In June 2009, a patron tripped over the corner of a raised timber platform in the lobby area of a local hotel in New South Wales. As a result, he suffered injuries to his neck, right shoulder and back. That relatively dark timber platform was a permanent structure in the hotel lobby — A strip of illuminated LED lights under that bottom edge cast light onto the white marble floor tiles of the lobby.
The primary judge found that the patron did not see the raised timber platform before he tripped and fell and that his ability to do so was affected by “intense glare” from a window or windows to the south of the bar area, which was the direction in which the patron was walking with his sister when he tripped and fell.
The primary Judge considered the patron to be “impressive” and “generally reliable” and found in his favour.
The hotel appealed the decision on the grounds that the primary judge should have held the reason the patron did not see the raised platform was because he was not looking where he was going. In support of its position the hotel stated that the primary judge erred in not accepting its evidence including that of an expert who argued that the patron was not blinded by glare as he submitted.
The appeal began in December 2016.
The duty of an occupier (in this case the hotel) to an entrant is governed by the general principles of the law of negligence, and is measured by what a reasonable person would in the circumstances do by in way of response to a risk of injury if the relevant risk of injury was foreseeable.
In assessing what reasonableness requires in response to a risk of harm, the reasonable person in the occupier’s position is entitled to take into account “with due allowance for human nature, [that] a person he permits to be on his premises will use reasonable care for his own safety”.
Did the hotel breach its duty of care to the patron?
The Appeal Judge stated that he considered the risk of tripping on the platform was obvious within the meaning of the relevant New South Wales legislation (which is similar to the current Western Australian legislation).
The presence and characteristics of the platform would have been obvious to a reasonable person in the position of the patron and once these facts were appreciated the risk of tripping over it was self-evident.
The hazard posed by the platform in this case was of a lesser order and more discernible. The Judge considered the degree of the patron’s shortfall in taking reasonable care for his own safety to be important and therefore reduced the patron’s damages awarded by the primary judge by one third on account of his contributory negligence.
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