Approximately 42% of personal injury cases that require medical attention in Australia are due to falls of some sort. These can be caused by slippery flooring or the presence of contaminants on the floors of premises, particularly those with heavy foot traffic (such as shopping centres, retail shops, supermarkets, or workplaces). The property occupier’s failure to comply with safety standards can result in personal injury claims from individuals who slip and sustain injuries on the premises. There are simple measures occupiers can take to reduce risk and in the event of an incident, these can strengthen the defence of personal injury claims. We discuss these in more detail below.
Step 3: Occupier’s Liability – Flooring
Occupiers have a duty of care to ensure visitors are reasonably safe in their premises. Most Australian states and territories have legislation addressing the application of the law of negligence. To discharge its duty of care, an occupier must consider multiple factors, including some that are unique to its premises. For instance, the occupier of a supermarket has the duty to ensure that shoppers do not slip, trip, or fall on spilled liquids or food products. Such an occupier could face liability if the danger was foreseeable. For example, failing to implement a systematic cleaning system for spillages would constitute a breach of the occupier’s duty of care.
In Strong v Woolworths Limited  HCA 5, a claimant’s crutches slipped on a hot chip as she approached the store via the sidewalk. She then fell and sustained injuries. Woolworths occupied the space and was therefore responsible for conducting inspections and cleaning the area. The key issues in the matter were 1) causation resulting from the absence of an adequate system for periodic inspection and 2) cleaning of the sidewalk. The High Court considered it probable the chip had been dropped between 8:00 AM and 12:10 PM. This formed the basis for the decision that Woolworth’s failure to adopt a system of inspection and cleaning was a necessary condition that caused the claimant harm. The decision emphasises the importance of having a regular system of inspection and cleaning if liability is to be avoided. As stated in the judgment, “……reasonable care required inspection and removal of spillages at intervals not greater than 20 minutes”.
An occupier might also be negligent if it knew/ought to have known its flooring does not comply with the requirements of the Building Code of Australia (BCA) & Australian Standards, regardless of whether it is the owner of the premises, or not.
In Bridge v Coles (No.3)  NSWSC 1800, the claimant (an elderly man) slipped and fell after stepping in a puddle of rainwater in an underground carpark and sustained serious injuries. The claimant argued the defendant was aware or ought to have known that the surface of the carpark was not uniform and prone to flooding in the event of rainfall. Therefore, the defendant could have foreseen harm to its visitors. The defendant (who was leasing the premises) argued it was not negligent because it could not have foreseen that a visitor would have fallen on smooth concrete. It also argued it would have had to test several different areas in the carpark to know the floor was not built to the Australian Standards. The Court rejected these arguments and held that the defendant did not need to test the floor to know whether it was unsafe. The safety of the flooring was an obvious risk which the defendant could have avoided by requesting the landlord fix the problem or by installing a non-slip surface to form a safe walkway. The defendant was ordered to pay damages in the sum of $760,283.
AVOIDING OCCUPIERS’ LIABILITY
The decisions above highlight there can be significant consequences for occupiers if they fail to take appropriate steps to keep their premises free from slip and fall hazards. We suggest occupiers consider the following options:
- Implement a system of inspection and cleaning that is enforced and maintained daily
- Staff should be properly trained in cleaning and inspection
- Implement a flooring inspection regime where floors are checked every 20 minutes
- Use warning signs in hazardous areas
- Place nonslip and safety mats (with anti-trip edging to ensure the mat remains flat) in hazard-prone areas to absorb contaminants and enhance safety
- Perform regular slip resistance tests and apply treatments, if necessary, where heavy floor cleaning machinery is used
- Maintain an effective incident reporting system with specific guidelines on how staff should record incidents. Find out how to do this in our Incident Reports article.
- In the case of a food chain, ensure that an inspection for any hazards is performed immediately after “decarting” food produce.
Businesses should act now to implement risk management steps to limit the chances of litigation and large personal injury compensation claims.
The Risksmart team specialises in the management of public liability claims. To learn more, or if your business is facing occupier liability claims, reach out to a member of the Risksmart team today.
National Technical Claims Manager – Risksmart
Prepared by: Lidia Czerwinska, Kushla Juggeewon, Dallas Gay & Sean Bugeia.