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Written by Peter Carter

November 19, 2015

A dinner guest who fractured her right ankle in a fall on a damp landing after kissing her hosts’ goodnight has convinced an appeal court they should pay injury compensation for their failure to place matting at the top of stairs to protect against a rainfall hazard.

Sheran Schultz slipped on the edge of the top step leading down from a dry tiled landing, that had become wet from “blown-in” rain.

She alleged Norman McCormack and wife Cathryn – long-standing friends whom she had visited many times in all weather conditions – ought to have warned her that the tiled landing could become “unusually slippery” if it was wet.

The McCormack’s had owned the home since 1980 and had tiled the entrance landing. After the accident, they painted a nonslip coating across the landing and the steps “as an inexpensive precaution against similar accidents”.

Ergonomist Neal Adams deduced from his pendulum test a BPN of 29 (coefficient of friction 0.29) which was “two categories lower” than the appropriate slip resistance level for exposed external walkways.

The homeowners claimed they had never before noticed such danger and no one had ever fallen at their Woodbine home.

The trial judge ruled for the homeowners, taking the view that potential slipperiness ought to have been obvious to the dinner guest – notwithstanding they had all consumed significant quantities of alcohol – because the awning only covered the landing, not the stairs and the concrete path below was obviously damp.

He dismissed Schultz’s damages ask on the basis that the February 2010 fall resulted from the materialisation of an “obvious risk”.

On appeal, the court noted that “the mere fact of a fall on wet steps is not sufficient to establish that an occupier” omitted to take some reasonable precaution.

But because the 59-yr-old Schultz was standing on dry flooring when bidding her farewells, it should not be assumed – they ruled – she was aware of the possibility that at the very next footfall, she would be confronted with a rainfall hazard.

“Mrs Schultz did not know and could not reasonably be expected to have known that the tiles on the top of the landing were wet,” the appeal judges wrote, “whereas Mr McCormack knew that was likely”.

That the stairs were exposed while the landing itself was undercover, was a “mismatch” responsible for obscuring the danger.

Regardless of the state of their knowledge, the homeowners ought to have realised, so ruled the court, the risk of harm and to have taken precautions such as “providing matting or giving a warning against the risk”.

It is unclear from the judgments as to whether or not the McCormack’s carried liability insurance. Either way, they or their insurer must now pay the $782k assessed in respect of Schultz’s ankle, shoulder, hip, and lower back injuries.

Schultz v McCormack [2015] NSWCA 330 McColl JA, Macfarlan JA, and Beech-Jones J 23/10/2015

Categories: Personal Injury , Litigation & Law Practice

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