CORCORAN COAD REAL ESTATE T/AS RICHARDSON AND WRENCH PORT MACQUARIE v STATE BANK OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, SHELLER and COLE JJA 10 July 1996, 10 July 1996 [1996] NSWCA 121 OCCUPIER'S LIABILITY — causation Cole JA A Mr Horton slipped, fell and suffered injury at about 8.30am on Saturday morning 2 January 1994 when he was walking through Dalhunty's Arcade which runs between Short Street and Horton Street, Port Macquarie. He slipped at the end of the arcade near the Horton Street footpath. Ownership of the arcade is spilt down its centre fine. The premises on the left were owned and occupied by the respondent and those on the right were leased and occupied by the appellant. There was no finding made by the trial judge regarding occupation of the arcade. Sinclair DCJ found that overnight some unknown person had vomited and urinated against the front wall and window of the appellant's premises. Mr Corcoran on arriving at his office on the Saturday morning observed this and instructed an employee to hose away the mess into the gutter. This was done with the employee sweeping excess water into the gutter with a straw broom. Nonetheless the tiled floor surface remained wet. Mr Corcoran knew that, when wet, the tiled surface was slippery. As Sinclair DCJ found, the slippery characteristic of the tiles when wet was conformed by the expert evidence of a Mr Tapner. Mr Horton fell shortly after the tiled floor was hosed down. It being a Saturday morning, the bank premises were closed. The bank was thus unaware of the incident, although it was established that the creation of mess in the arcade requiring cleaning in the fashion which occurred was not an unusual occurrence. Sinclair DCJ found a verdict in Mr Horton's favour against the appellant but dismissed the appellant's fourth party claim against the bank. It is against that dismissal that this appeal was brought. His Honour's reasons for dismissing the fourth party claim were as follows: "I find that it was a relatively short time after the tiled floor was hosed down that the plaintiff slipped and fell and that at that time the tiles were still wet. From these facts I have come to the conclusion that in law the defendant was negligent in failing to warn persons using a busy arcade that the tiles were likely to be wet and slippery. I am not persuaded that the bank was guilty of any negligence which contributed to the plaintiffs accident I accept that the bank premises were owned and occupied by the bank and that they legally owned up to the centre line of the arcade and it was in fact on that side of the arcade that the plaintiff fell, part of the other side being obstructed by an advertising boarding outside the Real Estate office. 2 UNREPORTED JUDGMENTS The bank was not open at the time but even though the soiling of this area of the arcade was not an isolated incident the danger which led to the plaintiff's fall was created by the soiling of the area by a person unknown and the hosing down by the defendant's employee of the soiled area. In those circumstances I am satisfied that from the point of view of this action that hosing down was the real cause of the plaintiff's fall.""! On appeal it was contended that in substance Sinclair DCJ had applied a "but for" test contrary to March v E and MH Stramare Pty Ltd and Anor? The argument was that Mr Tapner's unchallenged expert evidence established that the tiles used on the floor surface were inappropriate because their coefficient of dynamic friction made clear that they would become slippery when wet. Being at the end of an arcade the area was exposed to the weather. Thus the bank was liable for permitting the floor to be covered with potentially slippery tiles, it being found that Mr Horton in fact slipped in the area owned by the bank but made wet by the hosing of the appellant's employee. The respondent bank should have foreseen that it was exposing persons to risk by having such tiles on the floor when it must have been known that the tiles could become wet for a variety of reasons. Accordingly it should have been held liable in the fourth party claim and the trial judge should have apportioned liability between the appellant and the respondent. In my opinion the argument fails. The potential danger did not cause the injury and damage to Mr Horton. The trial judge found that the tiles were slippery because they were wet. Liability does not attach because of potential risk: it attaches if that potentiality is realised. The realisation was brought about by the floor being made wet. The act of making the floor wet was the responsibility of the appellant. The fact that the tiles may have become wet if rain penetrated is irrelevant to this claim. Rain did not penetrate and create a danger to Mr Horton. The danger was created, and not warned against, by the appellant hosing down the tiles owned by the respondent. It is not an application of the "but for" test to decide that it was the rendering of the tiles wet without warning which created the danger causing injury. Indeed, it can properly be said that the appellant is seeking to apply the "but for" test by contending that but for the use of tiles with the potential to become slippery when wet, the accident would not have happened. The obligation upon the court is to determine, as was said in March v Stramare3 by Deane J, "as a matter of ordinary common sense and experience" whether the injury to Mr Horton was caused by the act of the appellant, in leaving the tiled surface wet and slippery without warning of the danger, or whether it was