Pietrobelli v Jewell Family Nominees Pty Ltd [2022] NSWSC 660
Background
The Defendant was the operator of Tiger Putt Putt and Little Tiges Play Centre ("the premises").
On 2 July 2016, Narelle Pietrobelli (Plaintiff) entered the premises for the purposes of attending a birthday party. The party was held in an upstairs function room, accessed only by way of an interior staircase.
While exiting the upstairs room, the Plaintiff descended one or two stairs, then uttered words to the effect of "Be careful. You can't get your foot properly on the stairs". She descended a further few steps, before slipping down the remaining stairs. The Plaintiff sustained injury upon landing.
Facts
The staircase consisted of 16 carpeted steps with a single handrail. The dimensions of each step varied significantly, however, and were not compliant with the Building Code Australia 2010 (BCA). The lighting levels throughout the path of travel were poor and inconsistent.
Law
It was not disputed that the Defendant, as the occupier of the premises, owed a duty of care to take reasonable care to avoid a foreseeable risk of injury to the Plaintiff.
The relevant risk was that a person exercising reasonable care might sustain injury as a result of slipping, whilst descending the stairway leading from the party room.
The Defendant submitted that a slip or trip on a staircase is an everyday risk which members of the public circumvent by exercising care for their own safety. The Plaintiff was plainly aware of the risk, but she nevertheless omitted to implement any strategy to reduce her risk of slipping or tripping, such as turning her foot sideways.
Justice Walton rejected those submissions on the basis that, notwithstanding the Plaintiff's momentary realisation, she lacked a sound understanding of the extent of the hazard posed by the stairs.
Justice Walton accepted that the risk of falling down a staircase with inconsistent dimensions was, by its very nature, significant. The absence of any prior incident on the stairway was immaterial.
The Plaintiff proposed several precautions which were reasonably available to the Defendant to mitigate slipping risks on the staircase. Measures included erecting warning signs, installing a contrast strip on each step, improving lighting conditions, restricting access to the stairway, or ultimately, rebuilding the staircase.
Justice Walton agreed that, irrespective of the practical and financial burdens to the Defendant, a reasonable person in the Defendant's position would have taken the precaution of either rebuilding the stairs or preventing access to the stairs.
Regarding causation, architectural and ergonomic evidence indicated that the mechanism of the fall was most likely a slip or overstep. Steps 1 to 6 were especially irregular in their geometric dimensions and slope. Such irregularities create confusion for users of the stairway, as people descend stairs with an expectation of regularity.
A causal connection therefore existed between the Plaintiff slipping off the step, her difficulties descending the stairs, and the inconsistencies in the stairs.
It was argued that the Plaintiff's failure to exercise reasonable care supported a finding of contributory negligence. Justice Walton dismissed that submission. The Plaintiff's fall was caused by the geometrically irregular steps that confronted her, and she was not expected to adapt her gait to ensure that she was able to safely descend the stairs.
Liability was found in favour of the Plaintiff.
Implications
The decision serves as a reminder of the stern expectation on occupiers to be proactive in identifying and remedying structural defects and hazards and that duty is heightened where the relevant area is for regular public use.
If you require further information or have any queries in relation to this legal update, please contact Luke Gollan.
We would like to acknowledge the contribution of Kaitlyn Scarcella (Law Clerk) to this article.
