Australia: Slip and fall on hotel stairs - liability of architect and occupier - ss 5B, 5D and 5O of the Civil Liability Act 2002 considered

Curwoods Case Note
Last Updated: 21 August 2012
Article by Samantha Thorndike

Indigo Mist Pty Limited v Palmer [2012] NSWCA 239

Judgment date: 9 August 2012

Jurisdiction: NSW Court of Appeal1

In Brief

  • In determining the negligence of both occupiers and professionals, reference is always made to relevant sections of the Civil Liability Act 2002 (NSW) (CLA).
  • Stairs are inherently, but obviously, dangerous. A hotel occupier not only has a duty to provide safe premises, but to exercise reasonable care to manage the hotel premises so as to avoid exposing patrons to a foreseeable risk of harm.
  • An architect has a separate duty to use reasonable care, skill and diligence in the performance of the work an architect undertakes. As there is no overlap in responsibility, the occupier and architect cannot delegate their duties to each other another so as to escape liability.
  • It is critical for defendants to obtain expert evidence as to acceptable professional practice in order to make out a defence under s 5O of the CLA.


On 30 May 2008, Abi Palmer (plaintiff) fell down some stairs at the Oxford Hotel in Darlinghurst (Hotel). The plaintiff alleged she fell after slipping on liquid on glass stairs within the Hotel and suffered injuries as a result.

The Hotel had undergone a substantial refurbishment during 2006. Paul Kelly Design Pty Limited (PKD) was the architect in charge of the refurbishment and responsible for the design of the stairs and choice of materials. The refurbishment included stairs linking the two upper floors which were made of glass blocks and which were lit from below. The two upper floors had bars on each level, and the toilets which serviced both bars were located on the top floor.

District Court

The plaintiff commenced proceedings in the District Court of New South Wales against the owner of the Hotel, the occupiermanager (Occupier) and PKD in negligence. The matter was first heard over 7 days before Elkaim DCJ in the District Court of New South Wales who found in favour of the plaintiff and awarded a total of $113,321.90 in damages on 24 March 2011. Elkaim DCJ apportioned liability equally between the Occupier and PKD and found in favour of the owner on the basis it had completely delegated its duties to the Occupier and PKD.

Court of Appeal

Both the Occupier and PKD appealed the decision of Elkaim DCJ to the Court of Appeal. The appeal raised the following issues

  1. breach of duty of care by the Occupier and PKD;
  2. causation;
  3. contributory negligence; and
  4. apportionment of liability between the Occupier and PKD.

Hoeben JA handed down the leading judgment. Beazley and Macfarlan JJA made additional comments in relation to the steps which the Occupier ought to have taken to discharge its duty of care.

Duty of Care

The Occupier accepted that it had a duty to entrants to take reasonable care to avoid foreseeable risks of injury, as per Australian Safeway Stores Pty Ltd v Zaluzna 2. However, referring to the requirements under s 5B of the CLA, the Occupier disputed that the risk of harm which eventuated, being that the plaintiff slipped on liquid on the stairs, was foreseeable.

Hoeben JA thought the critical question was whether it was reasonably foreseeable by the Occupier that patrons would move between the two floors and that, if they did, they might carry drinks which might be spilt. His Honour held that the risk of drinks being spilt was clearly foreseeable in the circumstances, that there was a high likelihood of such an event occurring, and that the risk of injury was not insignificant.

The next issue to be addressed was what precautions the Occupier should have taken. Hoeben JA thought the Occupier could have placed signs or warnings prohibiting the movement of drinks between the floors and could have had staff positioned outside the bars to enforce the prohibition or a system of regular inspection of the stairs for spills. His Honour noted no evidence to the contrary was called by the Occupier.

Macfarlan and Beazley JJA considered that a reasonable occupier would have responded to the risk by ensuring the stairs were not slippery when wet using one of the methods identified by the plaintiff's expert, Dr Emerson, such as covering the stairs with carpet or ensuring the glass tiles were treated so that they achieved appropriate frictional qualities.

Whilst Beazley JA was concerned about a lack of evidence as to whether the precautions involving signage or staff would be economically feasible or effective, Hoeben JA considered the facts of this matter allowed for "common knowledge and common sense" in determining an appropriate response to a foreseeable risk of injury: Neill v New South Wales Fresh Foods and Ice Pty Ltd 3. He did not consider the Plaintiff was required to call expert evidence on this issue.

The Court unanimously upheld the primary judge's decision that the Occupier had breached its duty of care to the plaintiff.


In determining whether the breach of duty of care by the Occupier had caused the plaintiff's injuries, reference was made to s 5D of the CLA. Hoeben JA cited the statement of principle in Strong v Woolworths Ltd tas Big W 4 that

"The determination of factual causation under s 5D(1)(a) is a statutory statement of the 'but for' test of causation the plaintiff would not have suffered the particular harm but for the defendant's negligence ... Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance of Big W."

Hoeben JA emphasised that it was not necessary for the plaintiff to prove that taking precautions such as the implementation of signs, staff or regular inspections would have prevented her fall. Rather, it was sufficient for the plaintiff to prove that the taking of such action would have minimised the risk of her fall. In this case, Hoeben JA was satisfied that had the suggested system been in place, it was more likely than not that liquid would not have been present on the stairs so as to cause the plaintiff's fall. Accordingly, the Court of Appeal upheld the primary judge's decision regarding causation.

