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Venues NSW v Kane [2023] NSWCA 192 Case Summary

Published on October 20, 2023 by David Tarrant

The NSW Court of Appeal granted leave and allowed an appeal by Venues NSW to overturn the primary judge’s decision holding it liable in negligence for injuries sustained by a patron (Ms Kane) who slipped and fell down a set of steps at McDonald Jones stadium on 6 July 2019.

Ms Kane attended the stadium with her husband and a friend to watch an NRL rugby league match. She alleged she slipped and fell while descending a stepped aisle, which comprised concrete steps between rows of seating, sustaining injury. On the day of her accident, it was heavily raining.

Ms Kane subsequently sued Venues NSW in negligence alleging the stepped aisle constituted a stairwell under the Building Code of Australia and therefore ought to have had a handrail. This article provides a case summary of Venues NSW v Kane [2023] NSWCA 192.

Decision in the First Instance

The primary judge found in favour of Ms Kane, and judgment was entered in the amount of $91,117.  The Court found that:

1. the steps constituted a stairwell and therefore were in breach of the Building Code of Australia due to the absence of a handrail.
2. even if handrails were not required, the use of them would have been reasonable practice given the stadium was utilised by those of different levels of ability, and was open during periods of darkness and inclement weather.
3. Venues NSW ought to have arranged a risk assessment of the entire stadium, especially the areas where there were stepped surfaces.
4. installation of a handrail would not impose a serious burden on Venues NSW, even if required on other similar steps in the stadium.

Venues NSW appealed the decision

The main issue before the Court of Appeal was whether a reasonable person in Venue NSW’s was in breach of its duty of care in failing to install a handrail.

The Court found that primary judge’s finding of breach of duty could not stand for multiple reasons, including that it proceeded on an erroneous construction of section 5B of the Civil Liability Act 2002 (NSW) (CLA) and the obvious nature of the danger presented by the steps.

Regarding the question of breach of duty, the Court found that:

1. the stadium contained hazards which were familiar and obvious to any spectator, including, steps which needed to be navigated to get to, and to leave from, tiered seating.
2. while the trial judge considered the mandatory requirements required by section 5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that:

i. the stadium had been certified as BCA compliant eight years before the accident;

ii. there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and

iii. the horizontal surfaces of the steps were slip resistant when wet.

The Court found that that a reasonable occupier would not have installed a handrail. The risk was familiar and obvious and that the use of stepped aisles without handrails in similar stadiums is commonplace.

The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. Additionally of note is that an occupier is not automatically liable in negligence if its premises is not compliant with the Building Code of Australia.

Ultimately the case is confirmation of the principles surrounding the assessment of breach of duty under section 5B and 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person. You can read the full judgment here.

You can contact us at Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page if you need help with a public liability claim, and one of our lawyers will assist you.