By Thomas Monnox, Seasonal Clerk

In Neil Carpenter v Damian James Russell [2021] NSWDC 447, the plaintiff sustained an injury after falling down a set of stairs at a short-stay holiday rental property owned by the defendants. The stairs consisted of three helical steps with a total rise of less than one metre and were constructed from safe and non-slippery materials. However, the stairs did not contain a handrail. For this reason, the plaintiff sued the defendants in negligence, alleging that a handrail should have been installed and that this would have prevented the plaintiff from injury. The Court agreed and awarded the plaintiff $284,092.18 in damages.

In a recent judgement welcomed by property owners, this decision has now been overturned by the New South Wales Court of Appeal in Russell v Carpenter [2022] NSWCA 252. Kirk JA, with whom Meagher JA and Gleeson JA agreed, provided three reasons for the decision.

Firstly, the relevant duty of care was misstated by the primary judge as one ‘to ensure that the premises were safe and free of hazards’ or to ‘ensure that persons present could engage in ordinary social discourse’ (at [13]). Applying Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, Kirk JA confirmed that the duty owed by occupiers to lawful entrants is, in truth, one ‘to take reasonable care to avoid a foreseeable risk of injury’. His Honour emphasised this is not synonymous with an obligation to prevent harm.

Secondly, although there is a foreseeable and not insignificant risk of a person slipping and hurting themselves that attaches to nearly all stairs, the degree of the risk was overstated by the primary judge. Per sections 5B(1)(c) and 5B(2) of the Civil Liability Act 2001 (NSW) (the “CLA”), this is relevant to the assessment of the precautions a reasonable person would have taken against the risk.

In the present case, the risk of a person slipping and hurting themselves was rightly described by Kirk JA as ‘slight, inherent and obvious’. For this reason, Kirk JA considered the respondent’s argument that the law of negligence required the stairs to have a handrail as having an ‘air of unreality’. His Honour continued:

It may well be that erecting a handrail would not have been terribly expensive, although there was no evidence on the point. But if a handrail was required for these steps to avoid a breach of duty, it would be required for countless other such short sets of helical steps in houses around the country. … The law does not require that resources be spent on risks such as those at issue here which are slight, inherent and obvious. Life is not required to be lived surrounded by cotton wool).

Thirdly, the primary judge’s finding that a handrail ‘could have assisted in either preventing or mitigating’ the risk of a person slipping and hurting themselves did not suffice to establish causation. A mere possibility fails to satisfy the test set out under s 5D(1)(a) of the CLA, which Kirk JA confirmed was a simple restatement of the well-known ‘but-for’ test at common law.

Overall, Russell v Carpenter [2022] NSWCA 252 reaffirms well-established general principles surrounding occupiers’ liability, and it also advocates for pragmatism and common sense in judicial making to avoid unfair outcomes.