In Brief – Accommodation providers must be mindful of guests
In the matter of Panther v Pischedda  NSWCA 236 the NSW Court of Appeal affirmed the trial judge's finding that the defendant owners should have been more vigilant in ensuring guests did not slip on their driveway.
Guest slips on steep driveway and breaks ankle
On 6 November 2009 the plaintiff and her husband booked a stay at a self-contained flat in the Blue Mountains owned by the defendants. The flat was only accessible from the street by walking down a steep pebblecrete driveway.
On the morning of the second day of their stay, the plaintiff and her husband left the flat for a walk. It began to rain and, on their return, the plaintiff slipped, fell and landed heavily on the wet driveway, breaking her left ankle.
Difference in approach of expert witnesses to slipping hazard
In the proceedings in the District Court, the plaintiff adduced expert evidence from a safety expert. That safety expert conducted five friction tests on the driveway in the vicinity of the area where the plaintiff slipped. The Court stated he chose four of the five points on the basis that they appeared to be the smoothest and slipperiest. He chose the fifth point "to ensure that the overall result reflected the variability within the surface".
Curtis J accepted the sampling method used by the plaintiff’s expert and preferred his report over that of the defendant's expert witness, who tested at five randomly selected points in the vicinity of the area where the plaintiff slipped.
Defendants should have addressed risk posed by steep driveway
His Honour took into account the fact that the flat was used as rental accommodation. The implication that the driveway would be frequently used by persons unfamiliar with its condition supported his Honour's conclusion that the defendants knew or ought to have known of the risk posed by the driveway when wet.
Turning his mind to the issue of the defendants' response to the risk posed by the wet driveway, Curtis J considered section 5B(1) of the Civil Liability Act 2002 (NSW). His Honour held that a reasonable person in the defendants' position would have responded to the risk by taking reasonable preventative measures, such as installing handrails or providing an alternative means of access to the flat.
His Honour also noted that existing stairs providing access to the premises were blocked by a hedge which could have been removed by the defendants to reduce the foreseeable risk associated with using the driveway. Judgment was awarded in favour of the plaintiff.
Sampling method used by plaintiff’s safety expert preferred by both courts
In the proceedings in the NSW Court of Appeal, the defendants’ grounds of appeal were unanimously dismissed by McFarlane JA, Barrett and Gleeson JJA.
Their Honours accepted that it was open to Curtis J to prefer the plaintiff’s expert evidence over that adduced by the defendant’s expert. Their Honours stated that the calculation of average slipperiness is "small comfort to a person who slipped on a slippery part of the surface to know that there were other parts of it that were much less slippery".
Their Honours agreed with Curtis J that the installation of a handrail or removing a hedge was not disproportionate to the risk of pedestrians slipping on a notably steep driveway.
Take reasonable measures to identify and reduce risks
This decision serves as a good warning to property owners, particularly those that offer accommodation services or lease their premises out. Extra care needs to be taken to identify areas that pose a risk to entrants, such as steep driveways or slippery steps, and "reasonable" measures taken to reduce the risk associated with these hazards, especially if the hazard is in a high traffic area.
The case also highlights the fact that the courts are willing to accept expert liability evidence that is based on samples taken predominantly from the most hazardous spots in the vicinity of a fall at a premises, regardless of whether the plaintiff can prove that he or she fell at the precise point where any of the tests are taken. This method has been shown to be preferred over the method of random sampling in the same vicinity.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.