Home Ground Advantage: Stadium beats fan in Court of Appeal

The Facts

In the recent case of Venues NSW v Kane [2023] NSWCA 192, the occupier’s liability took the centre field when the Plaintiff, who had attended the McDonald Jones Stadium in Newcastle, New South Wales, on 6 July 2019, slipped and fell while descending a set of concrete steps injuring herself.

It was a wet and windy day. The Plaintiff had attended the stadium with her husband and friend to watch the Knights v Warriors rugby league game. During the match, the Plaintiff began descending a stepped aisle with rows of seating to her left and a glass balustrade to her right. The Plaintiff alleged that she slipped on one of the steps because the edge of the steps was not compliant with the Building Code of Australia, and there was no handrail. On this basis, the Plaintiff sued Venues NSW (the stadium owners) for negligence for breaching its duty of care.

The Decision at Trial

The trial judge found in favour of the Plaintiff because the steps satisfied the definition of a “stairwell” under the Building Code of Australia, which required the steps to have a handrail and a chamfered edge no greater than 5mm in length, and they did not comply with that.

In reaching the decision, Her Honour referred to sections 5B and 5C of the Civil Liability Act 2002 (NSW) and determined that Venues NSW breached its duty of care as the risk of a patron slipping was foreseeable, it was not insignificant, and a reasonable venue holder in the Defendant’s position would have taken the alleged precautions by complying with the relevant standards. Her Honour emphasised that the installation of a handrail would not have imposed a severe burden on Venues NSW, and had there been a handrail installed, the Plaintiff would have used it.

The Court of Appeal

On appeal, the Court held that the primary judge erred in finding that Venues NSW breached its duty of care for several reasons, though most importantly, the primary judge’s erroneous interpretation of section 5B of the Civil Liability Act 2002 (NSW).

The Court held that “section 5B(1)(c) is a gateway, in the sense that a Plaintiff who fails to satisfy the provision cannot succeed.”[1]. In contrast, section 5B(2) are non-exhaustive considerations to be borne in mind when determining whether a reasonable person in the Defendant’s position would have taken the precaution as required by section 5B(1)(c). Much of the Court of Appeal’s criticism lay in the primary judge’s reasoning, which was that s5B CLA was an exhaustive “checklist” there ought to have been regard to other matters that may or may not have influenced the outcome.

The Court of Appeal found that the trial judge had overlooked key evidence raised by Venues NSW, in particular the fact that the venue had been certified compliant eight years before the incident, the horizontal surfaces of the steps were highly slip-resistant, and there was no evidence of previous falls causing injury despite the significant crowds which had attended the stadium. Each bore directly on an assessment of whether Venues NSW had responded reasonably to the risk.

The Court concluded that the risk of traversing up and down steps was utterly familiar and evident to any stadium patron, and using stepped aisles without handrails in similar stadiums is commonplace. Quoting McHugh J in Dovuro Pty Ltd v Wilkins [2003] HCA 15, the Court held “[c]ompliance with common practice is powerful, but not decisive, evidence that the defendant did not act negligently.”

Like the Knights on that fateful day, the Plaintiff ultimately came up empty-handed. The Court did not accept that a reasonable person in the position of Venues NSW would have installed a handrail.

Conclusion

Occupier’s liability requires reasonable care to be taken by public and private occupiers (whether a one-bedroom unit or a thousand-person capacity stadium) to protect entrants against risks of harm. Of course, the duty only requires reasonably foreseeable risks to be acted upon, and this case demonstrates that just because something could be made safer does not always mean that the occupier has to do that. The duty protects public and private venues from unfair and unreasonable expectations.

This case also affirms that an occupier will not be required to exercise unnecessary precautions in response to risks that are both obvious and familiar to a reasonable person in the circumstances.

Ultimately, it is a timely reminder that the duty owed by an occupier is not to take every step to ensure its premises are safe for every risk; instead, an occupier will only be liable if it fails to take reasonable steps to remedy a foreseeable and insignificant risk of injury.