"...the tests conducted by Mr Dohrmann are reliable"

Court Case Extracts

Extracts from Judge Hoeben CJ's comments in relation to evidence provided by expert witness engineer and ergonomist Mr Mark Dohrmann.

Paragraph 17: In his report, Mr Dohrmann set out the relevant slip resistance standards and described the methods of measuring slip resistance used at the present time and in the past. When dealing with the current approach to assessing slip resistance, he said:

“6.5 A notable change in the new version of AS/NZS 4663 was the addition of the word ‘notional’ to the header of the right hand column in each of the tables reproduced here from the Standard. The Standard notes that the term ‘notional’ has been added ‘to highlight the need to consider all potential contributing factors to a slip incident’. This includes factors such as walking speed, shoe type, gait, floor contaminants, etc.”actors to a slip incident’. This includes factors such as walking speed, shoe type, gait, floor contaminants, etc.”

Paragraph 18: Relevant features of motel room 4 can be best seen from the photographs taken by Mr Dohrmann.

Paragraph 21: Mr Dohrmann set out the measures which the defendants could have taken to prevent exposing the plaintiff to a risk of injury.

• By ensuring that the surface met the slip resistance standards set out in the applicable Australian Standard.
• By testing and assessing the slip resistance properties of the surface. A competently-conducted audit would doubtless have identified the area concerned as creating a very high risk of slipping when wet, and may have prompted earlier intervention.
• By applying the helpful advice given in the Australian Standard Handbook HB 197 – An Introductory Guide to the Slip Resistance of Pedestrian Surface Materials (Standards Australia, Sydney, New South Wales).
• By ensuring that the surface in question was treated, replaced or designed to provide adequate slip resistance when wet (likely cost of applying a commercially available slip resistant compound is about $60).
• By placing adhesive, slip resistant strips on the tiled area, to provide traction for pedestrians when it was wet (likely cost about $10).
• By providing a shower curtain or other means of ensuring that water did not escape from the shower and wet the tiles elsewhere on the floor in the bathroom area (likely cost about $10).
• By installing a swing glazed door to retain water inside the shower (likely cost about $400).
• By putting a hob or step at the entrance to the shower (noting that this may introduce a small risk of a trip, and reduce the ease of access for a guest with a mobility impairment, so it is not considered an ideal measure).
• I do not agree with the assertion of Ms Hall that a shower curtain extending to the floor would create a trip hazard.
• By providing a shower head whose direction could be limited to reduce the likelihood that water would be directed or transferred into an area where people could be expected to be walking later (likely cost about $50).
• By providing clear signs and warnings in the tiled area itself, where tiles were subject to becoming wet and slippery.

Paragraph 25: It should be noted that Dr Cooke did not visit the Motel, nor did he take any photographs. He relied upon the photographs taken by Mr Dohrmann and the tests which he carried out.

Paragraph 46: On the basis of the description of how the water streamed from the shower given by the plaintiff, the risk of the water travelling as far as the vanity was readily foreseeable by the defendants. This is supported by Mr Dohrmann’s description of the shower/bathroom layout and the photographs which he took. Despite her evidence to the contrary, Ms Hall as the person who regularly cleaned the bathrooms, would have been well aware of the capacity of water to travel from the shower towards the toilet/vanity area. She would have been well aware that the risk was not insignificant given the high level of slipperiness created by water coming in contact and remaining on tiles of this kind. I am satisfied that when running a motel of this kind, a reasonable person in the position of the defendants, particularly that of Ms Hall, should have taken at least some of the precautions identified by Mr Dohrmann. These precautions could have been implemented rapidly and at a low cost.

Paragraph 47: Given the test results obtained by Mr Dohrmann which established that a high level of slipperiness was created when water and the tiles combined, Ms Hall as the cleaner of the bathrooms would have been well aware of this fact and the dangers which it created. This is particularly so when water had a capacity to flow a considerable distance from the shower. Ms Hall should have been aware that there was a high likelihood of harm occurring by way of a slip if precautions were not taken by those running the motel. A slip and fall in a bathroom carries a high potential for serious injury. The cost and burden of taking precautions to avoid the risk of harm was modest and would not have adversely affected the social utility of the activity, i.e. having a shower.

Paragraph 49: In this case, the foreseeability of the risk of harm and the likelihood of such a risk coming to fruition required the defendants to have taken at least one of the remedial steps recommended by Mr Dohrmann in respect of each of the bathrooms in the motel complex. Given the modest cost of the actions which could have been taken to eliminate or minimise the risk of harm, that was not an unreasonable requirement to impose on the defendants

Paragraph 50: For the purposes of this report, I assume that the tests conducted by Mr Dohrmann are reliable. The finding that the tiles are described as making a very high notional contribution to the risk of slipping when wet is in accordance with the typical results obtained on motel bathroom floors and is consistent with results obtained from tiles of the type shown in the photographs, in my experience.

Paragraph 52: It follows from my opinions above on Mr Dohrmann’s suggestions for preventative measures that I can see no substance in the allegations of negligence in paragraph 7 of the Amended Statement of Claim.

Paragraph 56: It is not necessary to pursue this issue any further in that the matter was not run as a failure to warn case but rather as a case where a reasonable person in the position of the defendants would have taken one or more of the remedial actions identified by Mr Dohrmann.

Full court report can be accessed via the Australasian Legal Institute - Rodd v Hall [2019] NSWSC 1304 (30 September 2019).