of sustaining injury from heavy, oversized and hazardous products tipping or falling from other customers’ shopping trolleys. This duty of care also extends to the storage and placement of products and equipment in a store with signage. For example, supermarket managers have the duty to store empty shopping baskets and pallets in a safe place so as to prevent customers from tripping and sustaining injury.": 'NSW Court of Appeal Upholds Decision in Kmart Public Liability Injury Case' (Stacks Goudkamp, 31 October 2024) <https://stacksgoudkamp.com.au/uncategorized/kmart-public-liability-case/>. 

> See also, interlocutory appeal: Kmart Australia Limited v Marmara [2024] NSWCA 249. 

> "The relevant risk of harm was the risk of physical injury by heavy, oversized items such as mountain bikes in boxes tipping or falling from customer’s shopping trolley’s and the system Kmart had in place which had to be initiated by customers, was not drawn to their attention and was not mandatory. There was a substantial probability that if care were not taken customers would continue to use standard size shopping trolleys to transport heavy oversized items and thereby expose others to risk of harm. The primary judge had implicitly found that it was probable harm would occur, the likely seriousness of harm was high and Kmart acknowledged that it would not have been burdensome to take such items to the dock, therefore the burden of taking precautions was not excessive. In the circumstances, a reasonable person in Kmart’s position would have implemented a system at its Woy Woy stores that prohibited customers from using standard size shopping trolleys to transport heavy oversized items and required customers to collect such items from the loading dock, and put up signs informing customers of the system and trained staff appropriately. If Kmart required customers to collect them from the loading dock, on the balance of probabilities the respondent would not have been injured, and thus Kmart’s negligence was a necessary condition of the occurrence of the harm.": <https://www.schultzlaw.com.au/case-summaries/kmart-australia-limited-v-marmara-2024-nswca-249/>. 

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