WINDANG BOWLS CLUB LTD v TAMMJARV SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY P, MAHONEY JA and Hope AJA 31 August 1989, 8 September 1989 [1989] NSWCA 237 NEGLIGENCE — occupier of bowling club — tiles on floor of verandah slippery when wet — whether unreasonable to expect occupier to take steps to protect persons against the possibility of slipping on tiles — held: (Dismissing appeal from Badgery-Parker DCJ) To impose such a requirement is not unreasonable. Phillis v Daly (1988) 15 NSWLR applied; Hackshaw v Shaw (1984) 155 CLR 614 and Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 referred to. APPEAL - evidence of witnesses - credibility - which witness is to be believed - held: No error of approach by the trial judge - no question of principle. ORDER Appeal dismissed with costs. Kirby P I agree with Mahoney JA. Mahoney JA On 21 or 22 June 1985 the plaintiff slipped and fell whilst leaving the defendant's club house. The plaintiff sued the club for damages on the ground that it had been negligent. On 8 June 1988 Badgery-Parker DCJ, as he was, found for the defendants in negligence, held the plaintiff 15 per cent responsible, and gave judgement for her for $25,029.87. The defendant has appealed to this Court against his Honour's findings as to liability. An appeal as to damages has not been pursued. The plaintiff's claim was that she left the club through the main entrance onto a tiled verandah; that the floor of the verandah was not fully protected from the weather; that the tiles on the floor of the verandah were wet; that by reason of their wetness they were slippery; and that she slipped on the wet tiles and fell. The plaintiff had been at the club for some time prior to leaving and had consumed some alcohol. His Honour held that she was to some degree affected by it and this provided the basis for her partial responsibility for what happened. However, his conclusion was that the major responsibility lay with the club. As his Honour said, the plaintiff's version of the facts was, at the trial, contested in almost every respect. His Honour, in a detailed examination of the evidence of the various witnesses, made a number of findings of fact relevant for the purposes of this appeal. First, he found that the plaintiff slipped on the tiled surface of the verandah. As the plaintiff came out through the main door of the premises, there was a mat. She said she walked across that mat and that it was when she reached the tiled verandah beyond the mat that she slipped. The defendant submitted that she did not slip on the tiles but otherwise. His Honour disregarded the plaintiff's evidence on this point: he based this finding on her lack of credibility on the issue. He put aside also the evidence of Mrs Joyce Bailey who gave evidence for the plaintiff on the point. But he accepted the evidence of the plaintiff's husband, Mr Entel Tammjarv. Mr Tammjarv said that "as soon as the plaintiff walk (sic) off the mat she slipped on 2 UNREPORTED JUDGMENTS the tiles, fell, sort of twisted and hit her head on the wall'. His Honour rejected other aspects of Mr Tammjarv's evidence but said: "... I have come to the conclusion that his evidence on this issue is to be accepted and on that basis I find that the plaintiff did fall after having stepped onto the tiles." His Honour then concluded that, at the relevant time, the tiles were wet. A Mrs Walton, who left the club shortly before the accident, gave evidence that the tiles were wet when she crossed them and his Honour accepted her evidence. The defendant argued that the tiles were not wet. It pointed to the verandah which, as his Honour had found, had been erected before the accident, and the effect the verandah would have in preventing rain falling at the relevant place. But there was evidence to support a finding, and his Honour accepted, that in "very extreme weather conditions" "some water might find its way onto the verandah even close to the entrance door'. And he inferred that the tiles might there become wet "because of water shed upon them from the clothing and accoutrements of visitors coming into the club". Those findings were not, I think, attacked: in any event, I accept them as correct. His Honour then found that, if wet, the tiles were apt to be slippery. Mr East, an architect called on behalf of the plaintiff, gave evidence of his examination of the tiled floor. His Honour was critical of portions of Mr East's evidence but on balance he accepted from it "that the nature of the surface of the verandah generally was such that patches of it at least were capable of becoming slippery if wet". And he, I think, relied upon the fact that the plaintiff, in her various accounts of the occurrence, had always used the word "slipped". His Honour then said: "T conclude on a bare balance of the probability that the tiles were in fact slippery and I am to the