“One small step…”

24 June 2022

Ms Narelle Pietrobelli was in attendance at the premises of Tiger Putt Putt (defendant) when she fell down a set of stairs, due to an overstep, suffering injury.

In Issue

  • The critical issue for determination by the court was whether the plaintiff’s accident was the result of the state of the stairs, or in other words, the overstep, or some other factor such as her weight, inattention, legs giving way or dizzy spells.

The background

On 2 July 2016 the plaintiff attended the defendant’s premises, known as the Tiger Putt Putt and Little Tiges Play Centre, for a children’s birthday party. As she was leaving the party room on the second floor, the plaintiff fell down the stairs suffering injuries (the accident).

The staircase was poorly lit, the goings were below the minimum requirement, and the goings and risers were not consistent throughout the flight of stairs (below Australian Standards). The plaintiff asserted that the upstairs party room appeared to be a storage area, which was hardly used.

However, the stairs were carpeted, and the staircase had a handrail to assist people with going up and down the stairs. The defendant asserted that the stairs and the upstairs party room were regularly used and there had been no previous accidents or incidents involving them. Therefore, there was an absence of evidence of harm using the stairs over extended use. Relevantly, the defendant argued:

  • it could not have known (or ought to have known) of the dangers presented by the inconsistent goings and risers of the stairs;
  • any person using stairs may misjudge their footing and slip or trip but that is an everyday risk which members of the public avoid by taking care for the own safety; and
  • The defendant discharged any duty of care owed to the plaintiff.

The decision at trial

The court found in favour of the plaintiff and held that the accident occurred by way of overstep and not, on the balance of probabilities, some other factor.

The court formed the view that the defendant owed the plaintiff a duty of care as the occupier of the premises to take precautions considering the risks posed by the stairs, and breached that duty by failing to rebuild the stairs or prevent access to the stairs. In that regard, the court rejected the defendant’s arguments that the terms of its lease prevented it from undertaking any structural changes without the landlord’s consent, and noted that the lease contained terms which required the landlord to fix structural defects, and which allowed the defendant to request such repairs be undertaken in order to comply with the requirements of authorities. The court also noted that the cost of replacing the stairs and the defendant’s financial position had to be weighed against the significant danger posed by the stairs.

In arriving at its decision, the court accepted the plaintiff’s evidence that the upstairs party room was hardly used. It also found casual patrons attending on the day of the accident were quickly able to make observations as to deficiencies in the stairs. This meant that the defendant also knew or ought to have known of the danger presented by the stairs (which did not meet Australian Standards).

The court also rejected the defendant’s argument about contributory negligence. The court found the plaintiff’s fall occurred because of an overstep caused by the structural inconsistencies in the steps. Further, the court accepted evidence that the plaintiff was careful whilst descending the stairs, used the handrail and warned others of the dangers presented by the stairs.

Implications for you

This case highlights the importance of owner/occupiers adhering to Building Codes and Australian Standards when occupying premises open to the public. It is impossible to eliminate all risks, however, it is always better to err on the side of caution and ensure any premises comply with applicable standards, before allowing entrants onto the property. This case also demonstrates that reasonable precautions to prevent an injury may involve expenditure if the danger posed is significant.

Pietrobelli v Jewell Family Nominees Pty Ltd [2022] NSWSC 660

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