Legal Research
Cases
Russell v Carpenter

Russell v Carpenter

Case [2022] NSWCA 252 8 December 2022

No judgment structure available for this case.

Type to search within this case.

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Russell v Carpenter [2022] NSWCA 252
Hearing dates: 4 August 2022
Date of orders: 8 December 2022
Decision date: 08 December 2022
Before: Meagher JA at [1]
Gleeson JA at [2]
Kirk JA at [3]
Decision:
(1) The appeal is allowed with costs.
(2) Orders 1 and 2 made by the District Court on 31 August 2021 are set aside and, in lieu thereof, the statement of claim is dismissed with costs.

Catchwords:
NEGLIGENCE — Breach — Small, unremarkable helical stairway — Risk of falling slight, inherent and obvious — Installation of handrail not a reasonably required precaution
NEGLIGENCE — Causation — Finding of possibility of different result insufficient — Whether installation of handrail would have made any difference — Golf balls in hands of plaintiff — Handrail would have produced no different result

Legislation Cited:
Civil Liability Act 2002 (NSW)

Cases Cited:
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7
Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29
Bunnings Group Ltd v Giudice [2018] Aust Torts Reports 82-402; [2018] NSWCA 144
Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301
Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56
Kocis v SE Dickens Pty Ltd [1998] 3 VR 408 at 429
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
Prouten v Chapman [2021] NSWCA 207
Rail Corporation New South Wales v Donald [2018] NSWCA 82
Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42
Shoalhaven City Council v Pender [2013] Aust Torts Reports 82-135; [2013] NSWCA 210
Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5
Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19
Wilkinson v Law Courts Limited [2001] NSWCA 196

Category: Principal judgment
Parties: Damian James Russell (First appellant)
Vivianne Russell (Second appellant)
Neil Carpenter (Respondent)
Representation:
Counsel:
J Turnbull SC / R Perla (Appellants)
D Hooke SC / S P Brennan / J Thompson (Respondent)
Solicitors:
Holman Webb Lawyers (Appellants)
Turner Freeman Lawyers (Respondent)

File Number(s): 2021/270700
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

Neil Carpenter v Damian James Russell [2021] NSWDC 447

Date of Decision:

31 August 2021

Before:

Strathdee DCJ

File Number(s):

2020/247255

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellants were the owners of a short-stay holiday rental property at The Entrance where the respondent and some of his friends were staying as part of a golfing weekend. At a jocular presentation based on golfing results the respondent was given some golf balls, dropped one, and observed it bounce away. The respondent took one step down some stairs in pursuit of the ball. The stairs were helical with three steps down. As the ball of his right foot landed on the first step down,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Russell v Carpenter

Details

AGLC: Russell v Carpenter [2022] NSWCA 252
Case: [2022] NSWCA 252
Decision Date: 08 December 2022

CaseChat Overview and Summary

The New South Wales Court of Appeal considered a claim in negligence brought by the plaintiff, Russell, against the defendant, Carpenter. The dispute arose from injuries sustained by the plaintiff when he fell down a small, unremarkable helical stairway. The plaintiff alleged that the defendant had breached their duty of care by failing to install a handrail on the stairway, which he contended would have prevented his fall.

The Court of Appeal was required to determine two primary legal issues. Firstly, whether the defendant had breached their duty of care to the plaintiff by not installing a handrail on the helical stairway, considering the inherent and obvious risk of falling. Secondly, if a breach was established, whether the absence of a handrail had caused the plaintiff's injuries, or if the plaintiff's own actions, specifically carrying golf balls, were the sole cause of the fall.

In its reasoning, the Court of Appeal found that the risk of falling on the stairway was slight, inherent, and obvious. The judges concluded that the installation of a handrail was not a reasonably required precaution in the circumstances. Furthermore, even if a breach had occurred, the Court determined that the plaintiff's act of carrying golf balls in his hands was the decisive factor in his fall. The Court held that a finding of mere possibility of a different result was insufficient for causation and that a handrail would have produced no different result given the plaintiff's circumstances at the time of the fall.

Consequently, the Court of Appeal allowed the appeal, setting aside the orders made by the District Court. The statement of claim was dismissed, and the plaintiff was ordered to pay the defendant's costs.

Orders

Orders of the court

(1) The appeal is allowed with costs.

