Judgment date: 23 September 2010. Sydney Harbour Foreshore Authority & Anor v Perrett & Anor [2010] NSWCA 160. Court of Appeal1
In Brief
- NSW Court of Appeal upholds a verdict in favour of a plaintiff who fell on steps which could not be discerned from the surrounding floor.
Background
On 1 July 2005, Ian Perrett (the plaintiff) fell from a set of three steps and suffered significant injuries while attending the Good Food and Wine Festival at the Darling Harbour Convention Centre.
The accident occurred on the ground floor of the Convention Centre near the base of a large staircase which provided access to and from the first floor. The ground floor, which was tiled throughout, had a split-level which was separated by a flight of three steps. The steps were covered in the same tiles that had been used throughout the first floor.
The plaintiff had descended the staircase and was looking for the car park. He walked in a southerly direction for about twenty metres along the base of the staircase about two metres out, looking for a sign to provide directions. As the plaintiff approached the end of the stair wall he caught sight of a sign above head height affixed to a column to his right. While looking upwards at the sign in order to read it, he stepped off the top of the three steps and fell sustaining serious injuries.
Supreme Court Decision
The plaintiff brought proceedings against Sydney Harbour Foreshore Authority and Darling Harbour Convention and Exhibition Pty Ltd (the defendants), respectively the owner and occupier of the premises.
McCallum J found that the plaintiff did not see the steps before he fell. Her Honour found that the risk of falling on the steps was not obvious to a reasonable person in the position of the plaintiff and that it was reasonably foreseeable that an entrant might fall and sustain injuries on the steps.
Her Honour held that the defendants had been negligent in failing to do anything about the risk posed by the steps and that a reasonable response to the foreseeable risk of injury would have included the temporary measure of affixing contrasting grip tape to the edges of the steps.
Moreover, her Honour held that the directional sign could have been positioned in a different place or even at a different angle so as to be more visible to a person approaching from the north.
McCallum J found that the risk posed by the steps was not an obvious one as defined in s 5F of the Civil Liability Act 2002 (the CLA). Section 5F of the CLA provides as follows:
(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
In finding that the risk posed by the steps was not an obvious one her Honour was persuaded by the following factors:
- The absence of contrasting edging on the steps.
- The uniform tiling throughout the ground floor.
- The limited opportunity for a person coming from the base of the staircase to notice the steps.
- The placement of the sign on the column above head height which was likely to attract a person's attention.
- The likely presence of other people in the area which would limit the opportunity to notice the steps.
Two eyewitnesses also gave evidence to the fact that it was very difficult to discern between the steps, which were not edged and were tiled in the same colour as the rest of the floor.
There had been seven earlier incidents involving people falling off the steps prior to the plaintiff's accident. The facts of two such incidents were in evidence.
Although finding that the steps were not an obvious risk within the meaning of s 5F of the CLA, her Honour went on to consider the defendants' submissions in respect of ss 5G and 5H of the CLA which respectively provide that a plaintiff is presumed to have been aware of an obvious risk and that there is no proactive duty to warn of an obvious risk. Her Honour held that s 5G was directed to a defence of voluntary assumption of risk and that s 5H was not relevant because the plaintiff relied on particulars of negligence other than a failure to warn.
Court of Appeal
On appeal the defendants submitted that the trial judge erred in finding that the risk of falling on the steps was not an obvious one within meaning of s 5F of the CLA. The Court of Appeal did not disturb this factual finding which was based on the cumulative factors listed above.
However, the defendants further submitted that the plaintiff had failed to establish that the presence of contrasting tape would have averted the accident because he was not looking down to see where he was walking immediately before he fell. The defendants also submitted that the trial judge was not entitled to find that the sign should have been repositioned without making a finding as to where.
After reviewing photographs of the area which formed part of the exhibits the Court of Appeal held that a sign could have been placed on a short column which was situated on the ground floor beyond the base of the staircase in the direction the plaintiff was travelling or on a fixture with a map opposite the middle section of the staircase. The Court of Appeal found that an appropriate sign in either place would have given the plaintiff the information he was seeking before he got too close to the steps and without having to look up at the sign above head height. There would therefore have been nothing to distract him from looking where he was walking and nothing to stop him from seeing the contrasting grip tape on the edge of the steps.
Accordingly, the Court of Appeal was satisfied that the defendants' breach of duty was causative of the plaintiff's injuries.
Lastly, the defendants submitted that the trial judge erred in not finding any contributory negligence on the part of the plaintiff. The trial judge found:
The Court of Appeal agreed with the trial judge's findings in respect of contributory negligence and upheld the verdict for the plaintiff without any deduction for contributory negligence.
Implications
- Whilst this decision was determined on its own facts, it demonstrates the difficulty that appellants face in trying to overturn lower Court decisions that have been based on findings of fact such as whether or not a risk is an obvious one within the meaning of s 5F of the CLA.
- It remains to be seen how a finding that a risk of harm is an obvious one within the meaning of s 5F impacts on the operation of ss 5G and 5H. As the Court of Appeal did not overturn the trial judge's finding that the risk posed by the steps was not an obvious one, they declined to embark on an examination of ss 5G and 5H. However, the Court of Appeal noted that in Angel v Hawkesbury City Council2 Beazley and Tobias JJA followed the dicta of McClellan CJ at CL in Carey v Lake Macquarie City Council3 to the effect that a finding that a risk is an obvious one within the meaning of s 5F, so that a person is presumed to be aware of that risk pursuant to s 5G, does not automatically lead to a finding that there was no breach of duty. In Angel, because the Court of Appeal held that the relevant risk in that case was not an obvious one, the comments of Beazley and Tobias JJA in relation to the operation of ss 5G and 5H were also dicta.
1. Tobias JA; McColl JA and Handley AJA
2. [2008] NSWCA 130
3. [2007] NSWCA 4
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