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Negligent home owner October 23, 2015

Schultz v McCormack [2015] NSWCA 330

The appellant, Sheran Ann Schultz, was injured when she slipped and fell on a tiled floor, which was, in effect, the top step of the verandah of the home of the respondents, Norman McCormack and Cathryn McCormack.
The accident took place at about midnight. The surface of the verandah had become wet due to rainfall earlier that evening, causing the appellant to slip on it whilst turning to walk down the steps having kissed one of the respondents goodbye. As a result of her fall, the appellant fractured her right ankle and sustained various soft tissue injuries. The respondents claimed that since tiling the front porch in about 2004 – 2005, neither had noticed any slipperiness in relation to the porch; nor had there been any other accidents on the tiles.
The appellant commenced proceedings in the District Court claiming damages for the respondents’ alleged negligence. The appellant’s statement of claim pleaded that the respondents ought to have warned her that the tiles on the landing were unusually slippery when they became wet, and that the tiles were likely to be excessively slippery, in circumstances where the respondents knew, or ought to have known, that the tiles had become wet due to rainwater reaching them.
The appellant failed in her action in the District Court. The primary judge found that while the risk of slipping on the wet steps was foreseeable and not insignificant, the appellant’s fall and injury was the materialisation of an “obvious risk” within the meaning of s 5F of the Civil Liability Act 2002 (NSW) (“CLA”) such that the respondents did not owe her a duty of care to warn her of it. Notionally, his Honour assessed the appellant’s contributory negligence at 50 per cent.
The appellant appealed against his Honour’s decision.
The following issues arose on appeal:
(i)   whether the primary judge erred in characterising the risk for the purposes of s 5B, CLA;
(ii)   whether the primary judge erred in finding that the risk she encountered was an “obvious risk”;
(iii)   whether the primary judge should have found that the respondents were negligent;
(iv)   whether the primary judge erred in finding, in the event the respondents were negligent, that the appellant was guilty of contributory negligence; and
(v)   whether the primary judge erred in his assessment of the appellant’s domestic assistance claim.
Held:
As to issue (i)
(1)   The primary judge identified the risk as slipping on the landing, or possibly the steps, because it was or they were wet. That was a sufficient description of the risk of harm (at [87]).
As to issue (ii)
(2)   The matters the primary judge attributed to either the appellant, or a reasonable person in her position, were unrealistic. The protected area on which she was standing immediately prior to the accident was dry, and there was no evidence that in the circumstances, the appellant was aware or should have been aware of the discrepancy between that area and the unprotected area on which she slipped. His Honour erred in attributing to a reasonable person in the appellant’s position a perception that the porch may be wet due to wind-blown rain (at [92] – [105]).
Collins v Clarence Valley Council [2015] NSWCA 263; Wyong Shire Council v Vairy [2004] NSWCA 247; (2004) Aust Torts Reports ¶81-754 applied
As to issue (iii)
(3)   The occupants of a house with tiled surfaces with the degree of slipperiness present on the respondents’ verandah ought to have realised that that was the case bearing in mind that the tiles had been in place for five or six years. They ought to have known of the high risk of slipperiness the tiles posed when wet. The risk of harm in such a context was foreseeable and not insignificant. In those circumstances, his Honour should have found that a reasonable person in the respondents’ position would have taken precautions, such as providing matting or giving a warning, against the risk of harm. His Honour therefore erred in failing to find the respondents breached their duty of care (at [113] – [118]).
As to issue (iv)
(4)   As the risk to which the appellant was exposed was one of which she did not know, or ought to have known, it was not open to the primary judge to conclude that the appellant had been guilty of contributory negligence (at [120]).
As to issue (v)
(5)   The question whether the appellant had established there was a reasonable need for the services she claimed was essentially an evaluative exercise. The primary judge’s findings concerning past and future domestic assistance were open to his Honour, based on observations he was better positioned than this Court to make (at [124] – [127]).
Dell v Dalton (1991) 23 NSWLR 528 considered

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