Contributory Negligence

Hoeben JA noted that the test for contributory negligence is an objective one which requires the Court to ask itself whether a reasonable person in the position of the plaintiff should have detected the liquid on the stairs before treading on it. It was relevant that Dr Cooke had given evidence that, in his opinion, the presence of liquids on the glass steps would have been practically impossible to detect at night. It was also relevant that the plaintiff had given evidence that she noticed liquid of approximately A4 size just as her foot was about to touch the step. Hoeben JA therefore considered there was ample evidence to support the primary judge's finding that the plaintiff was exercising reasonable care for her own safety and was not guilty of contributory negligence.

PKD's Liability

The parties agreed that PKD had the responsibility for the implementation of the refurbishment at the Hotel. It was common ground that PKD did not provide or supply the stairs but recommended the use of glass blocks in the stairs. PKD submitted that the primary judge erred in finding liability against it.

Hoeben JA cited with approval the decision of Voli v Inglewood Shire Council 5 regarding the duty of an architect to third parties:

"... What an architect must do to avoid liability for negligence cannot be more precisely defined than by saying that he must use reasonable care, skill and diligence in the performance of the work he undertakes ... Neither the terms of the architect's engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts ..."

Whilst Hoeben JA noted s 5B of the CLA was not particularly useful in cases involving professional negligence, he said it still had a part to play. The architect in question had given evidence during the trial that she had presumed no one would carry drinks between the levels of the Hotel. Her evidence suggested she had not turned her mind to safety considerations when recommending that the stairs be constructed of glass blocks. The primary judge drew the inference from her evidence that what was foremost in the architect's mind was the look of the stairs, rather than safety aspects and that she gave only cursory consideration to third parties who would be using the stairs.

The primary judge considered that if the architect had turned her mind to potential hazards created by the stairs, she would have realised that the glass blocks had a very low slip resistance when wet and were therefore not an appropriate product to be used on stairs adjoining two bars where alcohol was going to be consumed.

Hoeben JA considered the architect should have taken these matters into account. His Honour was satisfied in a purely factual sense that applying the "but for" test, had PKD not recommended the use of a step which became highly slippery when wet, the plaintiff would not have fallen. As there was a failure to take action which would have prevented or minimised the risk of the fall occurring, breach of duty of care and causation on the part of PKD had been established.

Section 5O Defence

PKD relied upon s 5O of the CLA in its defence which provides at (1):

"A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice."

Hoeben JA cited the statement of principle in Dobler v Kenneth Halverson & Ors 6 that:

"Section 5O has the effect that, if the defendant's conduct accorded with professional practice regarded as acceptable by some (more fully, if he 'acted in a manner that ... was widely accepted ... by peer professional opinion as competent professional practice'), then subject to rationality that professional practice sets the standard of care."

In that case, it was noted that the plaintiff would usually call expert evidence to the effect that the defendant's conduct fell short of acceptable professional practice and that the defendant also had an interest in calling expert evidence to the contrary.

In this case, the Court of Appeal upheld the primary judge's decision that PKD had been negligent in recommending and designing the particular stairs on the basis of the evidence of two experts called by the plaintiff. As no evidence was called on behalf of PKD in reply to indicate that there was a body of professional opinion amongst architects to the contrary effect, Hoeben JA agreed with the primary judge that the defence under s 5O had not been made out.


In apportioning liability between the Occupier and PKD, Hoeben JA referred to the decision of Podrebersek v Australian Iron & Steel Pty Ltd 7 that the apportioning of liability between two tortfeasors was essentially a discretionary one which balanced the causal potency of the actions of the respective tortfeasors, ie which conduct made the greater contribution to the damage and relative culpability. That case also made it clear that an appellate court should not lightly review a finding of apportionment made by a primary judge.

Hoeben JA considered the primary judge in this case was right in distinguishing the decision of Bevillesta Pty Ltd v Liberty International Insurance Co 8 in which it was found that an occupier of a shopping centre was able to fully delegate its duty in respect of a slipping hazard to a contract cleaner as there was a clear overlap in their responsibilities for cleaning the shopping centre. This particular case was quite different in that PKD was concerned with the original design of the stairs whereas the Occupier was concerned with the ongoing running of the Hotel.

Once the architects accepted the contract for the design of the stairs, they had to consider for themselves what potential hazards arose from them. The designing of the stairs was not something which could be delegated to the Occupier. The Court of Appeal upheld the primary judge's decision to apportion liability equally between the Occupiers and PKD as no error could be identified in the primary judge's approach.

Ultimately, the Court of Appeal dismissed both the appeal and cross-appeal and ordered the Occupier and PKD to pay the plaintiff's costs.


This case makes it clear that defendants should always obtain expert evidence when seeking to rely on s 5O of the CLA in defence of a claim for professional negligence.

Evidence should also be led by way of lay or expert witnesses if a defendant wishes to challenge the particular precautions which the plaintiff alleges ought to have been carried out by the defendant in discharge of their duty of care. This may include evidence as to the practicality, effectiveness or cost of undertaking such precautions, as referred to in s 5B(2) of the CLA.

Professionals and, in particular, architects, are required to use reasonable care, skill and diligence in the performance of their work, including consideration of people who are strangers to the contracting parties. It is only when there is a clear overlap of responsibilities that a court will find there has been a full delegation of responsibility to another party.


1 Beazley, Macfarlan and Hoeben JJA
2 [1987] HCA 7
3 (1963) HCA 4
4 [2012] HCA 5
5 [1963] HCA 15
6 [2007] NSWCA 335
7 [1985] HCA 35
8 [2009] NSWCA 16

Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions