In brief - High standard placed on a "reasonable person" to foresee risks
In the case Dillon v Hair  NSWCA 80, the NSW Court of Appeal recently affirmed the decision of a NSW District Court judge in finding a landlord liable to their property agent for placing an outdoor mat inside the front door of a recently vacated house, causing the agent to fall and sustain injury.
Tenant gives notice to vacate premises and landlord prunes trees at premises
Jann and Harry Dillon owned a property at Katoomba in New South Wales. They retained Margaret Hair of Century 21 as their agent to manage the tenancy of the property.
In April 2010, the tenant at the time gave notice that she wished to vacate the premises. The tenant told Ms Hair that she would vacate possession on 21 May 2010 and had booked removalists for 14 May 2010. In order for the removalists to gain access to the property, the tenant asked Ms Hair to arrange pruning of some trees. Ms Hair conveyed this request to Mr and Mrs Dillon, with Mr Dillon attending to the pruning himself.
Landlord places mat on polished floorboards inside doorway of premises
The tenant gave evidence that after 14 May 2010, she returned to the premises for a "big clean up" so that the premises were in a suitable condition for the final inspection. When she entered the front door, she saw that a mat had been placed on the inside of the doorway.
The tenant assumed, and it was accepted by the primary judge, Elkaim J, that Mr Dillon placed the mat at the door, on the polished floorboards, to avoid tracking dirt into the clean premises.
Real estate agent suffers fall when mat slides out from underneath her
When the tenant returned to the premises on 21 May 2010 for the final inspection with Ms Hair, she noticed that the mat was still in place by the front door. After Ms Hair and the tenant had walked through the premises, the tenant stepped on the mat to leave, without incident.
Ms Hair gave evidence that she followed the tenant and stepped on the mat, when it slid from underneath her, causing her to fall heavily onto her left knee.
Real estate agent commences proceedings against landlords and former tenant
Ms Hair commenced proceedings against the owners, Mr and Mrs Dillon, as well as the former tenant, alleging that both parties were negligent in:
• Placing the mat on polished floor boards near the entrance in circumstances where the mat was liable to slip
• Failing to ensure that the mat had a non-slip backing
• Failing to warn Ms Hair that the mat was slippery and dangerous on polished floorboards
Foreseeable risk under the Civil Liability Act
Ms Hair relied on section 5B of the Civil Liability Act 2002, arguing that a person will be found to be negligent in failing to take precautions against a risk of harm where:
• the risk was foreseeable
• the risk was not insignificant
• in the circumstances, a reasonable person in the person's position would have taken those precautions
Precautions against a risk of harm
In determining whether a reasonable person would have taken precautions against a risk of harm, the Act specifies that the court must consider, amongst other relevant things:
• the probability that the harm would occur if care were not taken
• the likely seriousness of the harm
• the burden of taking precautions to avoid the risk of harm
• the social utility of the activity that creates the risk of harm
Risk of unsecured mat slipping found to be foreseeable
Judge Elkaim of the District Court of NSW found in favour of Ms Hair as against Mr and Mrs Dillon but not as against the tenant. Judge Elkaim was satisfied on the evidence that the risk of an unsecured mat slipping while on polished floorboards presented a foreseeable risk that Mr and Mrs Dillon should have appreciated and sought to avoid the risk, by either not placing the mat on polished floorboards, leaving it outside or placing non-slip material underneath it.
Landlords appeal to NSW Court of Appeal
Mr and Mrs Dillon appealed to the NSW Court of Appeal, arguing that an occupier is not required to make premises perfectly safe, but safe to the standard of a reasonable occupier.
They also sought to argue that the mere fact of slipping was not sufficient to establish that a surface was slippery - rather, Ms Hair was required to show that the surface was unreasonably slippery.
In considering whether the primary judge erred in his decision, the Court of Appeal (Macfarlan JA, Emmett JA and Tobias AJA) was asked to consider, notwithstanding that the risk of harm was foreseeable and the risk not insignificant, whether in the circumstances a reasonable person in the position of the owners would have taken any precautions.
Court of Appeal upholds District Court decision
The Court of Appeal held that it was open to the primary judge to find that a reasonable person in the position of Mr Dillon, having "the knowledge of the condition of the underside of the mat" would have taken necessary precautions before placing the mat on polished floorboards.
The suggested steps to avoid such an incident included, obviously, not placing the mat in such a position where it could slide and secondly, affixing an anti-slip product to the bottom of the mat.
A "reasonable person" must be able to foresee risks and take appropriate precautions
The decision, whilst based on its unique factual scenario and the evidence of Mr Dillon in which he unequivocally conceded that the "rubbery" bottom side of the mat had become hard over the years due to its exposure to the weather, places a relatively high standard on the "reasonable person" to foresee risks and take appropriate precautions.
Although the circumstances of this case involved the relationship of a landlord and agent and were specific to the facts, it could equally apply to a guest at one’s own home, given the essential element of occupation potentially exposing public liability insurers to a raft of claims.
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.