Blood is not always thicker than water as the recent decision of the District Court of New South Wales in Manmi v Manmi1 showed earlier this month.
The plaintiff sued his brother in negligence and breach of contract for injuries allegedly sustained when he slipped on a bath mat in the bathroom of the defendant’s house, fell backwards and struck his head and neck on the edge of the bath tub.
On its face, this is a relatively straightforward case - a slip and fall in a domestic setting heard in the District Court.
However, interesting and complex issues needed to be considered in relation to causation in circumstances where the plaintiff had been diagnosed with muscular dystrophy in the years prior to the alleged incident which the defendant argued was the real cause of the plaintiff’s fall. Also, the plaintiff sued his brother, with each man giving evidence to cast the other in a poor light and the defendant seeking to discredit the case.
The plaintiff alleged the defendant placed a mat on the bathroom floor that was slippery and he knew or ought to have known the mat was a slip hazard and unsafe. The plaintiff alleged the defendant had specific knowledge of the danger of the mat.
He alleged to have suffered serious injuries and consequent disabilities, but at trial he only pursued damages for an exacerbation to a soft tissue injury to his neck and severe dizziness. A claim for aggravated damages was pleaded but not pursued at trial.
The plaintiff argued that, as the owner of the house, the defendant was responsible for the bathroom where the mat was located. Interestingly, the defendant gave evidence that it was in fact his mother (who also resided at the home) who had purchased the mat as part of her contribution to household responsibilities. The defendant gave no instructions to his mother regarding the purchase of the mat.
The defendant denied liability on the basis that the risk was insignificant and obvious, and did not reasonably require precautions. He argued that the true cause of the plaintiff’s fall was his impaired mobility and balance due to a previous diagnosis of muscular dystrophy.
The plaintiff was living in his brother’s house at the time of his injury. We anticipate liability cover under his home and contents insurance policy would likely have been excluded if the plaintiff was a resident of the home. In those circumstances, the defendant would have been uninsured for the claim, putting him in a position of financial peril at the hand of his brother. Although mention is made of the plaintiff enquiring whether the defendant had insurance, the issue is not discussed any further in the decision.
The Court viewed video footage taken by the plaintiff and accepted the mat could be moved easily across the floor using a hiking stick or the toe of a shoe to push it. However, there was no expert evidence about the slipperiness of the underside of the mat or the force involved in walking over the area.
Due to the plaintiff’s extensive pre-existing medical issues from back and neck injuries arising out of a fall around seven years prior, as well as his degenerative muscle condition, a significant issue for the Court to determine was whether the plaintiff’s alleged dizziness was connected to the incident. The plaintiff denied suffering from dizziness prior to the alleged fall.
Despite multiple experts ruling out any vestibular disorder (which would affect the plaintiff’s balance and explain the dizziness), the plaintiff’s neurologist concluded that he had sustained a soft tissue muscle and ligamentous injury to his cervical spine and most likely some dysfunction in his vestibular mechanisms based on the plaintiff’s own account.
The balance of the expert evidence was quite consistent that the source of dizziness could not be related to the alleged fall and there was no contemporaneous evidence that the dizziness commenced on or around the estimated date of the fall. Neurological testing not only found no cause of the dizziness but often found minimal evidence of it during examination.
The defendant argued that the question of the force that was required to move the mat and the degree of its slipperiness were matters for expert evidence which had not been presented to the Court. He further argued that the duty alleged by the plaintiff that he inspect the mat and deem that it was suitable for the house was beyond the scope of an owner of domestic premises. He said that the plaintiff was in a better position to determine the suitability of the mat, being unable to work due to his back injury, as opposed to the defendant who worked long hours and was home far less frequently.
The claim ultimately failed.
The risk of slipping was insignificant to a person exercising reasonable care in the bathroom.
The Court found the risk of slipping on the mat was an obvious risk within the meaning of s 5F of the Civil Liability Act (2002) NSW. It therefore did not require a warning.
The Court accepted the defendant’s evidence that he had no prior knowledge that the mat was slippery, contrary to the plaintiff’s allegation.
The Court agreed with the defendant that video footage of the mat being easily moved around the floor is different to establishing that the mat was dangerous or posed a slipping risk. There was no evidence of the slip of the tiles or the bottom of the mat, nor any evidence of the force involved in a foot strike upon the mat when walking through the room as compared to moving it in the manner shown in the video taken by the plaintiff sometime after the alleged incident.
The plaintiff’s version that he slipped and fell due to movement of the mat rather than weakness in his legs caused by his muscular dystrophy or any other pre-existing health concern was accepted by the Court. However, the Court did not accept that the mat was unreasonably or dangerously slippery when used in normal day to day activities in the bathroom.
There was no evidence the plaintiff had suffered from or complained of dizziness prior to this incident occurring. The Court accepted the plaintiff’s dizziness symptoms had only begun since his fall but found a causal link between the fall and the dizziness was inconsistent with the expert medical evidence.
It follows that, had the claim succeeded, the Court considered there was no contributory negligence because the risk was not foreseeable and it was insignificant. However, if the claim were to succeed on appeal, the Court considers the claim ought to be discounted by 30% for contributory negligence because the plaintiff was in just as good a position as the defendant to assess the characteristics of the mat. A higher discount of 50% sought by the defendant was rejected.
Damages were assessed despite the claim failing. Given the plaintiff’s pre-existing medical history and inability to work, the judgment was very modest. General damages and out of pocket expenses totalled $7,300.
This decision can be distinguished from the decision of Oakley v Collins & Anor2 where a guest at a home slipped and fell while dancing on tiles which had recently been mopped. In that case, expert evidence regarding the friction on the tiles was obtained which showed the tiles were not adequately slip resistant for normal pedestrian use when wet. That claim succeeded. However, in this case, the floor was not wet, so the question of slipperiness came down to the mat and whether a reasonable person would foresee a risk in stepping on it.
Although the claimant had a degenerative condition which the defendant argued caused the plaintiff’s fall, ultimately this case came down to the cornerstone principals regarding reasonableness and foreseeability.
The plaintiff was in just as good - if not a better - position than the defendant to identify any risk associated with the mat. Even if he had been able to get over the hurdle of causation, the plaintiff ultimately could not demonstrate that he had suffered a significant injury from the fall, resulting in a very modest assessment of damages.
Sourced from www.carternewell.com.au April 30 2019