Mistaking a step – Court throws out trip and fall claim of community support worker
Oct 2016 |
McKenzie v Day (No 2) [2016] NSWDC 236
It is recognised as a cornerstone legal principle that an owner and/or occupier of a property owes a duty of care to an entrant. However, there is also a correlative duty tasked upon the entrant to ensure they take reasonable care for their own safety.
This article examines, in the context of the decision of McKenzie v Day (No 2),1 the circumstances in which a duty of care is owed to an entrant of a residential property where, on the evidence, significant doubts exists as to whether they exercised reasonable care for their own safety. As illustrated in this case, the courts place the conduct and actions of both plaintiffs and defendants under the microscope when these circumstances arise.
The facts
The plaintiff was employed by the Clarence Valley Council Community Support Services as a community support worker. The plaintiff was one of several workers who would visit the house of the defendant and provide services. These services included performing a ‘safety check’, and assisting with tasks such as the preparation of meals, washing and providing companionship. A worker would attend twice a day to assist the defendant. The defendant was 92 years old, deaf and half blind woman who lived alone.
The property
The defendant was the owner and occupier of the house. It was agreed between the parties that the defendant’s house was constructed before 1 July 1970 when Ordinance 71 under the Local Government Act 1919 (NSW) was in force.
At the property, there was a clothesline attached on the wall at the edge of the back verandah, and additionally, a rotary clothesline which was located in the backyard of the property. The plaintiff also sometimes used a small clotheshorse on the back of the verandah.
The incident
On 15 April 2013, the plaintiff attended the premises of the defendant. The plaintiff alleged that the defendant requested her to remove and bring in washing from the clothesline. The plaintiff alleged she went through the back door of the house and onto the verandah. She first went to the clotheshorse on the verandah to see whether smaller items of clothing were dry. She then proceeded to the top of the two steps at the end of the verandah which led to the back yard where the clothesline attached to the wall was located. The plaintiff alleged she stood at the top of the steps, reached forward to touch some bedsheets to see whether they were dry and then fell.
Prior to the incident, the plaintiff estimated that she visited the defendant’s property approximately ‘50 times’ since 2008/2009. Further, prior to 15 April 2013, the plaintiff stated she had not ventured outside the back of the plaintiff’s house.
Mechanics of the fall
There was considerable discussion concerning the mechanics of the plaintiff’s fall. The court found that despite the plaintiff seeing the step prior to standing where the incident occurred, she misstepped because she misjudged her location and failed to heed the presence of the step. The plaintiff alleged she was distracted by the bedsheets hanging on the wall attached clothesline.
Reference was made to the plaintiff’s evidence that as soon as she walked out onto the verandah she saw the steps, and then she saw the steps again when she walked to the clotheshorse. When the plaintiff walked to top of the stairs to see whether the sheets on the clothesline wall were dry, she stepped to the left with her left foot and stepped over the upper step. As her left foot was not on the same plane as her right foot, she fell to her left side.
Proceedings
The plaintiff made claims against the defendant in negligence and commenced proceedings in the New South Wales District Court.
Decision
The court held as a cornerstone principle that as the occupier of the property, the defendant owed a duty to the plaintiff to take reasonable care to avoid a foreseeable risk of injury to her. However, this is then leveraged against the principle that the plaintiff is responsible to exercise reasonable care for her own safety.
The court found the plaintiff did not take reasonable care for her own safety. His honour commented that the plaintiff’s accident occurred because she failed to watch where she was placing her left foot despite knowing about the existence of the steps. The court did not accept the plaintiff’s explanation regarding the alleged distraction, holding that the plaintiff misjudged where she was and misstepped. The court reasoned that when a person is standing on the edge of stairs, there are a multitude of things which could distract a person.
The court accepted the submissions of the defendant that it would be inappropriate to award liability where the real cause of the accident was the failure of the plaintiff to look where she had placed her foot when she checked the washing. The court recognised that while many things may distract a person who is near stairs, there was no evidence presented to suggest any other person visiting the property suffered from such a distraction and caused them to fall.
The court accepted that there was no evidence to suggest the defendant was aware or ought to have been aware of a risk. His honour made reference to the fact that it was not disclosed who hung the washing out, and noted the possibility that it was another community support worker that morning who hung out the washing on the wall attached clothesline.
The court also gave reference to public policy considerations in their judgment. The court commented that if a finding for the plaintiff was made, every householder would be required to remove from the vicinity of any step anything which may distract a newcomer to the premises from watching where they were going. This was found to be too onerous a duty to impose.
Expert evidence and industry standards
The court found that the defendant’s house was constructed in accordance with Ordinance 71 and the tiles used on the verandah and steps were typical of the construction used at the time. Additionally, the court commented that the steps did comply with subsequent building requirements.
Expert evidence led by the defendant found that even if the steps had been wet, they would have satisfied the relevant Australian safety standard. However, the court stated as the slip resistance of the stairs was not related to the fall, this was irrelevant.
Lessons to be learned
The New South Wales District Court provided a common sense approach to the liability of the defendant, a residential property owner. This decision does not, in our view, change the state of the law as it stood previously. Instead it provides another illustration and confirms accepted principles that a plaintiff owes a corresponding duty to take reasonable care for their own safety. On the specific facts of this case, the conduct of both the plaintiff and the defendant merited consideration.
Further, this case demonstrates the court’s consideration to important public policy concerns. In this circumstance, his honour commented that finding for the plaintiff would place an undue duty upon households to remove any possible object in the vicinity of stairs which would distract an entrant unfamiliar to the property.
The decision is a welcome one for property occupiers and their insurers, and ought to act as a deterrent to potential plaintiffs who seek compensation for their own failure to take reasonable care when injured on other people’s properties.
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1 McKenzie v Day (No 2) [2016] NSWDC 236.
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