The ACT Supreme Court has awarded damages to a plaintiff in respect of her personal injury claim against a restaurant owner in circumstances where the injury occurred on a staircase shared with a neighbouring business. As the plaintiff had reached a settlement of her action against the premises’ landlords prior to the commencement of the hearing, this also prompted the Court to consider the effect of the principles of double compensation.
In issue
In this recent decision of the Supreme Court of the Australian Capital Territory, Acting Justice Ainsley-Wallace was asked to decide a number of issues, being:
- whether a restaurant owner (the first defendant) was liable for the injury of its patron (the plaintiff), in circumstances where the plaintiff fell on the side of a shared staircase leased to the café next door,
- whether the plaintiff contributed to her injury by failing to take reasonable care for her own safety by wearing stiletto heels and using the stairs when she perceived the lighting to be poor,
- whether the landlords/leaseholders of the premises (the landlords) were liable third parties, and
- whether the doctrine of double compensation barred the plaintiff from recovering damages from the first defendant given she had reached a settlement of her action against the landlords prior to trial.
The background
On 23 November 2019, the plaintiff, Ms Pavey-Dray, was exiting a Canberra restaurant at night. The premises were elevated from the footpath and the stairs from the footpath to the premises were in the middle of the two businesses. As such, both restaurant and café patrons had to use the same set of stairs.
Whilst walking down these stairs, the plaintiff’s stiletto heel became caught in a hole or pit in the tread of one of the stairs, causing her to fall and sustain injuries on the side of the stairs leased to the café next door.
The plaintiff commenced proceedings against the owner of the restaurant and tenant of the premises (the Restaurant Owner), on the basis it was the occupier of the premises and had exposed her to a risk of injury. She also commenced proceedings against the owners of the premises (the Premises’ Owners).
The Restaurant Owner did not dispute that it owed the plaintiff a duty of care as an occupier to exercise reasonable care towards those lawfully on the premises, and not to increase the risk of harm to those persons. However, it argued that because its lease of the premises only encompassed the side of the stairs leading to the landing in front of the restaurant and the plaintiff fell on the side of the stairs leading to the café next door, it bore no liability for the plaintiff’s injury.
The Restaurant Owner argued that the plaintiff’s choice of footwear and failure to exercise caution contributed to her injuries.
On the first day of the hearing, the plaintiff and the Premises’ Owners settled the dispute between them.
During the trial, the Restaurant Owner conceded that sometime before the restaurant opened for business, it had removed the tiles which previously covered the stairs, and that it had been told by a Building Certifier that the stair heights were consequentially uneven and required rectification. However, it had not performed those rectification works.
The decision at trial
The Restaurant’s Owner’s liability
Ainsley-Wallace AJ determined the Restaurant Owner was an occupier of the stairs, despite the fact its lease encompassed only half of the steps that led to the Restaurant, on the basis that the Restaurant Owner took it upon themselves to remove the tiles from the whole of the stairs leading from the street to both the Restaurant and Cafe, and, in doing so, occupied and altered the whole of the area. She also found that because the Restaurant Owner had not taken any steps to address the unevenness of the stairs, it breached its duty of care to the plaintiff.
Contributory negligence
Ainsley-Wallace AJ held that the plaintiff had not contributed to her own injury by virtue of her footwear. Her Honour further noted that it was the first time the plaintiff had encountered the stairs in poor light (it had been light when she entered the restaurant); her foot was caught on her first step down; and the location of the holes towards the back of the stair tread would have made them difficult to see even if she had thought to look for them.
The Premises’ Owners’ liability
Ainsley-Wallace AJ accepted that in circumstances where the terms of the Restaurant Owner’s lease gave it exclusive possession of the premises (albeit not the whole of the stairs) and required them to keep the property in good order and repair, the Restaurant Owner’s occupation of the premises extended that occupation to the whole of the stairs, especially since the Restaurant Owner had taken it upon themselves to renovate the whole of the stairs, not just their respective half.
Double compensation
The terms of the settlement between the plaintiff and the Premises’ Owners provided there be a judgment for the Premises’ Owners against the plaintiff with the parties to pay their own costs. In return, the Premises’ Owners were required to pay the plaintiff’s costs and disbursements relating to them. The plaintiff also had the right to elect that the Premises’ Owners pay her $150,000 (inclusive of interest and statutory repayments) within 28 days of (relevantly) judgment being first entered in the proceeding.
The Restaurant Owner argued that, having agreed to receive compensation for her injuries in the fall from the Premises’ Owners, the plaintiff was barred from receiving any further compensation from it for the same injury.
Her Honour rejected the Restaurant Owner’s argument and cited SAS Trustee Corporation v Budd [2005] NSWCA 366, in which Mason P (with whom the other members of the Court of Appeal agreed) said (at [33] and [37]), in effect, that where a plaintiff/claimant has already received compensation, then the loss requiring compensation is regarded as discharged pro tanto (i.e. 'to that extent'). As such, the Court held the settlement did not extinguish the plaintiff’s remaining claim against the first defendant and if she did elect to receive the sum specified in the agreement, this amount would be deducted from any other award of damages ordered.
Implications for you
This decision underscores the broad obligations imposed on commercial occupiers to ensure that all areas under their control are maintained in a safe condition. The ruling clarifies that:
- occupiers bear primary responsibility for ensuring safe premises for lawful visitors,
- a party can assume responsibility for an area beyond their strict lease boundaries if they exercise control over it, particularly in cases where modifications impact safety,
- courts are willing to scrutinize contributory negligence arguments, and the mere choice of footwear (e.g., high heels) does not automatically diminish a plaintiff’s claim if a hazard was not reasonably foreseeable, and
- the doctrine of Double Compensation requires settling parties to prove their settlement does not discharge the whole of the claim against another defendant.
Pavey-Dray v Weomany Pty Ltd trading as Zaab Braddon [2025] ACTSC 65
