Slippery when wet: New South Wales Court of Appeal places the burden on occupiers to take precautions to limit a known risk of patrons slipping on a wet floor – Sutherland Shire Council v Safar [2017] NSWCA 203

On 23 June 2013 Christina Safar (the plaintiff), went to the Sutherland Entertainment Centre (the Centre) to watch her daughter in a dance competition. While inside the entrance hall of the auditorium she slipped and fell on the wet parquetry floor sustaining serious injuries. It was raining on the day of the accident.

The plaintiff successfully sued Sutherland Shire Council (the Council) in the District Court of New South Wales. She argued that the Council, as the occupier of the premises, owed a duty of care to eliminate or reduce the risk to entrants that resulted from a slippery floor.

The expert evidence indicated the parquetry floor of the auditorium was highly slippery when wet. The Council was also aware of a number of previous incidents in which people had slipped as a result of water or other liquid being on the auditorium's parquetry floor.

The primary judge, his Honour Levy DCJ SC, held that it was reasonably foreseeable that an individual would slip and fall on the wet floor (it was not contentious that the floor was slippery when wet). His Honour concluded that the Council failed to discharge its duty of care by failing to take reasonable steps to make the floor safe. Such steps included, for example, providing appropriate hanging, storage or drying facilities for coats, umbrellas and bags, using mats to make the ground non-slip and providing umbrella bins. His Honour noted that the burden on the Council to take appropriate measures in these circumstances was not disproportionate to the risk.

The Council appealed the decision[2] on the basis that the primary judge erred in considering what precautions a reasonable person in the position of the Council would have or should have taken in the circumstances. The Council also contended that any breach of duty by the Council was not causative of the plaintiff's injury.

The plaintiff argued that there was a real risk of injury that the Council should have eliminated and the cost of eliminating such risk was proportionate to the risk.[3] The Council argued that the precautions detailed by the primary judge were unreasonable.
Their Honours came to the following conclusions on the precautions that should have or could have been taken by the Council:

1. One small unmarked bin for umbrellas was inadequate. It would have been inexpensive and simple for the Council to place bins at various locations near the entrance for the deposit of wet umbrellas.
   
   
2. It is not unreasonable for the Council to utilise the cloakroom in accordance with the Centre's original design. It was within the Council's power and control to restrict what items could be taken into the auditorium and as such, they should have insisted that wet coats or other items be left outside the auditorium.
   
   
3. It is unreasonable to impose an obligation on the Council to put mats around the entrance to the auditorium, as this would require mats to cover the whole floor.
   
   
4. It is unreasonable and impractical to require the Council to monitor or maintain constant supervision of the floor and to mop up water in the circumstances.

The Council argued that the water on the floor was not causative of the Council's failure to take reasonable precautions. It was argued that there was no reasonably practical way of preventing water from being inside, as patrons may choose to ignore any requirements imposed on them. However, it was held that it was more probable than not that the water the plaintiff slipped on would not have been on the floor, had the relevant precautions been taken. There was no guarantee that the floor might not become wet, however the test is not so onerous. It is a balance of probabilities test and on the balance of probabilities it was held the plaintiff's fall would probably not have occurred if the precautions had been taken.[4]

On the point of obvious risk, Harrison J (with Macfarlan JA dissenting and White JA not considering the issue) held that a reasonable person in the position of the plaintiff should have been aware that the floor was likely to have been affected by water on a rainy day, rendering it slippery. Therefore the Council did not owe a duty to warn the plaintiff of that risk.

The appeal was dismissed. Their Honours unanimously agreed that the Council breached its duty of care as occupier of the premises by not taking reasonable steps to prevent people from bringing wet umbrellas and coats into the centre, or at least attempting to minimise the risk of doing so.

This case is important because it emphasises the duty of care owed by an occupier to take precautions to minimise a risk. The question to consider in all such cases in determining breach of duty is whether on the balance of probabilities, had reasonable precautions been taken, the risk of harm would have been avoided.

Insurers should keep in mind that depending on the facts of a case, the duty of care owed by an occupier may not be negated even if the risk is obvious.