Venues NSW v Kane

[2023] NSWCA 192

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Venues NSW v Kane [2023] NSWCA 192

Hearing dates:

17 July 2023

Decision date:

18 August 2023

Before:

Leeming JA at [1];
Adamson JA at [91];
Simpson AJA at [92];

Decision:

1. Grant leave to appeal.

2. Direct Venues NSW to file a notice of appeal in the form of the draft notice of appeal within seven days, and otherwise dispense with the requirements of service.

3. Appeal allowed.

4. Set aside the orders of the District Court made on 14 December 2022 and 8 February 2023 and in lieu thereof order judgment for the defendant with costs.

5. Order Ms Kane to pay Venues NSW’s costs in this Court.

Catchwords:

NEGLIGENCE – occupier’s liability – plaintiff slipped while descending stepped aisle at outdoor stadium – whether reasonable occupier would have installed a handrail – identification of risk of harm – significance of obviousness of risk – no evidence of other persons slipping on stepped aisle – stadium certified as compliant with Building Code of Australia – appeal allowed and judgment for defendant entered

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5C

District Court Act 1973 (NSW), s 127(2)(c)

Environmental Planning and Assessment Regulation 2000 (NSW), cl 154

Sporting Venues Authorities Act 2008 (NSW), s 12, Sch 1, Sch 5

Sporting Venues Authorities Amendment (Venues NSW) Act 2011 (NSW)

Sporting Venues Authorities Amendment (Venues NSW) Act 2020 (NSW)

Supreme Court Act 1970 (NSW), s 75A

Uniform Civil Procedure Rules 2005 (NSW), r 51.14(1)(b)

Cases Cited:

Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298

Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183; Aust Tort Reports 82-409

Columbia and Puget Sound Railway Co v Hawthorne 144 US 202 (1892)

Davis v Langdon (1911) 11 SR (NSW) 149

Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51

Fairall v Hobbs [2017] NSWCA 82; 347 ALR 151

Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151

Hart v The Lancashire and Yorkshire Railway Company (1869) 21 LT 261

Wilkinson v Law Courts Limited [2001] NSWCA 196

Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132

Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65

Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114; Aust Tort Reports 82-289

Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253

Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; Aust Tort Reports 82-172

Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42

Russell v Carpenter [2022] NSWCA 252

Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11

Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320

Zaya v RPS Manidis Roberts Pty Ltd and UGL Engineering Pty Ltd t/a Energised Alliance [2019] NSWCA 320

Category:

Principal judgment

Parties:

Venues NSW (Applicant)
Kerri Kane (Respondent)

Representation:

Counsel:
J E Sexton SC, R Gambi (Applicant)
M Cranitch SC, A D Campbell (Respondent)

Solicitors:
McCabes Lawyers (Applicant)
Law Partners Personal Injury Lawyers (Respondent)

File Number(s):

2022/00383141

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

14 December 2022

Before:

Norton SC DCJ

File Number(s):

2021/00333442

HEADNOTE

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

Ms Kerri Kane fell as she descended some steps within the lower concourse of the western grandstand of the McDonald Jones Stadium. The steps formed part of an aisle with seats on one side and a concrete wall on the other side. The main issue in the Court below and on appeal was: whether a reasonable person in Venue NSW’s position, a government agent that occupied the site, would have installed a handrail. The primary judge answered that question in the affirmative. Her Honour entered judgment in Ms Kane’s favour in the amount of $91,117.

The Court (Leeming JA, Adamson JA and Simpson AJA agreeing) granted leave and allowed the appeal, holding that:

1. The finding of breach by the primary judge could not stand for multiple reasons, including that it proceeded on an erroneous construction of s 5B of the Civil Liability Act 2002 (NSW) and the obvious nature of the danger presented by the steps: at [58]-[70].

Wilkinson v Law Courts Limited [2001] NSWCA 196; Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253; Zaya v RPS Manidis Roberts Pty Ltd and UGL Engineering Pty Ltd t/a Energised Alliance [2019] NSWCA 320; Russell v Carpenter [2022] NSWCA 252, considered and applied.

1. A reasonable occupier would not have installed a handrail. The risk was familiar and obvious. The use of stepped aisles without handrails in similar stadiums is commonplace. The structure had been certified as fully compliant eight years earlier. The evidence did not disclose any history of earlier falls resulting in injury, despite the stairs being used by millions of spectators over the previous eight years: at [71]-[73], [96].

Per Leeming JA (Adamson JA agreeing; Simpson AJA contra):

1. The fact that a handrail would have been an ineffective precaution for many or most users was a matter, albeit one of lesser significance, contributing to the conclusion that it was not a precaution which a reasonable occupier would implement: at [77].

Per Simpson AJA:

1. The fact that some patrons may choose not to use a handrail does not bear upon whether a reasonable occupier would install a handrail: at [94]-[95].

Judgment

1. LEEMING JA: On 6 July 2019, the respondent, Ms Kerri Kane, fell as she descended some steps within the lower concourse of the western grandstand of the McDonald Jones Stadium in Broadmeadow. She had attended to watch an NRL game with her husband and a friend. Ms Kane’s fall was captured on video filmed from the other side of the oval, but very little can be seen save that she fell almost immediately after commencing her descent on (what was to her) the left hand side of the steps. Her friend had been preceding her. Ms Kane fell suddenly, and stood up some 5 seconds later. She then proceeded down the steps, holding on to the glass balustrade with her right hand, with her friend to her left. The primary judge found that Ms Kane was taking reasonable care, accepted her evidence that she slipped and rejected the defence expert’s opinion that she had overstepped.

2. Following a three day trial in the District Court, the primary judge entered judgment in Ms Kane’s favour in the amount of $91,117 against Venues NSW, a government agency which (correctly – see below) accepts it occupied the site. The breach of duty found by the primary judge was a failure to install a handrail alongside the steps.

3. Venues NSW has sought leave to appeal. Leave is required because the judgment is less than $100,000: see s 127(2)(c) of the District Court Act 1973 (NSW). There was a concurrent hearing in accordance with r 51.14(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW), in which both sides were heard in full on the merits of the appeal and a notice of contention, as well as the significance of the decision for other venues managed by it in support of a grant of leave. This is a clear case for the grant of leave: the amount in issue is only slightly below the monetary threshold, there are conceded errors, and the judgment if it stands has consequences in many other similar outdoor venues.

4. At the forefront of the issues at trial and on appeal was whether the primary judge erred in finding that a reasonable person in the position of Venues NSW would install a handrail as a precaution against the risk of harm resulting from the stadium steps. Most of the reasoning turned upon the risk posed by the steps themselves, which are a familiar but potentially dangerous hazard because the change in height forces users to balance on one leg and shift their weight as they ascend or descend. The primary judge also relied, although to a much lesser extent, upon the chamfer at the edge of the steps. Venues NSW challenged both aspects of her Honour’s reasoning on breach, as well as the reasoning on causation, and one aspect of the reasoning as to damages. In this Court, Ms Kane also sought, by notice of contention, to maintain the judgment by reference to the luminosity of the steps (a point rejected by her Honour) and the significance of some yellow strips installed on the stairs after the accident.

