Australia: Contributory Negligence: The law helps those that help themselves (and reduces damages for those that don't)

Last Updated: 26 September 2016
Article by Jacqi Marshall and Matthew Boyce

A recent decision in the New South Wales Supreme Court saw the plaintiff sue a church in relation to injuries she sustained after falling down a flight of stairs.

Despite her success, the court reduced the damages payable to the plaintiff by 50% for contributory negligence.

In this alert, Solicitor Matthew Boyce and Senior Associate Jacqi Marshall discuss the recent decision of the New South Wales Supreme Court in Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church (No. 2) [2016] NSWSC 1123.

Facts

On 3 January 2013, the plaintiff attended a bible study group which met in a building on the grounds of the Church of St Mary and Merkorious in Sydney. After the meeting the plaintiff descended a flight of stairs on the premises. The staircase consisted of 16 tiled steps with "nose tiles" laid on the outer edge of each tread and a handrail along the entire length.

Despite having traversed these stairs "hundreds of times", the plaintiff gave evidence that she was unaware the "nose tile" of the sixth step from the top had been broken. Evidence adduced at trial suggests this tile had been broken for approximately four years prior to the subject incident.

As the plaintiff began her descent, she opted not to use the handrail. Some way down the staircase, she fell forward, hitting her head forcefully on the metal handrail before tumbling to the bottom.

At trial, the plaintiff argued the defendant was negligent in failing to replace the broken nose tile of the stairs, failing to block off the area around the broken tile and failing to warn the plaintiff a section of the stairs was in a dangerous condition.

The defendant did not dispute the presence of the broken tile was a tripping hazard and a breach of their duty of care. They did, however, dispute it was the cause of the plaintiff's fall.

Findings

His Honour Garling J was satisfied the plaintiff had stepped on the broken tile when she slipped. As such, the broken tile itself, and the church's failure to fix it, had necessarily caused the damage the plaintiff had suffered. The defendant was therefore held liable for the plaintiff's injuries.

The defendant argued that the plaintiff had been guilty of contributory negligence by failing to use the handrail and failing to keep a proper lookout for the broken tile. In support of this argument, the defendant noted the plaintiff had previously fallen and injured herself on two separate occasions in shopping centres. These experiences should, they contended, have alerted the plaintiff she may be injured if she failed to take reasonable care traversing the stairs.

His Honour agreed. He found a person descending a flight of stairs ought to take reasonable care for their own safety. In this instance, His Honour felt this reasonable care included both the use of the handrail and keeping a proper lookout.

His Honour remarked:

"I am satisfied on the balance of probabilities that if the plaintiff had taken either of those precautions, which she ought reasonably to have taken, the fall would not have occurred"

The plaintiff was found to have been 50% responsible for the injuries she suffered on account of her own contributory negligence. In coming to this percentage, the court considered the following factors:

  • The defendant had failed to repair or replace the broken nose tile which was known to the caretaker of the premises for about four years prior to the incident.
  • The plaintiff had failed to use the handrail and failed to keep a proper lookout for hazards on the staircase when she was a person acutely aware of the connection between falling over and suffering personal injury.
  • While the defendant created the risk of injury, the plaintiff failed to adopt relatively simple measures to avoid this risk. As such, liability in respect of the injury was to be shared between the two parties.

Conclusion

This case is a good example of the apportionment of liability between a negligent occupier and an entrant. Whilst each matter will turn on its own facts, this case demonstrates a willingness by the courts to recognise that entrants must bear some responsibility for their own safety by taking simple measures such as using handrails and keeping a proper look out.

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