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[2014] NSWCA 394
Court of Appeal (NSW)
2014-07-17
Meagher JA, Emmett JA
Original judgment source is linked above.
HEADNOTE [This headnote is not to be read as part of the judgment] On 14 January 2009, the respondent attended an ice rink located in a sporting complex occupied by the appellant. While the respondent was wearing skating boots which he had hired from the appellant, he began to descend a flight of stairs which provided access to that ice rink. As he did so, he slipped and fell backwards. He suffered a serious fracture injury to his right ankle. The head of the flight of stairs was about two metres higher than the ice rink. The blades of the skating boots the respondent wore were longer than the tread of the steps. The stairs were moist. The treads and risers of the stairs were of variable dimensions. There was a warning sign headed "No Responsibility" located inside the entrance to the sporting complex. However, the respondent did not recall seeing any warning signage. He brought proceedings against the appellant, alleging that the appellant had breached its duty of care as occupier. The primary judge found that the appellant had been negligent in failing to take reasonable precautions against the risk of injury from slipping or falling when descending the wet stairs whilst wearing skates. The primary judge found that the appellant should have provided one or both of two warnings. The first was a warning that patrons should not put on their ice skating boots before descending the stairs. The second was a verbal and diagrammatic warning and instruction for patrons to use a 'duck walk' or splayed footed technique for negotiating the stairs and a statement alerting patrons to the stairs being slippery due to wetness. His Honour entered judgment for $148,343. The appellant appealed from the finding of liability. The issues for determination on appeal were: (i) Whether the primary judge erroneously proceeded on the basis that the duty of care imposed required that the appellant avoid, as distinct from take reasonable care to avoid, foreseeable risks of harm; (ii) Whether the risk of harm which materialised was an "obvious risk" within s 5F of the Civil Liability Act 2002 (NSW) (CL Act); (iii) Whether the duty of care contended for by the respondent was to warn him of an obvious risk within the meaning of s 5H(1) of the CL Act; (iv) Whether a reasonable person in the appellant's position would have taken the precaution of warning patrons not to put on their ice skates before descending the stairs or warned them of the risks involved in their doing so and as to how they might do so, taking account of those risks; (v) Whether the activity of walking down the stairs was part of the "dangerous recreational activity" of ice skating; (vi) Whether the warning sign headed "No Responsibility" contained a warning in relation to the risks involved in descending the stairs or as to the risks involved in activities which included that activity; and (vii) Whether the respondent was guilty of contributory negligence. The Court held (per Meagher JA, Emmett JA and Tobias AJA agreeing), upholding the appeal: In relation to (i)
Judgment 1MEAGHER JA: The appellant is the occupier of a sporting complex in Liverpool West which includes an ice rink open to members of the public. On 14 January 2009 the respondent slipped and fell backwards when descending a flight of stairs which provided access to that ice rink. At the time he was wearing skating boots which he had hired from the appellant. The respondent suffered a serious fracture injury to his right ankle. 2The respondent brought proceedings against the appellant. The primary judge (Levy SC DCJ) held that the appellant had been negligent and entered judgment for $148,343: Moor v Liverpool Catholic Club Ltd [2013] NSWDC 93. The appellant appeals only from the finding of liability.
The circumstances of the accident 3The primary judge made the following findings as to the circumstances of the accident at [10]-[16]. None of these findings is challenged on appeal: 10 The [respondent] ... had been ice skating before, but not at these particular premises. He hired a pair of size 13 skates from the counter. He went to a row of chairs located a few metres away from the counter where he sat and donned the hired skates. He then proceeded to the head of a flight of stairs in order to descend to the ice rink, which was at a level about 2 metres below the head of the stairs. The [respondent] said, and I accept, that he did not recall seeing any warning signage on the entry doors to the premises or in the premises. ... 11 As the [respondent] was walking down the stairs, he was using the skate blades on the boots as pivots when placing his feet on the stairs in the course of his descent, including on the edge or nosings of the stairs. The skate blades were longer than the tread or going sections of the steps. When he reached a point at or about the last step or so, the skate blade on which he had placed his weight, slipped forward on the wet and slippery nosing edge of a step. In those events, the [respondent] fell backwards and landed on his backside, on the last step. 12 The floor area in the vicinity of the stairs, including the treads or going portions of the stairs, was covered in a reconstituted or recycled rubber carpet type compound that was clearly intended to be soft, waterproof, with a non-slip characteristic. The nosing of each step comprised a grooved edge strip which was yellow, and made of a non-slip, flexible polypropelene or rubber-like compound. This too was obviously intended to have a non-slip characteristic. The nosing material was highly visible compared to the darker material used on the flooring and on the treads and risers of the stairs. ... 13 The [respondent] described the stairs as having a centre handrail. He could not recall having used the handrail in the course of his descent. He said he did not notice the railing as he went down the stairs. The CCTV footage of the incident, and the printed frames of that footage ... suggest that in large part, the [respondent] was holding onto the handrail during his descent, and at some point his left hand was in the vicinity of the handrail in a position that looked like a position ready to steady his descent if required. There were some frames within the CCTV footage suggestive that his left hand was raised, as if positioned above or on the handrail in the second or so before he fell. 14 When the [respondent] descended the stairs they were wet with moisture. As he descended he placed the blade of the skate boot on the back of the step, but because of the length of the skate blade, there was an overhang of the blade over the front of the nosing edge of the step. The plaintiff thought the overhang of the blade over the step was at about the half-way point of the length of the blade. 15 When the [respondent] descended and had reached the point of the stairs where he fell, he stepped forward to take the next step. As he did so, the tread or going section of the stairs, did not accommodate the entire length of the skate boot blade. He said, and I accept, that he did not know this before he had started his descent. 16 In the process of stepping forward, the blade was at an angle over the edge of the nosing of the step. ... it is clear from his description of having lost his balance ... that he had slipped as he stepped on the nosing edge of what can reasonably be assumed to be the last step of the stairs. ...
The decision of the primary judge 4The respondent's case was that the appellant breached its duty of care as occupier. The primary judge identified the risk of harm against which the appellant had to take reasonable precautions as that of injury from slipping or falling when descending the wet stairs whilst wearing skates. His Honour held that risk was foreseeable, not insignificant and one in relation to which a reasonable person in the position of the appellant would have taken precautions: [140], [142], [143], [146]. 5At [156] the primary judge described the three precautions that the respondent contended should have been taken: "... the provision of a safe set of steps of even dimensions with treads or goings wide enough to accommodate the length of ice skating boot blades, the provision of a warning to patrons, both in the form of a sign and a verbal instruction, requiring that ice skating boots be worn only after patrons had descended the stairs in question, and in the absence of the first two sets of precautions, provision of adequate warnings to ensure that patrons were properly instructed as to the need to adopt an unusual method of walking down the stairs in a splayed footed fashion, but even then, that a risk of falling due to wet stairs and wet stair nosings, still remained." 6The primary judge rejected as involving an excessive financial burden on the appellant the first precaution which would have required the demolition of the existing internal concrete steps and their replacement with stairs of evenly distributed dimensions capable of being used safely by a person wearing ice skate boots: [157] - [159]. Presumably such stairs would have included treads that were long enough to accommodate the full length of a skate blade when placed at a right angle to the stair nosing. The dimensions of the existing stairs were the subject of evidence from Mr Burn, a civil engineer, called by the respondent. His evidence was that the horizontal treads and vertical risers of each of the seven steps ranged in length between 245 and 270 mm for the treads and 163 and 188 mm for the risers. Mr Burn also gave evidence that the length of a skate blade on a size 10 male boot was 330 mm, which was 73 mm longer than the average tread length of the stairs. 7The primary judge then addressed the second and third precautions which he described, in each case, as "warnings". (His adoption of that description could not be determinative of the question whether either was a warning within s 5H(1) of Civil Liability Act 2002 (NSW) (the CL Act)). The first, to be given at the time patrons paid their entry fees, was a warning that they should not "put on their ice skating boots before descending the stairs". The second, described as a warning to be given "in the absence of the first two sets of precautions" and either at the same time as the first or at the top of the stairs, was a "verbal and diagrammatic warning and instruction for patrons to use the suggested 'duck walk' or splayed footed technique for negotiating the stairs" and a statement alerting patrons to the stairs being slippery due to wetness: [162], [163]. The 'duck walk' technique which was referred to involved placing the skates at an angle on each stair so as to minimise the risk of slipping when descending the stairs due to the ball of the foot being placed in front of the nosing of each stair: 67, 69. 8The primary judge held that the appellant was negligent in failing to give the respondent one or other of these two warnings, and that its failure to do so caused the respondent's injury: [170], [171]. In relation to the latter his Honour considered that the respondent's injury "would have been avoided if he had been informed of the need for special precautions to be adopted for descending the stairs due to their dimensions and likely wetness." 9In concluding that the appellant was liable in negligence, the primary judge rejected four specific defences relied on by the appellant. Three of those defences are pressed on appeal. The first of those pressed was that the risk of harm which materialised was an "obvious risk" within s 5F of the CL Act and that, by reason of s 5H(1), the appellant did not owe a duty of care to the respondent to warn of that risk. The primary judge must be taken to have rejected that defence on the basis that the risk which materialised was not an "obvious risk": [82] - [94]. Having decided that issue against the appellant, the primary judge did not consider whether the precautions which he had held the appellant owed a duty of care to give were to warn of an "obvious risk to the plaintiff" within s 5H(1). 10The second defence that is pressed on appeal is that when descending the stairs in his skate boots, the respondent was engaged in a "dangerous recreational activity" within s 5K of the CL Act and that the injury which he suffered was the result of the materialisation of an "obvious risk" of that activity. Accordingly, the appellant says that by s 5L(1) it was not liable in negligence for the personal injury and economic loss which the respondent suffered. The primary judge rejected that defence because the risk which materialised did not answer that description and because that activity was not part of the "recreational activity" of ice skating but rather an activity "preparatory" to that activity: [88]. 11The third defence pressed on appeal is that the appellant did not owe a duty of care to the respondent in respect of the risk of slipping whilst descending the stairs because at the time he was engaged in a "recreational activity" and that risk had been the subject of a "risk warning" within s 5M(3). As a result it was said that no duty of care was owed in respect of that risk: s 5M(1). The primary judge rejected this defence, holding that in descending the stairs the respondent was not engaged in a recreational activity and that, although there were warning signs as to the risk of ice skating, those signs did not address the activity of descending the stairs or any risks involved in it. In other words, he held that in descending the stairs the respondent was not engaged in a recreational activity and that even if that activity was a recreational one, it was not the subject of a risk warning within s 5M(3): [102], [114], [117]. 12Although the appellant pleaded that the respondent was presumed to have been aware of the risk of injury because it was an "obvious risk" (s 5G(1)), it did not rely on a defence of volenti non fit injuria. Nor did it rely upon any such presumption as relevant to the issue of factual causation arising under s 5D(1)(a) of the CL Act. The appellant did contend that the risk of slipping on the stairs was an "inherent risk", relying upon s 5I. The primary judge rejected that defence at [96] - [98] and that argument is not pressed on appeal. 13The primary judge also rejected the appellant's case that the respondent had been guilty of contributory negligence, including by failing to descend the stairs in a slow and measured fashion and in failing to make adequate use of the side or central handrails. The primary judge was not satisfied that the respondent had not made adequate use of the central handrail or that he had descended the steps in a fashion that was not measured: [176], [179].
The issues in the appeal 14The principal issue in the appeal (raised by grounds 3 and 4) is whether the primary judge erred in not holding that the risk of harm which materialised and resulted in the respondent's injury was an "obvious risk" within s 5F(1) and that the duty of care contended for by the respondent was to warn him of that risk - the outcome being that that duty was not owed (s 5H(1)). That issue raises questions as to the description of the risk of harm which materialised and as to the whether the warnings which the primary judge found the appellant failed to give were of that risk so as to engage the operation of s 5H(1). 15There are five remaining issues raised by the further amended notice of appeal. The second (raised by ground 1A) is whether the primary judge erroneously proceeded on the basis that the duty of care imposed required that the appellant avoid, as distinct from take reasonable care to avoid, foreseeable risks of harm. 16The third (raised by grounds 1 and 2) is whether the primary judge erred in concluding that a reasonable person in the appellant's position would have taken the precaution of warning patrons not to put on their ice skates before descending the stairs or warned them of the risks involved in their doing so and as to how they might do so, taking account of those risks. 17The fourth (raised by grounds 5 and 6) is whether the primary judge erred in holding that the activity of walking down the stairs was not part of the "dangerous recreational activity" of ice skating. If it was part of that activity, the appellant would not be liable in negligence for harm suffered by the respondent as a result of the materialisation of an "obvious risk" of the activity of descending the stairs: s 5L(1). 18The fifth (raised by grounds 7 and 8) is whether the primary judge erred in concluding that a warning sign headed "No Responsibility", which was located inside the entrance to the sporting complex, did not contain a warning in relation to the risks involved in descending the stairs or as to the risks involved in activities which included that activity. If that issue is decided in favour of the appellant, a question then arises whether when walking down the stairs in his skate boots, the respondent was engaged in a "recreational activity". 19The final issue in the appeal (raised by grounds 9 and 10) is whether the primary judge erred in concluding that there was no contributory negligence.
