[This headnote is not to be read as part of the judgment]
On 14 January 2009, the respondent attended an ice rink located in a sporting complex occupied by the appellant. While the respondent was wearing skating boots which he had hired from the appellant, he began to descend a flight of stairs which provided access to that ice rink. As he did so, he slipped and fell backwards. He suffered a serious fracture injury to his right ankle.
The head of the flight of stairs was about two metres higher than the ice rink. The blades of the skating boots the respondent wore were longer than the tread of the steps. The stairs were moist. The treads and risers of the stairs were of variable dimensions. There was a warning sign headed “No Responsibility” located inside the entrance to the sporting complex. However, the respondent did not recall seeing any warning signage.
He brought proceedings against the appellant, alleging that the appellant had breached its duty of care as occupier. The primary judge found that the appellant had been negligent in failing to take reasonable precautions against the risk of injury from slipping or falling when descending the wet stairs whilst wearing skates. The primary judge found that the appellant should have provided one or both of two warnings. The first was a warning that patrons should not put on their ice skating boots before descending the stairs. The second was a verbal and diagrammatic warning and instruction for patrons to use a ‘duck walk’ or splayed footed technique for negotiating the stairs and a statement alerting patrons to the stairs being slippery due to wetness. His Honour entered judgment for $148,343. The appellant appealed from the finding of liability.
The issues for determination on appeal were:
(i) Whether the primary judge erroneously proceeded on the basis that the duty of care imposed required that the appellant avoid, as distinct from take reasonable care to avoid, foreseeable risks of harm;
(ii) Whether the risk of harm which materialised was an “obvious risk” within s 5F of the Civil Liability Act 2002 (NSW) (CL Act);
(iii) Whether the duty of care contended for by the respondent was to warn him of an obvious risk within the meaning of s 5H(1) of the CL Act;
(iv) Whether a reasonable person in the appellant’s position would have taken the precaution of warning patrons not to put on their ice skates before descending the stairs or warned them of the risks involved in their doing so and as to how they might do so, taking account of those risks;
(v) Whether the activity of walking down the stairs was part of the “dangerous recreational activity” of ice skating;
(vi) Whether the warning sign headed “No Responsibility” contained a warning in relation to the risks involved in descending the stairs or as to the risks involved in activities which included that activity; and
(vii) Whether the respondent was guilty of contributory negligence.
The Court held (per Meagher JA, Emmett JA and Tobias AJA agreeing), upholding the appeal:
In relation to (i)
1. A duty of care imposes an obligation to exercise reasonable care. That principle informs s 5B of the CL Act which provides that a person is not negligent in failing to take a precaution against a risk of harm unless a reasonable person in that person’s position would have taken that precaution.
Roads and Traffic Authority of NSW v Dederer  HCA 42; 234 CLR 330; Vairy v Wyong Shire Council  HCA 62; 223 CLR 422 considered.
2. The primary judge did not misdirect himself as to the distinction between taking reasonable care to avoid foreseeable risks and taking steps to prevent harm which the taking of reasonable care might not avoid. The precautions which his Honour held that the appellant negligently failed to take were ones required by the exercise of reasonable care.
In relation to (ii)
3. The forward-looking inquiry required by s 5F of the CL Act is whether the risk of harm which eventuated and caused the harm claimed by the plaintiff would have been obvious to the hypothetical reasonable person in the circumstances of the plaintiff. The respondent’s actual knowledge was irrelevant, except to the extent that how he acquired that actual knowledge may have been relevant to that forward-looking inquiry.
CG Maloney Pty Ltd v Hutton-Potts  NSWCA 136; Streller v Albury City Council  NSWCA 348 considered.
4. The primary judge proceeded upon the basis that the risk in question was not only that of slipping or falling when descending the stairs whilst wearing ice skating boots, but also involved the uneven dimensions of the stairs and the fact that they were wet. The evidence did not justify a conclusion that the uneven dimensions of the stairs contributed in any material respect to the respondent’s slipping and falling. The primary judge’s conclusion that it had not been shown that the respondent ought to have been aware that the stairs were wet or likely to be wet, implying that a reasonable person in the respondent’s position would not have appreciated that likelihood, also was not justified on the evidence.
