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)  NSWSC
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
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
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.
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
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
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.
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.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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