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Case summary by Carroll & O’Dea Lawyers: Akgun v Stockland Property Management Pty Ltd and Anor [2024] NSWDC 253 – a slip and fall accident in a shopping centre

Published on March 28, 2025 by Jackson Gilbert

The recent case of Akgun v Stockland Property Management Pty Ltd and Anor [2024] NSWDC 253 (“Akgun”) provides an important analysis of liability in shopping centre slip-and-fall incidents involving wet travelators and highlights crucial considerations for Plaintiffs and Defendants when bringing a public liability claim.

Background

On 4 September 2020, Mr. Akgun (“the Plaintiff”) slipped and fell on a travelator at the Stockland’s Mall Merrylands (“the Mall”) as he was moving from level 3 down to level 2; the fall allegedly due to the presence of a liquid.

At the time of the accident, it was raining heavily. Wet weather signs were not in place although there were permanent mats at each entrance to the shopping centre. The potential water source was not determined but could have included customers tracking water into the shopping centre from the carpark and a spill from a drink purchased within the shopping centre.

Mr. Akgun (“the Plaintiff”) commenced a claim in the District Court of New South Wales as a consequence of the injuries he sustained against:

1. The Mall, as the occupier and manager of the shopping centre, and
2. Assetlink, the contracted cleaning services provider.

Stockland and Assetlink issued cross-claims on each other.

Newlinds SC DCJ found that the surface of the travelator was wet, and that this was what caused the Plaintiff to slip [1]. The source of the water or liquid was not determined.

Issues in dispute

The main issue before the court was whether Stockland had breached its duty of care to the Plaintiff by failing to take adequate precautions to prevent the foreseeable risk of harm posed by wet travelators.

The court’s findings

The court reaffirmed that shopping centre operators and their contracted cleaners owe a duty of care to visitors to take reasonable steps to prevent foreseeable risks of harm [2]. Newlinds SC DCJ accepted the characterisation of risk of harm by the Plaintiff that a pedestrian may slip and fall whilst using a travellator [3].

In this case, Stockland had not identified the risk of harm posed by wet travelators at all before the incident, nor had it taken any precautions.

Notwithstanding this, Newlinds SC DCJ found that the risk was foreseeable predominantly on the basis that:

1. The travellator was a pedestrian surface with a slope;
2. Slip testing conducted by the liability expert, Dr. Cooke, demonstrated that the travellator was slippery and unsafe when wet;
3. The cleaning contract provided for Assetlink to undertake slip testing of pedestrian surfaces such as the travelator;
4. The cleaning contract also recognised the need to undertake further cleaning in the event that there was wet weather [4].

In addition, in 2022, two years after the accident, Stockland conducted a risk assessment and determined that travelators could become slippery when wet, alleviating this risk by applying an anti-slip product to select travelators. However, this measure was not implemented across all travelators, including the one where the Plaintiff’s fall occurred.

The unchallenged opinion of the liability expert, Dr Cooke, was that untreated travelator surfaces “were perfectly safe from a slip and fall perspective when dry, but when wet presented an alarming level of slipperiness [5].” Stockland’s records from 1 July 2019 to 4 September 2020 revealed 21 incidents involving a travelator, 14 of which involved slipping. Five of these incidents involved water or occurred during times of rain [6].

Stockland argued that a reasonable person in its position would have done nothing more than what it did in 2022, that is, applying the anti-slip product to some but not all travelators [7]. The court rejected this argument, finding that:

1. The risk was foreseeable;
2. The risk not insignificant;
3. A reasonable person would have treated all downward-sloping travelators to mitigate the risk of slips and falls caused by wet surfaces [8].

The identified duty of care owed by the Mall to the Plaintiff was therefore breached.

Obvious risk

Stockland’s defences of obvious risk and contributory negligence under the Civil Liability Act 2002 (NSW) were dismissed by the court.

The court found that a person exercising reasonable care would not have observed the clear liquid on the travelator. Although wet floors can be slippery, it was not obvious to the Plaintiff that the travelator, safe when dry, would become dangerously slippery when wet.

The court stated at 60 and 61:

“60 A significant hurdle for Stockland in relation to this submission is that it is common ground and obvious that any clear liquid on the surface of the travelator would simply not be observable by a person taking reasonable care for their own safety.”

