State not liable for fall at departmental property

In Valentine v D & C Masters Painters & Decorators PL [2016] QDC 16-203, a plaintiff’s claim for personal injuries against the State of Queensland through the Department of Housing and Public Works (the department) was dismissed. Mr Valentine alleged that he injured his back when he slipped on a door mat at a house owned by the department.

In this article, Government Insurance and Risk Senior Lawyer, Michael Sheppard discusses the implications for properties owned by the State of Queensland and operated in its capacity as a landlord.

The decision

The incident allegedly occurred on 28 March 2012 at premises owned by the department at 61 Pearse Street, Keperra.

Mr Valentine asserted that he had been at the house painting the interior. He had completed his work and was in the process of tidying up. He was walking toward the front door and when he placed his left foot on the door mat, it slipped on the polished timber floor.

Mr Valentine jarred his lower back, but was able to arrest his fall by grabbing the doorjamb and a lounge that was adjacent to the doorway. As a result, Mr Valentine sustained a disc prolapse that required surgical treatment.

The plaintiff commenced proceedings against his employer (with WorkCover Queensland as the insurer for the employer) as the first defendant and the department as the second defendant. The matter was heard in the Maroochydore District Court and judgment was delivered on 11 August 2016.

Mr Valentine argued that his employer was negligent in not having undertaken any, or an adequate, risk assessment of the premises and that if a risk assessment had been conducted then the mat would have been identified as a risk. Mr Valentine argued that the mat posed a risk because it did not have a rubber backing which would have prevented it from slipping on the polished wooden floor. He also contended that the risk of slipping on a mat was not insignificant.

In relation to the department, Mr Valentine argued that the department, as owner and occupier of the premises, owed Mr Valentine a duty of care and should have ensured that the mat, as a potentially dangerous item, was removed from the premises by the tenant. Mr Valentine cited Dillon v Hair [2014] NSWCA 80 as an example of a case where a mat was found to be dangerous to persons entering a house.

The employer argued that it had conducted a risk assessment and the mat did not pose a foreseeable risk.

The department sought to distinguish the incident involving Mr Valentine from the facts in Dillon v Hair. In that case, the occupier knew the mat was extremely worn as it had been outside for some time and exposed to the weather and the landlord had placed the mat in the relevant location. That was not the case in the situation with Mr Valentine, as the department had no involvement in the placement of the mat.

In reaching a decision, the judge accepted Seage v State of New South Wales [2000] NSWCA 328 as authority for the proposition that employers are not required to protect their workers from every day activities that might be incidentally engaged in during the course of their work, even where those activities might lead to injury if not engaged in with care.

The judge noted that Mr Valentine had walked over the mat on at least three prior occasions without mishap. The judge also noted that if the employer or the department had asked the tenant about the mat, the tenant would have said that there had been no issues with the mats in 20 years living at the premises and that she bought rubber backed mats.

The judge found that it was incontrovertible that the department owed Mr Valentine a duty of care as occupier to take reasonable care to avoid foreseeable risk of injury to him, but held that the department acted reasonably in relying on the contractor, Mr Valentine’s employer, to conduct the risk assessment.

The judge found that the risk posed by a door mat was not foreseeable, given that it was a type of mat one expects to see at the front doors of houses throughout Queensland and there was nothing about the mat that called for it to be inspected. The mat was also the type recommended by an expert called by Mr Valentine to conduct slip testing of various mats over polished timber floors.

The judge expressed the view that the fact that Mr Valentine slipped was immaterial, as the degree of foreseeability had to be assessed prospectively.

Implications of decision

This matter confirms that the State of Queensland is able to rely on a competent contractor to carry out risk assessments where the contract between the parties requires that such risk assessments be conducted, provided that it conducts its own regular inspections as required in its capacity as a landlord. It is not required to remove items such as door mats, the risks posed by which are minimal and which people in their daily lives are able to negotiate without mishap.

^{The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.}