Slip and fall on hotel stairs - liability of architect and occupier - ss 5B, 5D and 5O of the Civil Liability Act 2002 considered

Indigo Mist Pty Limited v Palmer [2012] NSWCA 239

Judgment date: 9 August 2012

Jurisdiction: NSW Court of Appeal1

In Brief

In determining the negligence of both occupiers and professionals, reference is always made to relevant sections of the Civil Liability Act 2002 (NSW) (CLA). Stairs are inherently, but obviously, dangerous. A hotel occupier not only has a duty to provide safe premises, but to exercise reasonable care to manage the hotel premises so as to avoid exposing patrons to a foreseeable risk of harm. An architect has a separate duty to use reasonable care, skill and diligence in the performance of the work an architect undertakes. As there is no overlap in responsibility, the occupier and architect cannot delegate their duties to each other another so as to escape liability. It is critical for defendants to obtain expert evidence as to acceptable professional practice in order to make out a defence under s 5O of the CLA. Background

On 30 May 2008, Abi Palmer (plaintiff) fell down some stairs at the Oxford Hotel in Darlinghurst (Hotel). The plaintiff alleged she fell after slipping on liquid on glass stairs within the Hotel and suffered injuries as a result.

The Hotel had undergone a substantial refurbishment during 2006. Paul Kelly Design Pty Limited (PKD) was the architect in charge of the refurbishment and responsible for the design of the stairs and choice of materials. The refurbishment included stairs linking the two upper floors which were made of glass blocks and which were lit from below. The two upper floors had bars on each level, and the toilets which serviced both bars were located on the top floor.

District Court

The plaintiff commenced proceedings in the District Court of New South Wales against the owner of the Hotel, the occupiermanager (Occupier) and PKD in negligence. The matter was first heard over 7 days before Elkaim DCJ in the District Court of New South Wales who found in favour of the plaintiff and awarded a total of $113,321.90 in damages on 24 March 2011. Elkaim DCJ apportioned liability equally between the Occupier and PKD and found in favour of the owner on the basis it had completely delegated its duties to the Occupier and PKD.

Court of Appeal

Both the Occupier and PKD appealed the decision of Elkaim DCJ to the Court of Appeal. The appeal raised the following issues

breach of duty of care by the Occupier and PKD; causation; contributory negligence; and apportionment of liability between the Occupier and PKD. Hoeben JA handed down the leading judgment. Beazley and Macfarlan JJA made additional comments in relation to the steps which the Occupier ought to have taken to discharge its duty of care.

Duty of Care

The Occupier accepted that it had a duty to entrants to take reasonable care to avoid foreseeable risks of injury, as per Australian Safeway Stores Pty Ltd v Zaluzna 2. However, referring to the requirements under s 5B of the CLA, the Occupier disputed that the risk of harm which eventuated, being that the plaintiff slipped on liquid on the stairs, was foreseeable.

Hoeben JA thought the critical question was whether it was...