(2) Orders 1 and 2 made by the District Court on 31 August 2021 are set aside and, in lieu thereof, the statement of claim is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Russell v Carpenter [2022] NSWCA 252

Most Recent Citation

Carleton v National Spiritual Assembly of the Baha'is of Australia [2025] TASSC 11

Cases citing this decision · 9 of 9 shown

Carleton v National Spiritual Assembly of the Baha'is of Australia
[2025] TASSC 11

…38 Another more recent case referred to by the defendant was Russell v Carpenter [2022] NSWCA 252. In that case the plaintiff and his friends were staying in a short-stay holiday rental property as part of a golfing weekend. He took one step down a set of three helical stairs from a deck in pursuit of a golf ball h…
R v Brown (a pseudonym)
[2024] NSWDC 618

…[2024] NSWCCA 149 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 Towse v R [2022] NSWCA 252 Van Ryn v R [2016] NSWCCA 1 Xerri v The King [2024] HCA 5; (2024) 278 CLR 276 Category: Sentence Parties: Gary Brown (a pseudonym) (the offender) Public Prosecutions (NSW) (Crown) Representation: Counsel: S Hall SC with…
Carusi v St Mary's Anglican Girls School Inc
[2024] WASCA 137 Para 3

…Aust Torts Rep 82‑402 [54], adopted in Collins v Insurance Australia Ltd [2022] NSWCA 135; (2022) 109 NSWLR 240 [35] - [36] and Russell v Carpenter [2022] NSWCA 252 [20]. [83] Final Report of the Review of the Law of Negligence (September 2002), par 7.15.…
Hornsby Shire Council v Salman
[2024] NSWCA 155

…a v RPS Manidis Roberts Pty Ltd and UGL Engineering Pty Ltd t/a Energised Alliance [2019] NSWCA 320 at [7]-[8]. Most recently, in Russell v Carpenter [2022] NSWCA 252, this Court applied that passage in relation to a very short flight of three steps in a residential dwelling, and overturned the conclusion that a re…
Health Care Corporation Pty Ltd t/as Wollongong Private Hospital v Cleary
[2024] NSWCA 57 Para 20

…k of harm be real and not far-fetched or fanciful, although it is not satisfied merely by the fact that an injury occurred: Russell v Carpenter [2022] NSWCA 252 at [20] per Kirk JA (with whom Meagher and Gleeson JJA agreed). The analysis of a risk for the purposes of s 5B(1)(b) is at a lower level of generality tha…
Black Head Bowling Club Ltd v Harrower
[2023] NSWCA 267 Para 24

…isk of harm be real and not far-fetched or fanciful, although it is not satisfied merely by the fact that an injury occurred: Russell v Carpenter [2022] NSWCA 252 at [20] per Kirk JA (with whom Meagher and Gleeson JJA agreed). The analysis of a risk for the purposes of s 5B(1)(b) is at a lower level of generality t…
Venues NSW v Kane
[2023] NSWCA 192 Para 67

…a v RPS Manidis Roberts Pty Ltd and UGL Engineering Pty Ltd t/a Energised Alliance [2019] NSWCA 320 at [7]-[8]. Most recently, in Russell v Carpenter [2022] NSWCA 252, this Court applied that passage in relation to a very short flight of three steps in a residential dwelling, and overturned the conclusion that a re…
Blue Op Partner Pty Ltd v De Roma
[2023] NSWCA 161 Para 16

…rt in Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103 at [52], [54]; Council of City of Sydney v Bishop [2019] NSWCA 157 at [30]; Russell v Carpenter [2022] NSWCA 252 at [14].…
Houghton v Potts & Anor. (No 2)
[2022] NSWSC 1778

…SWCA 246 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Russell v Carpenter [2022] NSWCA 252 Russell v Edwards (2006) 65 NSWLR 373; [2006] NSWCA 19 State of NSW v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225 State Rail Authority of NSW v Schadel [2001] NSWCA 394 Steinberg v Commiss…

View all 9 citing cases →

Cases cited in this decision · 15 of 15 shown

Prouten v Chapman
[2021] NSWCA 207 Para 20

…t “not by very much”: see Bunnings Group Ltd v Giudice [2018] Aust Torts Reports 82-402; [2018] NSWCA 144 at [53]-[54]; Prouten v Chapman [2021] NSWCA 207 at [24]. Although the test is not particularly demanding, the mere fact that an injury occurred does not suffice to conclude that the risk of harm was not insign…
Neil Carpenter v Damian James Russell
[2021] NSWDC 447

…on: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: Neil Carpenter v Damian James Russell [2021] NSWDC 447 Date of Decision: 31 August 2021 Before: Strathdee DCJ File Number(s): 2020/247255…
Bunnings Group Ltd v Giudice
[2018] NSWCA 144 Para 20

…sk being real and not far-fetched or fanciful, but “not by very much”: see Bunnings Group Ltd v Giudice [2018] Aust Torts Reports 82-402; [2018] NSWCA 144 at [53]-[54]; Prouten v Chapman [2021] NSWCA 207 at [24]. Although the test is not particularly demanding, the mere fact that an injury occurred does not suffice…
Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust
[2018] NSWCA 82 Para 20

…at an injury occurred does not suffice to conclude that the risk of harm was not insignificant: Rail Corporation New South Wales v Donald [2018] NSWCA 82 at [140].…
Shoalhaven City Council v Pender
[2013] NSWCA 210 Para 14

