In the matter of Liverpool Catholic Club Limited v Moor [2014] NSWCA 394 the Plaintiff, Christopher Moor attended an ice rink located in a sporting complex occupied by Liverpool Catholic Club Limited. On 14 January 2009 while the Plaintiff was wearing skating boots which he had hired from the club he began to descend a flight a stairs providing access to an ice rink. As he did he slipped and fell backwards and sustained a serious fracture to his right ankle.

The Plaintiff bought proceedings against the Liverpool Catholic Club Limited alleging that they have breached their duty of care as an occupier. The blades of the skating boots the Plaintiff wore were longer than the tread of the step. The stairs were moist and the treads and rises of the stairs were of variable dimensions. There was a warning sign stating “no responsibility” located inside the entrance to the complex however the Plaintiff did not recall seeing the sign.

The Plaintiff was successful in the first instance with the primary judge finding that the Liverpool Catholic Club Limited had been negligent in failing to take reasonable precautions against a risk of injury from slipping or falling when descending the stairs whilst wearing skates. The primary judge found that warnings should have been given to the Plaintiff. The first was a warning that the Plaintiff should not have put the ice skating boots on before descending the stairs. The second was verbal and diagrammatic warning and instruction for patrons to use a duck walk or a splade walk on negotiating the stairs and alerting the patrons to the stairs being slippery due to their wetness. The primary judge entered judgment for the Plaintiff in the sum of $148,343.

The Liverpool Catholic Club appealed. They appealed on the basis that the primary judge erred in not finding the risk of harm was an obvious risk as set out in s5F of the Civil Liability Act 2002 (NSW) and it follows that there was not a duty of care to warn the Plaintiff of that obvious risk.

The Appeal queried whether a reasonable person in the Defendants position should have taken precautions or warned patrons not to put their ice skates on before descending the stairs or warn them of the risks involved in doing so. Further the Appeal was also made on the basis that the activity of walking down stairs was part of the “dangerous recreational activity” of ice skating.

Dealing firstly with the issue of whether walking down stairs would be considered a dangerous recreational activity the Court notes that a “Recreational Activity” is defined within s5K to include any “pursued or activity engaged in for enjoyment, relaxation or leisure”. The primary judge found that the activity of descending the stairs was merely preparatory to engaging in the recreational activity of ice skating and that activity in itself was not a dangerous recreational activity. The Court of Appeal agreed.

In relation to the question of whether the risk of harm which materialized was an obvious risk within s5F of the Civil Liability Act 2002 (NSW) the Court of Appeal was critical of the primary judge who proceeded upon the basis that the risk was not only that of slipping and falling whilst wearing ice skating boots but also involved the Defendants knowledge of the uneven dimensions of the stairs and that they were wet. The Court of Appeal found that the evidence did not justify a conclusion that the uneven dimensions of the stairs contributed in any material respect to the fall.

The Court of Appeal found that the primary judge erred in not finding that the risk of harm was “obvious”. They found that the activity of descending stairs carries an ever present risk of falling because of over stepping or losing  balance and secondly that as the Plaintiff was wearing ice skating boots the difficulties in descending stairs in those boots should have been readily apparent to a person in the Plaintiff’s position.

The Court of Appeal found there was no duty of care to warn the Plaintiff of an obvious risk. The Court of Appeal ordered that the primary judgment was set aside and then ordered judgment for the Defendant in this matter together with an Order that the Plaintiff pay the Defendant’s costs.