Indigo Mist Pty Limited v Palmer  NSWCA 239
Judgment date: 9 August 2012
Jurisdiction: NSW Court of Appeal1
- In determining the negligence of both occupiers and professionals, reference is always made to relevant sections of the Civil Liability Act 2002 (NSW) (CLA).
- Stairs are inherently, but obviously, dangerous. A hotel occupier not only has a duty to provide safe premises, but to exercise reasonable care to manage the hotel premises so as to avoid exposing patrons to a foreseeable risk of harm.
- An architect has a separate duty to use reasonable care, skill and diligence in the performance of the work an architect undertakes. As there is no overlap in responsibility, the occupier and architect cannot delegate their duties to each other another so as to escape liability.
- It is critical for defendants to obtain expert evidence as to acceptable professional practice in order to make out a defence under s 5O of the CLA.
On 30 May 2008, Abi Palmer (plaintiff) fell down some stairs at the Oxford Hotel in Darlinghurst (Hotel). The plaintiff alleged she fell after slipping on liquid on glass stairs within the Hotel and suffered injuries as a result.
The Hotel had undergone a substantial refurbishment during 2006. Paul Kelly Design Pty Limited (PKD) was the architect in charge of the refurbishment and responsible for the design of the stairs and choice of materials. The refurbishment included stairs linking the two upper floors which were made of glass blocks and which were lit from below. The two upper floors had bars on each level, and the toilets which serviced both bars were located on the top floor.
The plaintiff commenced proceedings in the District Court of New South Wales against the owner of the Hotel, the occupiermanager (Occupier) and PKD in negligence. The matter was first heard over 7 days before Elkaim DCJ in the District Court of New South Wales who found in favour of the plaintiff and awarded a total of $113,321.90 in damages on 24 March 2011. Elkaim DCJ apportioned liability equally between the Occupier and PKD and found in favour of the owner on the basis it had completely delegated its duties to the Occupier and PKD.
Court of Appeal
Both the Occupier and PKD appealed the decision of Elkaim DCJ to the Court of Appeal. The appeal raised the following issues
- breach of duty of care by the Occupier and PKD;
- contributory negligence; and
- apportionment of liability between the Occupier and PKD.
Hoeben JA handed down the leading judgment. Beazley and Macfarlan JJA made additional comments in relation to the steps which the Occupier ought to have taken to discharge its duty of care.
Duty of Care
The Occupier accepted that it had a duty to entrants to take reasonable care to avoid foreseeable risks of injury, as per Australian Safeway Stores Pty Ltd v Zaluzna 2. However, referring to the requirements under s 5B of the CLA, the Occupier disputed that the risk of harm which eventuated, being that the plaintiff slipped on liquid on the stairs, was foreseeable.
Hoeben JA thought the critical question was whether it was reasonably foreseeable by the Occupier that patrons would move between the two floors and that, if they did, they might carry drinks which might be spilt. His Honour held that the risk of drinks being spilt was clearly foreseeable in the circumstances, that there was a high likelihood of such an event occurring, and that the risk of injury was not insignificant.
The next issue to be addressed was what precautions the Occupier should have taken. Hoeben JA thought the Occupier could have placed signs or warnings prohibiting the movement of drinks between the floors and could have had staff positioned outside the bars to enforce the prohibition or a system of regular inspection of the stairs for spills. His Honour noted no evidence to the contrary was called by the Occupier.
Macfarlan and Beazley JJA considered that a reasonable occupier would have responded to the risk by ensuring the stairs were not slippery when wet using one of the methods identified by the plaintiff's expert, Dr Emerson, such as covering the stairs with carpet or ensuring the glass tiles were treated so that they achieved appropriate frictional qualities.
Whilst Beazley JA was concerned about a lack of evidence as to whether the precautions involving signage or staff would be economically feasible or effective, Hoeben JA considered the facts of this matter allowed for "common knowledge and common sense" in determining an appropriate response to a foreseeable risk of injury: Neill v New South Wales Fresh Foods and Ice Pty Ltd 3. He did not consider the Plaintiff was required to call expert evidence on this issue.
The Court unanimously upheld the primary judge's decision that the Occupier had breached its duty of care to the plaintiff.
In determining whether the breach of duty of care by the Occupier had caused the plaintiff's injuries, reference was made to s 5D of the CLA. Hoeben JA cited the statement of principle in Strong v Woolworths Ltd tas Big W 4 that
"The determination of factual causation under s 5D(1)(a) is a statutory statement of the 'but for' test of causation the plaintiff would not have suffered the particular harm but for the defendant's negligence ... Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance of Big W."
Hoeben JA emphasised that it was not necessary for the plaintiff to prove that taking precautions such as the implementation of signs, staff or regular inspections would have prevented her fall. Rather, it was sufficient for the plaintiff to prove that the taking of such action would have minimised the risk of her fall. In this case, Hoeben JA was satisfied that had the suggested system been in place, it was more likely than not that liquid would not have been present on the stairs so as to cause the plaintiff's fall. Accordingly, the Court of Appeal upheld the primary judge's decision regarding causation.
