Is an Occupier’s Liability for a Raised Platform Glaringly Obvious?Public and Products Liability
Ratewave Pty Limited v BJ Illingby  NSWCA 103
The New South Wales Court of Appeal had to consider whether the occupier of the Manly Pacific Hotel (Hotel) had been negligent in failing to safeguard their premises to avoid the risk of injury involving aesthetic or structural components.
Even with Justice Fagan’s minority finding with respect to the risk of a large, starkly coloured timber platform being “Obvious”, the decision emphasises the far reaching precautionary measures which occupiers are often expected to take in safeguarding their premises, especially when there is a history of similar type events occurring at their premises.
At around midday on 19 June 2009, the plaintiff (Mr Illingby) injured himself after tripping on a darkly coloured timber platform which was situated to one side of an internal walkway between the Hotel’s restaurant and bar. The platform was over two and a half metres long and sat between 55mm and 20cm above white marble flooring.
The plaintiff gave evidence that sunlight and intense glare from nearby windows had prevented him from seeing the platform whilst he was walking towards the bar.
The Decision at First Instance
In upholding the claim at first instance, Levy DCJ held:
- the placement of a raised timber platform in a pedestrian traffic area breached the duty owed by the Hotel to its patrons;
- glare, variable lighting and the presence of ornamental displays (which sat on top of the offending platform) either affected or totally precluded the plaintiff from visually discerning that the platform was raised as he walked towards it;
- the plaintiff’s expert liability evidence should be preferred to the Hotel’s evidence (even despite the latter incorporating more detailed commentary on the issue of glare and the lighting conditions which were present following several inspections of the area);
- the Hotel’s failure to install warnings or to conduct a risk assessment was causative of the incident, noting there had been an earlier accident involving the same platform (yet which did not involve issues with glare or lighting);
- no discount should be applied for contributory negligence.
After being found liable to the plaintiff at first instance, the Hotel appealed to the NSW Court of Appeal alleging there was not a foreseeable risk of trip injury arising from intense glare in circumstances where the platform was readily observable.
Additionally, the Hotel argued that the platform constituted an Obvious Risk for the purposes of Section 5F of the CLA, and sought to reverse the finding which had been made with respect to causation, given that the prior accident (involving the same platform) did not put them “on notice” of an issue with glare, and given that their alleged failure to install barriers or to undertake risk assessments would not have necessarily prevented the incident from occurring (especially if the plaintiff’s vision had been impeded by glare, as he had given evidence that it had been).
In his leading judgment, Meagher JA (with whom Macfarlan JA agreed) rejected the Hotel’s appeal in holding:
- that even though the primary judge’s (Levy DCJ) rejection of the Hotel’s expert liability evidence was unreasonable and based on incorrect assumptions, the Hotel had breached its duty in failing to install barriers or signs to direct patrons away from the platform;
- that the risk posed by the platform was not Obvious for the purposes of section 5F of the CLA;
- the Hotel’s failure to give “appropriate warning” of the platform justified the finding of causation which had been entered against it;
- the evidence did not justify a finding for contributory negligence.
Justice Fagan’s Dissenting Judgment
In a short dissenting judgment, the third member of the Court of Appeal (Justice Fagan) agreed that the Hotel had been negligent as an occupier and that it was not entitled to succeed on appeal.
However, in his judgment, Justice Fagan found that the platform constituted an Obvious Risk for the purposes of the CLA, and that the plaintiff’s damages should have been reduced by one-third for contributory negligence on account of his unreasonable failure to avoid the platform.
The decision affirms the challenges which occupiers will often face in avoiding a liability in negligence for personal injury arising from aesthetic or structural components of their premises and the extensive risk management measures which occupiers are now regularly expected to take to ensure the safety of their invitees.
The decision also demonstrates the difficulties which insurers will commonly face in defending claims arising from atypical occurrences of injury which are often difficult to refute, even with the benefit of comprehensive expert liability evidence.24/05/2017