Written by Peter CarterSeptember 12, 2015
In steady rain and fading light Sue-Anne Sanig farewelled her 90-yr-old neighbour to descend – umbrella in hand – a garden path and trudge 500m along the road below to her front door.
Half way down, she was confronted by the steps. Knowing them to be extremely slippery, she veered left to scramble down via the grass.
A misjudged stride sent her tumbling as her right foot slipped out from under as soon as it inadvertently made contact with the left extremity of the upper tread of the home-made garden stairs.
After a seven-day trial, the Supreme Court of New South Wales ordered the homeowner’s insurer pay $736k compensation for her fractured wrist and damaged left knee in need of two reconstructions so far, that has left her highly dependent on others for household cleaning and the maintenance of her semi-rural property.
Owner Robert Stenning had built the three steps in the path two years earlier: from “Caesarstone”, a product used for kitchen benches.
There was no dispute the step treads were as slippery as ice when wet. Experts rated them between 34 and 25 BPN (British Pendulum Number) compared to the recommended external walkway range of between 45 and 54.
Stenning had even slipped there himself after which he glued carpet squares on the middle of each tread but left an uncovered space on each side “roughly the width of a brick placed lengthways”.
The insurer appealed the judgment claiming that when the octogenarian applied the “non-slip” carpet squares, he had adequately responded to the risk.
Given he had a duty lower than that that of the owner of commercial premises, the insurer argued, “his only obligation was to reduce the risk and not necessarily to eliminate it,” the insurer contended.
His guest’s descent via the grass but so close to the top step as to slip on it, was not at all foreseeable, it declared. “Had she been using the steps in the normal way by treading on the carpet squares and holding onto the handrail, the fall would never have occurred”.
Sanig was indeed aware of the danger.
She had visited her neighbour’s home “on 50 or 60 occasions” to look in on Stenning’s ill wife and to “treat his feet,” arriving and leaving by a side entrance which, on this occasion, was blocked by a timber stack.
The front path had been used only six times but including the Caesarstone steps which she regarded as unsafe, even with carpet squares added. Her preferred route was the grass bank beside the stairs.
Were these factors enough to allow the home owner to escape liability?
No, ruled appeal judge Clifton Hoeben emphatically. “The risk of harm [the owner had to guard against] was that a person moving from the house to the road would slip on one of the steps particularly in wet conditions”.
“It was obvious from the worn state of the grass track that people regularly avoided the steps … it was foreseeable that such a person might miscalculate and inadvertently place a foot on an uncovered part of the Ceasarstone”, particularly in rainy conditions at dusk.
Not only was the injury foreseeable, the appeal court ruled the risk was not “not insignificant” to use the parlance of the Civil Liability Act.
The householder’s response of only partly covering the steps was inadequate especially given “the consequences of the slip and fall could be serious and the cost of taking remedial action was modest”.
His Honour thought however that Sanig’s failure to take any extra care – given the rainy and dim conditions – in how she placed her feet near the steps to be a failure on her part but such carelessness was a far lesser factor than that of the occupier.
His honour apportioned liability 85% as against the homeowner and 15% against Sanig.
The appeal judges were also required to consider the appropriateness of nearly $390k allowed by the trial judge for the cost of her future domestic care.
Of concern was that Justice Finnane had simply accepted occupational therapist Glynis Flanagan and her estimated ongoing care costs but had “rejected out of hand” – but without explaining why – the report of colleague Deborah Hammond.
The appeal judges, therefore, re-assessed Sanig’s household care needs by examining the competing occupational therapy opinions.
Both had agreed the 58-yr-old couldn’t stand for prolonged periods, was unsteady on her feet, can no longer do heavy cleaning nor any significant gardening. Kneeling and climbing ladders are also out.
The appeal judges allowed a reduced total of nearly $400 per week for domestic cleaning and maintenance for the remaining life expectancy of 29 years (less 10% for variations), totalling $285k.
Together with past expenses and general damages of $220k, the total assessment was $635k which after reduction for the 10% contributory negligence was $540k, nearly $200k less than allowed by trial judge Finnane.
Stenning v Sanig  NSWCA 214 Macfarlan JA Hoeben JA Gleeson JA 27/07/2015 – view decision