Raad v VM & KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust [2017] NSWCA 190
Originally Published by Michael Cooper and Mary Kinna on Monday, August 7, 2017 10:00:55 AM
Abdul Raad (the plaintiff at first instance and the appellant) claimed damages for injuries he sustained when he slipped and fell on a wet, tiled, outdoor area at Busby Shopping Village on 13 June 2011. The Court of Appeal has dismissed the appeal by Mr Raad, confirming the reduction for contributory negligence and finding no evidence of a causal link between the accident and psychiatric injury.
Mr Raad commenced proceedings in the Supreme Court of NSW against VM & KTP Holdings Pty Ltd (VM & KTP Holdings) as the occupier of the shopping village.
The case proceeded to hearing before Justice Davies who on 29 June 2016 found in favour of Mr Raad, and awarded him $75,547 in damages. This award in damages included a reduction of 10% for contributory negligence.
Justice Davies found that VM & KTP Holdings breached its duty as an occupier, by failing to ensure that either the tiles were treated with a slip-resistance coating that was renewed from time to time, or that the tiles were replaced with tiles with a pronounced surface texture to enable water runoff to occur.
Justice Davis considered that wet tiles are slippery when wet, and this is something that all reasonable people taking care for their own safety are aware of. At the time of the incident, Mr Raad was running from his car to the undercover portion of the shopping centre as it was raining. When the slip and fall occurred, he had by then already taken a number of steps on the wet tiles. His Honour considered that a reduction of damages for contributory negligence of 10% should be applied, as Mr Raad failed to adjust his speed of travel.
As a result of the accident, Mr Raad sustained fractures to his spine, however he also alleged to have suffered psychiatric injury, being an addiction to narcotics. The parties’ respective experts agreed that any acute physical injury should have resolved within three to six months of the accident and any continuing spinal pain would be associated with the pre-existing and now symptomatic Scheuermann's disease, and aggravated by psychological dysfunction.
Evidence suggested that Mr Raad may now have been suffering from pain syndrome however, as no evidence was adduced from a psychologist or a psychiatrist, Justice Davies found there was no evidence of a causal connection between that syndrome and the accident. Further, the causation problem for Mr Raad was highlighted by injuries from a subsequent incident, months after the slip and fall.
Mr Raad appealed Justice Davies’ decision in respect of the deduction for contributory negligence and for failing to find that two aspects of his present condition were casually related to the fall.
VM & KTP Holdings cross appealed, contending that the primary judge erred in finding that it breached its duties as occupier of the premises, and that the finding for contributory negligence should have been significantly higher.
The appeal and cross appeal were dismissed in a unanimous judgment by Justices McFarlan, Simpson and Sackville.
The Court of Appeal found that VM & KTP Holdings did breach its duty, however, there was contributory negligence on Mr Raad’s part because he ran over a tiled area upon which water was pooling from the rain. The Court considered Mr Raad ought to have taken care for his own safety. The Court of Appeal found the reduction of 10% for contributory negligence applied by Justice Davies was appropriate.
The Court of Appeal could not turn to any medical evidence, nor lay evidence given by Mr Raad, that explicitly attributed Mr Raad’s addiction or depression to the slip and fall. Whether the addiction resulted from treatment following a separate incident, or from the slip and fall accident, could not be determined on the evidence.
The Court considered Mr Raad’s submission that the primary judge erred in not finding that the Scheuermann’s disease was aggravated by his slip and fall accident. Again, no evidence was adduced that suggested that such an aggravation occurred. While one Doctor had reported that this was a “possibility”, the Court found this to be insufficient to establish that the primary judge erred in excluding an aggravation as a result of the slip and fall accident, from his Honour’s assessment of damages.
Cross-appeal
The Court of Appeal considered the nature of the premises and the variety of foreseeable users, which lead to the conclusion that a reasonable person in VM & KTP Holdings’ position needed to contemplate the possibility that particular users might be inattentive or careless. The Court considered that such a person would have taken reasonable steps to reduce the significant risk of a person slipping and falling when the tiled area was wet, particularly if a person was travelling at a greater than normal pace.
His Honours relied upon the joint report of the liability experts, finding that the safety of people walking on the untreated tiles in wet conditions was no more than borderline. The respondent should have anticipated that all manner of people would use the tiled area, and that some may traverse the area at above a normal walking pace. Justice McFarlane found that the relevant risk was of such magnitude that a reasonable person in VM & KTP Holdings’ position would have responded to it by significantly reducing the risk of slippage. Taking the relatively low cost step of treating the tiles with a non-slip product, or taking some equally effective other step, could have achieved this.