5. The primary judge erred in not finding that the risk of harm was “obvious” within the meaning of s 5F. The risk of harm which materialised and caused the respondent’s injury was that of slipping and falling whilst descending the stairs in skate boots. On the evidence, two circumstances gave rise to that risk. The first was that the activity of descending stairs carries an ever-present risk of falling because of overstepping or losing balance. The second was that the respondent was wearing ice skating boots. The difficulties in descending the stairs in those boots would have been readily apparent to a person in the respondent’s position.
In relation to (iii)
6. A warning about a risk of harm may be given by describing the risk in general terms or describing the circumstances that give rise to it and in doing so, perhaps, by identifying what might be done to avoid or minimise the risk. It may also be given by prohibiting the conduct which gives rise to or involves the risk.
Nagle v Rottnest Island Authority  HCA 76; 177 CLR 423; Vairy v Wyong Shire Council  HCA 62; 223 CLR 422 considered.
7. Each of the two ‘warnings’, the giving of which the primary judge held would have been sufficient to discharge the appellant’s duty of care, was directed to alerting patrons to a risk of harm, which they should either avoid or take steps to minimise. Accordingly, they were forms of warning of the risk of injury in descending the stairs with skating boots on. That risk was an obvious risk within s 5F(1). The effect of s 5H(1) is that the appellant did not owe that duty of care to the respondent.
In relation to (iv)
- The primary judge did not err in concluding that, if s 5H had not applied to provide that there was no duty of care to warn of an obvious risk, in the circumstances a reasonable person would have given a warning of the risk of slipping and falling whilst descending the stairs in skate boots. Although the risk of harm was readily apparent, a reasonable occupier in the appellant’s position would take account of the fact that its patrons may not always be careful in identifying that risk including because they are distracted or not familiar with the activity of ice skating.
In relation to (v)
9. The primary judge was correct to find that the activity of descending the stairs was not a dangerous recreational activity. The activity of walking in skating boots down the stairs at the appellant’s sporting complex was not ice skating. Nor was it a necessary incident of ice skating, either at those premises or more generally.
In relation to (vi)
10. The warning given by the ‘No Responsibility’ notice did not address the risk of walking down the stairs with skating boots on.
In relation to (vii)
11. The primary judge’s finding that the respondent did not fail to make adequate use of the central hand rail was available on the evidence. The basis for interfering with the finding as to contributory negligence is not made out.
Dangerous recreational activity and risk warning (grounds 5, 6, 7 and 8)
55 A “recreational activity” is, by s 5K, defined to include any “pursuit or activity engaged in for enjoyment, relaxation or leisure”. The primary judge held at  that “the activity of descending the stairs was merely preparatory to engaging in the recreational activity of ice skating. That preparatory activity was not in itself [a] dangerous recreational activity”. In my view, that conclusion did not involve error.
56 The definition of a “recreational activity” focuses upon the pursuit or activity engaged in at a place, as distinct from any particular characteristics of that place which may differ from those in other places at which the same activity is undertaken. The activity of walking in skating boots down the stairs at the appellant’s sporting complex was not ice skating. Nor was it a necessary incident of ice skating, either at those premises or more generally. At the appellant’s premises, the skates could have been put on after descending the stairs.
57 This conclusion makes it unnecessary to consider whether the “No Responsibility” warning extended to the activity of descending the stairs in skate boots. Section 5M(1) only applies to warnings as to risks involved in a recreational activity. Walking down the stairs was not a “recreational activity” and for that reason s 5M(1) could not apply even if that activity had been the subject of a warning.
58 In any event, the warning given by that notice did not address the risk of walking down the stairs with skate boots on. It was in the following terms:
“The Activities provided in this centre [sic] have a certain amount of risk attached. By entering the Centre our patrons and their guardians accept that there is a degree of risk and release the Centre from any responsibility or legal liability in an activity or actions of other patrons present or participating in [indistinct word] activity.”
59 The reference to “Activities” is reasonably understood as being to sporting or other activities engaged in at the appellant’s sporting complex. Those activities are ones in relation to which “other patrons” may be “present or participating in” and are ones which are “provided” in the Centre. The activity of descending the stairs in skates is not one which answers this description. It is not a sporting activity. Nor is it one which patrons go to the Centre to engage in. Grounds 5, 6, 7 and 8 also should be rejected.
David Cormack – Brisbane Barrister & Mediator