caused in whole or in part by the use of tiles on the floor area which had the potential to become slippery when wet. In my opinion Sinclair DCJ was correct in determining that the former was the cause for the purpose of "attribution of fault or responsibility' It follows in my opinion that the appeal should be dismissed with costs. Clarke JA . Appeal Book at 225Q-226K. . (1991) 171 CLR 406. . (1991) 171 CLR 406. . (1991) 171 CLR 406 at 522 per Deane J. RwWNS WRORCORAN COAD REAL ESTATE T/AS RICHARDSON AND WRENCH PORS MACQUARIE v STATE BANK OF NEW SOUTH WALES (Clarke JA) I agree and wish to add some short observations on another aspect of the appeal. The case which the appellant sought to run in this Court was based upon the report of Mr Tapner which was tendered in evidence. That case was that the respondent was negligent in not removing the slippery tiles in the arcade in the undefined area which it was said to own and replacing them with non-slip tiles with a grit finish. Alternatively, it was said that some strip should be placed on the top of the tiles. Having regard to the location which was a mall on the floor of which were placed these tiles throughout, it is not self-evident that the respondent was able to have taken the steps said to be necessary. In my opinion a case of negligence was not made out by asserting that particular flooring should have been removed unless it was also established that the party said to have been negligent had the capacity to take the necessary action. It is not plain to me that this case was run at the trial, certainly his Honour did not refer to it. Notwithstanding, it is appropriate to deal with it because of the absence of proof of that element to which I have referred. Counsel for the appellant has submitted that his Honour made a finding in the appellant's favour. In fact his Honour's finding was that he was not persuaded that the bank was guilty of any negligence which contributed to the plaintiff s action. Ms Honour then went on to say "I accept that the bank premises were owned and occupied by the bank and that they legally owned up to the centre line of the arcade." Because that was the area in which the plaintiff fell counsel submits that that finding, if finding it be, justifies the inference that the respondent had the capacity to take the necessary steps. For my part I would regard the statement as one by his Honour indicating that he was prepared, for the purposes of the judgment, to accept those facts. I do not regard it as a finding. If it is to be regarded as a finding there is very little material to support it. All that I can find in the appeal book which could be said to support it is the statement by counsel for the appellant at the trial that the respondent "owns their side of the premises". There does not appear to have been any express concurrence in that statement by counsel for the respondent and if one turns to the evidence one finds it does not establish those facts. Indeed the evidence which reads as follows and here I quote: Q. "Have you mentioned it to Mr Dulhunty who owns the site of the building that you are occupying?" A. "No I don't - I cannot recall mentioning it directly to Mr Dulhunty." Q. "But the situation is that the site that you're occupying, your shop occupies, is owned by Mr Dulhunty is that right?" A. "Transit Hill Pty Ltd I think yes." Q. "And Mr Dulhunty is the principal of that company?" A. "Yes." Q. "And the site that the State Bank occupies of the arcade is owned by the State Bank?" A. "So far as I know." Q. "And the properties are divided down the middle of the arcade?" A. "T haven't seen the survey but I understand that there's reciprocal rights of way or something yes."5 would tend to suggest to the contrary of the statement of the appellant's counsel. 5. Appeal Book, at 80Q-Y. 4 UNREPORTED JUDGMENTS Nonetheless, even if one accepts for present purposes that the respondent owned a section of the tiled flooring, not defined in the evidence or by agreement, outside its premises, that would not, of itself, even prima facie, convey in the circumstances of this case the right of the respondent to take the suggested steps. I reiterate that the tiled area outside the respondent's premises was part of a uniform large tiled area in the mall and having regard to the evidence that was given it is highly unlikely that either the other occupiers in the mall, or the company mentioned, Transit Fuel Pty Ltd, would have allowed a situation to develop in which one tenant or occupier could dig up portion of the flooring of the mall in order to place down its own flooring surface. It is, however, unnecessary to determine whether it could or not. The evidence is silent on the question. The point about all this is that in the state of the evidence it was not, in my respectful opinion, open to conclude that the respondent had the power to carry out the suggested steps much less that it was negligent in failing to carry out those steps. For those reasons also I would agree with the orders proposed by Cole JA. Sheller JA For the reasons given by the other members of the Court I agree that the appeal should be dismissed with costs. Clarke JA The order of the Court is the appeal is dismissed with costs. (APPLICATION MADE FOR INDEMNITY COSTS) Clarke JA The costs payable by the appellant to the respondent will be on an indemnity basis from 5 June 1996. Appeal dismissed with costs. Counsel for the appellant: CM Simpson Solicitors for the appellant: Hunt and Hunt Counsel for the respondent: ML Williams Solicitors for the respondent: Sparke Helmore