The NSW Court of Appeal overturned a finding that a state authority owner of a sports stadium was liable because the risk of a patron falling on a stepped aisle was obvious. No reasonable owner would have installed a handrail on similarly positioned aisles in such a facility.
In issue
- Whether a reasonable occupier would have installed a handrail on a stepped aisle at an outdoor stadium.
The background
The plaintiff, accompanied by her spouse and a friend, went to the McDonald Jones Stadium in Broadmeadow (Newcastle) to watch an NRL rugby league game on a day marked by heavy rainfall. The plaintiff claimed that she had a slip and fall incident as she descended a stepped aisle made up of concrete steps situated amidst rows of seating.
The decision at trial
The primary judge entered judgment in the plaintiff’s favour on the basis that the defendant was in breach of duty for failure to install a handrail alongside the steps.
The primary judge found that:
- The steps were properly categorized as a 'stairwell', thereby violating the Building Code of Australia (BCA) due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length;
- Even if the handrails were not mandatory, their use would have been considered a sound and reasonable practice, especially given that the stadium was open during periods of darkness and inclement weather, and utilised by people with an array of physical abilities;
- The defendant should have conducted a comprehensive risk assessment of the entire stadium; and
- Installing a handrail (or constructing the steps appropriately) would not place an excessive burden on the defendant, even if the requirements were imposed on similar steps elsewhere.
The issues on appeal
The defendant sought leave to appeal the decision. Leave was required because the judgment was for less than the monetary threshold. Leave was granted because the amount in issue was only slightly below the relevant amount and the judgment had consequences for many other similar outdoor venues. The main issue was whether the primary judge erred in finding that a reasonable person in the position of the defendant would have installed a handrail as a precaution against the risk of harm resulting from the stadium steps.
The decision on appeal
The Court of Appeal overturned the lower court's finding of the defendant’s breach of duty for several reasons, including an incorrect interpretation of s 5B of the Civil Liability Act 2002 and the clear and obvious nature of the step-related danger.
Regarding the breach of duty determination, the Court of Appeal clarified that s 5B(1)(c) acts as a gateway, and failure to meet this provision results in the plaintiff's inability to succeed. The factors in s 5B(2) must be considered when determining s 5B(1)(c).
In assessing the breach of duty, the Court of Appeal noted:
- The stadium had familiar and obvious hazards, such as steps to access seating;
- The trial judge overlooked important factors, including the stadium’s prior certification, lack of evidence of prior incidents, and the slip-resistant nature of the steps when wet; and
- That a reasonable party in the defendant’s position would not install handrails because the risk was familiar and obvious. The use of stepped aisles without handrails in similar stadiums is commonplace. The structure had been certified as fully compliant eight years earlier. The evidence did not disclose any history of earlier falls resulting in injury, despite the steps being used by (literally) millions of spectators over the previous eight years.
The obligation to address similar risks throughout the stadium, such as installing handrails in other stepped aisles, was not properly considered under s5C(a). Regarding BCA compliance, the Court of Appeal did not conclusively address the issue due to the absence of a breach of duty finding. However, it indicated that the stepped aisle might not qualify as a 'stairway' under the BCA.
Additionally, the Court of Appeal found no explicit connection in the primary judge's reasoning between the risk assessment and the installation of handrails, affecting breach and causation determinations.
In terms of quantum, the Court of Appeal acknowledged an error in awarding a $10,000 'buffer' for past economic loss without evidence of income loss.
As a result, the Court of Appeal reversed the District Court's orders, ruling in favor of the defendant with costs.
Implications for you
This case reaffirms the principle that an occupier is only required to take action in respect of reasonably foreseeable risks of harm, particularly where the risk is obvious or familiar to a reasonable person taking care for their own safety. The case is also noteworthy because of the court’s observation that just because something can be made safer, a duty does not necessarily extend to doing so.
It also provides a positive validation of the principles governing the evaluation of breach of duty as delineated in sections 5B and 5C of the CLA, especially in determining the necessity of implementing precautions for hazards that are readily recognisable, and apparent to a reasonable individual.
