Australia: Slip and Fall on Pedestrian Crossing – Sections 5B, 5C and 5D of the Civil Liability Act considered
Curwoods Case Note

Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151

NSW Court of Appeal¹

In Brief

• Section 5B of the Civil Liability Act 2002 (the Act) requires identification of a risk of harm, against which a person has failed to take precautions.
• The question which s 5B requires to be answered favourably to the plaintiff is whether in the face of a risk of harm which was foreseeable and not insignificant, a reasonable person in the defendant's position would have taken those precautions having regard to, among other relevant things, the considerations in s 5B(2) of the Act.
• In determining whether a risk is "not insignificant" it is necessary to consider the probability that a fall may occur and whether serious harm could result from such a fall. Once it is accepted that the relevant risk of harm was foreseeable, it is a short step to find that the risk was "not insignificant", in satisfaction of s 5B(1)(b) of the Act.
• Once breach of duty has been established a plaintiff must prove the breach was causative of his or her injuries.

Background

On the evening of 27 November 2007 Ms Antoinette Garzo (plaintiff), together with her husband and children, attended a concert at the William Carey Christian School in Pestons NSW (school). The school was owned and/or operated by Liverpool/Campbelltown Christian School Limited (first defendant) and was maintained by a maintenance contractor, T & J Turner Building Services Pty Ltd.(second defendant).

After the concert the plaintiff and her family walked back to their motor vehicle which was parked in a parking area within the school grounds. In order to access the parking area the plaintiff was required to cross an internal road upon which was a marked pedestrian crossing (crossing). The crossing had five rectangular sections which were painted white. When the plaintiff reached the last of those painted sections and before stepping onto the kerb, one of her feet slipped backwards and she fell forwards to the ground sustaining severe injuries to her face, teeth and right elbow.

The plaintiff commenced proceedings against the defendants alleging that their negligence caused her to slip and fall.

It was conceded that the defendants owed a duty of care to the plaintiff. The issue in dispute was whether there was a breach of that duty, and if so, whether that breach was a relevant cause of the plaintiff's fall.

The allegations of negligence focussed on 3 main factual propositions, as follows:

1. The handbook published by Standards Australia, current in 2007, recommended that the slip resistance for a pedestrian crossing should be class "W", rated "low", with a British Pendulum Number (BPN) reading between 45 and 54.
2. The paint used by the School on the crossing, when new, had a BPN of 40.
3. The defendants should have known of the recommended standard and should have obtained a paint which provided a minimum slip resistance within the recommended range. The defendants failed to do this and therefore were in breach of their duty of care to the plaintiff.

Supreme Court

Garling J initially heard the matter in the Supreme Court of NSW and ultimately found that the plaintiff's claim failed on all grounds. However in case an appeal was successful Garling J also found, with respect of the cross-claim between the defendants, 35% against the first defendant, and 65% against the second defendant. The plaintiff's damages were assessed at $759,060. Neither contribution nor quantum was in issue at the appeal.

The initial question dealt with by the Court was whether, in accordance with s 5(B)(1)(a) of the Act, the defendants knew, or ought to have known, of the risk posed by the paint that had been applied to the crossing.

At the initial hearing, it was generally agreed between the parties that the knowledge of the defendants was constructive, rather than actual. Following consideration of the expert evidence Garling J concluded that there was no evidence which suggested that the paint was unsuitable or inappropriate for use on pedestrian crossings and accordingly, in light of the following factors, the defendants did not have constructive knowledge of the risk:

1. the crossing was of a kind regularly seen throughout the metropolitan area of Sydney;
2. there was nothing visible on the crossing that suggested that it may have been particularly slippery;
3. there was nothing visually obvious to a reasonable person walking normally across the crossing that it would be potentially hazardous, in the sense that they might slip and fall;
4. there was nothing about the crossing which would have alerted either the school staff or the maintenance contractor to the existence of a potential hazard;
5. there were no reported accidents on the crossing or on other areas of the school grounds where the particular paint had been used; and
6. none of the school staff had any difficulty using the crossing in all forms of weather.

Whilst Garling J noted that the absence of any reports of pedestrians falling and injuring themselves was not determinative of whether the defendants ought to have known of the risk of harm, he placed particular emphasis on this factor given that the number of people using the crossing each day was "quite high" and it was exposed to the full range of weather conditions.

