- Contributory negligence
- Duty of care
- Foreseeable risk
In the following Alert, Senior Associate Jacqi Marshall and Solicitor Melissa McGarrity discuss the NSW Court of Appeal decision of Stenning v Sanig  NSWCA 214, upholding the trial judge’s decision with respect to breach of duty of care, but reducing the damages awarded to the Respondent for contributory negligence.
The Appellant, a man in his nineties, was regularly visited by the Respondent who assisted the Appellant with his ailing health.
The Appellant had previously installed a set of three steps made from “Caesarstone” on a path leading from his home to the street, which also included a handrail. The Appellant had slipped on the steps several months after installing them and took some remedial action by placing squares of carpet in the middle of the steps, leaving a small gap at either side of the steps.
On the day of the accident, the Respondent was leaving the Appellant’s property after it had been raining heavily. The Respondent was aware that the steps became slippery and deliberately intended to avoid using the steps, instead opting to step from the path on to the grass adjacent. The Respondent did not utilise the handrail.
As the Respondent stepped out onto the grass, she inadvertently placed her foot on the wet Ceasarstone step, slipped and suffered personal injury.
Proceedings at first instance
At first instance, the Respondent was successful in establishing that the Ceasarstone used for the steps was unsuitable as it was too slippery, particularly when wet. The Court found that the remedial measures taken by the Appellant were not sufficient and he was found to have breached his duty of care. There was no reduction for contributory negligence.
The Appellant challenged the findings of the court on three counts:
- The finding that the risk was foreseeable, not insignificant, and the remedial action taken was not sufficient;
- The Respondent was contributory negligent; and
- The award for future care was excessive.
The Appellant failed on the first count, and the Court of Appeal held that the Appellant was negligent, particularly given that the cost of the remedial actions was low and the risk of harm was high. Further, if it were not for the extremely slippery nature of Caesarstone when wet, the Respondent would not have fallen.
The Appellant was successful in his challenge that the Respondent was contributory negligent. The Court of Appeal found that the Respondent failed to adequately look where she was going when she stepped off the path, and to ensure that she did not tread on the wet surface of the Caesarstone which she knew to be slippery and dangerous. Damages were reduced by 15% on account of the Respondent’s own negligence.
The Appellant was also successful in his challenge in relation to the award for future care which was reduced by approximately $100,000.
Take away points
- There is a significant risk of a finding of negligence when inadequate makeshift measures are used to address a foreseeable risk of injury.
- This case is a timely reminder for all home owners to take the time to review their home and contents insurance arrangements to ensure that they have sufficient public liability insurance in place.
Home owners in Queensland who have people attend their property to carry out work such as tradespeople, gardeners, cleaners, carers or baby sitters should consider obtaining a Household Workers’ Insurance Policy from WorkCover Queensland at a cost of $50 for two years. An application for the policy can be found at: https://ols.workcoverqld.com.au/ols/public/newBusiness/hhw.wc