There’s a stair in there, and a duty of care as well?

1. Introduction

An occupier of premises is under a duty to take reasonable care to ensure that any person entering their premises does not suffer injury or damage from dangers the premises may offer. 

Plaintiffs have frequently asked the Court how this duty applies to stairs and stairwells on the premises. Specifically, how the Court treats the nexus between the occupier’s duty and the ordinary risk inherent with the use of stairs and stairwells. 

The recent decision of the Court of Appeal in Carusi v St Mary’s Anglican School Inc [2024] WASCA 137 (Carusi) affirms that where harm or damage arises from stairs or stairwells, a plaintiff cannot ordinarily claim damages for breach of occupier’s liability solely on the basis that the occupier had not eliminated every conceivable risk associated with the stairs. 

If the stairs are not inherently defective, and in the absence of an external factor that escalates the risk of harm which the occupier fails to take reasonable measures against, an occupier will not be liable for damages or harm that results from the use of the stairs. 

This article provides a brief dive into the Carusi decision itself, and what you need to know about occupier’s liability in relation to the use of stairs moving forward. 

2. How does occupier’s liability work?

The Occupier’s Liability Act 1985 (WA) (OLA) prescribes the duty of care that occupiers and landlords of premises owe to persons and property on the premises. Occupiers must take reasonable care to see that people entering onto their premises do not suffer injury or damage because of dangers arising from the state of the premises or anything done or omitted to be done on the premises – but excludes any risks willingly assumed by a person entering onto the premises and risks or liability excluded or modified by contract.

To trigger liability for breach of this duty, plaintiffs must satisfy 3 elements about the risk they allege:

1. Foreseeability – was the risk foreseeable?; 
2. Significance – was the risk not insignificant?; and  
3. The reasonable person – in the circumstances, would a reasonable person have taken precautions against the risk?

The application of this test over the years has revealed to us that the real challenge for a plaintiff is meeting the reasonable person requirement. The main driver of difficulty for this element of the test is the Court’s expectation that a person should take reasonable care of themselves when navigating stairs, and aside from ensuring that the stairs are constructed and maintained according to building standards, there is often not much more that an occupier needs to do to warn about the risks of using stairs.

3. Facts of Carusi

The facts of Carusi are as follows: 

1. In the case, Mrs Rosa Carusi claimed damages from St Mary's Anglican Girls School Inc (St Mary's) for an injury she sustained at the Lady Wardle Performing Arts Centre (the Centre). The case involved allegations that St Mary's, as the occupier of the Centre, breached its duty of care under the common law and OLA.
2. On 3 October 2015, Mrs Carusi's daughter was participating in a dance competition conducted by the West Coast Dance Festival Inc at the Centre. Mrs Carusi, (who was a volunteer at the competition), fell and injured her right ankle while descending a step in a theatre aisle. She claimed the injuries were caused by St Mary's negligence, specifically citing issues with the height and lighting of the steps, failure to install an intermediate step, and lack of warning signs.
3. At trial, the judge dismissed Mrs Carusi's claim. The trial judge held that the risk of harm was neither foreseeable nor significant, and that a reasonable person in St Mary's position would not have installed an intermediate step or increased the illumination as a precaution against that risk of harm. Additionally, it was found that any alleged breach of duty had not been shown to be a cause of her injury.
4. Mrs Carusi appealed the decision. On appeal, the Court of Appeal agreed that the trial judge correctly identified the relevant risk of harm but found that this risk was foreseeable and not insignificant. However, the evidence did not establish that a reasonable person in St Mary's position would have installed an intermediate step or additional lighting as a precaution against the risk of harm evidence did not support that St Mary's breached its duty of care or that any breach was a cause of her injury. Therefore, the appeal was dismissed.
5. The Court of Appeal also found that the evidence did not establish, on the balance of probabilities, that the absence of an intermediate step or additional lighting materially contributed to Mrs Carusi's injury. Therefore, the trial judge was correct to conclude that St Mary's had not breached its duty of care, and any alleged breach of duty had not been shown to be a cause of Mrs Carusi's injury.

4. What does Carusi teach us?

The Carusi case is one of two recent affirmations by the Courts that the assumption of ordinary risk by an individual using stairs on an occupier’s premises can prevent them from being awarded damages for breach of the occupier’s duty of care in the absence of failing by the occupier. The other recent affirmation being found in Fisher v Shire of Denmark [2024] WADC 1.

This case also reminds us to keep the following in mind when entering or managing premises with stairs: 

1. An occupier is not expected to eliminate every conceivable risk to entrants to the premises. Ordinarily, compliance with the relevant building standards will be sufficient. 
2. Even if the occupier has not constructed or maintained the stairs in a sufficient manner, a plaintiff will not succeed in their action for damages unless they suffered harm because of the failings of the occupier. For example, failing to install a non-slip strip on the edge of a step will not result in liability for an occupier if someone tripped on the stairs (rather than slipped).
3. Entrants to premises are expected by the Court to take reasonable care of themselves, but occupiers should take to ensure that lighting and stair surfaces are appropriately maintained so that entrants can navigate stairs safely. Occupiers should also make sure that stairs are appropriately demarcated or that floor surfaces don’t create an optical illusion that obscures the presence of a step.
4. Where a person willingly assumes a risk and that causes harm, there is no remedy against the occupier. 

For further reading, anyone interested in diving further on this topic may consider:

1. Fisher v Shire of Denmark [2024] WADC 1: The plaintiff slipped and fell while descending steps with a thin layer of loose gravel from the carpark to Black Hole Rock near Denmark. There was no inherent defect in the stairs nor external factor to consider. The Court found that the risk of the stairs was obvious, and therefore the defendant did not owe a duty of care to warn of it.
2. Department of Housing and Works v Smith (No 2) [2010] WASCA 25. In which discusses the relationship between the Civil Liability Act 2002 (WA) and the common law principles of duty of care, and considers whether the OLA covers the field or supplements the common law; and
3. Wyatt v MR & RC Smith Pty Ltd [2010] WADC 178: An employer and occupier of premises was found liable for not engaging an expert to provide advice about the safety of a single step in its premises, after employees complained about the condition of the step.
4. Blaine v The Owners of Duesburys House Strata Plan 7239 [2010] WADC 81: The owner of premises was aware that the carpet and rubber strips on the edge of the steps was defective.  The owner was found liable for failing to warn people using the stairs to take extra care while they waited for permanent repairs to be conducted.
5. Clambake v Tipperary Projects Pty Ltd [No] 3 [2009] WASC 52: An owner of premises does not owe a duty to inspect for structural defects, unless there is something obviously wrong that would indicate to a lay person that an expert opinion to identify structural defects is necessary.
6. Jandson Pty Ltd v Welsh [2008 NSWCA 317: The occupier of a display home was found liable after the plaintiff did not see 2 steps and “stepped into nothing”.  The Court of Appeal indicated that the steps were not sufficiently demarcated and could not be seen because they were obscured by glare. The occupier was found liable. 
7. Hanna-Pauley v AMP Shopping Centers Pty Ltd [2007] WASCA 174: The plaintiff slipped and fell when descending stairs near an exit door. There was no inherent defect in the stairs nor external factor escalating harm. The Court of Appeal affirmed the trial judge’s decision that the obviousness of the risk, in conjunction with the plaintiff’s familiarity with the stairs absolved the respondent of any duty of care.
8. Bark v Taylor [2005] WADC 59. In which the Court discusses the application of sections 5(1) and 5(4) of the OLA in determining the duty of care and factors to be considered by the court.

Article written by Thomas Salter, Law Graduate