Russell v Carpenter

1. [1]

   MEAGHER JA: I have had the advantage of reading Kirk JA’s reasons in draft, and agree with them and the orders his Honour proposes.

2. [2]

   GLEESON JA: I agree with Kirk JA.

3. [3]

   KIRK JA: On Saturday 14 April 2018 the respondent, Mr Neil Carpenter, was on a golfing weekend on the New South Wales central coast with friends. He had had a good day playing golf and returned to the short-stay holiday rental property at The Entrance where he and some of his friends were staying. The property fronted a beach and was owned by the appellants, Mr Damian Russell and Ms Vivianne Russell. Shortly after the players’ return there was a jocular presentation based on golfing results. This occurred at the back of the property on a verandah set less than a metre above the surrounding ground. A set of helical stairs with three steps connected the verandah to the ground.

4. [4]

   The respondent was awarded some eight to ten golf balls for his golfing success. While the respondent was receiving his golf balls, he dropped one and observed it bounce down the stairs. He was concerned that the ball would roll under a gap beneath the adjoining gate. The respondent took one step down the stairs in pursuit of the ball. He said he was moving at a “medium walking pace”. When asked if he had been drinking the respondent said “I would have cracked one can”, but he was not holding a can when the accident occurred. Rather, he was holding some of the golf balls that he had been awarded.

5. [5]

   As the ball of his right foot landed on the first step down, the respondent slipped on the edge. This caused him to fall feet first such that he landed on his back and elbow, injuring himself. The respondent said that the step felt slippery, like ice, and he thought that the surfaces of the stairs had salt spray and mould or moss on them. The claimed cause of the slippery surface was later confined to salt spray only.

6. [6]

   The stairs were unremarkable. A photo taken by the respondent the day after the event in question is revealing (the “X” was placed by the respondent to indicate where he stepped and slipped):

7. [7]

   The respondent sued the appellants in negligence in the District Court. He alleged that the steps should have had a handrail and that this would have prevented him from injuring himself. There was no dispute that he had fallen on the stairs, although the degree of his injuries was in question. The primary judge found for the respondent and awarded him $284,092.18 in damages. The owners now appeal.

8. [8]

   The appeal should be upheld, with costs. The owners owed the respondent a duty of care as occupiers of the house. They did not breach that duty by not having a handrail on the steps. Even if there had been a handrail, this would not have avoided the respondent injuring himself. It is not necessary to address whether there was contributory negligence.

9. [9]

   The core issues in the appeal are those just identified: duty, breach and causation. The appellants’ notice of appeal was drafted in such a way as to obscure those basic issues. There were a remarkable 20 grounds of appeal, twelve relating to the appellants’ primary liability; one relating to contributory negligence; six addressed to damages and one seeking to appeal the case as a whole for want of adequate reasons. It would have been far more efficient and clear to have had one ground addressed to each of the three core liability issues identified, along with contributory negligence. Adding to the obfuscating effect of the appellants’ approach was that written submissions filed on their behalf broadly followed the separate grounds, but did not address all of the grounds, including the key ground of causation. The oral submissions were directed to the issues, not to specific grounds of appeal.

10. [10]

    As for the grounds with respect to damages, it was surprising that in a case involving strong arguments on liability, and a relatively low award of damages, those representing the appellants thought it an appropriate use of the resources of the parties and the Court to, for example, challenge the primary judge’s finding that a claimant with a not insignificant back injury should be allowed compensation for one hour of home assistance per week. In the event, it is not necessary – and not an appropriate use of resources – to determine the issues relating to the damages assessment.

11. [11]

    In this judgment, I address in turn the issues of duty, breach and causation.

Duty of care: grounds 1-3

1. [12]

   Although the primary judge recited relevant legal principles in an orthodox fashion early in the judgment, her Honour went on to restate the duty of care owed by the appellants to the respondent in the following terms (at [86]):

2. [13]

   With respect, these statements manifest error. The primary judge’s reference to the respondent being a consumer of services pursuant to the rental contract was a distraction from the common law duty. The respondent was not, in any event, a party to the rental contract. And it was not correct for the primary judge to state that the appellants, as occupiers, had “an obligation to ensure that the premises were safe and free of hazards”, or to “ensure that persons present could engage in ordinary social discourse [etc]”.