5. The reasons of the primary judge do not accord with Part 1A of the Civil Liability Act 2002 (NSW), notably ss 5B and 5C, and Ms Kane did not strenuously dispute this at the hearing. Neither side sought a retrial, or contended that this Court would be unable to resolve the entirety of the dispute if the judgment were set aside. Accordingly, it is necessary to identify the evidence in some detail, in order to make factual findings in lieu of those made by the District Court and to address the issues posed by statute. This Court is at no real disadvantage in doing so. Ms Kane was regarded as credible and reliable, and her evidence should be taken at face value.

6. The most efficient course is to follow the approach taken in oral address, along the following lines:

1. first, summarise the evidence bearing upon the circumstances of the fall and the layout of the stadium;

2. secondly, address the status of Venues NSW;

3. thirdly, summarise the findings and reasoning of the primary judge;

4. fourthly, deal with the side issues concerning the chamfer and the luminosity of the steps;

5. fifthly, deal with the main issue in the appeal, which is whether one or more handrails should have been installed which would have prevented Ms Kane’s fall, and

6. finally, deal with the remaining grounds of appeal, and the orders which should be made.

The McDonald Jones stadium and the circumstances of Ms Kane’s fall

7. The match attended by Ms Kane, her husband and her friend took place on the late afternoon of 6 July 2019. It was very wet. The lower rows of the stadium were exposed to the weather, but there was some protection higher up. At 5.13pm the three ascended to the upper row of seats, her husband holding an open umbrella, the other two including Ms Kane wearing ponchos. Ms Kane sat in the upper row with two other spectators, at approximately the dot in the “Mcdonaldjoneshome.com” sign in the following photograph, which was taken by Mr Kane a week or so later and became Exhibit A at trial. At 5.34pm, the three then descended. Mr Kane walked down a separate aisle to the left of that shown in the photo below, on the other side of the “tunnel” (the term used in the evidence) through which spectators might enter the concourse from underneath the structure. Ms Kane and her friend began to walk down the steps shown below, with the friend leading the way:

8. A photograph of the stairs from the top, depicting the position from Ms Kane’s perspective before she commenced her descent, is reproduced below. This photograph was taken in 2022, and the yellow nosing strips were not installed when Ms Kane fell. The red hand-drawn markings on the right of the photograph attached to the concrete wall represent Ms Kane’s expert’s diagram showing the handrail which he recommended.

9. As is plain from those photographs, the steps down which Ms Kane descended were not of even width. The concourse was mostly comprised of large tiers which were 850mm wide and 320mm high, and on each tier there was a row of seats, except where the rows were divided by aisles perpendicular to the rows of seats. Within each aisle, intermediate steps had been placed so as to form the route taken by Ms Kane and her friend.

10. Each intermediate step was of the same height, with risers of 160mm. However, the intermediate step was not 425mm wide. It was only 300mm wide. If the intermediate step had been 425mm wide, then each of the steps encountered by Ms Kane would have an identical width (or “going”), but they would also protrude and partially obstruct patrons leaving the rows and making their way to the aisle. There was evidence which seems to have been regarded as uncontroversial at trial that it was not possible to provide equal treads throughout the aisle because of a minimum spacing between tiers regulated by other provisions. Thus the steps upon which Ms Kane fell had even vertical risers of 160mm, but had alternating horizontal surfaces of 300mm and 550mm (in fact, 30mm less by reason of the chamfer).

11. The provisions of Part H1 of the Building Code of Australia applied to the aisles within a stepped seating area such as the grandstand. The maximum gradient of the area (measured by a line joining the nosings of consecutive steps) was 30°. The stand where Ms Kane fell was much less steeply sloped than this: it was 20.6° (tan(20.6°) = 32/85). Because each of the tiers upon which the seats were placed was 320mm high, there was required to be a single intermediate step, with a going of not less than 270mm “and such as to provide as nearly as practicable equal treads throughout the length of the aisle”: cl 1.4(b). The code expressly contemplated the possibility that the steps comprising an aisle would not have equal treads, although it also plainly proceeded on the basis that equal treads should be incorporated into the design if that were possible.

12. The corner of each step was also affected by a 30mm chamfer, which is depicted below.

13. Once again, the yellow nosing strip in the photograph reproduced above had not been installed at the time of the accident. One point of the chamfer was to prevent chipping. It is reasonable to think that another reason for breaking the edge is to reduce the risk of a serious injury being sustained by falling on a sharp edge. Whatever the rationale, doing so came at a price, because each chamfer reduced the horizontal surface of each step by 30mm, to 520mm and 270mm (the fact that one precautionary measure may introduce other hazards is a familiar aspect of ergonomic design). There was contested evidence as to whether a chamfer of horizontal width of 30mm was compliant, with Ms Kane’s expert, Mr Cauduro, saying that it should have been no more than 5mm.

14. A photograph in evidence established that Ms Kane’s fall happened while she was descending the aisle in bay 51 (and “Bay 51” may also be seen captioned in the video footage recording the incident). The lower concourse of the western grandstand where Ms Kane fell comprised bays 50-60 according to a schematic annexed to the report of Venues NSW’s expert, Dr Cooke. A photograph taken by Mr Cauduro from bay 51 towards the south depicts some of the salient features of the stadium, and I have found it helpful to compare what is shown in the photograph and the schematic.

15. Working from the bottom up, the photograph shows the chamfered nosings of both the wide and narrow steps, as well as the yellow strips installed after the accident. It also shows the concrete barrier rising above the steps, on top of which is a glass balustrade. The certification describes the glass as “12mm thick grade A safety toughened to AS/NZS 2208”, 430mm high, mounted on an existing concrete precast wall 570mm high. Through the glass balustrade may be seen the other bays in the lower concourse, all at the same 20.6° slope. In particular, there may also be seen the southernmost bay, bay 60, which is at the far corner of the oval and faces northeast and north (it is underneath the tall lighting pole). Within bay 60 is an aisle at the far edge which has a handrail, but there may also be seen an internal aisle with no handrails and rows of seats on either side (it is below the black rectangle which represents the outlet of a “tunnel” for entering and exiting the grandstand). The schematic shows in fact that there are two internal aisles within bay 60 which have seats on either side, although only one of those internal aisles is clearly visible in the photograph.

16. Finally, at the top of the photograph may be seen the partial roof which provided some shelter to spectators in the higher rows of the lower concourse, and may have been the reason for Ms Kane and her husband and her friend spending some time sitting on the top row of the concourse.

