Jackson v Furner

1. [1]

   PAYNE JA: This appeal arises from a claim for personal injuries brought by Ms Furner (the respondent) against Mr Jackson (the first appellant), Ms Kondouras (the second appellant) and CK1 Realty Pty Ltd (the third appellant) after the respondent slipped and fell on a sloping driveway leading to residential premises owned by the first and second appellants in Garden Suburb (a suburb near Lake Macquarie). On 3 August 2023, the primary judge, Harrison AsJ, made an award of damages to the respondent. Each of the appellants challenges the making of those orders on the same, relatively confined, grounds.

Relevant facts

1. [2]

   On 18 January 2020, the respondent attended an “open house” inspection of the Garden Suburb house with her husband. While approaching the house along its steep driveway, the respondent slipped and fell, suffering serious injuries. The owners of the property at the time were the first and second appellants. The first and second appellants retained Agency Sales NSW Pty Ltd for the sale of the property, who in turn engaged the third appellant to perform estate agency work with respect to the sale of the property.

2. [3]

   It was common ground that the first appellant had painted the sloping driveway at the front of the property where the respondent fell about a week prior to the fall. The type of paint he used was a significant controversial factual issue in the case.

3. [4]

   It had been raining on the morning of 18 January 2020. As the respondent and her husband approached the property each saw that the steep driveway heading to the house was still wet.

4. [5]

   When the respondent stepped onto the driveway, her right foot slipped and her body fell to the ground on her right. She felt pain and discomfort in her right elbow and right hip. Her husband immediately came to her assistance and picked her up off the ground. Once the respondent was back on her feet, she observed the driveway looked very shiny and glossy. Another couple who had just pulled up outside the property came running over to the respondent. The respondent took a couple of steps towards the front door of the property and slipped again on the driveway. As the respondent’s husband was already holding onto her arm, he was able to support her and prevent her from the falling to the ground a second time.

5. [6]

   When the respondent and her husband arrived at the front door of the property, they had a conversation with a woman who worked for the real estate agents and was later identified as Ms Johnson. The respondent said words to the following effect: “I have just slipped over on the driveway, it is very slippery.” A short time later, the respondent observed Ms Johnson slipping on the driveway. The respondent spoke to Ms Johnson a short time later, and Ms Johnson said words to the following effect: “I went to check the driveway out, and I slipped on it as well, it is very slippery.”

6. [7]

   The respondent’s injuries included injuries to her neck, her shoulders, her right elbow, her right wrist, her right hip and her right knee.

Decision of the primary judge

1. [8]

   The respondents pleaded that:

2. [9]

   This allegation was admitted by the first and second appellants in their defence.

3. [10]

   There was also an admission made in a solicitor’s letter dated 7 October 2020 that the driveway was painted by “our client” approximately a week prior to the date of the incident. The driveway was painted by the first defendant. The primary judge found that non-slip paint was not used.

4. [11]

   The primary judge found that the respondent had satisfied ss 5B and 5C of the Civil Liability Act 2002 (NSW). The appellants each owed a duty of care to the respondent. The scope of the duty of care extended to taking reasonable steps to ensure that those attending the “open for inspection” could safely enter and leave the property without slipping and falling on the driveway which was slippery when wet. The risk of a person slipping on the driveway was foreseeable and not insignificant. If a person slipped and fell on the driveway there was a very high risk that the harm suffered would be serious. The primary judge concluded that a reasonable person in the position of each appellant ought to have known that the driveway was sloping and slippery when wet. The appellants had a duty to exercise reasonable care to take reasonable measures to avoid foreseeable risks of injury, and were obliged to, at least, put up a warning sign and/or block off the slippery driveway. The primary judge found that these precautions were not burdensome.

5. [12]

   The primary judge accepted the evidence of the first appellant’s treating psychologist, Dr Patricia Caruana, that the first appellant was cognitively impaired and unable to give evidence.

6. [13]

   The primary judge found the second appellant’s evidence to be unconvincing and contradictory. Complaints about this finding formed the centrepiece of the appellants’ case in this Court. The primary judge found that important changes had been made between her first statement (made on 6 June 2022) and her second statement (made on 16 September 2022). The primary judge found that it was significant that the second appellant had (in her second statement) corrected the reference to “anti-slip” paint contained in her first statement.

