By Stephen Vardanega, Partner and Gabrielle Croese, Solicitor

On 28 June 2024, the NSW District Court decided a claim for personal injury damages brought by the Plaintiff, Mr Akgun, injured in a slip and fall incident on a travelator at a shopping centre on 4 September 2020.

The claim was brought against Stockland as the occupier and manager of the shopping centre, and Assetlink, the contracted cleaning services provider.

During the course of the hearing, the Plaintiff’s claim against Assetlink was resolved in Assetlink’s favour.

Background

The Plaintiff slipped and fell on a travelator moving from level 3 down to level 2, allegedly due to the presence of water or some other liquid.

Although the exact origin of the liquid could not be determined, Newlinds SC DCJ ultimately found on balance that the surface of the travelator was wet, and that this was what caused the Plaintiff to slip. It was raining quite heavily at the time. At each entrance to the mall there was a permanent mat. Wet weather signs were not in place.

Possible sources of the water included customers tracking water into the mall from the carpark and a spill from a drink purchased in the centre.

Legal Issues

The key issue was whether Stockland had breached its duty of care to the Plaintiff by failing to take adequate precautions to prevent the foreseeable risk of harm posed by wet travelators.

Decision

The Court found that at the time of the accident, Stockland had not identified the risk of harm at all, nor taken any precautions.

In 2022, some two years after the accident, Stockland conducted a risk assessment of risks within the centre, identifying the risk of travelators being slippery when wet and that the risk could be alleviated by applying an anti-slip product. It was decided to apply the product only to travelators going down from level 5 (uncovered carpark) to level 4 and from level 4 (foodcourt) to level 3.

The cost of the product for each travelator was approximately $9,500. Of the 26 travelators, the product was applied to only four of them.

The unchallenged opinion of the liability expert, Dr Cooke, was that untreated travelator surfaces  “were perfectly safe from a slip and fall perspective when dry, but when wet presented an alarming level of slipperiness.”

Stockland’s records for the period 1 July 2019 to 4 September 2020 revealed:

• 21 incidents involving a travelator;
• Of those, 14 involved slipping;
• Of those, five either involved water on the travelator surface or it was noted/claimed that it had been raining;
• Of the 14 incidents, only one occurred on the subject travelator – it was not operating, with no foreign substance or record of rain.

Stockland argued that a reasonable person prior to the Plaintiff’s fall in Stockland’s position would have not done anything more than Stockland did in 2022 – in other words, it was reasonable that the anti-slip product was not applied to the subject travelator, prior to the Plaintiff’s fall.

The argument was rejected, with the Court finding that a reasonable person in Stockland’s position would have treated all downward-sloping travelators to mitigate the risk of slips and falls caused by wet surfaces.

Defences

Stockland raised defences of obvious risk (under section 5F of the NSW Civil Liability Act) and contributory negligence (under section 5R), both of which the Court rejected.

The Court said it was common ground that the clear liquid on the travelator was not observable to a person exercising reasonable care and  found that “whilst it may be accepted it is an obvious risk that wet floors may be slippery, the particular risk in this case, being that travelators whilst safe when dry become dangerously slippery when wet, is …..not one that would have been obvious at all.”

On the issue of contributory negligence, Stockland unsuccessfully submitted that the Plaintiff ought to have made use of the moving handrails whilst walking down the travelator.

Cross-Claim

Stockland’s cross-claim against Assetlink was dismissed in circumstances where His Honour could not make any finding as to how the liquid got to be on the travelator, for how long it had been there, and whether any actions by Assetlink could have possibly identified its presence and cleaned it up prior to the incident.

Conclusion

The Court’s decision is a timely reminder of the importance of commercial property owners/managers undertaking risk assessments and identifying and taking reasonable precautions in relation to identifiable risks particularly in circumstances where there is evidence of a significant history of related incidents.