17. The schematic shows that the lower concourse is divided into a lower and an upper half, separated by an aisle around which spectators can walk (this aisle is immediately behind the metal fence in the photograph taken from the top of the stairs). Ms Kane fell while descending steps in the upper half of the lower concourse. In the upper half of the lower concourse, the schematic shows eleven “tunnels” emerging from underneath the structure. There is no reason to doubt that on each side of the tunnel there is a concrete wall on which has been a mounted glass balustrade, and indeed, two other such walls and balustrades can be seen in the photograph. The schematic also shows ten aisles in the top half of the lower concourse where the aisles separate the bays and there is no tunnel – which is to say, the aisles have rows of seats on either side.

18. In the lower half of the lower concourse, the schematic shows there are three gaps (between bays 51 and 52, within bay 55, and between bays 58 and 59) which are openings directly onto the oval. At those gaps there are concrete walls at the end of the rows of seats. However, there are also 12 aisles with seats on both sides in the lower half of the lower concourse. As noted above, the photograph shows an aisle extending from the lower half to the upper half of bay 60, with seats on both sides.

19. To anticipate what follows, the significance of the stepped aisles with seats on both sides, as opposed to the stepped aisles with seats on one side and concrete wall on the other side, is that the latter, but not the former, were capable of incorporating a handrail.

20. There was also evidence that the venue had “major grandstand additions” in 2005 and 2011 and the grandstand was certified as compliant in 2011 following their completion. It is unclear on the evidence whether the entirety of the original structure was razed to the ground in 2011 or whether parts of the grandstand (and in particular the concrete steps) were built in 1970 or 2005.

The status of Venues NSW

21. Venues NSW admitted on the pleadings that it had care, management and control of the stadium in 2019. However, this Court was told that Venues NSW was constituted in 2020. Both statements are correct. The reconciliation of those seemingly inconsistent propositions turns upon the statutes establishing Venues NSW.

22. The applicant for development approval for the 2011 redevelopment of the stadium was “Hunter Regional Sporting Venues Authority”. That body was constituted when the Sporting Venues Authorities Act 2008 (NSW) commenced in July 2008 (see s 12 and Schedule 1). By dint of new Part 4 of Schedule 5 inserted by the Sporting Venues Authorities Amendment (Venues NSW) Act 2011 (NSW), the Hunter Regional Sporting Venues Authority was dissolved and its assets and liabilities vested in Venues NSW (see esp cl 16(2)). However, the “Venues NSW” which was the successor to the Hunter Regional Sporting Venues Authority was different from the party to this litigation of the same name. That is because, as counsel stated when the appeal was heard, a different body, also called “Venues NSW”, was constituted in 2020, after Ms Kane’s fall, pursuant to the Sporting Venues Authorities Amendment (Venues NSW) Act 2020 (NSW). Critically for present purposes, that 2020 statute inserted new cl 24 into Part 6 of Schedule 5 of the Sporting Venues Authorities Act 2008 (NSW) as follows:

Reconstitution of Venues NSW

(1) On and from repeal day –

(a) Venues NSW as in existence immediately before the repeal day (existing Venues NSW) is taken to have been reconstituted by section 12 of this Act, as inserted by the amending Act, as a corporation with the same name (reconstituted Venues NSW), and

(b) the board of management of existing Venues NSW is dissolved.

(2) Reconstituted Venues NSW is taken for all purposes, including the rules of private international law, to be a continuation of, and the same legal entity as, the existing Venues NSW.

NOTE. As a result of this subclause, reconstituted Venues NSW retains all the assets, rights and liabilities of existing Venues NSW.

23. Thus the reconstituted Venues NSW succeeded to the liabilities of its identically named predecessor, and is deemed to be the same legal entity as its predecessor. In that way, it is taken to be the entity which had care, control and management of the stadium on 6 July 2019.

24. This Court was also told that Venues NSW was not the owner of the Crown land on which the stadium was built. Nothing turns on this, because it candidly accepted that it had power to construct any improvements (such as a handrail) as Ms Kane contended.

25. The primary judge recorded at [76] by reference to a 2019 annual report that the stadium’s capacity was 30,000 and that some 373,432 people visited the stadium in (calendar) 2019. Much was made of that fact at the hearing of the appeal. But it would be quite wrong to proceed on the basis that the flow of people in and out of the stadium was at anything like a constant rate. The actual spectator attendance by event for the year ending 30 June 2019 was also in evidence. There were some 283 “events” but most were private functions attended by only a few hundred people. The exception was professional rugby league and soccer matches. The former recorded that of the 365,543 people who attended for that (financial) year, some 317,625 attended on 29 occasions, for National Rugby League or Hyundai A-League matches. For example 21,215 attended on 29 June 2019 to see the Newcastle Knights play the Broncos and 22,547 attended on 24 May 2019 to see the same team play the Roosters. Attendance at A-League matches ranged between some 6,000 and 9,000. The point of referring to this evidence is that on a relatively small number of occasions each year, there were many thousands of people in the stadium, all attending for the same purpose, many of whom would have wanted to arrive and leave at around the same time, and move from their seats to other facilities at the venue at around the same time (including at half-time, and immediately after the close of play). The point is not merely that thousands of people would, each year, use the steps on which Ms Kane fell. The point is that most of the people using those steps would be doing so when there were thousands of other people in the stadium, also wanting to use the steps at the same time. I am conscious that the stadium was rarely if ever filled to capacity. But some parts of the grandstand provided better seating than others, and it is probable that even when the grandstand was only half-full, spectators would not be distributed evenly but would clump in particular areas. The consequence of all of the above is a simple point: most step use within the stadium would occur at times when the aisle was crowded with other spectators.

The findings and reasoning of the primary judge concerning the mechanism of the fall

26. The primary judge found that Ms Kane was a generally credible witness (at [132]). She was descending the steps slowly, wearing joggers. The steps were wet, it was windy, and there was water pooling on some of the stairs (at [134]). Her Honour accepted Ms Kane’s evidence that her foot slipped, which caused both feet to slip and her to fall heavily on the concrete surface. The primary judge accepted her positive evidence that she fell backwards and her denials that she had put her foot in such a way that had totally missed the step.

27. The primary judge found at [137] that neither the glass above the balustrade to her right or the seats to her left could fulfil the function of a handrail. The surface exceeded the minimum requirement for slip resistance when tested at a later date, and would have been more slip resistant at the time of the fall.

28. Her Honour found, based on the evidence of Mr Cauduro (the plaintiff’s expert) whom she preferred to that of Dr Cooke (the defendant’s expert), that the relevant codes mandated one handrail, a chamfered surface at the nosing of no more than 5mm and a 30% contrast of luminosity. On the latter, her Honour said at [154]:

Given the plaintiff’s frank admission that she was aware the stairs may be slippery and of the need to take care, I do not find that much turns on whether there was a 30% contrast or luminosity. In any event, no readings as to luminosity were taken by either of the parties. I do not find that the lack of such a contrast contributed in any substantial way to the plaintiff’s fall.

