Nothing left to do by owner to avoid Plaintiff’s injuries leads to no compensation

JENNER -v- MUNDRABILLA ROADHOUSE PTY LTD [2021] WADC 59

The Plaintiff was a 68‑year‑old road train driver.  In December 2015 he stayed at the Mundrabilla Roadhouse (roadhouse) in Mundrabilla.  Mundrabilla Roadhouse Pty Ltd (Defendant) owned and operated the roadhouse.

The Plaintiff had stopped for the night at the roadhouse. It had been raining all day and while he walked along an open external footpath at the roadhouse he slipped on the wet footpath and fell.  He suffered a fracture to his left fibula and tears to the medial meniscus and medial ligament of his left knee.

The Plaintiff alleged that the Defendant was liable for his injuries in that it was caused by its negligence.

More particularly he alleged that the Defendant failed to:

1. ensure that the premises were installed with any or any adequate guttering to ensure that the rain would drain off an adjacent roof rather than run directly onto the footpath;
2. ensure that the premises were installed with any or any adequate drains to allow the water to be drained off and away from the footpath;
3. install a non-slip surface on the footpath, and
4. erect any or any adequate warning signs to warn him of the slippery nature of the footpath when wet.

The Defendant denied that the footpath was a danger and argued that the accident was caused by the Plaintiff’s own carelessness. Alternatively, that Plaintiff had voluntarily assumed the risk and, pursuant to s 5(2) of the Occupiers’ Liability Act 1985 (WA) (OLA), there was no breach of the Defendant’s statutory duty.

Duty to warn

The court found that the pathway was wet and presented a moderate risk of slipping, that in the event of slipping and falling that injuries could occur, that there was nothing to grab hold of in the event of a slip to stop oneself from falling, that it was necessary to pay attention to where one was walking and tread carefully, and that the risks of walking on the wet path were patently obvious to any adult with experience of walking outdoors.  This was therefore an obvious risk as defined in s5F of the Civil Liability Act 2002 (WA) (CLA). Pursuant to s5(O) of the CLA there is no duty on a Defendant to warn a Plaintiff of an obvious risk.

Duty to have made the pathway safer in wet conditions

Even if there was no duty to warn of the risk there may have been a duty to modify the pathway to make it safer for visitors to the roadhouse when it was raining.

The common law imposed a duty of care on the Defendant to prevent, insofar as was reasonably practicable, the foreseeable risk of injury or harm to the Plaintiff.

This is a two-step process (Wyong Shire Council v Shirt – [1980] HCA 12)

1. Would a reasonable person in the Defendant’s position have foreseen that not making the pathway safer in the wet involved a risk of injury to the Plaintiff?
2. If so, how would a reasonable person have responded to that risk?

The CLA provides as follows:

5B. General principles

(1) A person is not liable for harm caused by that person’s fault in failing to take precautions against a risk of harm unless —

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —

(a) the probability that the harm would occur if care were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity that creates the risk of harm

The court held that there was a foreseeable and not insignificant risk of a person slipping and falling on the wet pathway, and that if a fall occurred there was a probability of physical personal injury.

Thus, the important question was: how would a reasonable person in the position of the owners have responded to that risk?

In Department of Housing and Works v Smith [No 2] [2010] WASCA 25 the court articulated the important principles in considering cases of alleged breach of duty by an occupier or lessor:

1. What would have been reasonable and practicable for the occupier or lessor to have done?
2. This is not to be undertaken in hindsight, looking backwards to identify what could have avoided the injury.
3. contemporary standards within the community are relevant in determining what is reasonable.
4. reasonableness may require no response.
5. the occurrence of a foreseeable risk does not establish unreasonableness.

There is a duty on the Plaintiff to take reasonable care for his own safety, and the Defendant is entitled to rely upon this (Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103).

In Jones v Bartlett (2000) 205 CLR 166 the court held that there is no such thing as absolute safety. Simply because a house could be made safer does not mean it is dangerous or defective.

The court then held that “the risk of a person who was exercising reasonable care for his or her own safety slipping was very low”.

The court then went on to discuss what precautions would a reasonable person in the Defendant have taken, if any, in foresight, to prevent the risk of a slip. The court held that a reasonable person would not have installed drains at the side of the pathway nor guttering along the adjacent roof nor to coat the pathway with a non‑slip surface, as contended for by the Plaintiff. The court held that this was a case where the Defendant would have done nothing.

Having found that there was no breach of duty the court dismissed the claim.

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