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: 

[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: 

> 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>.  

[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).

> 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/ 

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

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

> "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]. 

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

[A13.14] Causation: 

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

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

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

[A13.18] Potholes: 

[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: 

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

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

[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."

[A13.23.1.2] DOC to install and maintain escalator

[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

[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: 

> 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”.".

> 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).

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

[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: 

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

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

> "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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