29. Relevantly to causation, the primary judge found at [155] that the plaintiff was being careful, that she looked for something to hold onto, and had there been a handrail, she would have moved to that side of the aisle and used that handrail as she descended the stairs, and that if she had done so, she would have been able to stabilise herself and would not have fallen at all, or not as heavily. Her Honour said at [155] that:

I also find on the balance of probabilities that the extended area of chamfer on the edge of the stairs likely contributed to the plaintiff’s foot slipping and had it been limited to 5 mm she would have been less likely to have slipped.

30. Those findings were informed by the cross-examination as to the mechanism of her fall, with it being put to her that she had overstepped, rather than slipped. Ms Kane was adamant that that did not occur:

Q. My question was you were careful to place your whole foot on that step, correct?

A. Yes, from what I could see between the rain and, and the wind and the going down, yes, I was trying to be as careful as possible.

Q. Can I suggest to you that what in fact happened was that you placed your foot too far forward onto the edge of the step and you in fact missed your step and went over, slipped backwards?

A. I disagree with that.

Q. You don’t really know what happened. All you know is that you fell onto your backside. That’s the case, isn’t it?

A. I know the feeling. If, if I placed my foot and totally missed the step, I would have launched forward. I didn’t launch forward, I come backwards. To me that is, the foot’s on the step, it’s slipped off. So if you’re saying that I totally missed the step, I would have went forward in my opinion, not backwards on my bottom.

31. Following that evidence, on the plaintiff’s application, the primary judge rejected a paragraph of Dr Cooke’s report in which he expressed the view that it was probable that Ms Kane lost her footing because of an overstep rather than a slip caused by inadequate friction (Tcpt, 21 October 2022, p 105(36)-106(2)).

32. There was extensive debate at first instance, and almost none in this Court, as to whether the Building Code of Australia required the presence of a handrail. Mr Cauduro said that it did, while Dr Cooke said that it did not. The primary judge found that a handrail was required in accordance with Mr Cauduro’s view that the stepped aisle at the stadium was a “stairway” under the Building Code of Australia, a term which is not defined. However, it was also common ground that whether or not the Building Code of Australia mandated a handrail was not dispositive of the questions posed by ss 5B and 5C of the Civil Liability Act 2002 (NSW).

33. At the forefront of Venue NSW’s case at trial and on appeal was the fact that stage 3 of the western grandstand redevelopment had been completed in May 2011 and signed off by a building surveyor as compliant. Pursuant to the provisions of cl 154 of the Environmental Planning and Assessment Regulation 2000 (NSW), the surveyor certified that the “building is suitable for occupation or use in accordance with its classification under the Building Code of Australia”. The classification was said on that certificate to be Class 5 and Class 9b.

34. The primary judge identified the relevant risk of harm as that propounded by the defendant, namely, “that of a patron losing their balance and falling and sustaining injuries whilst walking down steps within the stadium.” The primary judge correctly confirmed that the question was what a reasonable person would in the circumstances do by way of response to that risk, a question to be determined prospectively and not in hindsight. After reproducing ss 5B and 5C of the Civil Liability Act, the primary judge addressed the elements in s 5B as follows:

166 Addressing the elements in 5B of the CLA in light of 5C in the present case;

(a) the risk was foreseeable, that is, a risk which the defendant knew or ought to have known

167    It was conceded by Mr Gambi that the risk of a patron slipping, losing their balance, falling and sustaining injury while walking down the steps of the stadium was foreseeable in the sense there was a possibility of it happening.

(b) the risk was not insignificant

168    In light of all of the evidence, it is my view that while the risk in question is not a large risk, it was not insignificant. The stairway or stepped pathway gave access to seating, provided an entrance and exit to the stadium, provided access to, one assumes, toilet facilities and food outlets. Those outlets included outlets selling alcohol. The stairway was available to be used by all manner of persons of varying ages and abilities.

(c) in the circumstances a reasonable person in the position of the defendant would have taken the precautions alleged

169    There is no evidence that the defendant had ever sought or carried out a formal risk assessment of the stadium. It had been constructed in 2011 and certified as compliant with the code. The defendant managed a number of stadia and was well aware of the range of people who would be attending such stadia, the number of people who may be in attendance and that the stadium would be used in all types of weather. There is evidence in exhibit 3 that 15 actions for improvement were identified in the financial year 2018 to 2019, but no details of what those actions were was provided to the Court. It was noted that Venues NSW was looking forward to improved reporting and safety results which suggests that those matters had been less than satisfactory in the past.

170    In my view, a reasonable multiple venue owner in the position of the defendant would have arranged for a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. This [a]isle provided access to seating and as noted above, to toilets and food outlets and was a major entrance and exit from the stadium.

(d) the probability that harm would occur if care was not taken

171    I consider there was a real risk of falls if care was not taken, having regard to the nature and location of the stairway.

(e) The likely seriousness of harm

172    The requirements for handrails and other safety precautions on stairs make it clear that serious injuries can occur if there is a fall on steps. Multiple cases before this Court have shown that this is so.

(f) the burden of taking precautions to avoid the risk of harm

173    The installation of a handrail or building stairs with the required chamfered edge would not impose a serious burden on the defendant. The handrail suggested by Mr Cauduro was at a cost of $1,500. Even if handrails were required to be placed at other stairways, that would not represent an unreasonable expense on the part of the defendant.

(g) the social utility of the activity that creates the risk of harm

174    The stadium was available for people to attend to watch sport, which is considered to be a useful social activity by most people. The stadium was open to people of various physical abilities and their attendance was encouraged. The defendant must have been aware that the stadium would be used by persons of all levels of physical ability. The social utility in my view does not outweigh the risk in question.

175    Taking into account all the matters set out above, in my view, a reasonable person in the position of the defendant in the present case would have taken the precautions which I have found to be reasonable, that is, provide a handrail and a chamfered edge which complied with the relevant standards. In light of these matters, it is my view that there is a breach of duty of care by the defendant in the present case.

35. The primary judge’s consideration of causation was very brief. In its totality, it was as follows:

177    I have found that had there been a handrail, the plaintiff would have moved to that side of the [a]isle and used it when descending the stairs.

178    I find that on the balance of probabilities, the lack of a handrail and the chamfered edge being over 5 mm was a necessary condition of the occurrence of the harm. It was not suggested by either expert that handrails were not of assistance in enabling a pedestrian to safely navigate stairs.

