Wet tiles causing slip and fall at shopping centre not an "obvious risk"
A 42 year old Lebanese electrician claimed damages for a back injury he sustained whilst visiting a Busby shopping centre to buy meat from a butcher. Mr Abdul Raad, a Villawood Detainee, was on a public holiday expedition when the injury occurred.
Slipped on wet tiles whilst running in rain from covered car park
Mr Raad claimed that he was running into the shopping centre from the covered parking area at the centre because it was raining heavily. After taking a few steps on the wet shopping centre tiles, his feet slipped out from underneath him and he fell heavily onto his back, sustaining injury.
The shopping centre’s insurer strenuously defended the claim, alleging that the wet tiles in heavy rain were an “obvious risk” that Mr Raad should have foreseen and he should have taken more care when crossing the wet tiled area. As an “obvious risk”, the Centre claimed it was free from any civil liability to Mr Raad for his back injury.
Shopping centre claimed running on wet tiles was an "obvious risk"
The Centre’s insurers also alleged that Mr Raad’s dilapidated footwear contributed to his fall, and that the evidence of there being no other similar falls in the area of the 18 months previously indicated that the tiled area was an insignificant hazard.
His Honour, Justice Brian Davies, found that the evidence of their being no falls in the previous 18 months only had any impetus to the claim if it was supported by data as to the frequency of pedestrian traffic and the number of rainy days during the 18 month period.
Engineer's evidence of pooling water and old slippery tiles supported area was a hazard
In his judgment, Justice Davies referred to the evidence of an engineer engaged by Mr Raad’s legal team, which provided support for his claim that the tiles posed a significant risk of injury during wet weather. The risk was heightened because of the placement of the tiles, and also their age which resulted in some areas being excessively slippery when wet because texture of older tiles had worn away. Another issue was water not draining away from the area, causing pools of water to accumulate.
The engineer also gave evidence that the reasonable response to such risk was to regularly apply anti-slip coating or replace older tiles to ensure their efficacy by way of a pronounced surface texture. It was also raised that a warning sign could have been placed in the area, warning customers of the risk posed by the tiles when wet.
Court finds shopping centre liable for slip and fall for failing to use anti-slip coating
Justice Davies considered that the failure of the shopping centre to identify the risks posed by the aged tiling and pooling water in the area, and remedy that risk by applying anti-slip coating or replacing older tiles, represented a breach of duty of care on the part of the shopping centre. The Court found that the shopping centre had been negligent in respect to Mr Raad’s fall and injuries as a result.
In relation to the warning sign, Justice Davies considered that this would have had no impact, as firstly, slipping on wet tiles is an obvious risk to anyone, and secondly, Mr Raad was unable to read English, and therefore the sign would have meant nothing to him.
Contributory negligence awarded against Plaintiff for running on wet tiles
On the issue of whether Mr Raad running onto the wet tiled area as he did constituted contributory negligence, His Honour considered that the poor footwear of Mr Raad would only have any relevance if the area had been treated with an anti-slip coating, but the Judge did consider there was some risk taken by Mr Raad in running on the wet tiles.
Contributory negligence of 10% was awarded against Mr Raad because his Honour considered Mr Raad had sufficient time upon taking those first few steps on the wet tiles to assess his risk, and he should have then adjusted his pace as a prudent person would have done.
Surveillance and bizarre claims reduce compensation award
Unfortunately for Mr Raad, his case on the compensation to be awarded to him for his injuries was not as successful as his claim on liability. Evidence was given to the Court of Mr Raad having a pre-existing history of heavy drug dependence prior to the slip and fall accident at the shopping centre, and that his reporting of ongoing symptoms and the restrictions caused by his injuries was histrionic and exaggerated.
Mr Raad claimed he could not sit and stand for prolonged periods of time, and that he was unable to bend. These claims and his claims that he was continually cold since the accident, requiring him to wear heavy clothing even in hot weather, were placed in serious question after video evidence provided at the trial.
In giving his decision, Justice Davies stated that the evidence of Mr Raad as to the events leading to his slip and fall injury, his relationships and his symptomatology were so confusing that it “bordered on the bizarre”.
His Honour awarded damages to Mr Raad for his back injury in the sum of $84,000, which was then reduced by 10% to allow for the award against him for contributory negligence. This resulted in a total award of $75,500.
If you are interested to learn more
Read a full version of this case: Raad v VM & KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust  NSWSC 888.
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