7. [14]

   The primary judge found that Ms Kolarovski, a director of the third appellant, gave unreliable evidence about when she first knew that there was an issue with the slipperiness of the driveway. The primary judge emphasised that Ms Kolarovski had denied that the driveway had very recently been painted, despite admissions by the first and second appellants that it had.

8. [15]

   The primary judge found that Ms Johnson had conducted the “open for inspection” on 18 January 2020 without Ms Kolarovski being present. Ms Johnson was not called upon to give evidence by the appellants and the primary judge drew a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference that Ms Johnson’s evidence would not have assisted the appellants’ case.

9. [16]

   The primary judge accepted much of the respondent’s evidence and all of her evidence as it related to liability. The primary judge accepted the evidence of the respondent’s husband as truthful. The primary judge accepted the evidence in Mr Cauduro’s expert report. Mr Cauduro was not cross-examined.

10. [17]

    The primary judge was satisfied under s 5D of the Civil Liability Act that factual causation was made out and that the scope of liability should extend to the harm so caused.

11. [18]

    The primary judge awarded Ms Furner $1,509,512 in damages and there is no ground of appeal challenging the primary judge’s determination of damages.

Notice of appeal

1. [19]

   The grounds of appeal in the Amended Notice of Appeal were as follows:

Submissions

1. [20]

   The appellants submitted that, contrary to the primary judge’s findings, the second appellant gave consistent (indeed “uncontradicted”) evidence that the type of paint used on the driveway was recommended by “professionals” or “experts”. It was submitted that there was no evidence to suggest that the paint was not non-slip and the primary judge’s finding that it was not non-slip was in error. The primary judge was submitted to have conflated the factual questions of when the driveway was painted and what the driveway was painted with, and therefore to have wrongly concluded that if the second appellant was unable to recall the former, she was unreliable concerning the latter. Additionally, it was submitted that the primary judge impermissibly reversed the onus of proof in her deliberations, requiring that the appellants prove that the paint used on the driveway was not slippery.

2. [21]

   The primary judge was also submitted to have made an error in accepting the expert evidence of Mr Cauduro. Mr Cauduro’s report was based on an inspection conducted a year after the incident and was therefore submitted to be unreliable, particularly in light of his reference to the deterioration of non-slip surfaces over time. The appellants submitted that Mr Cauduro did not give evidence stating whether the paint was non-slip.

3. [22]

   The appellants submitted that the “uncontested” evidence of the second appellant was that the paint applied to the driveway was “non-slip” and recommended by professionals. It was submitted that the lack of evidence from Mr Cauduro could lead only to the conclusion that the paint was non-slip.

4. [23]

   Additionally, the appellants contended that there was no evidence that the real estate agent was aware of the problem prior to the fall. It was submitted that Ms Kolarovski’s denial that the driveway was painted, two and a half years after the incident, does not support the inference that she was aware of the problem at the time.

5. [24]

   The appellants submitted that at [64] of the primary judgment, the primary judge appeared to mistake the third appellant with the second appellant in reference to evidence that there were no prior similar incidents. The lack of prior incidents was alleged to demonstrate the absence of knowledge on the second appellant’s part that the slippery driveway posed a risk.

6. [25]

   The appellants, in their written submissions, emphasised that the respondent could have taken the stairs to view the property rather than walking on the driveway.

7. [26]

   The respondent submitted that notwithstanding a lack of evidence of the type of paint used, the driveway was experienced on 18 January 2020 as very slippery. Ms Johnson also perceived that it was slippery and was observed to slip when she tested it. Mr Cauduro gave his opinion that the paint used was not suitable. The painting of the driveway, the respondent submitted, created problems where there had previously been none, and there was no basis for finding that the paint used was non-slip. Text messages admitted into evidence were also submitted by the respondent to be consistent with the finding that the appellants understood the problem with the painted driveway at the relevant time.