179    I find causation is established.

36. The primary judge assessed general damages at $35,500, noted out-of-pocket expenses were agreed to be $1,575, found a buffer in the sum of $2,500 for future out-of-pocket expenses and allowed a buffer of $40,000 for future economic loss. The primary judge allowed the agreed sum of $1,542 by way of past economic loss for the period immediately after the accident and then added to that a separate buffer of $10,000, including lost superannuation. This was challenged by the final ground of the appeal.

Sections 5B and 5C of the Civil Liability Act

37. Sections 5B and 5C of the Civil Liability Act provide as follows:

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

5C Other principles

In proceedings relating to liability for negligence—

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

The side issues concerning the chamfer and the luminosity of the steps

The mechanism of the fall

38. As noted above, the primary judge found that, in accordance with her evidence, Ms Kane had slipped, and that her fall was not the result of overstepping, having previously rejected evidence served by Venues NSW that she had overstepped

39. In this Court, Mr Cranitch SC, who had not appeared at trial, invited a finding that the fall had been caused by Ms Kane’s overstepping. The essence of the submission was that the fall undoubtedly happened, the plaintiff was taking reasonable care, and it was common ground that the concrete steps were themselves highly slip resistant. He in substance contended that as a matter of elimination, the fall occurred as a matter of overstepping, and this was exacerbated by the 30mm chamfer at the edge of each step. It was said that “if she slipped on something by the simple process of elimination, and it seems to be accepted that she did slip, then she had to have put her foot on the chamfer, to some degree at least on the chamfered bit”.

40. This Court in conducting an appeal by way of rehearing is empowered to make findings of fact, including findings of fact contrary to or different from those made at trial: Supreme Court Act 1970 (NSW), s 75A. However, I would not make the finding for which Mr Cranitch contends. This trial was conducted by counsel then appearing for Ms Kane on the basis that there was no overstep. Further, the plaintiff’s evidence, confirmed in cross-examination, was that she did not overstep. On the strength of that, some opinions of the defendant’s expert were excluded (the objections were ruled upon after the plaintiff had given evidence), and the cross-examination is apt to have been affected by the ruling. Her evidence was that she slipped, and, as Mr Sexton SC (who also did not appear at trial) submitted, the mere fact that the surface is slip resistant does not prevent all slips. One can slip on a slip resistance surface, especially if it is wet. I do not agree that “as a matter of elimination” it must be deduced that Ms Kane placed any part of her foot, let alone any weight-bearing part of her foot, on the chamfered edge of the step.

41. The findings of the primary judge are that Ms Kane was moving slowly, that she placed her foot fully on the step, slipped, and fell over backwards. That is not wildly improbable, and can occur without any overstep. Further, an overstep is difficult to reconcile with Ms Kane’s falling backwards.

42. Thus because the finding sought on appeal is inconsistent with the way the trial was run, and also because I do not accept the argument as to the necessary mechanism of the fall, I reject the submission that Ms Kane placed her foot on the chamfered edge of the step.

The significance of the width of the chamfer

43. It follows, as Mr Sexton submitted, that that is close to a complete answer to such complaint as is made about the width of the chamfer. Ms Kane placed her foot fully on the step. She slipped. The only potential significance of the chamfer being 30mm as opposed to 5mm to the causal mechanism of the fall is that there was less horizontal surface of the step along which her foot would slide. But after her foot had begun to slide, it is difficult to see how an extra 25mm of horizontal surface would matter. After she had begun to slip, her imbalance would only increase. Obviously the chamfered edge would have been slippery – it was at an angle after all – but the rejection of the overstep case means that the plaintiff had already slipped before her foot reached the chamfer, and it did not matter that there were 25mm less of horizontal concrete along which her already slipping foot could slide before the horizontal surface gave out.

44. It is true that the primary judge considered that it “likely contributed” to the foot slipping. However, no explanation was given for how that might be.

45. An attempt was made in this Court to involve the chamfering in the mechanism of the fall. There was the following exchange:

CRANITCH: … But for that chamfering we say she would have had her foot flat on the step. To a certain extent the only way in which I can explain it anyway is that her Honour accepts the slipping, so therefore she slipped on something. It seemed most unlikely that she slipped on the flat portion of the step, so it’s more likely than not that she slipped on the chamfering, which we say is excessive, and that’s the reason why we say that that’s a probable cause and it’s not inconsistent with the finding that we ask this Court to make in the alternative.

LEEMING JA: Then just how do you say I should read the reference to the nosings at line 45 at transcript 105, p 154 of the white book, where her Honour says it would be against her evidence because she said she didn’t step on the nosing. You say nosing is different from chamfering?

CRANITCH: Yes, nosing is different from chamfering.

LEEMING JA: What is the nosing?

CRANITCH: The nosing, as I understand it, is the transition point between the vertical and the horizontal, and here that transition point is at a point further than the plaintiff stepped. In other words, when the plaintiff stepped she thinks she’s stepping on a flat surface, but because there is excessive chamfering, on what should be a flat surface, she slips. But it’s only because there is excessive chamfering. If it was 5 millimetres it wouldn’t make any difference, she wouldn’t have slipped.

46. I do not accept these submissions as a fair reading of the findings of the trial judge, or for that matter of Ms Kane’s evidence. The vertical and horizontal surfaces of each step did not meet at a point; they were chamfered. Ms Kane denied that she had placed her foot too far forward over the edge of the step. She did not refer to “nosings” in terms. When the primary judge said, when dealing with Ms Kane’s objection to evidence, that Dr Cooke’s theory that she had overstepped was irrelevant because “it would be against her evidence because she said she didn’t step on the nosings”, her Honour must have been referring to that evidence, which was clear that she had not placed her foot on the chamfered corner of the step.

Notice of contention - luminosity

47. A notice of contention was filed shortly before the hearing of the appeal. It was late (cf UCPR r 51.40) and unsupported by any written submissions. Nevertheless, it was not objected to, and the Court heard full argument on it.

48. The notice of contention sought to uphold the judgment on the following basis:

Her Honour failed to have regard to the significance of luminosity of the steps in the context where it was raining and difficult for the Respondent to see where she was placing her feet.

Her Honour failed to take into account the significance of the yellow strips installed on the stairs after the Respondent’s accident.

49. Relatively little attention was given to the first basis, concerning the luminosity of the step. There is no proper basis to interfere with the finding of fact, which was evidently based on an acceptance of Ms Kane’s evidence, that not much turned on whether there was a 30% contrast in luminosity.

50. Oral submissions gave prominence to the yellow nosing strips which had been applied subsequent to Ms Kane’s fall. Section 5C(c) provides that “the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk”.

