29 August 2023

Slip and fall at a driveway of an open home inspection. Property owner and real estate agent found negligent. Plaintiff awarded over $1.5 million in damages.

In issue

• Whether the property owners and real estate agent were negligent under the Civil Liability Act 2002 (NSW).
• Whether the risk was foreseeable, significant and one which a reasonable person would have acted upon.
• Whether the risk of slipping on a freshly painted driveway was foreseeable and significant.

The background

On 18 January 2020, the Plaintiff was attending an 'open house' for the sale of a residential property in Garden Suburb, NSW (Property), when she slipped and fell on the driveway (Incident). A week prior to the open home, the owners of the Property had painted the sloping driveway and on the morning of the Incident there had been some rainfall.

The Plaintiff commenced proceedings in the NSW District Court against the property owners, and the real estate agent engaged by the owners to sell the Property (collectively ‘the Defendants’).

The Plaintiff alleged the Defendants were negligent for inter alia failing to: warn, or adequately warn, the Plaintiff of the risk of slipping on the driveway; conduct any adequate risk assessment as to the slipperiness of the driveway, place non-slip mats or similar non-slip control measures over the driveway prior to the sales inspection; and add a non-slip additive to the paint prior to its application. The Plaintiff alleged she suffered injury to the neck, shoulders, right elbow, right hip, right knee, shock and sequalae as a result of the Incident. She sought damages in respect to injury and loss suffered (Claim).

The Plaintiff relied on expert evidence from an engineer, whilst the Defendants did not serve any expert liability evidence and did not lead any evidence about the type of paint used on the driveway surface. The Defendants otherwise denied the allegations.

The decision at trial

Justice Harrison presided over the trial. Her Honour considered the application of the principles of duty of care and breach under sections 5B and 5C of the Civil Liability Act 2002 (NSW) (‘the CLA’) in respect to the Claim. The following issues were specifically noted:

• These sections ask what a reasonable person would have done looking forward from a point in time before the injury (not retrospectively, at what could have been done to avoid it). The expectation of exercising reasonable care goes not just to the assessment of breach of duty, but is a 'specific element contained, as a matter of law, in the scope of the duty of care'.
•  
• Determining whether reasonable care has been exercised cannot merely involve asking if different conduct could have produced a different outcome, the test is always whether the plaintiff has proved that the defendant has not acted in accordance with what is considered to be reasonable care. The fact that measures could have been taken to avoid or diminish the materialised risk does not establish breach, and the plaintiff must show a reasonable person in the position would have taken the alleged precautions.

The court also noted the principles of causation in section 5D of the CLA, noting:

• to establish causation - the plaintiff is required to prove on the balance of probabilities that if the defendant had taken the identified steps, then the injury to the plaintiff would not have occurred or would have been avoided, and
• to succeed - the plaintiff must show that it is more probable than not that, but for the defendant’s breach, the ‘particular harm’ which materialised would not have been suffered. This involves two elements – 'factual causation' (a statutory restatement of the 'but for' test of causation) and 'scope of liability'. Causation requires a determination that 'the negligence was a necessary condition of the harm'.

Credibility of witness evidence was an issue also considered by the Court, particularly as the Defendants did not serve expert liability evidence and each defendant was cross-examined on affidavit evidence relied upon. On the evidence provided, the Court accepted the Plaintiff’s recollection of events and expert evidence compared to that of the Defendants.

In consideration of the Plaintiff’s expert and lay evidence, and the Defendants’ lay evidence, her Honour held that:

• the Defendants each owed duties of care to the Plaintiff;
• the risk of a person slipping on the driveway was foreseeable and not insignificant;
• the Defendants could have taken reasonable steps to warn those attending the open home that the driveway was slippery;
• if a person slipped and fell on the driveway, there was a very high risk that the harm would be serious;
• a reasonable precaution the Defendants could have taken would have been to warn the people attending the open inspection of the potential of the driveway being slippery by erecting warning signs, notices and/or blocking off the slippery areas of the driveway;
• the real estate agent was an occupier of the Property at the time of the accident and was under a duty to exercise reasonable care to take reasonable measures to avoid foreseeable risks of injury. The agent’s scope of the duty of care extended to ensure that people, such as the Plaintiff, attending the open for inspection could safely enter and leave the Property without slipping and falling on a very slippery driveway when wet. There was a high probability that a person such as the Plaintiff would slip and fall on the driveway that became slippery when it was wet and appeared to be very shiny/glossy. Therefore, at the very least, the agent was obliged to warn prospective buyers that the driveway was slippery; and
• the precautions that the Defendants could have taken were not burdensome.

Her Honour held that the Plaintiff satisfied section 5B, 5C and 5D of the CLA. She found in favour of the Plaintiff and awarded a total of over $1.5 million in damages.

Implications for you

In this case, the Court had regard to the Plaintiff’s evidence and took a common sense view of the facts and evidence relayed by the parties. It was held that the risk of a person slipping on a wet sloped driveway was foreseeable and the risk of harm was not insignificant.

The duty of care to take precautions against the risk of harm extends to both owners as well as agents, in their capacity as an occupier. It is incumbent on these parties to undertake adequate risk assessments and ensure that all potential risks are considered.

From a case management perspective, it is important for Defendants to consider the utility in obtaining expert evidence against relying on lay witness evidence in respect to liability issues. In this case, the fact that the Defendants had no evidence regarding the paint coating applied to the driveway or expert evidence to comment on the expert engineer’s report meant that the Plaintiff’s expert evidence was not effectively challenged.

Updated 8 April 2024: On 27 March 2024, the NSW Court of Appeal dismissed an appeal in this matter.

Furner v Jackson [2023] NSWSC 914