Case analysis: NIKOLICH v WEBB [2020] WASCA 169- “Slippery when Wet”

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By David McKenna, Partner

On 14 September 2020 the WA Court of Appeal handed down a decision which has upheld an “obvious risk” defence pursuant to section 5O of the Civil Liability Act 2002 (WA), finding that the owner/managers of a short term stay rental apartment did not owe a duty to warn their tenants of the risk of slipping and falling on a wet bathroom floor.

The decision clarifies the application of section 5O and the test for determining the existence of an obvious risk.

Background

Mrs Nikolich and her husband booked a weekend’s accommodation at Aquatic Visions studio apartment in Prevelly as short-term rental. The apartments were marketed targeting adults couples.

The evening of their arrival Mrs Nickolich and her husband had a spa-bath together. However, the smoke alarm in the apartment sounded 3 times while Mrs Nickolich and her husband were in the spa bath. Each time Mr Nickolich exited the spa bath to turn off the alarm, he did not dry himself with a towel and water dripped onto the floor.  When they had finished in the spa, they both took a shower causing the bathmat to be ‘saturated’. Mrs Nickolich then hung the saturated bathmat on the towel rail.

After approximately 30minutes, Mrs Nickolich thought that she ought to check that the candles in the bathroom were extinguished. Mrs Nickolich walked barefoot to the bathroom and when she leant forward to retrieve the candles she slipped, hyperextending her right arm as she fell backwards on to the floor.

Mr Nickolich heard his wife’s fall and scream and immediately got out of bed and walked to the entrance of the bathroom. Mr Nickolich also slipped just outside the entry of the bathroom on the water that he had dripped on to the floor earlier in the night when he was attending to the smoke alarm.

Aquatic Visions relied on section 5O of the Civil Liability Act 2002 (WA) (CLA) to support their defence that the slipperiness of the bathroom floor was an obvious risk and there is no duty to warn of an obvious risk.

The plaintiff agued s 5O of the CLAonly arose for consideration in the context of a defence of voluntary assumption of risk and did not impact on the scope of the duty owed. The primary judge rejected this argument and determined that the defence provided in section 5O of the CLA “changes the common law and provides expressly that a defendant does not owe a duty of care to a plaintiff to warn of an obvious risk”.

His Honour concluded that the respondents did not owe a duty of care to Mr Nickolich to warn her of the risk (i.e. there was no duty of care to warn Mr Nickolich that the bathroom floor was slippery when wet, nor to cover the floor In bathmats.

The test for determining whether the section 5O defence applies is to “have regard to the particular circumstances in which [Mrs Nickolich] suffered the relevant harm and determine whether the risk which resulted in her suffering that harm would have been obvious to a reasonable person in her position”.

The Court of Appeal

The WA Court of Appeal agreed with the approach taken by the primary judge.

In brief, the court held that:

  • As a reasonable person in the position of Mrs Nickolich, exercising ordinary perception intelligence and judgment, appreciating the state of the bathroom floor on exiting the bathroom, would have realised that on re-entry on more than 30 minutes later that the floor would remain wet.
  • In all circumstances the finding that there was an obvious risk for the purpose s 5O of the CLA should be upheld.

The appeal was dismissed on all grounds.

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