51. The rule in s 5C(c) is very old. In Davis v Langdon (1911) 11 SR (NSW) 149 at 161-162, a Full Court of this Court more than a century ago cited Columbia and Puget Sound Railway Co v Hawthorne 144 US 202 (1892): “A person may have exercised all the care which the law required, and yet in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards”. Earlier, Bramwell B had said in a railway case, Hart v The Lancashire and Yorkshire Railway Company (1869) 21 LT 261 at 263:

… people do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident. I think that a proposition to the contrary would be barbarous. It would be, as I have often had occasion to tell juries, to hold that because the world gets wiser as it gets older, therefore it was foolish before.

52. Accordingly, when pressed, counsel maintained that it was relevant only to illustrate a feasible alternative which had been available to Venues NSW. That is permissible: see Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132 at [97]. The significance of the yellow strips is that they were a practical measure available to address some of the risks posed by the steps. But I fail to see how they can impact upon the outcome of this litigation. It is sufficient to attend to the findings made as to the mechanism of the fall. Ms Kane did not place her foot on the chamfer. She did not overstep. She placed her foot fully on the horizontal surface of the step. Even if the edge of the step had been more visible than it was, it has not been shown how the placement of a yellow nosing strip would have prevented the fall.

53. This appeal stands or falls on the basis of the main point argued, namely, whether a reasonable person in Venue NSW’s position would have installed a handrail.

The handrail

Risk of harm

54. Sections 5B and 5C, which are reproduced above, proceed on the basis that there has been identified a “risk of harm”. None had been pleaded, by either side, despite its importance having been stressed in numerous decisions of this Court: see Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [22]; Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; Aust Tort Reports 82-172 at [52]; Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298 at [153]; Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102]-[107]; Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114; Aust Tort Reports 82-289 at [87]; Fairall v Hobbs [2017] NSWCA 82; 347 ALR 151 at [74]-[76], Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183; Aust Tort Reports 82-409 at [20]-[22] and Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65 at [49]-[51]. As much is evident in the analysis of the majority reasons for judgment in Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11 at [106]-[119].

55. In final address, counsel for Venues NSW introduced as the appropriate risk of harm “that of a patron losing their balance and falling and sustaining injuries whilst walking down steps within the stadium.” There was no challenge to the formulation of the risk of harm, and thus this Court should proceed on that basis. However, I have some misgivings as to whether that is the appropriate risk. The point of identifying a risk of harm in a failure to act case is so that ss 5B and 5C (and perhaps other provisions) may be applied. After all, it is “only through the correct identification of the risk that one can assess what a reasonable response to that risk would be”: Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [59]. The risk of harm should not be unduly narrow: see for example Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 at [67]. The stairs were two way, and almost every spectator who travelled down the steps would also have ascended the same steps or other similar steps nearby. People can and do fall as they ascend steps and as they descend steps, and to my mind it is far from clear that s 5B is to be applied only to the risks presented by spectators descending the steps and is to be put to one side in respect of the risks presented by spectators ascending the steps.

56. Nevertheless, I proceed on the basis of the narrower formulation of risk of harm which was agreed by the parties and applied by the primary judge, noting that doing so works no disadvantage to Ms Kane on the facts of the present case.

The reasoning on s 5B(1)(c)

57. Venues NSW did not cavil with the primary judge’s conclusions that the risk of harm was both foreseeable and “not insignificant”. Those conclusions are plainly correct.

58. Venues NSW disagreed with her Honour’s reasoning on the critical issue, namely, the response of a person in Venue NSW’s position. I do not intend to convey any criticism of counsel when I observe that little attempt was made to defend the reasoning of the primary judge on s 5B(1)(c). That reasoning cannot stand, for reasons which may shortly be stated.

59. First, the reasoning and conclusion in [169] and [170] were specifically directed to s 5B(1)(c), but were confined to the conclusion that Venues NSW should have arranged for a risk assessment. But her Honour’s conclusion that a reasonable response would have been to arrange for a risk assessment did not feed into the balance of the reasoning either on breach or on causation. Nothing in the reasons explicitly connected the risk assessment which was to have been carried out and the installation of handrails on any of the aisles in the stadium.

60. Secondly, the reasoning proceeds on the basis that the three paragraphs in s 5B(1) and the four paragraphs in s 5B(2) are all to be taken into account in order to reach a conclusion on breach, in effect as a form of intuitive synthesis. That is not so. Only if the risk is reasonably foreseeable, and not insignificant, can the defendant be liable. Further, only if s 5B(1)(c) is satisfied, can a defendant be liable. Section 5B(1)(c) is a gateway, in the sense that a plaintiff who fails to satisfy that provision cannot succeed. Section 5B(2)(a)-(d) are different: they are mandatory considerations to be borne in mind in determining the critical conclusion in s 5B(1)(c), namely, whether a reasonable person in the defendant’s position would have taken the precaution.

61. Another way of making the point is this. It is wrong to proceed on the basis that the Court simply has regard to each of the seven matters in ss 5B and 5C and on that basis expresses a conclusion as to breach. The first and second are indispensable elements of liability, and the fourth, fifth, sixth and seventh are required to be taken into account in addressing the third, which is also an indispensable element of liability. That is not to say that the matters identified in s 5B(2) may not, in an appropriate case, also be relevant to addressing reasonable foreseeability and the significance of the risk.

62. Thirdly, the matters identified in s 5B(2) are not exhaustive of the matters to be brought to bear in answering the question posed by s 5B(1)(c). That is the force of “amongst other relevant things” in the opening words of the subsection. Here there were other things which bore directly upon the reasonable response to the risk, upon which the defendant relied, and which the primary judge did not mention. It is wrong to regard s 5B as a checklist which, when all seven paragraphs have been considered, exhausts a court’s consideration of breach.

63. The matters relied on by Venues NSW but which were absent from the reasoning of breach include:

1. the fact that the structure had been certified as compliant 8 years before;

2. the fact that the horizontal surface of each step was highly slip resistant, even in wet conditions; and

3. the absence of railings along the aisles in many other stadiums, including those managed by Venues NSW.

64. Next, the consideration mandated by s 5B(2)(c) is required to be undertaken in accordance with s 5C(a). Thus the burden is not the $1500 stated in [173]. It is at least the burden of installing handrails on the other aisles which adjoined concrete walls around tunnels within the lower concourse of the grandstand. To be sure, the primary judge acknowledged that “Even if handrails were required to be placed at other stairways, that would not represent an unreasonable expense”. There is nothing contingent about this. Section 5C(a) mandates that the expense of other handrails adjacent to similarly positioned aisles be had regard to. I have sought at some length to explain how the schematic diagram of the lower concourse enables an analysis of the other stepped aisles in that part of the grandstand.

65. A further problem with s 5C(a) is that it is also necessary to have regard to the burden for taking precautions to address similar risks of harm throughout the stadium, and that includes the stepped aisles where there are rows of seating on both sides of the aisle. That appears to be the majority of the aisles in the concourse. Venues NSW said that a handrail could not be installed along either side of such an aisle. As much seems obvious and was not disputed by Ms Kane. No attention was given to this at all. Strictly speaking, that did not accord with s 5C(a). However, nothing turns on this, because the inability to install handrails on those aisles with rows of seating on both sides does not materially bear on the question whether Venues NSW should have installed handrails along those aisles where doing so was practicable and not unduly burdensome.

