[author: Ryan Cable]
Late last year, the New South Wales Court of Appeal in Glad Retail Cleaning Pty Ltd v Alvarenga  NSWCA 482 unanimously dismissed the appeal of a cleaning company found to have performed its work in a negligent manner. Of note in the awarding of $453,650.91 in damages to the plaintiff was the Court’s consideration of the issue of obvious risk and the plaintiff’s state of mind.
The plaintiff was injured in 2008 when she slipped on a downward moving travelator at a shopping centre managed and occupied by Mirvac who contracted Glad Retail Cleaning for the cleaning of the centre. At first instance, the District Court found the risk created by the plaintiff stepping on water, causing the soles of her shoes be become wet, leading to a lubricating effect on the metal surface of the travelator, was not an “obvious risk” as it was not a “patent risk to the unaware.” Glad Cleaning appealed on this issue, among others.
In deciding whether the water just before the start of the travelator was an obvious risk, the Court of Appeal highlighted that the definition of “obvious risk” incorporates an objective test but one that is to be applied by reference to the position of the person concerned. The Court looked to the frequently cited passage of Tobias JA in Fallass v Mourlas  NSWCA 32 where it was held “all the surrounding circumstances which occurred immediately prior to the [plaintiff] suffering the relevant harm must also be identified for the purpose of determining whether the risk which materialised was ‘obvious’.”
In Council of the City of Greater Taree v Wells  NSWCA 147 the authorities relating to the definition of “obvious risk” were summarised as requiring a determination of whether the defendant’s conduct involved a risk of harm which would have been obvious to a reasonable person in the position of the plaintiff. Further, the position of the plaintiff was said to include the plaintiff’s knowledge and experience of the relevant area and conditions.
The Court of Appeal held that since the test for “obvious risk” is objective, it is not the plaintiff’s state of mind that is determinative, but rather what a reasonable person in his or her position would regard as obvious. Glad Cleaning’s appeal on this issue sought to highlight the plaintiff’s admission that she had seen the cleaner mopping the area just prior to the start of the travelator and that it would have been obvious to any reasonable person in the plaintiff’s position that the floor could therefore be wet and possibly slippery.
Despite the fact that the plaintiff noticed the cleaner with mop-in-hand and negotiated the area carefully, the Court of Appeal ultimately agreed with the District Court finding the specific risk was the risk of slipping on the travelator. Acting Justice of Appeal Sackville, with whom Barrett and Gleeson JA agreed, found that for the risk to be obvious, the plaintiff would have needed to appreciate:
the capability of the accumulation of enough moisture on shoes to cause a lubricating effect,
the nature of the surface of the travelator,
whether enough moisture had in fact been accumulated on her shoes to cause a slip effect when placed on the surface of the travelator; and
the exacerbation of the risk due to the travelator’s downward inclination.
This case acts as a reminder of the necessity to take steps to ensure a breach of duty does not occur even in circumstances where it may appear common sense that a risk exists.