Obvious to me, obvious to who? New South Wales Court of Appeal rules on obvious risk and breach of duty owed to a patron in a hotel – Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103

Shortly before midday on 19 June 2009, the plaintiff tripped over the corner of a raised dark timber platform in the lobby area of the Manly Pacific Hotel, occupied by the defendant.

The bottom edge of the platform was raised about 5.5 cm above the floor and the top edge was approximately 20 cm above the floor. There was a strip of LED lights under the bottom edge which cast light onto the adjacent white marble floor, and there were spherical sculptures on top. The platform was immediately in front and to the right hand side of an entranceway. Behind the platform was a divider wall, the edge of which being roughly in line with the edges of the sculptures. However, the corner of the platform protruded outwards from the sculptures and divider wall.

The plaintiff commenced proceedings in the District Court of New South Wales (the District Court).

The trial judge² found the plaintiff did not see the platform because he was affected by intense glare from light coming through a window behind the entranceway. In doing so, his Honour found the risk of tripping was foreseeable and not insignificant, and that the defendant had breached its duty of care by failing to warn the plaintiff of the risk.

Furthermore, his Honour found the risk was not an obvious one such that the defendant did not owe a duty to warn of it. Likewise, the trial judge found the plaintiff was not contributorily negligent on the basis that he did not see the platform.

The defendant appealed from the District Court on 11 grounds, which can be broadly summarised into the following categories:

1. Whether it was open to find the plaintiff's vision was affected by glare.
   
   
2. Whether the defendant breached its duty of care to the plaintiff.
   
   
3. Whether the risk of tripping on the platform was an obvious risk.
   
   
4. Whether or not the plaintiff should be found contributorily negligent.

Meagher JA delivered the majority judgment, with Macfarlan JA agreeing. The Court of Appeal upheld the decision of the District Court and dismissed the appeal with costs, albeit, for somewhat different reasons. Fagan J dissented on the issue of whether or not the risk should be considered an obvious one and considered the plaintiff should be found contributorily negligent.

Meagher JA discussed the objective elements of the evidence concerning the light/glare issue³ and concluded it was only open to find there was a distant source of light behind the entranceway. However, the evidence did not support a finding the light source was bright, intense or debilitating. Therefore, this could not be used to explain why the plaintiff did not see the platform.

Meagher JA noted the duty of care owed by the defendant was qualified by the expectation the plaintiff would use reasonable care for his own safety.⁴ The weight to be given to this expectation was a matter for factual judgment and considerations such as the obviousness of the risk and the likelihood of others failing to observe and avoid it had to be taken into account.⁵ However, if the obviousness of the risk and the reasonableness of the expectation were conclusive against liability, there would be little room for the doctrine of contributory negligence.⁶

In this case, there had been at least one similar tripping incident beforehand and the presence of such a low platform was not likely to have been expected by the plaintiff, particularly if he had of been distracted, inattentive or less than careful. Therefore, the Court of Appeal held the defendant should have taken steps to warn the plaintiff of the raised edge of the platform.

Meagher JA held that it is a question of fact whether or not a risk will be considered obvious, the determination of which will depend on all the circumstances. His Honour concluded the presence of the low platform was not so obvious that the defendant could confidently predict the plaintiff would have become aware of its presence.

In dissent, Fagan J preferred the evidence of Dr Cooke (an expert qualified by the defendant) who stated the plaintiff should have noticed the raised platform when looking ahead from a distance of 20 m. Dr Cooke did not consider the competing visual cues would have distracted the plaintiff, if taking reasonable care for his own safety, from noticing the platform. However, a finding that a risk of harm is an obvious one does not automatically prevent a defendant from being held liable, it only eliminates the common law duty to warn of the risk.⁷

Fagan J considered the plaintiff's evidence had rebutted the presumption that he was aware of the obvious risk (pursuant to s 5G of the CLA) and held that the defendant breached its' duty by failing to take other precautions, such as erecting a barrier, or raising the platform so that it would be more visible to a pedestrian. His Honour reduced the plaintiff's award of damages by one third on account of contributory negligence for failure to keep a reasonable lookout.

The case reiterates the competing considerations which shape the scope of a duty of care owed by an occupier to an entrant. On the one hand, an occupier is entitled to assume that an entrant will take reasonable care for their own safety. However, an occupier must also consider that entrants might become distracted, inattentive or be less than careful when identifying foreseeable risks of harm. These competing considerations will be taken into account when determining whether or not the duty has been breached pursuant to s 5B of the CLA.

The case also reiterates that even where a risk of harm is considered an obvious static risk, it does not obviate the liability of an occupier, it merely removes the duty to warn of the risk pursuant to ss 5F and 5H of the CLA.

The case also demonstrates that where a risk of harm is considered to be obvious and liability attaches to an occupier for failure to take reasonable precautions, the doctrine of contributory negligence is likely to apply.