66. There were other matters which bore upon s 5B. One was the obvious nature of the danger presented by the steps. This Court said in Wilkinson v Law Courts Limited [2001] NSWCA 196 at [32]

Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: “persons using steps 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.

67. That is obvious, and has consistently been applied in this Court: see (without being exhaustive) Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [80] and Zaya 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 reasonable person considering the identified risk of harm presented by the stairs would have concluded that a handrail should have been erected as a precaution against that risk: at [38]-[51].

68. Next, there was no evidence that anyone had fallen on the steps. This led to a relatively extensive debate when the appeal was heard on the significance of the absence of evidence that anyone else had fallen on these steps, or indeed any steps at the stadium. Ms Kane said that this was information known to Venues NSW. Venues NSW said that it was information readily available by the issuing of a notice to produce.

69. Plainly it was open to either side to investigate the history of falls on the premises. A notice to produce might be issued by Ms Kane, although if Venues NSW’s record keeping were poor, that might rebound against her. (To be clear, there is no suggestion that that is so, and the fact that one document tendered was a four page “Pre-Event Safety Checklist” for the “Knights v Warriors” game suggests that records were brought into existence and kept by Venues NSW.) The onus rested upon Ms Kane to prove her case. The decision taken by both sides not to adduce evidence of the history of falls at the stadium meant that s 5B was to be applied on the basis that there was not a history of falls on the stairs.

70. For all those reasons, the finding of breach cannot stand.

A reasonable occupier would not have installed a handrail

71. There was an entirely foreseeable risk of harm of spectators slipping on the steps and injuring themselves. That risk was not insignificant. But would a reasonable occupier have installed handrails?

72. Much of the criticism of the reasoning, and gaps in the reasoning, of the District Court sustains the conclusion that s 5B(1)(c) was not satisfied. The stadium had been certified as compliant 8 years previously. It contained hazards which were utterly familiar to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. Although the horizontal surface was slip resistant, that did not exclude the possibility of slips, especially on a wet day. The position was not greatly different from any other outdoor stadium in the country with stepped aisles permitting access to tiered seating. As McHugh J said in Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 at [34], “[c]ompliance with common practice is powerful, but not decisive, evidence that the defendant did not act negligently”.

73. The stepped aisle was intended for two-way traffic. It was designed to permit an ascending patron pass by a descending patron, and to permit faster patrons travelling the same direction to overtake slower patrons. It was also designed to permit two patrons to ascend or descend side by side, as occurred after Ms Kane’s fall when she and her friend descended together.

74. There was no suggestion that there be handrails on each side of the aisle; if there were, access to the seats would be impeded. The precaution of installing a handrail along the concrete barrier would be a measure that would only assist those patrons who ascended or descended the steps adjacent to it. The fact that some patrons using the aisle, especially at busy times, would be unable to avail themselves of the handrail tells against its being a reasonable precaution.

75. Even if the steps are not crowded, it is not unlikely that spectators will have their hands full. They may be holding bags as they enter or leave the stadium, and they may be holding food or drink they have purchased at half-time. Indeed, Ms Kane said that she saw a man holding two beers, one in each hand, slip and drop both beers. Although the man was not shown on the video footage which was tendered, he was a readily foreseeable user of the steps. A handrail will be much less likely to respond to the risk of a fall by patrons with their hands full.

76. I do not accept that a reasonable person in the position of Venues NSW would install a handrail along those aisles which had a concrete side. The risk was familiar and obvious. The use of stepped aisles without handrails in similar stadiums is commonplace. The structure had been certified as fully compliant eight years earlier. The evidence did not disclose any history of earlier falls resulting in injury, despite the stairs being used by (literally) millions of spectators over the previous eight years.

77. I would add to those considerations, although it is of lesser significance, the facts that while a handrail could reduce the risk of a fall on the steps, it would not make any difference to a person who chose to descend on the side of the aisle which adjoined the seats, and it would not make any difference to a person who could not use the handrail because another spectator was ascending the same stairs on the side adjoining the wall or because the person had his or her hands full. Those considerations matter because most users of the stairs will be doing so when there are thousands of people in the stadium who want to move about at half-time or at the conclusion of an NRL or A-League match, and so the greatest usage will be when the aisle is crowded. In relying on those further matters, I am not to be understood as saying or implying that a precaution which does not address all aspects of a risk of harm can never be a precaution which a reasonable occupier might install. Very few precautions will be 100% effective in all scenarios and in respect of all users of the land; that does not mean that a reasonable occupier would not implement any precaution to respond to a risk of harm. That is to say, the fact that many or indeed most users may be unable to, or may choose not to, rely on a precaution does not of itself make the precaution one which a reasonable occupier should not bother implementing. However, the extent to which a precaution will be ineffective is relevant to determining whether a reasonable occupier would implement it. Insofar as a precaution would be ineffective against a risk of harm for many or most users, that contributes to the overall assessment of whether it is a precaution which a reasonable occupier would implement.

78. I return to the Building Code of Australia. This Court heard no argument about the conclusion reached by the primary judge, preferring the opinion of Mr Cauduro over that of Dr Cooke, that handrails were mandated. I very much doubt that that is so. Mr Cauduro did not explain why, if that were so, handrails were not required along all stepped aisles, including those with seating on each side. To my mind, the detail of the provisions mentioned above, which addressed stepped aisles in venues such as the stadium in this case, requiring steps of equal height and treads as nearly as possible equal length and with prescribed dimensions as to the slope of the tiers and the distance between each tier, suggests that for the purposes of the Building Code of Australia, the aisle is not a “staircase”. But in the absence of submissions on this point, I do not express a concluded view. The reasoning above applies even if as the primary judge held the Building Code of Australia mandated a handrail.

71. The Building Code of Australia also mandates that the steps be of the same horizontal width to the extent possible. I have considered the impact of this upon the steps in the lower concourse. No submissions were made about this, and it is not necessary to express any firm conclusions. The fact that the steps were of uneven width made them more awkward to use. However, that very fact would have forced patrons to be more cautious. My tentative view is that nothing turns upon the uneven width of the steps. But in any event, the fact that the steps were of uneven width does not detract from any of the reasoning above on s 5B(1)(c).