same degree satisfied that the plaintiff's fall was at least in part the result of the slippery state of the floor". His Honour then considered whether the defendant should be found negligent for failing to take steps to protect patrons from the consequent risk of injury. His Honour said: "If it was foreseeable that the tiles might become wet it was foreseeable also that they might become slippery, and the exercise of reasonable care on the part of the defendant required in my view that steps be taken to ascertain whether the tiles if wet did become slippery, and if they did, as at least on this night they did become slippery, the exercise of reasonable care required that they be mopped dry at frequent intervals or covered with a mat of some kind, or required the adoption of permanent precautions whether by the affixing of non-skid strips or by replacement of the surface." His Honour continued: "What is required to discharge the duty of reasonable care will be much more in the case of a shopping mall than in a private home, and so too, the duty demands more in my view of the management of a club than it does of a private householder. The discharge of the duty requires that heed be paid not only to the number but to the foreseeable types and conditions of people who might be expected to make use of the premises, and that must require in respect of a licensed club that account be taken of the likelihood that some patrons at the time of their departure from the premises will by reason of their consumption of alcohol be reduced in their capacity to perceive and respond to dangerous situations. I find that the defendant was negligent in failing to deal with the danger of slipping created by the wetness of the tiles and accordingly the plaintiff is entitled to a verdict." URJ WINDANG BOWLS CLUB LTD v TAMMJARV (Mahoney JA) 3 Mr Rolfe QC, for the appellant club, contested his Honour's findings in respect of a number of matters. I shall refer to the substance of attacks which were made. Mr Rolfe submitted, first, that his Honour had erred in accepting the evidence of Mr Tammjarv upon the basis of which his Honour concluded that the plaintiff had fallen, not on the mat, but after she had stepped onto the tiles. The acceptance of Mr Tammjarv's evidence was, it was submitted, the basis of his Honour's finding. His Honour, in making the finding, said that Mr Tammjarv's evidence "that she fell as soon as she walked off the mat was not challenged and seemed credible". He submitted that in arriving at his acceptance of the credibility of Mr Tammjarv's evidence in this regard, his Honour would have been affected by the fact that this portion of it was not challenged; that if it had been seen as challenged, his Honour would not have found it credible; and that the fact was that it had been challenged. Therefore, Mr Tammjarv's evidence in this regard should be put aside. And, the submission suggested, if it was, then there was no evidence on which his Honour could, or this Court should, find that the plaintiff slipped at a position off the mat. In my opinion the proper conclusion is that, in the relevant respect, Mr Tammjarv's evidence was not challenged in cross-examination; in any event, I do not think that this Court should put aside the conclusion which the trial judge formed in that regard. Mr Rolfe's submission was based upon certain passages in cross-examination. The plaintiff was walking in front of her husband. He said he saw her slip over. He was asked whether he had been "looking on the ground" or whether he saw "where her feet were" before she fell. He gave a negative reply to these questions. And, finally, the question was put: "Q.... So that the first time that you looked on the ground is after your wife had fallen over, is that not right? Do you want me to repeat that again? A. Yes." His Honour intervened: "HIS HONOUR: Do you need to ask the question at all? CANOSA: No." It was not put in terms to the husband that his evidence that she fell "as soon as she walk (sic) off that mat she slipped on tiles..." was incorrect. Mr Rolfe's submission is, I think, that, because of what was put in cross-examination, that was put by inference. Dealing with the matter merely upon the terms of the transcript, I would not draw that inference. The questions may have been directed to other things, for example, whether she had slipped rather than tripped. Counsel had not yet come to the place where the slipping occurred, nor do I think that the Judge saw that as being put. His Honour, by his intervention, evidently saw the question as unnecessary. Viewed merely as a question to a person who, as he said, had been walking only about a metre behind his wife, it was not apt to produce a significant answer. But had it been directed to, or been the commencement of cross-examination on, the suggestion that what the husband had said in the