Ultimately, Garling J found that:

Garling J therefore concluded there was no breach of duty and that factual causation had not been proved as required by s 5D(1)(a) of the Act.

Court of Appeal

The plaintiff argued that Garling J's approach was too narrow and that the factors relied upon by him were generally irrelevant. In particular:

1. the visual appearance of the crossing was not relevant for the purposes of ascertaining whether the defendants ought to have foreseen the risk of harm;
2. what the crossing looked like after it was painted was irrelevant to the issue of what it was reasonable to do before it was painted; and
3. the defendants, having created the crossing, chose to do so without taking any steps to ascertain if the paint used was suitable for the purpose and, in particular, whether it complied with any relevant standard which was in the public domain.

The plaintiff further submitted that the paint that was used for the crossing was ordinarily used for narrow line markings of roads, car parks, netball and basketball courts and that the use of the paint for purposes outside the accompanying Technical Data Sheet would have suggested to a person that some enquiry as to the suitability of the paint was necessary.

Tobias AJA accepted some of the plaintiff's submissions but ultimately found that the primary judge's basis for his finding did not cover the critical issue of what the defendants ought to have known, as distinct from what they in fact knew. Tobias AJA opined that the defendants ought to have known the paint was unsuitable given that:

1. the particular paint had only ever been used by the defendants as a line marking paint to mark parking areas, basketball courts and netball courts and had never been used on a pedestrian crossing;
2. the Technical Data Sheet would have informed them of several factors which indicated the paint was not suitable for anything other than line marking;
3. at the time of the painting of the crossing HB 197 had been published by Standards Australia, which made recommendations as to the slip resistance of pedestrian surface materials including crossings. There was nothing in the Technical Data Sheet which would have inferred that the paint would have sufficient slip resistance to meet the recommended standard;
4. the second defendant knew that the particular paint wore unevenly over surfaces.

Ultimately Tobias AJA found that the risk of slipping on the painted surface was foreseeable within the meaning of s 5B(1)(a) of the Act on the basis that it was known or ought to have been known by the defendants that the paint used was no more than a line marking paint, which may or may not have sufficient slip resistance for its safe use for a purpose which was not included in the technical information relating to it.

Was the risk not Insignificant: s 5B(1)(b) of the Act

The plaintiff submitted that in determining whether a risk was "not insignificant" it was necessary to consider the probability that a fall may occur and whether serious harm could result from such a fall. It was further submitted that even if the probability of the risk occurring was low, it did not follow that the risk was "not insignificant".

Ultimately Tobias AJA agreed with the plaintiff's submission, finding that in the present case the risk of harm was foreseeable because the defendants utilised an inappropriate paint upon the crossing which had a slip resistance less than that recommended by HB 197 and therefore:

Tobias AJA noted according to the Ipp Report, the phrase "not insignificant" was intended to indicate a risk that is of a higher probability than is indicated by the phrase "not far-fetched and fanciful" but not so high as to be indicated by a phrase such as a "substantial" or "significant risk". In his Honour's opinion, the risk in the present case satisfied that test.

Was there a failure to take reasonable precautions: s 5B(1)(c) of the Act

All experts agreed that whatever paint was used, it should have a slip resistance of greater than 45 BPN in wet conditions in order to comply with the requirements of Table 3 of HB197 and to make the crossing reasonably slip resistant for pedestrians. It was also accepted that when the subject paint was applied and allowed to dry it produced a BPN of 40 which was below the recommended standard.

Contrary to the primary judge's reasoning, Tobias AJA considered that the correct question, in relation to s 5B(1)(c) of the Act, was whether the paint met the standard at the time it was first applied and when it was first permitted to be used by pedestrians. It was insufficient, in the view of Tobias AJA, that at some indeterminate future time the paint surface may have worn to the point where its slip resistance exceeded a BPN of 45.

In addition Tobias AJA's viewed the duty owed by the defendants to extend not only to taking reasonable care to ensure that the surface of the crossing was safe for normal stride and pace, but also for those persons using the crossing whose footwear may have differed to that used by the plaintiff, to the possibility of contaminants such as oil being upon part of the crossing due to its use by motor traffic and to take account of the variations in wear which inevitably would occur as a consequence of some parts of the crossing wearing more quickly than others.