3. [14]

   The appellants’ duty of care to the respondent, as a lawful entrant on the property, was simply “to take reasonable care to avoid a foreseeable risk of injury”: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; [1987] HCA 7. The obligation to take reasonable care is to be “contrasted with an obligation to prevent harm occurring to others”: Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [51] per Gummow J. An occupier is not an insurer of entrants: Kocis v SE Dickens Pty Ltd [1998] 3 VR 408 at 429 per Hayne JA, Shoalhaven City Council v Pender [2013] Aust Torts Reports 82-135; [2013] NSWCA 210 at [49] per McColl JA. The reasonableness of an occupier’s conduct is measured on the expectation that an entrant will take reasonable care for their own safety: Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 at [163] per Gaudron, McHugh and Gummow JJ; Dederer at [45] per Gummow J.

4. [15]

   The respondent accepted that the primary judge misstated the nature of the duty of care owed to him. The appellants submitted in written submissions in reply that the respondent’s acceptance of error in this respect was dispositive of the appeal. When this was queried in oral address, senior counsel for the appellants immediately conceded that it was not. His concession was correct. Whether or not reasonable care required provision of a handrail, as claimed, raises the issue of breach.

Breach: grounds 4-11

1. [16]

   Where the Civil Liability Act 2002 (NSW) (CLA) applies, as it did here, assessment of breach of a common law duty of care is to be undertaken by applying ss 5B and 5C of that Act. The first step is to identify what the foreseeable risk of harm was, against which it is said that reasonable care needed to be taken. It “is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be”: Dederer at [59] per Gummow J.

2. [17]

   It is then necessary to consider whether that risk was foreseeable, not insignificant, and whether in the circumstances a reasonable person in the occupier’s position would have taken the precautions against the risk eventuating that the claimant says should have been taken. That last issue involves considering, amongst other things, the probability of harm occurring, the likely seriousness of that harm, the burden of taking precautions, and the social utility of the activity creating the risk.

3. [18]

   The primary judge identified that the relevant risk of harm was “that of a person slipping or falling on external helical stairs where no handrail was present” (at [62]). One of the few points not challenged by the appellants was as to whether this was an appropriate statement of risk. It may be thought that reference to the non-existence of the handrail in the primary judge’s formulation of risk was misplaced, as that point goes to the precautions that could have been taken by the appellants in response to the risk. It is sufficient for current purposes to treat the relevant risk as that of a person slipping so as to hurt themselves when using the stairs.

4. [19]

   That risk of harm was one which was reasonably foreseeable within the meaning of s 5B(1)(a) of the CLA.

5. [20]

   As to whether the risk was “not insignificant” within the meaning of s 5B(1)(b), that provision does not set a high threshold. The provision altered the law from the “undemanding” test at common law of the risk being real and not far-fetched or fanciful, but “not by very much”: see Bunnings Group Ltd v Giudice [2018] Aust Torts Reports 82-402; [2018] NSWCA 144 at [53]-[54]; Prouten v Chapman [2021] NSWCA 207 at [24]. Although the test is not particularly demanding, the mere fact that an injury occurred does not suffice to conclude that the risk of harm was not insignificant: Rail Corporation New South Wales v Donald [2018] NSWCA 82 at [140].

6. [21]

   The primary judge characterised the risk here as “significant” (at [64]). It can be accepted that the risk of a person slipping on the stairs and injuring themselves was not insignificant. That risk attaches to nearly all stairs, as many cases have recognised (see further below). However, the primary judge misstated and overstated the degree of risk here. That error is relevant to assessing, consistently with s 5B(1)(c) and (2) of the CLA, whether a reasonable person would have taken the precaution of having a handrail on the stairs.

7. [22]

   Her Honour said at [64]:

8. [23]

   Her Honour set out her key findings at [86]. These included the following:

9. [24]

   As regards her Honour’s reference to moss being one of the causes of the stairs being slippery, at [64] and [86(6)], there had been a suggestion to that effect by the respondent in his evidence. But his counsel expressly did not rely on there having been moss on the stairs in closing address, taking account of the evidence overall.