Did the primary judge correctly formulate and address the obligation imposed by the duty of care? (Ground 1A) 20This ground may be disposed of shortly. As Gummow J noted in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [18], it is a basic and settled matter of principle that whatever its content or scope, a duty of care imposes an obligation to exercise reasonable care. That basic principle informs s 5B of the CL Act which provides that a person is not negligent in failing to take a precaution against a risk of harm unless a reasonable person in that person's position would have taken that precaution. See also Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [25] (McHugh J) and [118] (Hayne J). 21The primary judge correctly formulated the general duty of care of the appellant as occupier as being to take reasonable care to avoid a foreseeable risk of injury to persons entering its premises: [123]. That formulation of the scope of the duty was repeated in [126]. The appellant points out that at [130] the primary judge observed that the "defendant owed the plaintiff a duty to ensure that the plaintiff was provided with a safe means of access to the ice rink". It submits, albeit faintly, that this reformulation of the obligation of being one "to ensure" "may have led the primary judge" into error when addressing the question of breach. 22However, the primary judge did not misdirect himself, when addressing that question, as to the distinction between taking reasonable care to avoid foreseeable risks and taking steps to prevent harm which the taking of reasonable care might not avoid: see Dederer at [18], [43], [51] - [52], [79]. He considered (as required by s 5B) whether, in the face of a risk of harm to patrons from slipping on the stairs which was foreseeable and not insignificant, a reasonable person in the appellant's position would have taken one or other of the precautions contended for by the respondent: [143]. In the course of doing so, his Honour addressed the matters in s 5B(2): [147] - [169]. The precautions which he held that the appellant negligently failed to take were ones required by the exercise of reasonable care. This ground of appeal should be rejected.
Whether the duty of care that the primary judge held was breached was to warn of an "obvious risk"? (Grounds 3 and 4)
Obvious risk 23Section 5F(1) defines an "obvious risk" to a person who suffers harm as a "risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person". It has been described as one which is clearly apparent or easily recognised or understood: see Jaber v Rockdale City Council [2008] NSWCA 98; (2008) ATR 81-952 at [35], [38], [39] (Tobias JA, Campbell JA and Handley AJA agreeing); and Laoulach v Ibrahim [2011] NSWCA 402 at [79]-[80] (Tobias AJA, Giles and Macfarlan JJA agreeing). It may include a risk that has a low probability of occurring and one which is not prominent, conspicuous or physically observable: s 5F(2), (3), (4). 24The risk which is the subject of the inquiry called for by s 5F is that which is the subject of the claim for damages to which the provisions of Pt 1A of the CL Act are to be applied by s 5A(1). In CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [173] - [174], Bryson JA (McColl JA agreeing) described that risk as that which "matured" and "caused [the plaintiff's] injury". The forward-looking inquiry required by s 5F is whether that risk of harm would have been obvious in the relevant sense to the hypothetical reasonable person in the circumstances of the plaintiff: Streller v Albury City Council [2013] NSWCA 348 at [31] (Meagher JA, Ward and Emmett JJA agreeing). 25Initially, the primary judge described the relevant risk as being the risk of falling when undertaking the "activity of walking down stairs whilst wearing ice skates at an ice rink": [82]. In his subsequent discussion of that question, the primary judge also took into account that the stairs were wet and that they had the varying dimensions measured by Mr Burn. His doing so raises a question as to whether those characteristics should for this purpose form part of the description of the risk which materialised and caused the respondent's injury. The appellant submitted that they should not and the respondent when pressed in oral argument, formulated the relevant risk as that of falling or slipping whilst "stepping down a flight of stairs wearing skate boots, the blades of which extended beyond the width of the going" (or tread) of the stairs. 26Having so described the relevant risk and referred to the judgments of this Court in Jaber and Laoulach, his Honour continued at [84]: "The analysis must begin with the non-controversial proposition that the activity of descending down stairs carries with it an ever-present risk of falling, even when wearing normal footwear. By extension, that risk must also be present when descending stairs whilst wearing ice skating boots. Such risks would obviously be heightened where the person descending the stairs was aware of the surface or edge nosing being wet and where the treads, goings and risers were the subject of unevenly distributed dimensions. In my view, these considerations are patent, and must be assumed to have been within the common knowledge of people in the community who act reasonably: s 5F(2) of the CL Act." 27Stopping there, his Honour's statement as to "these considerations" being patent and within common knowledge is to be understood as being that a reasonable person would have appreciated that there was an ever present risk of falling when walking down stairs wearing ice skating boots and that such a person would consider that risk to be heightened if the stairs were wet and the treads and risers were of unevenly distributed dimensions. However, having regard to his Honour's later findings at [90] that the respondent was not aware of the uneven dimensions of the stairs and that it had not been shown that he knew or ought to have known that the stairs were wet, these observations at [84] cannot be understood as being that these two (factual) matters would have been known to or appreciated by a reasonable person in the respondent's position. The appellant challenges that conclusion insofar as it is that a reasonable person in the respondent's position would not have appreciated that the stairs were or were likely to be wet or moist. 