Fairfield City Council t/as Prairiewood Leisure Centre v Cheryl Petro [2003] NSWCA 150

New South Wales Court of Appeal

CITATION : Fairfield City Council t/as Prairiewood Leisure Centre v Cheryl Petro [2003] NSWCA 150 HEARING DATE(S) : 3 June 2003 JUDGMENT DATE : 19 June 2003

JUDGMENT OF : Mason P at 1; Santow JA at 2; Tobias JA at 3 DECISION : Appeal dismissed with costs.

CATCHWORDS : Negligence - Breach of duty of care - Public swimming pool - D Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Sullivan v Moody (2001) 207 CLR 562 Tame v New South Wales (2002) 76 ALJR 1348 CASES CITED : Wilkinson v Law Courts Ltd (2001) NSWCA 196 Owner Strata Plan 30889 v Perrine (2002) NSWCA 324 Francis v Lewis (2003) 152 Campbelltown City Council v Frew (2003) 154 North Sydney Council v Plater (2002) NSWCA 225 PARTIES : Fairfield City Council t/as Prairiewood Leisure Centre Cheryl Petro FILE NUMBER(S) : CA 40470/02 COUNSEL : A: Mr J Harrison SC with Mr G Grogin R: Mr B Donovan QC with Mr W Ward SOLICITORS : A: Phillips Fox R: Gajic & Co

LOWER COURT District Court JURISDICTION : LOWER COURT 618/96 FILE NUMBER(S) : LOWER COURT Cooper DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40470/02 DC 618/96

MASON P SANTOW JA TOBIAS JA

19 June 2003 FAIRFIELD CITY COUNCIL t/as PRAIRIEWOOD LEISURE CENTRE v CHERYL PETRO Judgment 1 MASON P: I agree with Tobias JA. 2 SANTOW JA: I agree with Tobias JA. 3 TOBIAS JA: This is an appeal from a decision of Cooper DCJ made on 14 May 2002 by which his Honour found the appellant negligent and entered judgment for the respondent in the sum of $106,403.45. The appeal is limited to the issue of liability. 4 The essential facts are as follows. On 30 March 1998 the respondent attended the Prairiewood Leisure Centre (the Centre) which was a swimming pool complex owned and operated by the appellant. The purpose of her visit was to enter her 16 month old son in a "learn-to-swim" class which was due to start at 11.15 am on that day. 5 The respondent had attended the Centre on four previous occasions for her son's swimming lessons. On each of those occasions she had negotiated the relevant parts of Centre to which I shall refer hereafter without difficulty. 6 The Centre, for relevant purposes, comprised a carpeted area located close to the entry which adjoined a concrete concourse (the upper concourse) which led to a set of three steps (the subject steps) down to a lower concrete concourse (the lower concourse) which was level with the main pool in which the swimming lesson was to be conducted. Thus, in order to gain access to the end of the pool where the lesson was to take place, the respondent was required to negotiate the three steps to which I have referred. 7 Interspersed at regular intervals within both the upper and lower concourses were single tile-width strips of what are referred to in the evidence as 'profiled tiles'. These tiles had a raised textured pattern over the majority of the tile's surface. The subject steps which the respondent was required to negotiate and which led from the upper concourse to the lower concourse had tiled treads and risers. The top tread tile comprised a narrow strip of the raised textured pattern tile and then a row of non-textured tiles of dimensions 200mm square which had no pattern but which had at its leading edge three grooves located, successively, 12mm, 32mm and 46mm from, and parallel to, the vertical edge or nosing of the top step. These tiles were described in the expert evidence as having "very smooth surfaces". 8 The respondent successfully negotiated the three steps when she first entered the Centre but, on reaching the lower concourse, she realised that she had left her purse and house keys in her motor vehicle. She then placed her belongings on a seat and returned to her car via the subject steps. Having retrieved the forgotten items she re-entered the Centre, traversed the upper concourse and prepared to negotiate the steps down to the lower concourse. However, when she placed her foot on the tread of the top step it slipped forwards, her feet went out from under her and she fell heavily landing on her buttocks. She then bounced down the balance of the steps injuring the lower part of her back. In essence her evidence was that she had her foot on the top step and it 'just went from under her'. At all times she was carrying her son in her arms, holding him on her hip. 9 When she stopped moving she turned around and observed for the first time that there was a smeary area of water on the top step which was approximately 300mm in dimension. She accepted in cross-examination that prior to observing this smear of water (which, she said, 'wasn't like a big puddle') after she fell, she had not noticed that the top step was wet either when she first negotiated the steps or before she slipped and fell. 10 The learned trial judge accepted the respondent's evidence of how she fell including the fact that at the time her foot slipped there was water on the tread of the top step. He further held that in the light of the close proximity of the subject steps to the swimming pool the risk of the steps being wet was reasonably foreseeable. There is now no challenge to the correctness of these findings. 11 In support of her case that the steps were excessively slippery and constituted a danger of which the appellant was or ought to have been aware, the respondent submitted a report of Mr Neil Adams who was accepted as an expert in the fields of ergonomics and safety management. Mr Adams' report was admitted into evidence over objection but the ground of appeal challenging the admissibility of that report was abandoned. 12 Mr Adams performed tests to establish the coefficient of friction of the top nosing tile upon which the respondent's foot had slipped. He purported to carry out that task in accordance with Australian Standard 3661.1-Slip Resistance of Pedestrian Surfaces (the Australian Standard). He determined that the coefficient of friction of the tile was 0.23 (when wet). The relevance of the coefficient so determined is to be found in clause 2 of the Australian Standard which is in the following terms: "It is intended that this Standard be used as a test method to establish the slip resistance of a pedestrian surface in either the 'wet' or 'dry' condition. A surface with a coefficient of friction equal to or greater than the minimum value specified in Clause 5 is considered to be slip-resistant."