Hoeben JA noted that the test for contributory negligence is an objective one which requires the Court to ask itself whether a reasonable person in the position of the plaintiff should have detected the liquid on the stairs before treading on it. It was relevant that Dr Cooke had given evidence that, in his opinion, the presence of liquids on the glass steps would have been practically impossible to detect at night. It was also relevant that the plaintiff had given evidence that she noticed liquid of approximately A4 size just as her foot was about to touch the step. Hoeben JA therefore considered there was ample evidence to support the primary judge's finding that the plaintiff was exercising reasonable care for her own safety and was not guilty of contributory negligence.
The parties agreed that PKD had the responsibility for the implementation of the refurbishment at the Hotel. It was common ground that PKD did not provide or supply the stairs but recommended the use of glass blocks in the stairs. PKD submitted that the primary judge erred in finding liability against it.
Hoeben JA cited with approval the decision of Voli v Inglewood Shire Council 5 regarding the duty of an architect to third parties:
"... What an architect must do to avoid liability for negligence cannot be more precisely defined than by saying that he must use reasonable care, skill and diligence in the performance of the work he undertakes ... Neither the terms of the architect's engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts ..."
Whilst Hoeben JA noted s 5B of the CLA was not particularly useful in cases involving professional negligence, he said it still had a part to play. The architect in question had given evidence during the trial that she had presumed no one would carry drinks between the levels of the Hotel. Her evidence suggested she had not turned her mind to safety considerations when recommending that the stairs be constructed of glass blocks. The primary judge drew the inference from her evidence that what was foremost in the architect's mind was the look of the stairs, rather than safety aspects and that she gave only cursory consideration to third parties who would be using the stairs.
The primary judge considered that if the architect had turned her mind to potential hazards created by the stairs, she would have realised that the glass blocks had a very low slip resistance when wet and were therefore not an appropriate product to be used on stairs adjoining two bars where alcohol was going to be consumed.
Hoeben JA considered the architect should have taken these matters into account. His Honour was satisfied in a purely factual sense that applying the "but for" test, had PKD not recommended the use of a step which became highly slippery when wet, the plaintiff would not have fallen. As there was a failure to take action which would have prevented or minimised the risk of the fall occurring, breach of duty of care and causation on the part of PKD had been established.
Section 5O Defence
PKD relied upon s 5O of the CLA in its defence which provides at (1):
"A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice."
Hoeben JA cited the statement of principle in Dobler v Kenneth Halverson & Ors 6 that:
"Section 5O has the effect that, if the defendant's conduct accorded with professional practice regarded as acceptable by some (more fully, if he 'acted in a manner that ... was widely accepted ... by peer professional opinion as competent professional practice'), then subject to rationality that professional practice sets the standard of care."
In that case, it was noted that the plaintiff would usually call expert evidence to the effect that the defendant's conduct fell short of acceptable professional practice and that the defendant also had an interest in calling expert evidence to the contrary.
In this case, the Court of Appeal upheld the primary judge's decision that PKD had been negligent in recommending and designing the particular stairs on the basis of the evidence of two experts called by the plaintiff. As no evidence was called on behalf of PKD in reply to indicate that there was a body of professional opinion amongst architects to the contrary effect, Hoeben JA agreed with the primary judge that the defence under s 5O had not been made out.
In apportioning liability between the Occupier and PKD, Hoeben JA referred to the decision of Podrebersek v Australian Iron & Steel Pty Ltd 7 that the apportioning of liability between two tortfeasors was essentially a discretionary one which balanced the causal potency of the actions of the respective tortfeasors, ie which conduct made the greater contribution to the damage and relative culpability. That case also made it clear that an appellate court should not lightly review a finding of apportionment made by a primary judge.
Hoeben JA considered the primary judge in this case was right in distinguishing the decision of Bevillesta Pty Ltd v Liberty International Insurance Co 8 in which it was found that an occupier of a shopping centre was able to fully delegate its duty in respect of a slipping hazard to a contract cleaner as there was a clear overlap in their responsibilities for cleaning the shopping centre. This particular case was quite different in that PKD was concerned with the original design of the stairs whereas the Occupier was concerned with the ongoing running of the Hotel.
Once the architects accepted the contract for the design of the stairs, they had to consider for themselves what potential hazards arose from them. The designing of the stairs was not something which could be delegated to the Occupier. The Court of Appeal upheld the primary judge's decision to apportion liability equally between the Occupiers and PKD as no error could be identified in the primary judge's approach.
Ultimately, the Court of Appeal dismissed both the appeal and cross-appeal and ordered the Occupier and PKD to pay the plaintiff's costs.
This case makes it clear that defendants should always obtain expert evidence when seeking to rely on s 5O of the CLA in defence of a claim for professional negligence.
Evidence should also be led by way of lay or expert witnesses if a defendant wishes to challenge the particular precautions which the plaintiff alleges ought to have been carried out by the defendant in discharge of their duty of care. This may include evidence as to the practicality, effectiveness or cost of undertaking such precautions, as referred to in s 5B(2) of the CLA.
Professionals and, in particular, architects, are required to use reasonable care, skill and diligence in the performance of their work, including consideration of people who are strangers to the contracting parties. It is only when there is a clear overlap of responsibilities that a court will find there has been a full delegation of responsibility to another party.
1 Beazley, Macfarlan and Hoeben JJA
2  HCA 7
3 (1963) HCA 4
4  HCA 5
5  HCA 15
6  NSWCA 335
7  HCA 35
8  NSWCA 16
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