2 November 2007
McColl JA; Handley AJA; Hislop J
In this Court of Appeal decision the plaintiff failed to overturn the trial judge's finding that the defendant was not negligent after the plaintiff fell on steps at a shopping centre.
The plaintiff slipped and fell whilst descending a flight of stairs at a shopping centre at Hurstville.
It was raining and the plaintiff claimed water was running down the stairs like a waterfall. The stairway on which the plaintiff fell was an internal stairway of concrete construction. There was a handrail on either side. The treads of the steps were finished with small, ceramic-like tiles, with grooved nosing tiles at the front edge. The steps were bounded by an upper and intermediate landing. The upper landing led from a roof level car-park and was accessed from the car-park through glass doors. There was only a small awning above the doorway leading to the top of the stairs.
District Court Decision
In finding for the defendant, Judge Balla made a number of findings including the following:
- The plaintiff parked her car on the rooftop level and decided to use the stairs. She had walked down the stairs many times and knew that she had to be careful.
- At the time of the accident it was raining and it was obvious that, as the plaintiff walked in, there was water on the ground.
- The plaintiff could not say whether part of her foot had protruded over the edge of the step as she had not been looking down.
- Whilst the plaintiff had slipped a couple of times before on the stairs (never injuring herself or making any report), a history of only one or two falls on the stairs which were used daily by many people, does not lead to an inference that they must have been unreasonably slippery whenever they were wet.
- Since the plaintiff's fall, the defendant had placed black anti-slip strips at the landing and on each step, and installed a new sign which said "Floor slippery when wet, please watch your step".
- Testing by an expert qualified by the plaintiff disclosed that tiles similar to those on the steps where the plaintiff slipped met the relevant Australian Standard. Otherwise the report was of very little assistance as the expert did not test the steps on which the plaintiff fell. The plaintiff's expert said in his opinion the test results should be reduced but did not provide an explanation for that opinion.
- Whilst another person had fallen from the top landing in 1999, this single incident did not establish that the stairs were sufficiently dangerous when wet for the defendant to have reasonably formed the view, before the plaintiff's fall, that the surface should have been changed. The prior fall also took place on the top landing and not on the stairs.
- The defendant was a tenant and its capacity to make structural alterations to the shopping centre was limited by the terms of its lease. The plaintiff sought leave to appeal by a leave application (which was filed late). Prior to determining whether to grant leave for a late application the Court first decided to determine whether or not any appeal had reasonable prospects of success.
Court of Appeal Decision
Justice Hislop provided a helpful list of the relevant principles in this area of the law as follows:
- The issue of breach of duty in an action framed in negligence is a question of fact: see Vairy -v- Wyong Shire Council  223 CLR 422.
- An occupier of premises is only required to take such care as is reasonable in the circumstances. The duty is not to make the premises as safe as "reasonable care and skill on the part of anyone can make them": see Wilkinson -v- Law Courts Limited  NSWCA 196.
- Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable in the circumstances: see Wilkinson's case above.
- The plaintiff made various submissions to the Court, including that the trial judge misapprehended and gave inadequate weight to the expert report; that the trial judge failed to accept that the defendant ought to have been aware that the stairs were slippery when wet; and that the trial judge failed to find that the alterations made to the stairway after the plaintiff's fall provided evidence of action which could have been taken by the defendant before the accident.
- His Honour held the alterations merely provided evidence as to action that could have been taken. They provided no evidence that reasonable care required that action be taken prior to the injury to the plaintiff see also s 5C(c) Civil Liability Act 2002. There was no evidence the alterations made to the stairway reduced or obviated the risk of slipping. The placing of a sign at the entrance would have told the plaintiff nothing she did not already know.
- In dismissing the plaintiff's appeal, the Court of Appeal dismissed all of the plaintiff's submissions and concluded as follows:
"The claimant has failed to demonstrate material error by her Honour in her findings of fact. The consequence of this is that the factual basis for the determination of this case was that the tiles on the steps complied with the appropriate standards, there were handrails on each side of the stairway and, despite daily use by very many people, there was no evidence of any history of slipping or falling on the steps such as to put the opponent on notice that the steps were unusually slippery when wet and such as to require the opponent, acting reasonably, to take additional precautions against persons slipping or falling on them."
- Whilst this decision was determined primarily on the facts of the case, it nonetheless provides a good illustration of the principles that appellate courts look to in determining liability in relation to slip and fall claims.
- In particular it has been affirmed that an occupier of premises is only required to take such care as is reasonable in the circumstances, and the duty is not to make the premises as safe as "reasonable care and skill on the part of anyone can make them".
- The mere fact that a defendant elects to respond to an accident by attempting to make premises safer is only evidence of what could have been done and not what should have been done. This common law principle which is well established in case law has now been codified by s 5C(c) of the Civil Liability Act (NSW) 2002.
- The decision also demonstrates the difficulty that appellants face in trying to overturn lower court decisions that have been based on findings of fact.
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