Stairs are an everyday hazard and are regularly the subject of personal injuries litigation in Australia.  Most occupiers now ensure that their stairs are equipped with a standard tread and riser, suitably coloured to alert users to their presence, and made of suitable non-slip material.  But are there circumstances in which an occupier ought to go further to protect entrants from stair-related injuries? 

In this Alert, Senior Associate Anna Hendry discusses the factors an occupier ought to consider when evaluating the safety of stairs at their premises. 

The recent decision of Ellery v Sunsail (Australia) Pty Ltd involved a plaintiff who suffered personal injuries when she stepped backwards and fell down a flight of three or four steps in the saloon of a catamaran.[1]  She had just boarded the vessel with her family for a day cruise and they were stowing their belongings in the saloon prior to receiving a safety briefing.  The stairs and their surrounds were constructed of wood.  The flight itself was unusually steep and the white mark on the edge of the steps was only visible from the bottom of the stairs. 

The Decision

The court considered two major allegations:

  • That the occupier ought to have warned the claimant of the existence of the stairs; and
  • That the occupier ought to have installed an engineered solution in order to avoid the relevant risk.

The plaintiff relied on the evidence of Roger Kahler, an engineering consultant, that the defendant ought to have implemented an engineering control to eliminate the relevant risk.  In this regard, he suggested three alternative engineering controls including a chain or guardrail at the top of the stairway, an auto close and lock gate at the top of the stairway or a hatch on the floor effectively covering the access hole. 

In considering the defendant’s conduct, the court found that while it may have been open to the defendant to warn the plaintiff of the presence of the stairs prior to her boarding the vessel, it was doubtful as to whether any warning given in those circumstances would have prevented her fall.  The court was therefore not satisfied that a failure to warn was causative of the plaintiff’s injury. 

Having disposed of that issue, the plaintiff’s case rested on whether the defendant was negligent by failing to employ an engineering solution to prevent a passenger from stepping back and falling.  The court accepted the evidence of Mr Kahler that the uniform wood panelling and the white line underneath the top step did not create sufficient contrast to alert an entrant to the saloon of the location of the stairs. It found that although it is not unreasonable to expect that people will see what lies ahead of them as they walk along in broad daylight, “the confines of the saloon...and the peculiar structure and situation of the access stairway in such a vessel do not represent an obvious risk such as to absolve the defendant of a duty to warn”.  The court noted that in this case the crucial failure was the failure to implement an engineering control but declined to specify which of the solutions proposed by Mr Kahler ought to have been implemented.

Take Away Points

In conclusion, occupiers ought to consider whether the relevant stairs are unusual such that they do not pose an obvious risk having regard to:

  • The lighting in the area;
  • The space around the stairs and the likelihood that that space will be congested;
  • The likelihood that entrants will be distracted by other features in the area; and
  • Whether the stairs themselves are non-standard in their tread and riser or incline.