28Focusing on the language of s 5L(1), which is concerned with risks of a "dangerous recreational activity", the primary judge then addressed whether the appellant had established that the respondent's injury resulted from the "materialisation of an obvious risk": [87], [94]. He did so on the basis that the conditions or circumstances that gave rise to the risk of harm which matured included that the stairs were wet and that they were of uneven dimensions. The appellant also challenges each of these conclusions. 29The primary judge addressed that question by reference to several matters. First, he considered whether the appellant had established that the activity of descending the stairs was a "dangerous recreational activity" and concluded that that activity was separate from the recreational activity of ice skating: [88]. Whilst that conclusion was relevant to the issue arising under s 5L and was in my view correct, it was not relevant to the question of obvious risk. Secondly, his Honour considered whether the evidence established "any unreasonable conduct" on the respondent's behalf in descending the stairs: [89]. Whilst that matter was relevant to the defence of contributory negligence, it also was not relevant to the question of obvious risk. 30The third matter which the primary judge addressed was whether the respondent had "either actual or constructive knowledge that descent of the stairs whilst wearing skate boots involved an obvious risk": [90]. In doing so, he considered four factors. Two were the uneven dimensions of the stairs and that the stairs were wet. The primary judge held that the respondent was not aware of the former and that it had not been shown that he either knew or ought to have been aware of the latter. The two remaining factors considered by the primary judge were whether the respondent had been given any general or specific warning of risk "due to the state of construction of the variable dimensions of the stairs" or made aware of any conditions of entry that excluded liability for the "condition of the stairs": [90]. 31At [93] the primary judge found that the evidence did not demonstrate that the respondent had "either acted unreasonably or that he ought to have been aware of specific obvious risks whilst wearing ice skating boots and descending the stairs in question". The reference to "specific obvious risks" is to be understood as being to the uneven dimensions of the stairs and to them being wet or moist. He then concluded at [94] that the "defendant has not established its claimed defences of materialisation of an obvious risks or any defence based on s 5F, s 5G or s 5L of the CL Act." 32There are difficulties with this analysis. First, although at [84] the primary judge describes the relevant risk of harm as being or including the risk of slipping or falling when descending the stairs whilst wearing ice skating boots, he does not address whether within s 5F(1) that risk would have been "obvious" to someone in the position of the respondent. Instead, he proceeded upon the basis that although such a risk would have been clearly apparent, the risk in question also involved the uneven dimensions of the stairs and the fact that they were wet. He considered whether that risk was obvious by focussing on whether the respondent had actual or constructive knowledge of either of those matters. The inquiry as to the respondent's actual knowledge of those matters was irrelevant, except to the extent that how he acquired any actual knowledge may have been relevant to the forward looking inquiry as to whether the risk would have been obvious to a reasonable person in the circumstances of the respondent. 33I understand his Honour's reference to "constructive" knowledge to be a shorthand way of referring to the knowledge that a reasonable person in the respondent's position should be taken to have had. In relation to an inquiry as to that knowledge it would be relevant to know whether the respondent had been given any general or specific warning of risk because the fact of such a warning would be a circumstance to be taken into account when considering what would have been obvious to a reasonable person in the position of the respondent. The presence of warning signs was taken into account in this way in Great Lakes Shire Council v Dederer [2006] NSWCA 101; (2006) ATR 81-860 at [155], [167] - [172] (Ipp JA, Handley and Tobias JJA agreeing) and in State of Queensland v Kelly [2014] QCA 27 at [40] (Fraser JA, Philippides and Henry JJ agreeing). 34Secondly, as the appellant submitted, the evidence did not justify a conclusion that the uneven dimensions of the stairs (as distinct from the fact that the length of the skate boot and blade exceeded significantly the length of the tread of each step) or the fact that they were wet, contributed in any material respect to the respondent's slipping and falling. 35The reports of two experts were tendered in evidence - those of Mr Burn and a report of Dr Cooke who was called by the appellant. Although Mr Burn recorded differences in the measurements of the treads and risers of the steps, he did not disagree with the following description of the probable cause of the respondent's accident (Dr Cooke's report dated 19 September 2012) (Blue 119): "56 The probable cause of the [respondent's] loss of footing is that he overstepped the nosing or that he did not take sufficient care when attempting to descend the Stairs wearing skates. An overstep is one of the most common causes of falls on stairs. ... 