In Russell v Carpenter [2022] NSWCA 252, the NSW Court of Appeal has overturned a decision of the District Court finding that the owners of a short-term holiday rental home were liable in negligence to a guest who slipped and fell down a small flight of stairs

The plaintiff and some of his friends were holidaying at a beachfront short-stay rental property (the property) in the Central Coast of NSW as part of a golfing weekend. 

The group held a "jocular presentation" at the property based on the golfing results from the day in which the plaintiff was presented with golf balls as a prize. During the presentation, the plaintiff dropped one of the balls and it bounced away from him. 

The plaintiff pursued the ball and took one step down a set of three descending helical stairs. The plaintiff's foot slipped on the edge causing him to fall and injure his back and elbow.

The plaintiff sued the owners of the property in negligence, alleging that the stairs should have had a handrail as it would have prevented the injury. 

The primary judge found that the duty of care owed to the plaintiff was:

• As an invitee to the property and as a consumer of services pursuant to the rental contract. 
• The obligation to ensure that the premises were safe and free of hazards. 
• The obligation in relation to safety was to ensure that persons present could engage in ordinary social discourse and move around the premises freely and without encountering undue hazards. 

As to breach, the primary judge found that the relevant risk of harm was "that of a person slipping and falling on external helical stairs where no handrail was present" and that risk was significant. 

As to the precautions that ought to have been taken, the primary judge found that a handrail would have provided a useful visual cue as to the curvature and the course of the stairs and such a precaution was practical and inexpensive. The primary judge further commented that whilst the Building Code of Australia did not require the stairs to have a handrail, the Safework Australia Code of Practice says that a handrail is required. 

The plaintiff was awarded damages of $284,092. 

In overturning the primary judge's decision, the Court of Appeal set out a clear re-statement of the legal principles to be applied in liability claims arising from incidents in suburban dwellings.

The Court found that the primary judge had erred in the characterisation of the duty of care. Instead, finding that the defendant's duty of care to the plaintiff, as a lawful entrant to the property, was simply to "take reasonable care to avoid a foreseeable risk of injury".

The Court was clear that the obligation to take reasonable care was not an obligation to prevent harm occurring to others and the reasonableness of the occupier's conduct was to be measured on the expectation that an entrant will take reasonable care for their own safety. 

The Court re-stated the process for assessing breach as follows:

• Identify what the risk of harm was against which it is said that the reasonable care needed to be taken.
• Consider whether that risk was foreseeable, not insignificant and whether a reasonable person in the occupier's position would have taken the precautions against the risk. 

The Court found that the relevant foreseeable risk was that a person may slip and hurt themselves when using stairs (the risk). 

However, the Court found that the primary judge had erred in categorising the risk as "significant". The Court examined the expert evidence and evidence from the plaintiff at trial and noted that:

• The experts agreed that the material the stairs were made from was safe and non-slippery, even when wet.
• The plaintiff seems to have slipped by his own error in overstepping.
• Helical stairs are more dangerous than non-helical stairs because the depth of the stairs decreased the closer a person steps to the inner edge of the winder but that increased risk is inherent and entirely obvious.
• The consequence of that risk eventuating would, in general, be minor injuries at most. 

Taking the above into account, the Court was satisfied that the risk of a person slipping and hurting themselves on the stairs (whether from a slippery surface and/or overstepping) was slight, inherent and obvious.

The plaintiff maintained that a handrail would mitigate the risk of slipping both by aiding to arrest a fall and providing a visual cue to draw the plaintiff to the outer arc of the stairs, reducing the risk of a misstep. 

The Court placed significant weight on the fact that the stairs complied with the relevant Building Code and did not require a handrail. The Court described the argument that a handrail was required to have "an air of unreality" and found that even though a handrail may not have been expensive, the fact that the Building Code did not mandate a handrail supports the conclusion that reasonable care did not require such a precaution. 

The Court emphasised its view that the law does not require resources to be spent on risks which are slight, inherent and obvious, stating "Life is not required to be lived surrounded by cotton wool".   

Court finds that the possibility of a different result from a precaution is not enough to establish causation

The Court provided a timely reminder of the plaintiff's onus under section 5E to prove any fact relevant to the issue of causation and that the possibility of a different result from a precaution is not enough to establish causation. 

In this instance, the Court found that the precaution of providing a handrail could have assisted in minimising the risk of harm does not establish that it would have done so. 

Whether a precaution would have made a difference will turn on the facts of the case. In this case, the evidence was that the slip occurred too quickly for the plaintiff to grab a vertical pole next to stairs when he fell particularly as he was holding golf balls in his hands at the time. The Court concluded that there was no basis for suggesting that the result would have been any different with a handrail. 

The Court allowed the appeal and dismissed the plaintiff's statement of claim with costs.

With the relatively recent explosion of short-stay holiday rental property during and following the pandemic, this decision is helpful in clarifying how the courts will apply the principles of negligence in the context of suburban dwellings.

The decision serves as a reminder to owners and plaintiffs that:

• The Court will not consider the safety of suburban dwellings to the same exacting standards as commercial premises.

• The relevant duty of care is simply that owed by an occupier to a lawful entrant of the property to take reasonable care to avoid a foreseeable risk of injury and parties and parties should not be distracted from this.

• When the plaintiff alleges that certain precautions ought to have been taken, the plaintiff is required to prove that a precaution would have resulted in a different outcome. The mere possibility of a different outcome is not sufficient to satisfy causation.