20 December 2017

Occupiers have an ongoing duty to ensure the safety of premises

Coles found to owe a duty of care to a pedestrian who tripped and fell on a slippery surface in the car park. The Supreme Court found that as an occupier of a near-new premise, Coles still had a duty to satisfy itself that the car park was reasonably safe for pedestrians.

On 6 April 2014, the plaintiff slipped and fell in the below ground car park of the Coles’ Coffs Harbour store. Approximately a year prior to the fall, the plaintiff had undergone a total left hip replacement. In the subject fall, he suffered a peri-prosthetic hip fracture of his left hip which required revision of the previous hip replacement.

The plaintiff relied on expert evidence which demonstrated that the surface of the car park where the plaintiff fell was ‘very slippery’. Coles did not dispute the plaintiff’s expert’s results. Coles’ essential argument was that it was not the owner, but merely the occupier of what was a ‘brand-new construction’1. Coles submitted that in circumstances where a ‘brand-new car park’ exists, then there is a higher duty placed on the lessor than the lessee (the latter being Coles).

His Honour rejected this line of reasoning. However, His Honour accepted at trial that Coles had constructive knowledge that, even though the premises were new, there were issues with the car park including discolouration of the surface due to mud ingress. Warnings were provided to Coles by the developer in the exchange of emails which demonstrated that persons occupying management positions at the Coffs Harbour store (none of which were called to give evidence at trial) had an appreciation of the ‘safety hazard’ posed by the entry of water into the car park surface.

His Honour was not satisfied that taking precautions (such as an anti-slip coating) would have brought Coles into conflict with its obligations under the lease. Even if it had fallen outside the scope of its obligations under the lease, His Honour considered that a reasonable person in the position of Coles would have sought permission (from the lessor) to have the work carried out, given it had identified the risk.

In the alternative, Coles submitted there ought to be a reduction for contributory negligence given that, at the time of his fall, the plaintiff failed to keep a proper lookout (distracted by his mobile phone) and wore inappropriate footwear (‘thongs’ or ‘flip-flops’).

His Honour held that, in this day and age, it was not uncommon for pedestrians to be ‘glued to the screen of a handheld mobile electronic device’ whilst walking. However, His Honour held that the particular risk that eventually materialized for the plaintiff was not obvious and could not have been avoided by him simply paying greater attention to where he was walking.

In relation to the plaintiff’s footwear, His Honour stated that ‘thongs are very common footwear worn by persons of all ages and conditions of life in Australia’. In the circumstances, His Honour did not consider the plaintiff’s footwear to be inappropriate.

His Honour awarded judgment in favour of the plaintiff in the sum of $688,071 plus interest plus costs on an ordinary basis and on an indemnity basis.

Commentary

Occupiers have an ongoing duty to ensure the safety of premises. The case maintains the position that even after construction, an occupier must still satisfy itself that the premises are reasonably safe for the intended use.

A ‘mere inadvertence’ or a temporary distraction, is not enough to constitute contributory negligence to pedestrians, particularly ones that may be momentarily distracted.


1The premises had been constructed in or about early 2012.

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Melinda Woledge

Marketing & Communications Manager

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