…ntrants: Kocis v SE Dickens Pty Ltd [1998] 3 VR 408 at 429 per Hayne JA, Shoalhaven City Council v Pender [2013] Aust Torts Reports 82-135; [2013] NSWCA 210 at [49] per McColl JA. The reasonableness of an occupier’s conduct is measured on the expectation that an entrant will take reasonable care for their own safet…
Strong v Woolworths Ltd
[2012] HCA 5 Para 54

…e any exceptional case addressed under s 5D(2)). This is a statutory statement of the “but for” test: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [18]. Under s 5E the respondent bore the onus of proving any fact relevant to the issue of causation. That the precaution of providing a handrail coul…
Roads and Traffic Authority of NSW v Dederer
[2007] HCA 42 Para 14

…to be “contrasted with an obligation to prevent harm occurring to others”: Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [51] per Gummow J. An occupier is not an insurer of entrants: Kocis v SE Dickens Pty Ltd [1998] 3 VR 408 at 429 per Hayne JA, Shoalhaven City Council v Pend…
Neindorf v Junkovic
[2005] HCA 75 Para 46

…The point has been made many times. As Hayne J observed in Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 at [96], in the course of concluding that an owner of residential property had not breached their duty of care to an entrant who tripped and fell on the uneven surface of their driveway when attending…
Thompson v Woolworths (Qld) Pty Ltd
[2005] HCA 19 Para 49

…In Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19, at [36], the High Court said the following:…
Derrick v Cheung
[2001] HCA 48 Para 54

…that but for the absence of a handrail the injury would not have occurred. The possibility of a different result is not enough: Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 at [13].…
Wilkinson v Law Courts Ltd
[2001] NSWCA 196 Para 50

…The case in this Court of Wilkinson v Law Courts Limited [2001] NSWCA 196 concerned a claimant who fell down the steps outside the Law Courts building and contended that the steps were unsafe by virtue of their varying rise heights. Heydon JA said the following at [32], with the agreement of Meagher JA and Rolfe AJ…
Brodie v Singleton Shire Council
[2001] HCA 29 Para 14

…d on the expectation that an entrant will take reasonable care for their own safety: Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 at [163] per Gaudron, McHugh and Gummow JJ; Dederer at [45] per Gummow J.…
Jones v Bartlett
[2000] HCA 56

…Bunnings Group Ltd v Giudice [2018] Aust Torts Reports 82-402; [2018] NSWCA 144 Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 Kocis v SE Dickens Pty Ltd [1998] 3 VR 408 at 429 Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 Prouten v Chapman [2021] NSWCA 207 R…
Graham v Stannus
[1995] HCATrans 19

…may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety”: Stannus v Graham (1994) Aust Torts Reports 81-297 at 61,566 per Handley JA.…
Australian Safeway Stores Pty Ltd v Zaluzna
[1987] HCA 7 Para 14

…simply “to take reasonable care to avoid a foreseeable risk of injury”: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; [1987] HCA 7. The obligation to take reasonable care is to be “contrasted with an obligation to prevent harm occurring to others”: Roads and Traffic Authority (NSW) v D…

Legislation cited in this decision · 1

Civil Liability Act 2002 (TAS)
1 mention

Medium Neutral Citation:	Russell v Carpenter [2022] NSWCA 252
Hearing dates:	4 August 2022
Date of orders:	8 December 2022
Decision date:	08 December 2022
Before:	Meagher JA at [1] Gleeson JA at [2] Kirk JA at [3]
Decision:	(1) The appeal is allowed with costs. (2) Orders 1 and 2 made by the District Court on 31 August 2021 are set aside and, in lieu thereof, the statement of claim is dismissed with costs.
Catchwords:	NEGLIGENCE — Breach — Small, unremarkable helical stairway — Risk of falling slight, inherent and obvious — Installation of handrail not a reasonably required precaution NEGLIGENCE — Causation — Finding of possibility of different result insufficient — Whether installation of handrail would have made any difference — Golf balls in hands of plaintiff — Handrail would have produced no different result
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 Bunnings Group Ltd v Giudice [2018] Aust Torts Reports 82-402; [2018] NSWCA 144 Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 Kocis v SE Dickens Pty Ltd [1998] 3 VR 408 at 429 Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 Prouten v Chapman [2021] NSWCA 207 Rail Corporation New South Wales v Donald [2018] NSWCA 82 Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42 Shoalhaven City Council v Pender [2013] Aust Torts Reports 82-135; [2013] NSWCA 210 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 Wilkinson v Law Courts Limited [2001] NSWCA 196
Category:	Principal judgment
Parties:	Damian James Russell (First appellant) Vivianne Russell (Second appellant) Neil Carpenter (Respondent)
Representation:	Counsel: J Turnbull SC / R Perla (Appellants) D Hooke SC / S P Brennan / J Thompson (Respondent) Solicitors: Holman Webb Lawyers (Appellants) Turner Freeman Lawyers (Respondent)
File Number(s):	2021/270700
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Citation: Neil Carpenter v Damian James Russell [2021] NSWDC 447 Date of Decision: 31 August 2021 Before: Strathdee DCJ File Number(s): 2020/247255