Slippery pleadings and an appeal left lying on the floor – Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114

Wendy Starkey (the plaintiff) was employed by the University of Western Sydney as a nurse facilitator but carried out her employment duties at Blue Mountains District ANZAC Memorial Hospital, part of Nepean Blue Mountains Local Health District (the defendant). She entered the staff bathrooms and slipped and fell whilst walking towards the basin, suffering significant injury.

The plaintiff’s case was she slipped on soap residue left on the bathroom floor by the cleaner. The defendant’s case was the plaintiff fell due to a pre-existing medical condition.

It was accepted the plaintiff noticed signs, both outside and inside the bathroom, warning her to “Beware of (the) wet floor”.

The pleadings made no reference to the CLA.

Counsel for the defendant confined the determination of liability to causation only. The trial judge, Ashford A-DCJ, was not asked to identify the scope of the duty owed by the defendant, nor the question of breach (as per s 5B of the CLA).

The trial judge found in favour of the plaintiff based on evidence (both oral and documentary) that suggested the floor was particularly slippery due to soap residue in an area which was in close proximity to where witnesses found the plaintiff lying.

The defendant appealed on the grounds the trial judge failed to refer to or apply the three necessary preconditions to liability under s 5B(1) of the CLA, being: (i) the identification of a foreseeable risk of harm, (ii) which was not insignificant and (iii) against which a reasonable person in the position of the defendant would have taken precautions which the defendant failed to take.

The defendant also appealed on the grounds the trial judge failed to elaborate the duty of care or refer to the pleaded claim (among other things).

The Court of Appeal unanimously dismissed the appeal with costs, however, cautioned against setting a precedent for trial judges and the legal profession not to refer to the CLA. The Court of Appeal noted it was necessary for the plaintiff to identify and articulate in her pleadings and submissions the particular risk of harm against which the defendant was obliged to take reasonable precautions.

However, the Court of Appeal found that the trial judge could not be said to have erred for failure to address issues which did not materialise for determination. The trial judge was entitled to take the accepted view of the parties that a finding of breach of duty would follow if the plaintiff's version was accepted. Therefore, once it was found the plaintiff slipped due to soap residue on the floor, the trial judge's lack of reference to the CLA did not, on its own, vitiate the primary decision because it was not material to the outcome.

This case serves as a timely reminder that pleadings should specifically refer to the necessary provisions of the CLA to properly direct the court's attention to the appropriate inquiries in respect of duty, breach and causation, which is the proper starting point for any determination of liability.

It is necessary for a plaintiff to identify and articulate, first in their pleadings and then before the court, the risk of harm against which it is alleged a defendant is obliged to take reasonable precautions.