8. [27]

   The respondent contended that there was no ground of appeal directed to the submission concerning Ms Furner’s care for her own safety and the availability of the stairs as an alternate pathway. In any event the respondent contended that the path up the driveway was encouraged and that there was no indication that another means of access ought to be used.

Consideration

1. [28]

   There was no controversy on the appeal about the legal principles to be applied. An occupier has a duty to take reasonable care for the safety of persons invited onto the premises: Voli v Inglewood Shire Council (1963) 110 CLR 74 at 96-97; [1963] HCA 15; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7. The appellants each owed a duty to take reasonable care to prevent foreseeable harm to those whom they invited onto their premises, including those attending the open for inspection.

2. [29]

   The question of breach is determined by applying s 5B of the Civil Liability Act:

3. [30]

   Each paragraph within s 5B presupposes an identified “risk of harm”: Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 at [106]. There was no challenge on appeal to the identification by the primary judge of the risk of harm as being “a risk that a person might slip and fall and suffer injury if reasonable measures were not taken” or “the risk of a person slipping on the driveway”.

4. [31]

   The primary judge found that the risk was foreseeable in the relevant sense, that the risk was not insignificant and that a reasonable person in the position of each appellant would have, at least, warned about and/or blocked off the slippery driveway and directed invitees to the stairs instead. These precautions were not burdensome.

5. [32]

   The primary judge made findings of fact based on her Honour’s impressions about the credibility and reliability of witnesses formed from seeing and hearing them give their evidence. In an appeal by way of rehearing, the Court must exercise restraint before interfering with such findings of fact unless they are “glaringly improbable” or “contrary to compelling inferences”. The Court is obliged to conduct a “real review” of the evidence and the primary judge’s reasons and, making all due allowances for the advantages available to the primary judge, must “not shrink from giving effect to” its own conclusion: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [25], [29]; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55].

6. [33]

   At the outset, there is an issue about the breadth of the appellants’ case. The appellants in writing (but not in Mr Turnbull SC’s oral address) characterised a critical issue as being:

7. [34]

   This submission must be rejected. There is no ground of appeal alleging that a reasonable person in the position of the respondent would not have walked up the driveway, there being an alternative entrance available, or would have taken particular care when doing so. Much less is there a complaint that the primary judge erred in failing to make this finding; her Honour was not asked to do so. The availability of the stairs does not obviate the need to take reasonable care to prevent foreseeable risks caused by the recent painting of the sloping driveway.

8. [35]

   As to the appellants’ case that is the subject of the notice of appeal, the grounds are each closely connected and rely for their cogency on the acceptance of one part of the evidence given by the second appellant about the type of paint used by the first appellant to paint the driveway the week before the respondent slipped and fell.

9. [36]

   The problem for the appellants in advancing this as the central issue on the appeal is that the primary judge was correct to find that the evidence of the second appellant was unreliable. If anything, that finding significantly understated the problems with that evidence.

10. [37]

    In her first witness statement, 6 June 2022, the second appellant stated:

11. [38]

    In the second appellant’s second witness statement, made about three months later dated 10 September 2022, and after the trial had already been heard for three days in July 2022, the second appellant “corrected” paragraph 3 in the following way:

12. [39]

    The appellants contend that it is important that both of these statements refer to “experts” or “professionals” selecting the paint to be used on the driveway. I disagree. First, as the primary judge noted, the gravamen of the first statement, that “anti-slip” paint was used, was “corrected” in the second statement and the suggestion “anti-slip paint” was used was withdrawn. Secondly, the assertion that a charcoal-coloured paint had been used to paint the driveway at some unidentified time in the past and that the paint used on that occasion had been recommended by unidentified “professionals” was of little, if any, assistance to the appellants in a case where the first and second appellants admitted that the driveway had been painted one week before the incident. There was no foundation, on the basis of the second appellant’s statements, for a conclusion that a particular type of paint had been used on that occasion. Thirdly, the expert called by the respondent, Mr Cauduro, gave clear evidence that the paint used led to a highly slippery surface. Mr Cauduro was not cross-examined by the appellants. I reject the appellants’ submission that Mr Cauduro did not opine that a non-slip paint was not used; the essence of his opinion was that the slippery quality of the painted driveway could be corrected by the installation of “a slip resistant paint over the existing surface”. Mr Cauduro also opined that if the surface of the driveway had met the standards of slip resistance that he identified, it is unlikely that the respondent would have slipped and fallen on the driveway in the way the primary judge found that she did. In the absence of any cross-examination of Mr Cauduro, the primary judge was correct to find that a “non-slip” paint had not been applied to the driveway by the first appellant when painting the driveway in the week before the respondent fell.

