Foreseeable risk: a look into a spiralling case
Real estate agents and lessors will be very familiar with the complaints of tenants who sustain an injury because of a fall at rented premises, and then seek to hold the lessor, and, in some cases, the agent, responsible for the state of the premises.
A common consideration when a tenant is injured at a rental property is who is liable for the incident. Some tenants might consider the fact they have rented the property on a short-term basis means they are a “consumer” and, so, the property they rented must be free from all hazards.
That was the reasoning recently employed by a judge of the District Court in New South Wales in finding a lessor liable for a tenant’s stumble down a short outdoor staircase. Fortunately, for agents and lessors, the law remains that short term rental properties are not a special class of risk and the obligation of a lessor with respect to lawful entrants to the property is to take reasonable care to avoid a foreseeable risk of injury. This proposition was recently restated by the Court of Appeal of New South Wales in Russell v Carpenter, a decision delivered on 8 December 2022.
The case came before the New South Wales Court of Appeal, on appeal from a judgment of the District Court, in which the plaintiff recovered damages of $284,092, referrable to a back injury he sustained when stumbling down a set of outdoor stairs at a coastal holiday home. The stairs were helical, that is, –in a spiral formation – but comprised only three steps and the staircase was less than one metre in height.
The plaintiff had stumbled down the stairs when he was trying to retrieve a golf ball which had fallen onto the stairs. As the plaintiff began to descend the short flight of stairs in pursuit of the golf ball, the ball of his right foot landed on the first step and he slipped and fell, injuring his lower back and elbow.
THE JUDGMENT AT FIRST INSTANCE
At first instance, the District Court judge found for the plaintiff, concluding that the stairs should have been equipped with a handrail and that the presence of the handrail would have eliminated the risk of the injury sustained by the plaintiff.
In doing so, the trial judge relied upon the fact that this was a short term holiday rental and claimed that the obligation on the lessor was to provide premises that were “safe and free of from all hazards” and to “ensure that persons present could engage in ordinary social discourse” at the property, which, presumably, included playing with golf balls in the backyard.
THE JUDGMENT IN THE COURT OF APPEAL
The Court of Appeal did not agree and concluded that the determination of the lessor’s liability for the fall sustained by the plaintiff turned upon the well-established principles as to whether there was a duty of care, whether there was a breach of the duty of care and whether any breach of the duty of care caused the loss.
As to the existence of the duty of care, the Court of Appeal held the trial judge’s finding that the plaintiff was a “consumer of services”, pursuant to a short term rental contract, was irrelevant to considering the common law duty incumbent upon lessors, which is to take “reasonable care to avoid a foreseeable risk of injury”.
The question in this matter then turned upon whether, or not, the exercise of reasonable care required the lessor to equip the three-step outdoor staircase of less than a metre in height, in a helical formation, with a handrail.
It was held by the Court of Appeal that there was no such obligation.
Whilst the primary judge had found that the risk of slipping on the stairs was “significant”, the Court of Appeal held that, “the risk of a person slipping on the stairs and injuring themselves was not insignificant (that is, it could be called significant), but … that risk attaches to nearly all stairs as many cases have recognised”.
Insofar as the primary judge had observed that the Building Code of Australia did not require the stairs to have a handrail when built, but that, if built for commercial premises, the Safe Work Australia Code of Practice prescribed that there should have been a handrail, the Court of Appeal held that the reference to the Safe Work Australia Code of Practice was inappropriate and misleading because, notwithstanding the fact that the property was a short term holiday rental, it was not being used for “commercial purposes”.
In any event, the Court of Appeal observed that “a generic statement to the effect that staircases in properties used for commercial purposes should have a handrail, throws little light on whether or not this three-step set of stairs at the back of a holiday rental property should have had one”.
There was considerable argument at trial as to whether a handrail should have been installed because the configuration of the helical staircase is such that the horizontal distance between the front of one step and the next varies, that is, the treads are wider on the outside and narrower on the inside. It was argued that a handrail would have provided a “visual cue” for the user of the stairs to use the wider part of the stair treads.
The Court of Appeal noted that the expert called by the plaintiff had contended that helical stairs were more dangerous than non-helical stairs because of the “tapering of the stair treads”, but it also observed that that increased risk was inherent, entirely obvious and that the consequences of the risk eventuating would be only minor injuries.
The Court of Appeal concluded that whilst it is true that almost any property can be made safer, one needs to consider the practicalities of addressing all the precautionary measures which could, hypothetically, be imposed upon a property.
The Court of Appeal stated:
“If this type of risk (that is, the absence of a handrail on a three-step set of stairs) required precautionary measures of the kind alleged, no doubt many other risks around the house might fall into a similar category of presenting slight and obvious risks. The cost of addressing all such risks may well be material. And the precautionary measures may be intrusive or unappealing. The law does not require that resources be spent on risks such as those at issue here, which are slight, inherent, and obvious. Life is not required to be lived surrounded by cottonwool”.
It was concluded that, in the circumstances of this case, there was no obligation to install a handrail.
THE CAUSE OF ANY LOSS
In any event, the Court of Appeal found that the handrail would not have prevented the plaintiff’s injury.
In this regard, whilst the three-step set of stairs did not have a handrail, it did have a vertical pole which was erected in the middle of the short staircase.
The plaintiff did not use that vertical pole when he descended the stairs and when he slipped. He did not use it because, simply, the slip occurred too quickly for the plaintiff to grab the pole.
By necessary extension, if the slip from the top step occurred too quickly to grab the vertical pole, the Court of Appeal concluded that whether, or not, a handrail was there on the outside of the steps would have made no difference at all to the mechanics of the fall.
Therefore, the primary judgment in favour of the plaintiff was set aside and the appeal was allowed.
There is no absolute duty to erect a handrail on every set of stairs.
The case does not signal a change in the law but, rather, a useful restatement of the common law principles which underline the obligations of lessors, and their agents, in respect of rental properties, which is to take reasonable care to avoid foreseeable risks of injury.
The fact that a property might be used for a short term holiday rental does not mean that it is in a special category of rental property in respect of which a higher duty of care is imposed.
What is a reasonable response to a foreseeable risk of injury will be a matter which will need to be addressed on a case-by-case basis; every staircase is different.
  NSWCA 252.
  See Australian Safeway Stores Pty Ltd v Zaluzna  162 CLR 479 at 488.
 See paragraph 21 of the judgment in Russell, in which the Court of Appeal set out a number of staircase fall cases.
 See paragraph 25 of the judgment in Russell
 See paragraph 36 of the judgment in Russell.
 See paragraph 45 of the judgment in Russell.
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