57 Thus, in an overstepping accident the front foot may be felt to slip over the nosing but the cause is inadequate support for the ball of the foot, not inadequate slip resistance of the tread surface." 36In his second report (dated 12 November 2012), which was in response to Dr Cooke's report, Mr Burn said (Blue 95-96): "As observed previously the length of the skate blade exceeds the stair tread going so the ball of the foot (load point when descending stairs) is at or beyond the edge of the stair nosing when adopting a normal gait with feet placed perpendicular to nosing. With the current length goings any adult wearing skated [sic] down the steps will effectively be 'over stepping' as they descend the steps unless they 'duck walk' down (an unnatural gait). . . . 2.0 Conclusions The stairs leading to the ice rink are of a size and geometry considered safe for people wearing normal footwear. Skates have a single blade running lengthwise that is longer than normal footwear which changes where the underfoot contact point is situated pushing it forward from where foot/stair contact would normally occur. Without adopting an awkward 'duck step' type gait overstepping will occur for skate wearers on stairs built for wearers of normal footwear." 37Neither of the experts gave oral evidence. The effect of Dr Cooke's evidence and Mr Burn's agreement with that evidence as to the probable cause of the respondent's fall is twofold. First, the fact that the dimensions of the stairs varied slightly played no part in his overstepping. Secondly, where overstepping occurs the cause is inadequate support for the ball of the foot and not inadequate slip resistance of the tread surface or nosing, whether it is dry or wet. 38The third difficulty with the primary judge's analysis concerns his conclusion that it had not been shown that the respondent ought to have been aware that the stairs were wet or likely to be wet. That conclusion, understood as implying that a reasonable person in the respondent's position would not have appreciated that likelihood, was not justified on the evidence and was to some extent inconsistent with the primary judge's findings as to the foreseeability of the risk of harm from the appellant's perspective. That evidence included closed circuit television video showing people walking up the stairs from the ice rink in skating boots - both immediately before and after the respondent's accident. Although this was the respondent's first visit to the appellant's rink, after he had put on his skating boots, he stood at the top of the stairs and had sufficient time to see that the stairs were being used in that way. That being the position, the primary judge's observation at [131] as to it being foreseeable that the area of the steps could become moist or wet through contact with wet ice skate blades equally justified a conclusion that it would have been readily apparent to a reasonable person in the respondent's position that the stairs were or were likely to be wet and, for that reason, perhaps more slippery than they might have been if dry. 39These errors make it necessary for this Court to consider the question of "obvious risk". The risk of harm which materialised and caused the respondent's injury was that of slipping and falling whilst descending the stairs in skate boots. There were, on the evidence, two conditions or circumstances which gave rise to that risk. The first was, as the primary judge accepted at [84], that the activity of descending stairs carries an "ever-present" risk of falling because of overstepping or losing balance. The second was that the respondent was wearing ice skates which meant that the blade of the skate was all that was in contact with the floor or stair surface. That was likely to affect adversely the respondent's stability or balance. More significantly, because the length of the skate blade exceeded the length of the stair tread, the full length of the blade could not be placed on the tread unless it was placed at an angle to the direction in which the stairs were facing. This meant, as Mr Burn accepted in his second report, that unless an adult wearing skate boots adopted the 'duck walk' over stepping would occur resulting in a fall. 40The respondent was 18 years of age. He was not familiar with the appellant's ice rink and was a relatively inexperienced skater. He was wearing a size 13 skate boot, the blade of which was significantly longer than the tread of any of the stairs. It would have been apparent to a person in his position that the risk of falling when walking down the stairs was significantly heightened by the fact that he was wearing skating boots. His only contact with the surface of the stairs was with the skate blade, making it more difficult for him to maintain his balance, and that blade was much longer than ordinary shoes and longer than the stair treads. Each of those matters also was readily apparent. In addition the fact that there were balancing and other difficulties in descending the stairs in those boots was easily observed from the actions of the patrons who descended whilst the respondent was standing at the top of the stairs. 41The primary judge erred in not finding that the risk of harm was "obvious" within the meaning of s 5F. That is the position, irrespective of whether the relevant risk is described as including that of slipping and falling on stairs that are or are likely to be wet. 42This conclusion makes it necessary to address whether, as the appellant contends, the breaches of duty which the primary judge found were of a duty "to warn of an obvious risk" within s 5H(1). If they were there was no such duty.
