1.

Course Code: LAW2447

2. Name: Nguyen Minh Quan

3. Student ID: s3978001

4. Tutorial group: 10

5. Name of the lecturer who covers the one-hour online lecture: Esmira H

6. Name of the lecturer who covers the two-hour tutorial: Esmira H

7. Word count: 800

I. Introduction

This case note will analyze the case Nikolich -v- Webb WADC 58 decided by the District Court
of Western Australia in Civil and judged by Quail DCJ in 2019.1

II. Identification of the legal issue(s)

Ms. Nikolich, the plaintiff, and her husband spent their weekend at Aquatic Visions studio
apartment – the premises operated by the two defendants, Mr. Matthew Webb and Ms. Karen
Somers. On 14 February 2014, Ms. Nikolich injured her right hand after tripping on the damp
bathroom floor in the apartment and falling. As a result, Ms. Nikolich alleged that the defendants
owed Ms. Nikolich a statutory duty of care in common law. According to the plaintiff, Mr. Webb
and Ms. Somers breached their duties, causing her to fall and get injured by letting the floor wet.

The crucial legal issue that the judges considered were "Whether the defendants owe Ms.
Nikolich a duty of care?” and "Whether the defendants breach the duty of care to Ms. Nikolich?"
and the subordinate issue was "Whether Ms. Nikolich was claimed to be negligent?".

1 Nikolich -v- Webb [2019] WADC 58

III. A critical analysis of the judge’s application of the legal rules to
solve the legal issues

1. Duty of care
On the first issue, the case has an Occupiers-Guests relationship, which is an established
category of D.O.C2. The Aquatic Vision, where Ms. Nikolich (plaintiff), a guest, rented an
apartment and had a fall, was owed by defendants who also owed the place. The lawyers denied
addressing the relationship in s 5 of the O.L.A3 due to insufficient evidence. Still, they agreed
that the defendants do not have a duty to warn since it is a ‘obvious risk’ confirmed in s 5O of
the CLA4. However, I disagree with the former judgement because Ms Nikolich rented the
premises on the accident day, which makes them a occupiers-guests relationship. Undoubtedly, I
concur with the latter adjudgment that the defendants do not need to take any precautions for a
foreseeable risk.

2. Standard of care
On the second issue, to determine the required S.O.C and whether the defendant breached the
D.O.C, the judge will evaluate the following four factors under s 5B of the CLA.

Firstly, considering the probabilities of harm, I agree that the likelihood of incident is moderate to
high when someone walks on a damp floor in barefoot without a bathmat or non-slip surface.
Moreover, it is easy for the water to scatter onto the floor when it ricochets off our body and
through the gaps on the door’s edges.

In the second factor, the judge stated convincing that the seriousness harm was high, with which I
partly agree because in the worst scenario, a person could only suffer from mere bruises to severe

2 James Nickolas, ‘Business Law’ (Milton, John Wiley & Sons Australia, 4th ed, 2017) 240-241.
3 Occupiers’ Liability Act 1985 (WA)
4 Civil Liability Act 2002 (WA)
injuries, as well as financial and time loss. Therefore, the seriousness may vary from medium to
high.

Regarding the cost of taking precautions, I agree that providing a non-slip covering along with a
bathmat and towels will resolve the risk posed by the damp floor at a most reasonable cost without
affecting other aspects of the premise.

Lastly is the social utility factor; although they can rebuild the floor and install the grab rail,
occupiers must ensure the premises are for their guests. More specifically, Night Vision is targeted
at adults so it is unnecessary and would alter the room’s aesthetic.

From the analysis above, the act of providing a bathmat and towels to address the obvious risk of
slipping and falling on the damp floor is what a reasonable person would have done in the same
situation, thus showing that the defendants meet the required S.O.C and not breach the D.O.C.

3. Contributory negligence
On the third issue, the judge has concluded that the plaintiff was liable and contributorily negligent
for her injury, and I concur with this decision. At the time of the incident, Ms. Nikolich failed to
take care of her own safety when she carelessly approaching the toilet and then slipped on damp
floor. Additionally, she was already aware of the floor’s condition but still neglected to watch out
while walking.

As a result, the lawsuit brought by Ms. Nikolich against Mr. Webb and Ms. Somers is dissolved
as liability has yet to be well established. I admit to the court’s determination because, despites
the rejection of the O.L.A, the defendant does not owe a D.O.C to the plaintiff to warn for an
obvious risk.

IV. Conclusion
To sum up, the defendants won the case logically and convincingly because they did not break
the contract and breach the D.O.C to Ms. Nikolich. In addition, Ms. Nikolich must be
responsible for her negligence.

V. References
1. Articles/ Books/ Reports

James Nickolas, ‘Business Law’ (Milton, John Wiley & Sons Australia, 4th ed, 2017) 240-241.
2. Cases

Nikolich -v- Webb [2019] WADC 58 (24 April 2019).

3. Legislation

Civil Liability Act 2002 (WA) (CLA).

Occupiers Liability Act 1985 (WA) (OLA).