In light of his comments concerning foreseeability, Tobias AJA found it difficult to suggest that it was asking too much of the defendants to inquire as to whether there was a recommended slip resistance standard for pedestrian crossings, and to then acquire a paint that when applied, would meet at least that minimum recommended standard.

Accordingly Tobias AJA considered s 5B(1)(c) was satisfied in that a reasonable person in the position of the defendants would have taken the abovementioned precautions. As such his Honour concluded the defendants breached their duty of care to the plaintiff.

Causation: s 5D of the Act

Having determined, in contradiction to the primary judge's earlier finding, that the plaintiff had successfully satisfied s 5B(1)(a), (b) and (c) of the Act, it was necessary to consider s 5D of the Act in relation to causation.

Tobias AJA confirmed, with reference to section 5D(1)(a) of the Act and the decision of Strong v Woolworths Ltd² , that the plaintiff was required to prove that "but for" the defendants' negligence the plaintiff would not have slipped and fallen. In order to address that question it was necessary to consider first what the position would have been had the defendants not been negligent, and whether in that event the slip would have been prevented or not occurred.

In determining what the position would have been had the defendants not been negligent it was necessary to address the likely condition of the surface where the plaintiff slipped, rather than as an average over the whole of the painted surfaces of the crossing. Tobias AJA' reasoning was that, absent negligence, the defendants would have applied paint in July 2007 so as to produce a surface which at that time satisfied a minimum BPN of 45 as recommended by HB 197. Thereafter the area would have worn unevenly, depending upon pedestrian and traffic usage and environmental factors.

Following a review of the expert evidence Tobias AJA formed the view that the defendants breach in July 2007 resulted in the surface area having only a slightly lower BPN in November 2007 than it would have had if the defendants had complied with the recommendation in HB197.

His Honour noted that there was an element of uncertainty and speculation as to what in November 2007 was the minimum BPN in the area where the plaintiff said she slipped. His Honour then concluded:

Tobias AJA found that the painted surface most probably exceeded a BPN of 40 at the time of the accident and the expert evidence had concluded that this differential was insignificant and provided sufficient friction for the plaintiff to walk safely at a normal stride and pace. Accordingly, there must have been other factors or conditions present which contributed to the plaintiff's fall such as some contaminant or other substance on the surface of the crossing or the sole of the plaintiff's left shoe which made a contribution to her slipping and which would have continued to do so with the same result even if the painted surface had a slightly higher BPN.. Therefore, in his Honour's view, it could not be said that the difference in BPN was such that "but for" the defendants' breach, the plaintiff would not have slipped.

Ultimately, his Honour concluded that while the plaintiff established that the defendants were negligent and in breach of their respective duties of care as an occupier and maintenance contractor, the evidence did not establish that the breach of duty found caused the plaintiff to slip and sustain her injuries.

Meagher JA agreed with Tobias AJA that the defendants were negligent and in breach of their respective duties of care as occupier and maintenance contractor. His Honour also agreed with Tobias AJA that the defendants' earlier breach of duty at the time the paint was applied in July 2007 did not cause of contribute to the plaintiff's fall as by November 2007, when the plaintiff slipped, the condition of the painted surface had weathered and worn to the point where either it complied with that recommendation or any non-compliance with that recommendation was insignificant and did not contribute to the plaintiff's fall.

Basten JA agreed that the appeal should fail. However his decision was based on the primary judge's findings, in particular that:

1. there was no event or circumstance which indicated to the defendants that the paint on the crossing needed testing; and
2. it was not shown that testing would have revealed a need for resurfacing.
3. to establish a breach of duty, the plaintiff needed to establish that the crossing was unduly slippery at the time of her fall.

Accordingly, Basten JA could find no error in the primary judge's conclusions that there was no breach of duty by either of the defendants.

Implications

This decision confirms that failing to comply with a relevant Australian Standard or other such technical publication which sets out the minimum standard of compliance to ensure that a premises is safe will, whilst being some indication of negligence, not establish a breach of duty of care itself.

This decision highlights that it is very important to carefully consider causation in s 5D of the Act, taking into account other factors that may contribute to a slip and fall, particularly in circumstances where other explanations for the fall may be equally available.

The absence of previous accidents, whilst not determinative of breach of duty, is one factor, sometimes significant, to which regard should be had.

Footnotes

¹ Basten, Meagher JJA and Tobias AJA.
² [2012] HCA 5

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