Were the breaches which the primary judge found of a duty to warn an obvious risk? 43At the outset it must be recognised that s 5H is concerned only with a duty of care to warn of an obvious risk. See the discussion of Div 4 of Pt 1A of the CL Act in Angel v Hawkesbury City Council [2008] NSWCA 130; (2008) ATR 81-955 at [82] - [86] per Beazley and Tobias JJA (Spigelman CJ, Giles and Campbell JJA agreeing). The section does not apply to a duty of care to take any other reasonable step to prevent or avoid or minimise harm from an obvious risk. For example, in the present case it may be accepted that the appellant had a duty to take reasonable care to provide a safe means of access to the ice rink. However, the respondent's case was not that the only means of access to the ice rink provided by the appellant required the use of the stairs wearing skating boots and that the appellant was negligent in not providing some other means of access. The respondent's case accepted that the ice rink could be accessed by walking down the stairs in 'ordinary' footwear and putting skating boots on in areas at the bottom of the stairs which contained chairs. 44Nor was the respondent's case that there should have been signage which indicated the existence of that alternative means of access because otherwise there were insufficient visual clues to do so: cf the case conducted by the plaintiff in Chotiputhsilpa v Waterhouse [2005] NSWCA 295; 44 MVR 456. In that case, the Court (Beazley JA, Giles and Ipp JJA agreeing) held at [61] that in the circumstances the discharge of the duty of care required that information as to the availability of that alternative access be provided as distinct from a warning against the risks of attempting to cross a busy roadway. That duty was not a duty to warn. The facts in that case are to be contrasted with those in State of Queensland v Kelly where the claim was held at [38] to be based upon a duty to warn as distinct from a duty to provide information. Although Mr Burn's evidence suggested that the seats at the bottom of the stairs could not be seen from the level providing access to the stairs, the respondent did not plead or make such a case. Its having done so would have directed attention to the factual issue (not addressed at trial) whether it was necessary to provide such signage. 45The primary judge rightly did not deal with the respondent's case as being or including that there was a negligent failure to provide an alternative means of access or to provide information as to the availability of such a means of access. At [145], having referred to Dr Cooke's evidence that in order to traverse the steps safely whilst wearing skate boots it was necessary to adopt a splayed foot position, the primary judge continued: "In my view, this required that patrons be informed of the need to traverse the stairs in that manner, or that a safe alternative be provided for patrons to arrive at the ice rink especially if the risk of slipping was difficult to ameliorate because of the stairs being wet." 46In relation to patrons being informed of the need to traverse the stairs in a particular way, the primary judge concluded at [150] - [151]: "150 In my view those circumstances required that specific warnings be given to patrons intending to use the steps to inform them of the risk of slipping and the need to adopt an unusual splayed footed method of descent on the stairs, quite apart from considerations of the irregular dimensions of the treads, goings and risers of the steps. 151 Those circumstances also required that patrons be warned of the further risk of slipping and falling on the stairs due to the likelihood of the step edges being wet." 47His Honour then described at [156] the three reasonable precautions which the respondent contended should have been taken. Only the second and third are presently relevant. The second was a "warning to patrons not to put on their ice skating boots before descending the stairs". The third, which was said to arise in the absence of the first and second being taken, required a warning "as to the need to adopt an unusual method of walking" and that in doing so "a risk of falling" still remained. 48The respondent rightly accepted that the primary judge's finding was that the appellant could discharge the duty of care for which it contended by giving one or other of these "warnings". It follows that it was sufficient to discharge the duty of care found that the appellant inform its patrons of the "need for special precautions" to be adopted when descending the stairs in ice skates and not necessary, in addition or separately, to warn them not to put their ice skates on before descending the stairs. In other words, the duty of care found by the primary judge did not require that the appellant instruct its patrons not to use the stairs wearing skate boots. Nor did it require the appellant, having given a warning as to the need for some precautions, to provide further information, by written notice or otherwise, that the ice rink could be accessed by walking down the stairs in ordinary footwear and putting their skate boots on at the bottom of the stairs. 49The warning, the giving of which the primary judge held would have been sufficient to discharge the appellant's duty of care was of the "risk of slipping or falling while walking down the stairs in ice skates". That warning could have been given in different ways as is reflected in the various descriptions by the primary judge of what was required: to inform "of the risk of slipping": [150], [151]; to ensure patrons were properly instructed as to the "need" to adopt an unusual method of walking and of a risk of falling due to wet stairs: [156]; to warn or instruct to use the suggested walk and that the stairs were slippery: [162], [163]; and to inform of the "need" for special procedures for descending the stairs due to their dimensions and likely wetness: [170]. In this context those dimensions might include the length of the treads and its relationship to the length of the skate blades. 50The respondent submitted that each of the precautions which the primary judge held should have been taken was not in substance a warning of the risk or danger of walking down the stairs in skating boots. That was said to be so because what those precautions required was, in one case, an instruction as to what should be done to avoid the risk (do not descend the stairs in boots) and, in the other, an instruction as to what could be done to minimise the risk (descend using a 'duck walk'). However, in each case the instruction was directed to alerting patrons of a risk of harm, which they should either avoid or take steps to minimise. 51A warning about a risk of harm may be given by describing the risk in general terms or describing the circumstances that give rise to it and in doing so, perhaps, by identifying what might be done to avoid or minimise the risk. It may also be given by prohibiting the conduct which gives rise to or involves the risk. For example, the risk of injury from diving into water which is or could be too shallow may be the subject of a warning which in words or diagrammatically conveys that the water is or may be shallow. Alternatively, the warning may instruct what should be done to avoid that risk by discouraging or, as a more emphatic form of warning, prohibiting or purporting to prohibit that activity. As to an instruction not to engage in conduct being a form of warning, see the discussion in Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423 at 431 - 432 (Mason CJ, Deane, Dawson and Gaudron JJ); and Vairy v Wyong Shire Council at [165] (per Hayne J, Gummow J agreeing at [100]). 52Each of the precautions which the primary judge held should be taken required the giving of a form of warning of the risk of injury in descending the stairs with skate boots on. That risk was an obvious risk within s 5F(1). As it is not suggested that s 5H(2) (which provides for specific exceptions to s 5H(1)) applies, the effect of s 5H(1) is that the appellant did not owe a duty of care to the respondent to warn him of what was an obvious risk. For that reason the appeal should be upheld on the basis that grounds 3 and 4 have been made out.