The court also dismissed Stockland’s argument that the Plaintiff should have used the handrails noting at a paragraph 65 and 66:

“65 As a necessary element for any finding of contributory negligence, I must first find that the relevant risk of harm was foreseeable by the Plaintiff, that such risk was not insignificant, and in circumstances a reasonable person in the Plaintiff’s position would have taken precautions against the risk (s 5B(1)). The relevant risk of harm in this case is the risk of slipping on a wet travelator and falling causing injury. This is not a matter that was foreseeable by the Plaintiff in the circumstances as the Plaintiff was not on notice of that fact i.e., that wet travelators are dangerously slippery, nor was he on notice that there was any water on the travelator. In all the circumstances it is not a risk that the Plaintiff knew or ought to have known of. Moreover, s 5B(1)(c) also requires a finding that a reasonable person in the Plaintiff’s position would have taken precautions against the risk of harm. Embedded in that proposition is an assumption that the Plaintiff, and the notional reasonable person, must have been aware of the very risk before he could be expected to take steps to avoid it.

66 I have viewed 15 minutes worth of CCTV footage of many people using the relevant travelator before and after the Plaintiff’s fall. While some of them hold the handrail while standing stationary on the travelator, the vast majority of them do not do so and instead walk on the travelator, often carrying multiple shopping bags or pushing shopping trolleys or prams. Whilst the question for me is objective, I do not think it is irrelevant to observe that many of those people ought to be taken to have been ordinary reasonable people and hardly any of them are taking the precaution suggested by Stockland.”

Cross-claims

During the course of the hearing, the Plaintiff’s claim against Assetlink was resolved in Assetlink’s favour and as a result Assetlink consented to judgment against it on its cross-claim against Stockland, with no order as to costs.

Stockland’s cross-claim against Assetlink failed as the court could not make any finding as to:

1. how the liquid got there,
2. for how long it had been there, and
3. whether any actions by Assetlink as cleaner could have possibly identified its presence and cleaned it up prior to the Plaintiff’s fall [9].

Damages

The Plaintiff sought non-economic loss damages, past out-of-pocket expenses, future out-of-pocket expenses, past economic loss, past superannuation loss, future economic loss, future superannuation lost, past care, and future commercial care [10].

Damages were ultimately awarded as follows:

• Non-economic loss                                                     $76,000.00
• Past out-of-pocket expenses                                     to be agreed
• Future out-of-pocket expenses                                 $28,529.00
• Past economic loss                                                      $60,000.00
• Past superannuation loss                                           $6,600.00
• Future economic loss                                                  $60,000.00
• Future superannuation loss                                       $8,736.00
• Past care                                                                        nil
• Future commercial care                                              nil

Key takeaways

1. Evidence is crucial – CCTV footage and maintenance records are important in showing inspection and cleaning procedure failures. Plaintiff’s should obtain such evidence early in any proceedings.
2. Defendants must show adequate systems – Property owners and cleaning contractors need to provide clear evidence of their risk assessments and preventive measures. If gaps exist, liability may be established.
3. Past contracts may identify the risk of harm – The cleaning contract recognised the need to undertake further cleaning in the event that there was wet weather. Review of contracts by property owners and cleaning contractors may already specify the relevant risk of harm and set out necessary steps to protect customers.
4. Risk assessments are essential – The case emphasises the importance of ongoing risk assessments by commercial property managers. Delayed or selective application of risk-mitigating measures may not be considered reasonable precautions.
5. Knowledge can be fatal – The decision is a timely reminder that where there is evidence of related incidents, Defendants can be under an obligation to take precautions against the risk of harm.

The decision in Akgun underscores the duties of property managers and cleaning companies to ensure safe premises and illustrates the judiciary’s method for determining liability in slip and fall cases.

Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you. If you or a loved one have been injured, use our Personal injury Claim Check now.

Disclosure and important note: This article is based on our own legal research and thinking. Some of its content has been generated with the assistance of artificial intelligence. The authors have checked and approved this article, including the AI generated content, for publication.

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[1] Akgun v Stockland Property Management Pty Ltd and Anor [2024] NSWDC 253 at [28].

[2] Ibid at [29].

[3] Ibid at [31].

[4] Ibid at [32].

[5] Ibid at [42].

[6] Ibid at [46].

[7] Ibid at [47].

[8] Ibid at [49] – [50].

[9] Ibid at [130].

[10] Ibid at [68].