13. [40]

    I am not satisfied that any error has been shown in the primary judge’s conclusion about Mr Cauduro’s opinion by reason of the date upon which he conducted his tests on the driveway. If the appellants wished to secure a finding that Mr Cauduro’s conclusions were unreliable by reason of the date the tests were conducted, they should have cross-examined Mr Cauduro at trial. Had the appellants cross-examined Mr Cauduro on his report, evidence may have been elicited casting the reliability of that report in a different light and leading to a different outcome. But Mr Cauduro was not cross-examined. Consideration of Mr Cauduro’s report as a whole, in the absence of cross-examination, does not cause me to doubt the cogency of his conclusions or the primary judge’s acceptance of those conclusions.

14. [41]

    The appellants’ submission that there was any evidence, let alone “uncontested” evidence that the driveway had been painted the week before the fall with “anti-slip” paint must be rejected. In oral submissions Mr Turnbull SC submitted that paragraph 1, sentence 2 of the second appellant’s second statement should be understood as lacking necessary punctuation:

15. [42]

    The primary judge, Mr Turnbull said, should have understood that a full-stop was intended to be used after the words “very often”. Understood in this way, the appellants submitted, the second appellant was not retracting her claim (made in the first statement) that the first appellant used a non-slip paint in painting the driveway but was simply adapting the timeframe for the application of that paint. The second part of that sentence, it was submitted, dealt with a related topic, using a high-pressure hose on the driveway, but did not affect the substance of the claim in the first statement that a non-slip paint was used by the first appellant in painting the driveway (whenever that occurred).

16. [43]

    I reject the appellants’ submission about how the second statement should properly be understood. The suggested punctuation error and reading of paragraph 1 of the second statement is internally inconsistent with the second statement itself (paras [5] and [9]) and flatly inconsistent with the second appellant’s evidence in cross examination. Although expressed as a “correction”, it is clear on all of the evidence that the second appellant disavowed the contents of paragraph [3] of the first statement. In her oral evidence, and consistently with paragraph [9] of the second statement, the second appellant’s evidence was that she was unaware that her husband had ever painted the driveway.

17. [44]

    Contrary to appellants’ contention, it is significant that the second appellant could not recall the driveway being painted in the week before the accident – or at all. The primary judge did not “conflate” the evidence concerning whether the driveway was painted that week and the type of paint. In cross-examination the second appellant said:

18. [45]

    It will be recalled that this evidence is consistent with the second appellant’s second statement:

19. [46]

    The fact that the second appellant denied that the driveway was ever to her knowledge painted at all meant that her evidence that a type of paint used was recommended by “professionals” was in truth no evidence at all. The second appellant, on her own evidence, was not in a position to say that the driveway had ever been painted with “non-slip” paint.

20. [47]

    The evidence of the second appellant was plainly contradictory and unreliable. It follows that ground 1 of the appeal, that her Honour erred in rejecting the evidence of the second appellant on the basis that it was contradictory and unreliable, should be rejected.

21. [48]

    Ground 2 of the appeal is related. Four errors are alleged. I would reject each of them:

    1. (1)

       It was not an error for the primary judge to conclude at [105] that “one of the corrections made in the [second appellant’s] second statement was the removal of the term ‘anti-slip’”. The deliberate excision by the second appellant of the assertion about “anti-slip” paint is the clear and obvious reading, in context, of the second appellant’s second statement.

    2. (2)

       It was not an error for the primary judge to conclude at [108] that the second appellant’s second statement at paragraph [5] said that so far as the second appellant was aware, the first appellant had not repainted the driveway for at least six months. More significantly, in the second statement at [9] the second appellant said, “It also is confusing to me as I do not recall Alan ever doing anything to the driveway other than ‘gurneying’ it”.