This decision is a reminder to occupiers to take reasonable measures to ensure the premises are safe for users who take reasonable care. Occupiers are reminded to consider that while users may be distracted or momentarily inattentive, to take measures to reduce risk, particularly where such measures are of relatively low cost (here, treating tiles with a non-slip product).
Further, this decision also acts as a reminder to plaintiff’s to adduce evidence of a causal connection between the incident and the alleged injury. Without such evidence, the Court cannot find that the injury is causally related to the incident.
The case proceeded to hearing before Justice Davies who on 29 June 2016 found in favour of Mr Raad, and awarded him $75,547 in damages. This award in damages included a reduction of 10% for contributory negligence.
Justice Davies found that VM & KTP Holdings breached its duty as an occupier, by failing to ensure that either the tiles were treated with a slip-resistance coating that was renewed from time to time, or that the tiles were replaced with tiles with a pronounced surface texture to enable water runoff to occur.
Justice Davis considered that wet tiles are slippery when wet, and this is something that all reasonable people taking care for their own safety are aware of. At the time of the incident, Mr Raad was running from his car to the undercover portion of the shopping centre as it was raining. When the slip and fall occurred, he had by then already taken a number of steps on the wet tiles. His Honour considered that a reduction of damages for contributory negligence of 10% should be applied, as Mr Raad failed to adjust his speed of travel.
As a result of the accident, Mr Raad sustained fractures to his spine, however he also alleged to have suffered psychiatric injury, being an addiction to narcotics. The parties’ respective experts agreed that any acute physical injury should have resolved within three to six months of the accident and any continuing spinal pain would be associated with the pre-existing and now symptomatic Scheuermann's disease, and aggravated by psychological dysfunction.
Evidence suggested that Mr Raad may now have been suffering from pain syndrome however, as no evidence was adduced from a psychologist or a psychiatrist, Justice Davies found there was no evidence of a causal connection between that syndrome and the accident. Further, the causation problem for Mr Raad was highlighted by injuries from a subsequent incident, months after the slip and fall.
Appeal
Mr Raad appealed Justice Davies’ decision in respect of the deduction for contributory negligence and for failing to find that two aspects of his present condition were casually related to the fall.
VM & KTP Holdings cross appealed, contending that the primary judge erred in finding that it breached its duties as occupier of the premises, and that the finding for contributory negligence should have been significantly higher.
The appeal and cross appeal were dismissed in a unanimous judgment by Justices McFarlan, Simpson and Sackville.
Findings
The Court of Appeal found that VM & KTP Holdings did breach its duty, however, there was contributory negligence on Mr Raad’s part because he ran over a tiled area upon which water was pooling from the rain. The Court considered Mr Raad ought to have taken care for his own safety. The Court of Appeal found the reduction of 10% for contributory negligence applied by Justice Davies was appropriate.
The Court of Appeal could not turn to any medical evidence, nor lay evidence given by Mr Raad, that explicitly attributed Mr Raad’s addiction or depression to the slip and fall. Whether the addiction resulted from treatment following a separate incident, or from the slip and fall accident, could not be determined on the evidence.
The Court considered Mr Raad’s submission that the primary judge erred in not finding that the Scheuermann’s disease was aggravated by his slip and fall accident. Again, no evidence was adduced that suggested that such an aggravation occurred. While one Doctor had reported that this was a “possibility”, the Court found this to be insufficient to establish that the primary judge erred in excluding an aggravation as a result of the slip and fall accident, from his Honour’s assessment of damages.
Cross-appeal
The Court of Appeal considered the nature of the premises and the variety of foreseeable users, which lead to the conclusion that a reasonable person in VM & KTP Holdings’ position needed to contemplate the possibility that particular users might be inattentive or careless. The Court considered that such a person would have taken reasonable steps to reduce the significant risk of a person slipping and falling when the tiled area was wet, particularly if a person was travelling at a greater than normal pace.
His Honours relied upon the joint report of the liability experts, finding that the safety of people walking on the untreated tiles in wet conditions was no more than borderline. The respondent should have anticipated that all manner of people would use the tiled area, and that some may traverse the area at above a normal walking pace. Justice McFarlane found that the relevant risk was of such magnitude that a reasonable person in VM & KTP Holdings’ position would have responded to it by significantly reducing the risk of slippage. Taking the relatively low cost step of treating the tiles with a non-slip product, or taking some equally effective other step, could have achieved this.
Implications
This decision is a reminder to occupiers to take reasonable measures to ensure the premises are safe for users who take reasonable care. Occupiers are reminded to consider that while users may be distracted or momentarily inattentive, to take measures to reduce risk, particularly where such measures are of relatively low cost (here, treating tiles with a non-slip product).
Further, this decision also acts as a reminder to plaintiff’s to adduce evidence of a causal connection between the incident and the alleged injury. Without such evidence, the Court cannot find that the injury is causally related to the incident.