Stairs are an everyday hazard and are regularly the subject of
personal injuries litigation in Australia. Most occupiers now
ensure that their stairs are equipped with a standard tread and
riser, suitably coloured to alert users to their presence, and made
of suitable non-slip material. But are there circumstances in which
an occupier ought to go further to protect entrants from
In this Alert, Senior Associate Anna Hendry discusses the
factors an occupier ought to consider when evaluating the safety of
stairs at their premises.
The recent decision of Ellery v Sunsail (Australia) Pty
Ltd involved a plaintiff who suffered personal injuries when
she stepped backwards and fell down a flight of three or four steps
in the saloon of a catamaran. She had just boarded the vessel
with her family for a day cruise and they were stowing their
belongings in the saloon prior to receiving a safety briefing. The
stairs and their surrounds were constructed of wood. The flight
itself was unusually steep and the white mark on the edge of the
steps was only visible from the bottom of the stairs.
The court considered two major allegations:
That the occupier ought to have warned the claimant of the
existence of the stairs; and
That the occupier ought to have installed an engineered
solution in order to avoid the relevant risk.
The plaintiff relied on the evidence of Roger Kahler, an
engineering consultant, that the defendant ought to have
implemented an engineering control to eliminate the relevant risk.
In this regard, he suggested three alternative engineering controls
including a chain or guardrail at the top of the stairway, an auto
close and lock gate at the top of the stairway or a hatch on the
floor effectively covering the access hole.
In considering the defendant's conduct, the court found that
while it may have been open to the defendant to warn the plaintiff
of the presence of the stairs prior to her boarding the vessel, it
was doubtful as to whether any warning given in those circumstances
would have prevented her fall. The court was therefore not
satisfied that a failure to warn was causative of the
Having disposed of that issue, the plaintiff's case rested
on whether the defendant was negligent by failing to employ an
engineering solution to prevent a passenger from stepping back and
falling. The court accepted the evidence of Mr Kahler that the
uniform wood panelling and the white line underneath the top step
did not create sufficient contrast to alert an entrant to the
saloon of the location of the stairs. It found that although it is
not unreasonable to expect that people will see what lies ahead of
them as they walk along in broad daylight, "the confines of
the saloon...and the peculiar structure and situation of the access
stairway in such a vessel do not represent an obvious risk such as
to absolve the defendant of a duty to warn". The court noted
that in this case the crucial failure was the failure to implement
an engineering control but declined to specify which of the
solutions proposed by Mr Kahler ought to have been implemented.
Take Away Points
In conclusion, occupiers ought to consider whether the relevant
stairs are unusual such that they do not pose an obvious risk
having regard to:
The lighting in the area;
The space around the stairs and the likelihood that that space
will be congested;
The likelihood that entrants will be distracted by other
features in the area; and
Whether the stairs themselves are non-standard in their tread
and riser or incline.
Contractors and principals should ensure they have appropriate insurance coverage instead of relying on indemnity clauses.
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