10. [25]

    Similarly, the reference at [86(15)] to the SafeWork Australia Code of Practice was inappropriate. There was a dispute as to whether the property was “used for commercial purposes”, unsurprisingly enough, which went to whether or not the Code applied. In closing address the primary judge indicated to counsel for the appellants that she did not need to hear from him on the issue. On appeal the respondent made little attempt to defend her Honour’s reference to the Code beyond submitting that it was neutral, and in any event it was open to the judge to take account of the Code to inform issues of breach even if it was not directly applicable. It is difficult to view the reference as neutral when contained within her Honour’s list of key findings. And the implication of what her Honour said to counsel was that she would not take the Code into account at all. In any case, a generic statement to the effect that staircases in properties used for commercial purposes should have a handrail throws little light on whether or not this three-step set of stairs at the back of a holiday rental property should have had one.

11. [26]

    The fact referred to at [86(8)] that another person staying at the property, Mr Walsh, had slipped was of no material probative value. Her Honour said at [65]:

12. [27]

    Mr Walsh said that he had slipped on a “back deck of some sort”. He was not asked to identify that back deck more precisely – for example by reference to photos – nor did he give evidence as to what material the deck was made of. It is quite possible that he was referring to the deck next to the stairs, which was covered in terracotta tiling (judgment at [6]-[7]), whereas the stairs were made of imitation-wood composite polymer. There was no basis to infer that the back deck was made from the same or “similar” material as the stairs.

13. [28]

    The expert evidence established that the material used on the steps was not slippery. The respondent called Ms Todd, a certified professional ergonomist, and the appellants called Mr Strautins, a certified occupational hygienist and materials professional. Mr Strautins had conducted slip tests on the stairs themselves, and Ms Todd had done such testing on a loose piece of the composite polymer decking that had been collected from the property. Both had tested the product in a wet condition, to reflect an assumption that the stairs had been affected by sea spray when the accident occurred. There was evidence that a “slip resistance value” of 35 was generally considered to be safe. In their joint report they stated:

14. [29]

    At [86(5)] the primary judge accepted the respondent’s description of the stairs as “slippery”. Her Honour accepted the respondent as a witness of truth (at [35]). The appellants made no attempt to challenge that conclusion as to credit. The respondent’s description of the stairs needs to be understood in the context of his evidence. Nothing in what follows involves doubting the credibility of Mr Carpenter.

15. [30]

    In examination-in-chief the respondent described his slip as follows:

16. [31]

    The experts expressed some views on the likely cause of the fall. Mr Strautins opined that “it is more probable than not that the fall occurred due to a misjudged overstep on the tapered winder (going)”. Ms Todd posited that “[i]t is a matter for evidence as to whether the fall occurred due to an overstep on the tapered winder (going)”. An “overstep” is where a person places “their foot very, very close to the nosing, right on top of the nosing, so they slip straight off the nosing” (to quote Ms Todd). Significantly, both experts agreed that a fall caused by an overstep can be mistaken for the sensation of slipping.

17. [32]

    The description of the slip given by the respondent indicates that his fall was indeed caused by an overstep. He referred to placing his foot “on the – the top of the tread, in that front place where the thin piece was sitting”, referring to the vertical endpiece at the edge of the step. That is also consistent with where he marked the spot on the photo shown above at [6]. In Ms Todd’s expert report there was a similar photo with a marking on it indicating where the respondent “states he slipped”, presumably reflecting an instruction to given in Ms Todd’s “interview” with the respondent. In that photo the “X” marking is right on the very edge of the first step down.

18. [33]

    In this context, the significance of the slipperiness or otherwise of the stairs is greatly reduced, because it suggests that the respondent slipped primarily because he landed his foot too close to the edge of the step. Overstepping in that way is an ordinary human error by the respondent. That he made such an error was likely linked to the fact that he was chasing after a golf ball that he was concerned was about to run under the nearby gate.

19. [34]

    In the face of this evidence, senior counsel appearing for the respondent in this Court made two points. First, he noted that Ms Todd had not done slip-testing on the edge of the composite material, being the top of the vertical endpiece of the step, and that Mr Strautins had done a test on the whole step in situ, including the edge of the endpiece. He said that “if in fact the key point of contact was the ball of the foot on the front nosing, the smooth part, then all of that behind is irrelevant”. At highest this submission suggests that the expert evidence had limited relevance, a point which does not assist in making out the claim that the steps were slippery and the appellants were negligent.

20. [35]

    Secondly, he developed an argument on the significance of the risk by reference to the design of the staircase. Helical staircases such as the one at issue here have tapered “winder” steps. The “going” – ie the horizontal distance between the front of one step and the next – is variable, such that the closer a person steps to the inner edge of the winder, the greater the risk of an overstep. He submitted that a handrail on the outer part of the stairs would have provided a “visual cue” to the user to step on the wider part of the winders.

21. [36]

    I address the visual cue point below. As for the significance of the tapered winders, Mr Strautins accepted that “[h]elical stairs are more dangerous than non-helical stairs” because of that characteristic. But that increased risk is inherent, as Mr Strautins pointed out, and as the primary judge acknowledged in her finding at [86(7)]. It is also entirely obvious. The consequences of that risk eventuating would, in general, be minor injuries at most.

22. [37]

    In summary, the stairs were made from a material that the experts agreed was safe and non-slippery even when wet; there was no proper basis for concluding that they were mossy; the fact that Mr Walsh had slipped on some other decking was not relevant; and in fact the respondent himself seems to have slipped by his own, human error in overstepping. The risk of a person slipping and hurting themselves on the stairs – whether from a slippery surface and/or from overstepping – was slight, inherent and obvious.

23. [38]

    The question then is whether a reasonable person in the appellants’ position would have taken particular precautions against that risk. It seems that the respondent initially submitted below that at least three precautions should have been taken (to quote the judgment at [83]):

24. [39]

    As regards the first precaution, as explained above the reliance on moss was abandoned by the respondent. While the respondent did rely on the surface of the stairs getting wet from sea spray, it was not found below or suggested on appeal that cleaning or washing the stairs would have resolved the issue or was a necessary precaution. The presence of sea spray presumably was endemic for stairs located in close proximity to a beach. As regards the third precaution, the primary judge did not find, and the respondent did not argue on appeal, that there should have been a warning sign.

25. [40]

    The focus of argument below and on appeal was on the second precaution. The respondent maintained that a handrail would mitigate the risk of slipping both by aiding to arrest the fall of pedestrians and providing a visual cue to draw the pedestrian to the outer arc of the stairs, being a safer spot to step. As discussed below, there are causation problems with both of these claimed benefits of a handrail given what occurred in the respondent’s fall. But the argument is also unpersuasive with respect to breach.

26. [41]

    The primary judge found at [86] as follows:

27. [42]

    In relation to point (15), as has already been noted the reference to the SafeWork Australia Code of Practice was inappropriate. It is significant that the Building Code did not require a handrail. That was so because the stairs had an elevation of less than one metre.

28. [43]

    The evidence does not disclose what the total elevation of the stairs was. But from the various photos in evidence the steps appear to have had a relatively short “rise”, that is, vertical dimension. There was a vertical pole at the top and inner edge of the winder stairs which was the end point of a glass balustrade going along the tiled deck. That pole could have been used by anyone wanting to have something to hold on to when using the stairs.

29. [44]

    The photographs of the stairs, such as that reproduced at [6] above, depict an entirely unremarkable set of short outside steps. The argument that the law of negligence required these stairs to have a handrail on the outer side has an air of unreality. It may well be that erecting a handrail would not have been terribly expensive, although there was no evidence on the point. But if a handrail was required for these steps to avoid a breach of duty, it would be required for countless other such short sets of helical steps in houses around the country. That requirement would not be limited to houses near the beach, because the fact that the steps may have been wet from sea spray did not render the steps slippery. The fact that the Building Code of Australia did not mandate a handrail for this type of stairs supports the conclusion that reasonable care did not require such a precaution.

30. [45]

    Further, if this type of risk required precautionary measures of the kind alleged, no doubt many other risks around the house might fall into a similar category of presenting slight and obvious risks. The costs of addressing all such risks may well be material. And the precautionary measures may be intrusive or unappealing. The law does not require that resources be spent on risks such as those at issue here which are slight, inherent and obvious. Life is not required to be lived surrounded by cotton wool.