relevant respect was not correct, it would hardly have been in that category. His Honour would not have seen it as such. The significance of what takes place at a trial is, special cases apart, best understood by those who were present at it. At least it is so in respect of the assessment of matters of this kind. I would not set aside his Honour's conclusion as to the significance of these questions in this regard. Mr Rolfe then submitted that the evidence should not lead to the conclusion that, if the tiles were slippery, it was that which caused the plaintiff to fall. He referred to the fact that others had walked across the tiles at or about the time without falling. But if it be accepted, as his Honour accepted, that the plaintiff 4 UNREPORTED JUDGMENTS was off the mat and that what happened was as she described it, namely, that she slipped, I think the most probable reason for what happened was that she slipped because the tiles were slippery. Mr Rolfe's main submission was, I think, that even if his Honour's finding of fact be accepted, the defendant was not negligent. He did not contest that the defendant had, in the classic formulation of the law of negligence, a duty of care to the plaintiff: at least, it is clear that it did. His submission was that the facts disclosed no breach of that duty. Mr Rolfe submitted that his Honour had inaccurately formulated the legal test in this regard and he referred the court to the recent decisions of the High Court: Hackshaw v Shaw 155 CLR 614; and Australian Safeways Stores Pty Ltd v Zaluzna 162 CLR 479; and of this Court: Phillis v Daly (1988) 15 NSWLR 65; in that regard. The thrust of his submission was that, if there was a risk of injury which, in the circumstances was foreseeable, it was not one which required the defendant to take the precautions to which his Honour referred, in the passage which I have cited or, indeed, any other relevant precautions. I do not think that that submission should be accepted. On his Honour's findings, a reasonable person in the position of the defendant would see a risk that persons leaving the club might slip on the tiles and that, if they did, they might suffer injury of substantial proportions. His Honour was careful to point out that, because of the verandah, the tiles would not always be wet from rain: rain would affect them directly only in "very extreme weather conditions". But he saw other circumstances in which the tiles might become wet, for example, from water shed from people coming into the club. It was not suggested that that, as a risk, was not reasonably foreseeable. I am satisfied that it was. But Mr Rolfe's submission was, I think, to the effect that the likelihood of the tiles being wet and consequently slippery was so small, and so the risk was of such dimensions, that a reasonable man would not take precautions against it. I do not think that that submission should be accepted. The risk of people falling is one which, as a matter of routine, would be apt to be before the occupier of club premises of this kind. The precautions sufficient to deal with the risk, eg, the provision of a mat or cover from the existing mat to the steps, would involve little expense or inconvenience. A reasonable person would take them. Mr Rolfe submitted that, if precautions were required in circumstances such as the present, then there would, in practical terms, be a duty upon an occupier to remove every risk of injury. And he saw support for his argument in Phillis v Daly. I do not think that that case assists the appellant's submissions. In this case Badgery-Parker DCJ did what, in a practical sense, a trial judge is required to do, namely, to "identify what is the thing which the defendant should or should not have done and to examine, in terms of reasonableness, the acceptability of it": Phillis v Daly at 72C. The issue in each case will, on this approach, be whether it is reasonable to do what that suggests the defendant should have done. The force of Mr Rolfe's submission in this regard is that, if the law requires the occupier of a bowls club in the country to be alert to the condition of its front entrance and to lay out precautions at midnight, the requirements of the law will be unreal. That argument may have force in other cases. But, for myself, I see nothing unreasonable in a requirement that, if it is apt to be wet, something should be done to protect against the possibility that someone will slip on tiles which will be slippery when wet. In my opinion the appeal should be dismissed with costs. URJ WINDANG BOWLS CLUB LTD v TAMMJARV (Hope AJA) Hope AJA I agree with Mahoney JA. Appeal dismissed with costs 5 Counsel for the Appellant: JMN Rolfe QC and M Kops Solicitors for the Appellant: Thomas and Bisley, Wollongong Counsel for the Respondent: JG Stewart 10 Solicitors for the Respondent: Kell Heard and McEwan, Wollongong