Absent the application of s 5H was there a breach of the duty of care to warn as found by the primary judge? (grounds 1 and 2) 53These grounds, which do not strictly arise, may be addressed briefly. The appellant submits that even if s 5H had not applied to provide that there was no duty of care to warn of an obvious risk, in the circumstances a reasonable person in its position would not have given a warning of that risk: s 5B(1)(c). 54I am not persuaded that the primary judge erred in concluding that in the circumstances a reasonable person would have given such a warning. Although the risk of harm was readily apparent, a reasonable occupier in the appellant's position would take account of the fact that its patrons may not always be careful in identifying that risk including because they are distracted or not familiar with or experienced in the activity of ice skating. In such circumstances, having regard to the nature of the risk, the likely seriousness of the harm which might eventuate and to the relative ease with which such a warning could be given, the primary judge is not shown to have erred in concluding that such an occupier would have taken one or other of the precautions which he described. Grounds 1 and 2 should be rejected.
Dangerous recreational activity and risk warning (grounds 5, 6, 7 and 8) 55A "recreational activity" is, by s 5K, defined to include any "pursuit or activity engaged in for enjoyment, relaxation or leisure". The primary judge held at [88] that "the activity of descending the stairs was merely preparatory to engaging in the recreational activity of ice skating. That preparatory activity was not in itself [a] dangerous recreational activity". In my view, that conclusion did not involve error. 56The definition of a "recreational activity" focuses upon the pursuit or activity engaged in at a place, as distinct from any particular characteristics of that place which may differ from those in other places at which the same activity is undertaken. The activity of walking in skating boots down the stairs at the appellant's sporting complex was not ice skating. Nor was it a necessary incident of ice skating, either at those premises or more generally. At the appellant's premises, the skates could have been put on after descending the stairs. 57This conclusion makes it unnecessary to consider whether the "No Responsibility" warning extended to the activity of descending the stairs in skate boots. Section 5M(1) only applies to warnings as to risks involved in a recreational activity. Walking down the stairs was not a "recreational activity" and for that reason s 5M(1) could not apply even if that activity had been the subject of a warning. 58In any event, the warning given by that notice did not address the risk of walking down the stairs with skate boots on. It was in the following terms: "The Activities provided in this centre [sic] have a certain amount of risk attached. By entering the Centre our patrons and their guardians accept that there is a degree of risk and release the Centre from any responsibility or legal liability in an activity or actions of other patrons present or participating in [indistinct word] activity." 59The reference to "Activities" is reasonably understood as being to sporting or other activities engaged in at the appellant's sporting complex. Those activities are ones in relation to which "other patrons" may be "present or participating in" and are ones which are "provided" in the Centre. The activity of descending the stairs in skates is not one which answers this description. It is not a sporting activity. Nor is it one which patrons go to the Centre to engage in. Grounds 5, 6, 7 and 8 also should be rejected.
Contributory negligence (grounds 9 and 10) 60In view of my conclusion as to the application of s 5H, the question of contributory negligence does not strictly arise. The appellant identifies the basis on which this Court might intervene with the finding as to contributory negligence as being that the primary judge erred in not being satisfied that the respondent had not made adequate use of the central hand rail as he walked down the stairs: [178]. 61The primary judge found that although the respondent appeared to have lifted his hand off the central hand rail during his descent, he did so "momentarily" and that this action did not constitute a failure to make adequate use of it: [179]. That finding was available on the basis of the CCTV footage. For that reason I am not satisfied that the primary judge did err in that respect. He found that the respondent was using the hand rail as he walked down the stairs. The basis for interfering with the finding as to contributory negligence is not made out. Grounds 9 and 10 should be rejected.
Conclusion and proposed orders 62The orders I propose are as follows:
Amendments 21 November 2014 - the word "not" has been deleted after the words "person would" Amended paragraphs: 54 21 November 2014 - the word "not" has been deleted after the words "person would" Amended paragraphs: 8 of headnote DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 November 2014
Liverpool Catholic Club Ltd
Moor