Moor v Liverpool Catholic Club Ltd  NSWDC 93
At about 3.45pm on Wednesday 14 January 2009, the plaintiff, Christopher Moor, was injured at the premises of the defendant, Liverpool Catholic Club Ltd. He sustained a fracture to his right ankle after losing his footing, slipping and falling whilst descending a set of stairs. At that time, he was wearing ice skating boots. He was descending the stairs in order to access an ice skating rink on the premises.
When the plaintiff fell on the stairs, he suffered a very painful fracture with swelling to his right ankle. This was later defined by an x-ray examination to involve an oblique fracture of the distal right fibula with some dorsal displacement of a major distal fragment, with the fracture line extending a few centimetres above the ankle joint, with some ligament disruption, evidenced by the x-ray findings of widening of the ankle joint.
Expert engineer for the plaintiff
The plaintiff relied upon 3 reports from Mr Ian Burn, a consulting civil engineer. His reports were respectively dated 23 April 2012, 13 September 2012 and 12 November 2012. The most recent report of Mr Burn commented upon a report dated 19 September 2012 from the defendant’s expert, Dr John Cooke, a consultant architect.
On 20 April 2012, Mr Burn had inspected and made measurements of the stairs where the plaintiff had fallen. He observed that including the landing, the seven steps comprised a discrepant pattern of measurements of the goings, or treads and the risers.
Mr Burn pointed to a lack of consistency within the measurements of the treads and the risers on the flight of stairs. In his view, this meant that persons using the stairs would have no assurance when placing a foot on each step.
His Honour Justice Levy SC of the District Court of New South Wales was of the view that:
“When a person of the plaintiff’s height was descending the stairs, those discrepancies would not have been obvious when looking down the flight of stairs.”
Expert engineer for the defendant
The defendant relied upon a report dated 19 September 2012 from Dr Cooke. He surveyed the regulatory framework for the premises and concluded that the stairs were compliant with Ordinance 70, and that otherwise, no relevant Australian Standard applied at the time of the accident. However, he made tests which adopted the test procedures specified in AS/NZS 4663:2004 and he proceeded to attempt measurements of the co-efficient of friction between a piece of polished metal plate he assumed simulated the surface of an ice skate blade, and the nosing on the stairs.
Conclusions on utility of the expert evidence
His Honour, having considered the respective reports of the Plaintiff’s experts, concluded that Mr Burn’s analysis of the mechanics of the plaintiff’s fall was more reliable when compared to the opinions of Dr Cooke for the defendant.
Whether an obvious risk was present
The defendant pleaded a defence of obvious risk, pursuant to s 5F, s 5G and s 5L of the CL Act. The questions for decision in connection with that defence is whether the activity of walking down stairs whilst wearing ice skates at an ice rink, involves an obvious risk within the meaning of s 5F(1) of the CL Act, and whether such argued obvious risk in fact materialised and caused injury to the plaintiff.
The question of whether there was an obvious risk present pursuant to s 5G of the CL Act involves an objective determination of whether the plaintiff’s conduct involved a risk of harm that would have been obvious to a person in the position of the plaintiff: Jaber v Rockdale City Council  NSWCA 98, at -; Lalouach v Ibrahim  NSWCA 402, per Giles JA, at . The question of obviousness of the probability of the occurrence of harm in the circumstances is dependent upon what is, or is not, readily apparent to a reasonable person in the position of the plaintiff: Jaber v Rockdale City Council, at , per Giles JA.
His Honour stated firstly that:
“The defendant had not shown that the activity in which the plaintiff was engaged, namely descending down the stairs wearing skate boots, was a dangerous recreational activity within the meaning of s 5L of the CL Act, namely an activity that carried with it a significant risk of harm”: Lormine Pty Ltd v Xuereb  NSWCA 200, per Mason P, at .
Secondly his Honour stated that, the description of the plaintiff’s descent down the stairs and the CCTV footage showing the course of his descent did not demonstrate any unreasonable conduct on the plaintiff’s behalf. His Honour concluded that-
“On the evidence adduced in this case, the defendant has not established the allegation that the plaintiff had descended the stairs in a manner that was oblivious to the risk of him falling.”
Thirdly, his Honour was of the view that, the defendant had not established that the plaintiff had either actual or constructive knowledge that descent of the stairs whilst wearing skate boots involved an obvious risk.
Whether there was inherent risk
The defendant also pleaded a defence of inherent risk, pursuant to s 5I and s 5K of the CL Act. There is no liability in negligence if the harm complained of is as a result of the materialisation of an inherent risk: s 5I(1) of the CL Act.
An inherent risk is defined as an occurrence that cannot be avoided with the exercise of reasonable care and skill: s 5I(2) of the CL Act. The exclusionary effect of s 5I does not operate where there is a duty to warn of the existence of a risk: s 5I(3) of the CL Act.
His Honour was of the view that the plaintiff was entitled to a warning that the stairs had incorporated within their structure of the treads, goings and risers, an uneven pattern of lineal and vertical dimensions. Similarly, the plaintiff was also entitled to a warning that the nosing edges of the stairs were slippery when wet in the moist conditions that were evident at the ice rink premises.
His Honour further stated that, the actions involved in descending the stairs wearing skate boots, as distinct from ice skating, did not constitute a dangerous recreational activity within the meaning of s 5K of the CL Act.
Duty of care and scope of that duty
The plaintiff claimed that as the occupier of the ice rink, the defendant owed him, as a customer entrant onto the premises, a general duty of care to take reasonable care to avoid a foreseeable risk of injury: Australian Safeway Stores Pty Ltd v Zaluzna  HCA 7; (198) 162 CLR 479, at pp 487 to 488,  to .
The duty of an occupier of premises extends not only to a static condition of premises, but also to activities conducted upon the premises: Thompson v Woolworths (Queensland) Pty Ltd  HCA 19; (2005) 221 CLR 234 at . Relevant to this case, this must be taken to be a reference to the state of the stairs and the manner in which the stairs were used by the defendant’s patrons.
His Honour was of the view that, it was appropriate on the facts of the case, to apply the simple “but for” test of factual causation required by s 5D of the CL Act. His Honour consider that it was more probable than not, that the plaintiff’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. His Honour was also satisfied that it was unlikely the plaintiff would have sustained the injury he did if the instructed and supervised practice at the ice rink was to ensure patrons refrained from putting on their ice skating boots until after they had descended the stairs in question: Strong v Woolworths  HCA 5, at  to .
Conclusions on negligence and causation
His Honour concluded that the defendant was negligent as alleged, and that such negligence was the cause of the plaintiff’s injury.
(1)Verdict and judgment for the plaintiff in the amount of $148,343;
(2)The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis unless otherwise ordered;
(3)The exhibits may be returned;
(4)Liberty to apply on 7 days notice if further orders are required.
Summarized by Ashli Kedicioglu Solicitor