Remaining grounds and orders

80. In light of the foregoing, nothing turns on the remaining grounds, and I shall address them concisely.

81. Strictly, there is a deficiency in the reasons of the primary judge on causation. Her Honour found that “the lack of a handrail and the chamfered edge being over 5 mm was a necessary condition of the occurrence of the harm”. That falls short of a finding that the lack of a handrail was a necessary condition of the occurrence of the harm. However, I shall take the same approach as the parties and read that passage favourably to connote that if there had been a handrail, then Ms Kane would likely have used it, and on the balance of probabilities it would have arrested her fall or prevented her from falling as heavily as she did.

82. Venues NSW challenged this reasoning as speculative. The written submissions on causation were brief. They were not elaborated orally.

83. Venues NSW said that Ms Kane, unlike her friend, did not attempt to hold the glass balustrade as she descended, and because her fall was so sudden, there was no reason to think that she would have had time to use the handrail to prevent her fall. It was said that these submissions were supported by Russell v Carpenter [2022] NSWCA 252 at [52]-[57].

84. The question of causation posed by ss 5D and 5E is factual. The reasons in another case may assist, but they are likely to be dependent upon the facts of that case. Significantly, this Court in Russell v Carpenter overturned the finding of causation in the District Court, but relied on it being “telling” that “the respondent might have held onto the vertical pole located near the stairs but did not do so”: at [56], and that the respondent was at the time holding golf balls in his hands: at [57]. In the present case, there was no equivalent to the vertical pole, and Ms Kane’s hands were free.

85. There was no challenge to the finding, which was based on Ms Kane’s evidence, that she was being careful as she descended and was looking for something to hold onto. As it happens, when she was descending, there were only a handful of people in the bay, and only herself and her friend on the steps. I do not see any error in those circumstances in the finding by the primary judge that Ms Kane would have gravitated to the side of the aisle with the handrail, nor that it would, on the balance of probabilities, avoided or reduced the seriousness of her fall. I would reject this ground of appeal.

86. The primary judge found that there was almost no past economic loss, save in the immediate aftermath of the accident (for which $1,542 was awarded and as to which there was no challenge) but nonetheless awarded a “buffer” of $10,000. This was said to be based on there being a “general diminution in her earning capacity from the time of the accident”, albeit there being no evidence of any loss of income.

87. Venues NSW submitted that having allowed an amount of damages for past economic loss, but in the absence of any other evidence of loss of income, the reasoning as to a buffer could not stand. Senior counsel for Ms Kane accepted that the award was “novel” and while he did not concede this ground, the written submissions were confined to a paragraph, and when at the conclusion of his address counsel was asked whether he wished to defend it he acknowledged that the finding was “a little bit novel I’ll have to concede”.

88. If it were necessary to rule on this ground, I would regard it as made out. I do not say that such an award is impossible. However, if such an award is possible, then considerably more needed to be done in order to explain how a plaintiff who on the evidence had not suffered any diminution in actual earnings, save for a short period in the immediate aftermath of the accident, was entitled to a buffer for past economic loss.

89. For those reasons, I would allow the appeal, set aside the orders made on 14 December 2022 and the costs order made on 8 February 2023, and in lieu thereof order judgment for Venues NSW. Costs at first instance and in this Court should follow the event. Should either side wish to apply for any further orders as to costs, she or it may do so within the time specified by UCPR r 36.16.

90. I propose these orders:

1. Grant leave to appeal.

2. Direct Venues NSW to file a notice of appeal in the form of the draft notice of appeal within seven days, and otherwise dispense with the requirements of service.

3. Appeal allowed.

4. Set aside the orders of the District Court made on 14 December 2022 and 8 February 2023 and in lieu thereof order judgment for the defendant with costs.

5. Order Ms Kane to pay Venues NSW’s costs in this Court.

91. ADAMSON JA: I agree with Leeming JA.

92. SIMPSON AJA: I have read in draft the judgment of Leeming JA. I agree with the orders his Honour proposes. I can state my reasons briefly. In doing so, I adopt his Honour’s comprehensive statement of the relevant facts. The following assumes a familiarity with Leeming JA’s judgment. There is one aspect of the reasoning with which I am not able to agree. The relevant statutory provisions to which I refer below are set out at [37] of that judgment.

93. The risk of harm against which Ms Kane proposed that a reasonable person in the position of Venues NSW would have taken precautions may be accepted as:

“… that of a patron losing their balance and falling and sustaining injury whilst walking down steps within the stadium.”

The specific precaution which Ms Kane asserted Venues NSW ought to have taken was the installation of a handrail on the concrete wall adjacent to the aisle which she used to descend the stairs.

94. I do not accept that, because in the case of some patrons a handrail would afford little benefit, because those patrons ascend or descend the stairs using both hands to hold food, drinks, bags or any other items, a reasonable occupier would not install a handrail (see [75] and [77]). A handrail is a precaution against a risk of harm available to be used by patrons. That some patrons may, for their own reasons, choose not to use it says little about whether a reasonable occupier of premises would take the precaution (unless, perhaps, the evidence showed that use would be minimal, or the costs would be disproportionate to the use). The duty of an occupier of premises is to take reasonable care for the safety of entrants on the premises who take reasonable care for their own safety. It is not to the point that, even if handrails were installed, some patrons would not, for one reason or another, use them. The question is what precautions an occupier would take for the safety of those patrons who would elect to use a handrail. I therefore do not accept that the considerations mentioned in [75] and [77] are relevant to the determination of the question. That does not affect my agreement with the outcome proposed by Leeming JA.

95. Similar reasoning applies to the proposition that those patrons who opted to descend the stairs on the side of the aisle adjacent to the seating, where installation of a handrail was not practicable, would obtain no benefit. Using the unprotected side of the stairs is a choice that may be made by the patron. That some may do so does not bear upon what a reasonable occupier would do.

96. As mentioned above, my reasons for joining in the orders proposed by Leeming JA may be stated briefly. They are:

1. the stairs were not undercover, and were therefore open to the weather. That, in my opinion, is one indicator that a handrail was a precaution that ought to have been taken. However, that is because of the propensity of floor surfaces to become slippery when wet. The evidence that the surfaces had a high degree of slip resistance, even in wet weather, to some extent counters the proposition that a handrail would give some necessary protection against slippery surfaces;

2. the stadium had, eight years previously, been certified as compliant with relevant building regulations;

3. although the stadium was used on numerous occasions by many hundreds of patrons, there was no evidence that the absence of handrails had given rise to any incidents similar to that involving Ms Kane. I do not infer that there were no such incidents. The evidence simply does not demonstrate any established need for handrail protection by reason of previous incidents;

4. the use of stairs similar to those in the stadium is commonplace. The Court was not referred to any previous decision in which it has been held that stairs (of a similar kind) have been held to require the installation of handrails.

97. For these reasons I agree with the orders proposed by Leeming JA.

**********

Amendments

07 September 2023 - Amend Civil Liability Act 2001 to Civil Liability Act 2002 in coversheet, headnote and [5].

Decision last updated: 07 September 2023