In the NSW Court of Appeal decision of Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394 the court had to determine if walking down a set of stairs when wearing a pair of ice skates brought about “obvious risks” and whether descending the stairs wearing that footwear was a “dangerous recreational activity.” It was determined descending the stairs in that manner brought about “obvious risks” but it was not a dangerous recreational activity.  As there is no duty to warn of a “obvious risk” under the Civil Liability Act 2002 (NSW) (“CLA”), the plaintiff was unsuccessful in the appeal.

Facts

Liverpool operates a sporting complex, which included an ice rink. Patrons were required to walk down from the service counter to the ice rink via a set of stairs. The set of stairs is surrounded by chairs, comprising the viewing pavilion around the rink.

The Plaintiff sat down on one of the seats adjacent to the stairs and put on his ice skating shoes which he hired from the service counter. Rather than walking down the stairs to one of the lower levels, the claimant did this at the upper level of the stairs. The vertical distance down to the ice rink was approximately 2m.

The blades on the ice skates were longer than the goings on the stairs. The Plaintiff was getting close to the bottom of the stairs when one of the blades of his ice skates slipped on the edge of the step and he fell backwards landing on his lower back.

At trial it was found the ice rink was negligent for failing to provide warnings to patrons relating to:

  • Not putting on boots before descending the stairs;
  • Using a “duck walk” or splayed footed technique when descending the stairs due to the length of the goings being shorter than the ice skate blades.

The steps were covered in a non-slip, water proof matting with highlighted nosing on the edge of each step. The court accepted that the stairs were moist probably due to shavings of ice being on the blades of patrons who had left the rink.

Issues 

The issues in dispute during the appeal related to whether:

  • The unevenness in the rises and going contributed to the fall;
  • Descending a set of stairs wearing a set of ice skates was an obvious risk;
  • Descending the stairs in skating boots was a dangerous recreational activity;
  • The Plaintiff was liable in contributory negligence for failing to make adequate use of the hand rail.

Findings 

The lead judgment was handed down by Meagher JA, with whom Emmett JA and Tobias AJA agreed.

The Court of Appeal made the following findings:

  • There was insufficient evidence (in terms of evidence from an expert) that the uneven rises and goings of the stairs contributed to the fall;
  • The Plaintiff’s fall resulted from an obvious risk in terms of both the risk posed by the stairs itself, and the risks associated with descending the stairs with ice skates on;
  • Descending a set of stairs wearing ice skates was not a dangerous recreational activity;
  • There was insufficient evidence to find the Plaintiff was liable in contributory negligence for momentarily failing to hold onto the handrail when descending the stairs.

In terms of whether it was an obvious risk, the lead judgment included the following comments at paragraph 40:

“It would have been apparent to a person in his [the Plaintiff’s] position that the risk of falling when walking down the stairs was significantly heightened by the fact that he was wearing skating boots. His only contact with the surface of the stairs was with the skate blade, making it more difficult for him to maintain his balance, and that blade was much longer than ordinary shoes and longer than the stair treads. Each of those matters also was readily apparent. In addition the fact that there were balancing and other difficulties in descending the stairs in those boots was easily observed from the actions of the patrons who descended while the respondent was standing at the top of the stairs.

The primary judge erred in not finding that the risk of harm was “obvious” within the meaning of s 5F [of the CLA]. That is the position, irrespective of whether the relevant risk is described as including that of slipping and falling on stairs that are or are likely to be wet.”

Megher JA went on to find that as the claimant’s fall resulted from an “obvious risk”, there was no obligation under the CLA to provide a warning in relation to the risks associated with same. At paragraph 52 he commented:

Each of the precautions which the primary judge held should be taken required the giving of a form of warning of the risk of injury in descending the stairs with skate boots on. That risk was an obvious risk within s 5F(1)… the appellant [ice rink] did not owe a duty of care to the respondent [plaintiff] to warn him of what was an obvious risk.

Where descending a set of stairs (even wearing ice skates) could hardly be considered a “recreational activity”, it is not surprising the court found the accident did not result from a dangerous recreational activity.

In terms of the allegations of contributory negligence, it was noted CCTV footage was available of the claimant’s accident. There was a period when he was briefly not holding the handrail. However, the trial judge’s findings that same did not amount to contributory negligence were upheld by the Court of Appeal.

Implications

The court commented on the potential dangers posed by stairs in this case. However, the court stopped short of finding stairs in themselves are an obvious risk.  It was the additional factor of the plaintiff wearing ice skates that pushed the hazard into the category of an “obvious risk.”

The fact that the court did not find walking down a set of stairs a “dangerous recreational activity” is not surprising where the courts have previously held playing cricket and touch football were not within that category.

The fact the Plaintiff failed in this case confirms that despite some of the recent decisions (and the trial decision in this matter), Plaintiffs still have an obligation to look after their own safety.