Australia: The onerous role of being an occupier

Last Updated: 2 April 2018
Article by Rebecca Hosking and Briarna Stiff

In brief - Court of Appeal upholds finding that occupier of commercial premises failed to exercise reasonable care for users' safety

The decision in Raad v VM & KTP Holdings as trustee for VM & KTP Nguyen Family Trust [2017] NSWCA 190 is a strong reminder for occupiers of their duty to provide and maintain safe premises for all users.

In this case, the appellant, Mr Raad, appealed against the damages he was awarded by the Supreme Court of New South Wales and the finding by Davies J that he was 10% contributorily negligent. Mr Raad also asserted that Davies J erred in finding that his pre-existing Scheuermann's disease and narcotic drug dependency was not aggravated by the incident.

VM & KTP Holdings cross appealed asserting there was no breach of duty on its part as occupier of the premises where Mr Raad was injured. In the alternative, VM & KTP Holdings argued that a greater percentage ought to apply for contributory negligence.

Mr Raad sues occupier for personal injury damages as a result of falling on wet tiles at shopping village

On 13 June 2011, Mr Raad slipped and fell on a wet (from rain), tiled, outdoor area at a shopping village occupied by VM & KTP Holdings.

Mr Raad brought an action for personal injury damages against VM & KTP Holdings alleging that it had failed to take reasonable care for his safety as a user of the shopping village.

Expert evidence adduced at trial indicated that rain water tended to accumulate on the tiles in patches as the area had little camber (tilt/inclination). Mr Raad was running when he slipped and had by then already taken a number of steps on the wet tiles. There was no evidence regarding the state of the soles of Mr Raad's shoes at the time of the incident.

Mr Raad first sought medical advice on 20 June 2011. A CT scan revealed a wedge compression fracture to his T5 thoracic vertebra with further damage to his T3 vertebra. Mr Raad was given Paracetamol and Endone. On 27 June 2011, Mr Raad was further prescribed 5 mg of Endone to be taken at night.

In an unrelated event, on 15 October 2011 Mr Raad was taken to Villawood Detention Centre for "unlawfully" being in Australia. His detainment was in error and he was released on 6 January 2012. However, during Mr Raad's time in detention he was punched with a closed fist to the side of the head. He was transported by ambulance to Liverpool Hospital where he complained of pain to the face, neck and upper back and displayed mid-cervical spine tenderness. Mr Raad was given Panadeine Forte, Valium and morphine. Mr Raad has not returned to work since being released from the detention centre. At the time of the trial, Mr Raad was addicted to prescription drugs, had psychological issues and complained of continuing back pain.

On 29 June 2016, the Supreme Court of New South Wales awarded Mr Raad $75,547 in damages. A 10% reduction for contributory negligence had been applied.

Court of Appeal dismisses appeal and cross-appeal

Macfarlan JA dismissed the appeal and cross-appeal. Simpson JA and Sackville AJA both agreed.

His Honour revisited Mr Raad's damages award, the contributory negligence reduction and the nature of the duty owed by an occupier.

Occupier liable for failure to anticipate risk to users of the premises and address slippery tiles risk

The tiles at VM & KTP Holdings' shopping village were examined three months after the incident by Mr Ian Burn, consulting engineer for Mr Raad. No testing was undertaken. However, Mr Burn held that there was no "proof" of anti-slip treatment. The Court of Appeal accepted that the tiles were treated after Mr Burn's inspection.

Dr John Cooke, consultant architect, tested the tiles on 21 October 2013 (two years later) for VM & KTP Holdings. The testing confirmed that there was evidence of non-slip treatment which had worn away in parts. The Court of Appeal inferred that this was akin to the likely state of the tiles at the time of the incident.

The Court of Appeal held that there was a "not insignificant risk" that a person, such as Mr Raad, who was running when it was raining, might slip and fall. Mr Raad's case was distinguished from Ghantous v Hawkesbury City Council (2001) 206 CLR 512 where a pedestrian tripped and fell as a result of stepping on a part of the footpath that receded from erosion. In Ghantous, the pedestrian failed to prove the Council was negligent because the defect in the footpath was noticeable. In the present case the slipperiness of the tiles was as a result of their lack of coating rather than their wetness. This would not have been obvious to a reasonable person in Mr Raad's position.

The tiled area provided access between the shopping village and car park and it was expected that it would be used by a wide variety of people, including those of various age, diligence, and pace. The camber of the tiled area and lack of shelter meant that it was possible to be wet and have water pooled on it when it rained. It was VM & KTP Holdings' responsibility to anticipate that some people might run over the tiled area or in the least walk at a fast pace when it was raining.

VM & KTP Holdings submitted that the primary judge erred when considering the issue of causation by applying a test of material contribution as opposed to the "but for" test as required under section 5D(1)(a) of the Civil Liability Act 2002 (NSW). His Honour noted Davies J's reference to section 5D of the Act and indicated he was not persuaded that the incorrect test had been applied.

His Honour found that a reasonable person in VM & KTP Holdings' position would have responded to the high risk by considerably reducing the risk of slippage by treating the tiles with a non-slip product or some other equally effective step. The Court was satisfied that the incident would not have occurred if the tiles were treated with the appropriate non-slip product.

No causal link between injury and drug addiction or Scheuermann's disease established

According to the rehabilitation reports, Mr Raad's injury should have resolved within 3-6 months. Given that his injuries had not resolved, the reports also referred to a "possibility" of an aggravation of his pre-existing conditions. The phrase "may have" been an aggravation was relied on. A Dr Adler reported that "it was probably that the compression deformities... were aggravated at time of the injury." Davies J considered these comments insufficient to establish the nature and consequences of the alleged aggravation.

Noting the absence of persuasive evidence, the Court of Appeal upheld Davies J's finding that Mr Raad had failed to discharge his burden of proof to establish that his narcotic drug addiction or his Scheuermann's disease was caused or aggravated by the incident. A contributing factor in these conditions not being compensable was the subsequent incident while Mr Raad was in detention.

Contributory negligence deduction of 10% found to be reasonable in the circumstances

His Honour held that the Davies J's deduction of 10% was reasonable in the circumstances. While VM & KTP Holdings had breached its duty by failing to ensure the tiles were adequately slip resistant, the Court of Appeal agreed that Mr Raad was careless for running when it was raining and considered he should be held accountable.

Occupiers' duty of care and causal connection implications

This decision acts as a reminder to occupiers of commercial premises that their duty to provide a safe floor surface is ongoing. Tiles need to be adequately slip resistant when laid and they need to be adequately maintained to ensure that they stay safe.

This case also provides comfort that a court won't infer a causal link between an accident and symptoms. The causal link must be supported by evidence.

Rebecca Hosking Briarna Stiff
Insurance and reinsurance
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Rebecca Hosking
Briarna Stiff
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