    3. (3)

       It was not an error for the primary judge to conclude at [108] that the second appellant did not recall that the first appellant had repainted the driveway in the period six months prior to the accident. That is what the second appellant said, at least in her second statement at [5].

    4. (4)

       It was not an error for the primary judge to fail to conclude that the paint used by the first appellant to repaint the driveway was “non-slip”. At the risk of repetition, fairly viewed, it was not the second appellant’s evidence that she was aware that the first appellant had ever painted the driveway, much less that she was aware of the type of paint he used when he did so.

22. [49]

    Ground 3 is essentially repetitive of grounds 1 and 2. It was not an error to fail to find that when the first appellant repainted the driveway (in the week before the respondent’s fall) he used a paint that was:

    1. (1)

       non-slip;

    2. (2)

       charcoal paint; and

    3. (3)

       recommended by “appropriate” experts.

23. [50]

    At the risk of further repetition, the only evidence relied upon by the appellants to establish these propositions was the evidence of the second appellant, which was correctly rejected by the primary judge as contradictory and unreliable. As I have said, the respondent proved that the paint applied was not “non-slip”. Any conclusion that unidentified “appropriate” experts had recommended that a “non-slip” paint be used, or that the first appellant ever acted on such advice, would have been contrary to all of the evidence.

24. [51]

    There is also some contemporaneous evidence from the first appellant in text messages. Text messages between Ms Kolarovski and Mr Jackson from 16 October 2019 until 25 September 2020 were adduced. They provided, relevantly:

25. [52]

    The primary judge did not err in concluding that these messages, in particular the message about “slippery paint” on 13 March 2020, assisted in concluding that the paint used by the first appellant was neither “non-slip” nor recommended by experts. It was not speculation to conclude that in circumstances where there had been a fall on the driveway the week before and it was alleged that the driveway was slippery when wet, the first appellant would likely have mentioned his use of non-slip paint (on expert advice) if that had been the case. I would reject ground 3.

26. [53]

    Ground 4 is similarly repetitive of the earlier grounds. The primary judge did not err in failing to find that the appellants had done all that was necessary to discharge the duty owed to the respondent. As was emphasised in oral address by senior counsel for the appellants, the only evidence relied upon by the appellants as evidence of the discharge of the duty owed to the respondent was the evidence of the second appellant about the application of a non-slip paint to the driveway. As I have explained, the evidence of the second appellant was correctly rejected as unreliable by the primary judge.

27. [54]

    The primary judge did not reverse the onus on proof and require that the appellants prove that the paint used was not slippery. To resolve the question of whether the driveway was very slippery at the time of the fall, the primary judge relied on the evidence of the respondent and her husband, together with the respondent’s observations of Ms Johnson. The primary judge was entitled to make a finding that the driveway was not painted with a non-slip paint from that evidence. In addition, as I have said, the expert, Mr Cauduro, was not cross-examined. His evidence was that:

    1. (1)

       painted concrete is generally inadequately slip resistant;

    2. (2)

       the general inadequacy is more pronounced with a slope of 10 degrees, which the driveway had;

    3. (3)

       the use of painted concrete is inappropriate for use on an external driveway; and

    4. (4)

       a reasonable preventative measure which could have been used to avoid the risk of harm included use of “a slip resistant paint”.

28. [55]

    At paragraph 3.6 of Mr Cauduro’s report he says:

29. [56]

    Given the absence of cross-examination, the primary judge was entitled to accept this evidence. Ground 4 should be rejected.

30. [57]

    In ground 5, the appellants say that the primary judge allegedly erred in finding that the third appellant was aware of a problem with the surface of the driveway before the date of the accident when there was no evidence to that effect. The paragraph referred to provides as follows:

31. [58]

    A critical problem with ground 5, which ground was not addressed in oral submissions, is that the ground misstates what the primary judge found. In the paragraph attacked, [144], the primary judge is rejecting as unreliable the third appellant’s evidence, including her evidence about “when she knew about a problem with the driveway”. The findings, made in accordance with s 5B of the Civil Liability Act in relation to the third appellant, concerning foreseeability, are elsewhere in the judgement: see [163]. The primary judge was correct that it was established that each of the appellants ought to have known of the identified risk of harm. No doubt for this reason the appellants sought below to amend their case to plead that the risk of harm here identified was obvious. That amendment was rejected and no appeal was brought from that rejection. In any event, ground 5 must be rejected.

