Don't get tripped up: reviewing an occupier's liability for stairs
On 22 February 2015, Q1 Resort on the Gold Coast held their annual Sea to Sky Stair Challenge during which an estimated 961 brave participants ran (walked or crawled!) up 77 flights of stairs to raise money for charity. Whilst fortunately we’ve not heard of any injuries or claims arising from the event yet, the thought of almost 1,000 people navigating 1,821 stairs in a race caused us to reflect on how the courts have been responding to claims for personal injuries arising from accidents on staircases over the last year.
Occupiers of stairs in public premises
The recent decision of Towers v State of New South Wales  NSWDC 10 concerned a plaintiff who was injured during his employment as a casual cleaner at a public school. The plaintiff was undertaking his cleaning duties on a rainy afternoon when he fell down 4 external fibro cement stairs leading from a demountable classroom. The plaintiff sued the owner and occupier of the premises. The stairs had previously had non-slip paint applied on 2 occasions, the last of which was 3 years pre-incident, however the plaintiff submitted the paint was worn at the time of the incident. Both parties put forward expert evidence providing competing views as to the slip resistance of the stairs.
In finding the defendant liable, the court concluded that the defendant failed to take reasonable precautions in failing to maintain the non-slip paint. The cost of repainting the stairs was between $100 ‑ $150 and there was a social utility in ensuring that the stairs were safe. As the stairs had been previously painted with non-slip paint twice, the defendant must have known the stairs were subject to wear and were dangerously slippery when wet. The court did not accept the evidence of either expert as their slip testing had been conducted a number of years post-incident and after the stairs had been repainted.
In Jackson v McDonald’s Australia Ltd  NSWCA 162 the appellant attended a McDonald’s store early one morning via 9 internal steps. Upon leaving, the appellant fell on the stairs and claimed his shoe was wet from the recent cleaning of the floors by McDonald’s or their cleaner, Holistic. The appellant was unsuccessful at trial on the basis that he failed to prove that either McDonald’s or Holistic had caused his injuries.
On appeal, the majority of the court found that both McDonald’s and Holistic were in breach of their duty for failing to ensure that there was a dry pathway for patrons to walk. Bartlett J held, however, that the risk was an obvious one as common knowledge would have told a reasonable person that the soles of his shoes may have been wet and this involved a risk of slipping that was not encountered whilst descending stairs in shoes with dry soles. Ultimately the court upheld the primary judge’s finding in regards to causation as there was nothing to indicate that a person who traverses a floor, having the characteristics of McDonald’s floor, was more likely to slip because of water on their shoes than any other reason such as failing to hold onto the handrail, inattention, excessive speed or engaging in conversation. The appeal was dismissed on the basis the appellant had failed to make out causation.
Occupiers of stairs in private premises
In Hutch v Ryan  WADC 16 the plaintiff was living in a rented two storey house and came to fall from the second storey balustrade at the top of the stairs rendering her a paraplegic. The plaintiff brought proceedings against the defendant landlord on the basis that the balustrade was too low and constituted a reasonably foreseeable risk. The defendant contended that the incident occurred due to the plaintiff’s intoxication when she simply leant too far over the balustrade.
The court held that the landlord’s duty to a tenant of a domestic residence did not extend to ensuring the absence of defects. In regards to breach, although the court ultimately preferred the defendant’s expert’s evidence that the balustrade met the height requirements as per the relevant building laws at the time of construction (noting that the defendant was not required to retrospectively comply with the Building Code of Australia), it confirmed that compliance with building laws is not determinative of liability. The court also considered the history of the stairs, which was uneventful, and noted that the defendant was not the original owner of the premises. Ultimately the court accepted evidence of the plaintiff’s intoxication and held, based on the balance of probabilities that, due to her intoxication, the plaintiff leaned past the point of no return while looking over the balcony and there was no liability on the part of the defendant.
Warnings regarding stairs
The decision of Liverpool Catholic Club Ltd v Moor  NSWCA 394 concerned an appeal from a finding of liability for an occupier of an ice skating rink for injuries suffered by a skater who slipped and fell backwards while descending a wet flight of stairs, which provided access to the ice rink, whilst wearing ice skates. The primary judge found the occupier should have provided warning to skaters to put their skates on at the bottom of the stairs and (by verbal and diagrammatic warning) to use a “duck walk” to negotiate the stairs safely.
The Court of Appeal overturned the decision and held that the risk was an obvious risk within the meaning of s. 5F (1) of the Civil Liability Act 2002 (NSW) and the appellant had no duty to warn of it. The Court of Appeal found that there were 2 conditions which gave rise to the risk of slipping and falling while descending the stairs in skates. The first was that descending stairs carries an ever present risk of falling due to overstepping and loss of balance. The second was the presence of the skates, which exceeded the length of the stair treads. The Court of Appeal held that it would have been apparent that the risk of falling down the stairs was significantly heightened by the wearing of skates, particularly as the respondent had stood at the top of the stairs and observed other skaters descending the stairs.
In Ellery v Sunsail (Australia) Pty Ltd  QDC 285, the plaintiff fell down a set of stairs on a chartered catamaran. The stairs were located between cabinetry and were the same colour as the wood cabinetry and surrounding floor. Unaware of the stairs, the plaintiff stepped backwards and fell down the staircase. In alleging negligence against the defendant catamaran owner, the plaintiff relied on the opinion an engineering consultant who concluded that the stairs presented a risk which should have been addressed by way of a chain or guardrail at the top of the stairway, visual contrasts and verbal warnings upon entry to the vessel. The defendant gave evidence that a safety briefing was given at the commencement of each voyage but had yet to be given at the time as not everyone was on board. Further, the defendant considered the presence of the steps to be obvious.
The court found in favour of the plaintiff. Whilst the uniform wood paneling around the top step produced a stylish vessel for private use, once a vessel owner used it for a commercial charter, even when the party was small, a reasonable response to the risk required a different standard of fitting, such as a physical safety barrier, at least until passengers had been taken through the safety briefing. The failure to implement such a safety system amounted to a breach of duty. However, the court was satisfied that the plaintiff should bear some responsibility for the fall and found contributory negligence in the amount of 30%.
In summary, what we can take away from decisions in the last year for claims for personal injury involving stairs is that:
- The courts have taken a sterner view in regard to the response to the risk posed by stairs used for public use (compared to private use) taking into account social utility.
- The court is unlikely to place significant weight on slip resistance testing undertaken a lengthy period after the incident (particularly where there have been alterations).
- A court will look at the history of the stairs. A failure to comply with building laws is not determinative of liability. Further, the court will not apply the Building Code of Australia retrospectively.
- Defendants should attempt to argue that stairs are an obvious risk unless the stairs constitute a concealed hazard.
- The event of the fall itself will not be sufficient for the plaintiff to discharge its burden of proof in regard to causation.
What does this mean for participants in the Q1 Stair Challenge? We think the answer is obvious – watch your step!