This NSW Court of Appeal decision confirms that there is no duty for homeowners to install a handrail on every flight of stairs located in their premises - what is considered reasonable will be determined on a case by case basis.
The background
The appellants were the owners of a short-stay holiday property at The Entrance which the respondent and his friends were staying at for a golfing weekend. During a golfing presentation, the respondent was given some golf balls, dropped one, and watched it bounce away. He then took one step down some stairs to retrieve the ball. The stairs were helical with three steps down and no handrail. There was a vertical pole located directly next to the stairs. As the ball of the respondent’s right foot landed on the first step down, he slipped on the edge of the stairs, causing him to fall feet first and land on his back and elbow causing injury.
In issue
- The respondent commenced proceedings against the appellants in the District Court of New South Wales, with respect to the incident. The issues in dispute were whether the appellants, as the owners of the property, owed a duty of care to the respondent to ensure the premises was safe and free of hazards by installing a handrail, and whether they had breached that duty.
The decision at trial
At first instance, Strathdee DCJ, found that the appellants owed a duty of care to the respondent to ensure that the premises was safe and free of hazards or to ensure persons present could engage in ordinary discourse by moving around the premises freely and without encountering undue hazard. Strathdee DCJ stated the appellant owed a duty of care to the plaintiff as an invitee to the property and as a consumer of services pursuant to a rental contract. The appellants had breached that duty by not installing a handrail on the stairs, which in turn caused the incident. The trial judge ruled in favour of the respondent and awarded him $248,092.18 in damages.
The issues on appeal
The owners of the property appealed the decision of Strathdee DCJ. There were three relevant issues for determination by the Court of Appeal. The first was the nature of the duty of care owed by the appellants to the respondent. The second was whether there was a breach of that duty, which turned on whether the appellants ought to have installed a handrail. The third issue in dispute was whether the installation of the handrail would have made any material difference and prevented the accident from occurring.
The decision on appeal
The Court of Appeal found that the primary judge had erred in defining the nature of the duty of care when finding that the appellants breached that duty, and in finding that the alleged breach caused the respondent’s injuries. The appeal was allowed with costs, and orders 1 and 2 made by the District Court on 31 August 2023 were set aside and, in lieu of, the claim was dismissed with costs.
The Court of Appeal found that the duty of care owed by the appellants to a lawful entrant on the property, was to take reasonable care to avoid a foreseeable risk of injury.1 The duty did not extend to ensuring that the premises were free and safe of hazards or to ensure that persons could engage in social discourse. The primary judge’s reference to the respondent being a consumer of services pursuant to the rental contract was a distraction from the common law duty. In any event, the respondent was not a party to the rental contract.
As to the second issue of whether that duty was breached by the applicants, the Court of Appeal found that the risk of a person slipping and hurting themselves on the stairs, whether from a slippery surface and/or from overstepping, was a slight, inherent and obvious risk. Further, the experts for both the appellants and respondent agreed that the stairs were made from material that was safe and non-slippery when wet. In addition, the fact that the Building Code of Australia did not mandate a handrail for this type of stairs supported the conclusion that reasonable care did not require such a precaution to be taken.
In relation to the third issue of causation, the Court of Appeal found that the primary judge’s finding that the handrail could have assisted in preventing or mitigating a fall did not establish causation, and in this context, there was no basis for suggesting that the position would have been any different by the installation of a handrail.2 The evidence that the incident occurred quickly, that there was a vertical pole next to the stairs which the respondent did not make use of, and the evidence that the respondent had stepped as far to the outer edge of the step as he could go, were all taken into consideration on this point.
Implications for you
This NSW Court of Appeal decision confirms that there is no obligation in negligence for homeowners to have a handrail on the outside of every stair, or to warn of an obvious risk. Whether stairs will require a handrail will still be determined on a case-by-case basis.
Russell v Carpenter [2022] NSWCA 252
1 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7.
2 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 and Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301, applied.