32. [59]

    Ground 6, which was also not the subject of oral submissions, alleged that the primary judge erred in drawing an inference from the changes in the second appellant’s evidence that the first appellant ought to have been aware that there was a relevant risk of harm ([156]). This ground must be rejected. In the paragraph to which attention is drawn the primary judge found, in response to a submission by the appellants, that the first appellant ought to have known of the risk of harm by reason of his application of paint to the driveway the week before the relevant inspection, which paint was not “non-slip”. In circumstances where the painting was done in preparation for an “open for inspection” where members of the public would be invited to walk on the newly painted driveway, a reasonable person in the position of the first appellant would have conducted the cursory enquiries necessary to learn that, if the surface he had painted was wet, it would become dangerously slippery. Ground 6 should be rejected.

33. [60]

    Ground 7, which was not addressed in oral submissions, alleges that the primary judge erred in not finding that the appellants were unaware that there was any relevant risk of harm. This ground must be rejected. There was no challenge to the identification by the primary judge of the risk of harm. It was obvious that painting a sloping concrete driveway without using a non-slip paint would create a risk that the surface would become slippery when it rained. Ground 7 should be rejected.

34. [61]

    Ground 8 is a very minor complaint, not addressed in oral submissions, about the alleged misattribution of evidence given by the second appellant to the third appellant. The error contended for makes no difference given the substance of the evidence given by each of the second and third appellants which was, emphatically, that the driveway had not been painted in the week before the accident.

35. [62]

    Ground 9, not addressed in oral submissions, complains that the primary judge erred in finding that any of the appellants ought to have been aware that the driveway was slippery. The driveway was painted by the first appellant one week prior to the accident. A non-slip paint was not used by the first appellant. The driveway was wet after rain on 18 January 2020. On a visual inspection, the driveway was “shiny” or “glossy”. The driveway was very slippery on 18 January 2020 as evidenced by the two slips suffered by the respondent and the separate slip suffered by the agent, Ms Johnson, which was observed by the respondent. The appellants were each occupiers and obliged to take reasonable care to avoid foreseeable risks of injury. A cursory examination of the driveway on the day, of the kind conducted by Ms Johnson, would have revealed that the driveway was very slippery. The appellants ought to have been aware that the driveway was very slippery on 18 January 2020.

36. [63]

    Ground 10 asserted that the primary judge erred in finding that the risk of an invitee to the “open for inspection” falling was foreseeable to the appellants. The primary judge’s findings are at [162]-[165]. Shortly put, the primary judge found that:

    1. (1)

       the driveway was painted by the first appellant one week prior to the accident;

    2. (2)

       a non-slip paint was not used by the first appellant;

    3. (3)

       the driveway was wet after rain on 18 January 2020;

    4. (4)

       on a visual inspection, the driveway was “shiny” or “glossy”;

    5. (5)

       the driveway was very slippery on 18 January 2020 as evidenced by the two slips suffered by the respondent and the separate slip suffered by Ms Johnson which was observed by the respondent;

    6. (6)

       a cursory examination of the driveway would have revealed that it was very slippery when wet;

    7. (7)

       the appellants were each occupiers and obliged to take reasonable care to avoid foreseeable risks of injury; and

    8. (8)

       a reasonable person in the position of each of the appellants ought to have known that the driveway was sloping and became very slippery when wet.

37. [64]

    The findings of the primary judge were correct and met the statutory questions posed by the relevant provisions of the Civil Liability Act. Ground 10 should be rejected.

Conclusion and orders

1. [65]

   For the foregoing reasons I would dismiss the appeal. I propose the following orders:

   1. (1)

      Appeal dismissed.

   2. (2)

      The appellants pay the respondent’s costs.

2. [66]

   MITCHELMORE JA: I agree with Payne JA.

3. [67]

   GRIFFITHS AJA: I agree with Payne JA.