31. [46]

    The point has been made many times. As Hayne J observed in Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 at [96], in the course of concluding that an owner of residential property had not breached their duty of care to an entrant who tripped and fell on the uneven surface of their driveway when attending a garage sale (citation omitted):

32. [47]

    In the same case Gleeson CJ stated at [12]:

33. [48]

    The case of Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 concerned an action in negligence brought by a tenant who had put his knee through an internal glass door in a residential property. Gleeson CJ observed at [23]:

34. [49]

    In Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19, at [36], the High Court said the following:

35. [50]

    The case in this Court of Wilkinson v Law Courts Limited [2001] NSWCA 196 concerned a claimant who fell down the steps outside the Law Courts building and contended that the steps were unsafe by virtue of their varying rise heights. Heydon JA said the following at [32], with the agreement of Meagher JA and Rolfe AJA:

36. [51]

    In this case, a reasonable person considering the identified risk of harm presented by the stairs would not have concluded that a handrail should have been erected as a precaution against that risk. The appellants did not breach their duty of care. The appeal should be upheld on that basis.

Causation: ground 12

1. [52]

   Even if the appellants had breached their duty, the absence of a handrail did not cause the respondent’s injuries. This conclusion provides a further basis for upholding the appeal.

2. [53]

   The primary judge addressed causation at [86(14)] (emphasis added):

3. [54]

   That finding manifests error on its face. Pursuant to s 5D(1)(a) of the CLA it was necessary for the respondent to establish that the negligence was a necessary condition of the occurrence of the harm (leaving aside any exceptional case addressed under s 5D(2)). This is a statutory statement of the “but for” test: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [18]. Under s 5E the respondent bore the onus of proving any fact relevant to the issue of causation. That the precaution of providing a handrail could have assisted in minimising the risk of harm does not establish on the balance of probabilities that it would have done so; that is to say, it does not establish that but for the absence of a handrail the injury would not have occurred. The possibility of a different result is not enough: Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 at [13].

4. [55]

   In fact, the evidence indicates that the presence of a handrail would not have prevented the respondent suffering his injury. The primary judge’s conclusion, as supported on appeal by the respondent, raised two ways in which a handrail may have made a difference: first, preventing or mitigating a fall, presumably by giving the respondent something to hold or grab before he fell or when he slipped; secondly, giving him a visual cue as to the curvature of the steps, thus potentially leading him to step closer to the wider outside edge of the stairs.

5. [56]

   As regards the first point, it is telling that the respondent might have held onto the vertical pole located near the stairs but did not do so. As noted, just before he slipped the respondent had been presented with some golf balls as prizes for his success playing golf. He dropped one of those which had just been tossed to him, leading him to chase it down the stairs. The following evidence in cross-examination is relevant:

6. [57]

   As already noted, the reference to moss was not pursued below by the respondent’s counsel. What emerges from this evidence is that the slip occurred too quickly for the respondent to grab the vertical pole as he fell. And he could not have done so anyway – either in advance of the fall or when slipping – because he was holding golf balls in his hands. There is no basis for suggesting that the position would have been any different with a handrail. Put simply, having a handrail there would have made no difference.

7. [58]

   As regards the second point, the respondent relies upon the evidence of Ms Todd to suggest that a handrail would have visually prompted the respondent to step down on the wider, safer part of the stairs. In fact her evidence did not rise that high. In the experts’ joint report she said that the “provision and use of a handrail can further minimise the risk of a slip and fall. A handrail can aid in the arrest of a fall where a slip has occurred” (emphasis added). And in oral evidence she said (emphasis added):

8. [59]

   Ms Todd thus employed the language of possibility, not probability. As to what difference it might have made here, in cross-examination the respondent gave the following evidence:

9. [60]

   The respondent’s own evidence was that he was already as far towards the outer edge as he could reasonably go, assuming he was to walk down the stairs normally. Even if a visual cue might act in the way suggested by Ms Todd, it would have made no difference here.

10. [61]

    For these reasons the respondent did not establish that the claimed breach of duty caused his injuries.

Conclusion

1. [62]

   The primary judge erred in stating the duty of care, in finding breach of that duty, and in finding that the alleged breach caused the respondent’s injuries. The appeal should be allowed. Costs should follow the event.

2. [63]

   The orders of the Court should be as follows:

   1. (1)

      The appeal is allowed with costs.

   2. (2)

      Orders 1 and 2 made by the District Court on 31 August 2021 are set aside and, in lieu thereof, the statement of claim is dismissed with costs.