Stenning v Sanig  NSWCA 214 On 27 July 2015 the NSW Court of Appeal delivered its decision in Stenning v Sanig. The decision reveals what a Court will consider when making a finding of contributory negligence. Facts On 24 October 2010 the respondent (Sanig) slipped on a path leading from the appellant’s (Stenning) house. Two years prior to Sanig’s accident, Stenning installed steps on a path leading from his house to the street. This path consisted of 3 steps made from caesarstone (commonly used for kitchen benches). Tests later revealed the slipperiness of the steps was well below the recommended level. A few months after Stenning installed the steps, he was descending them when he himself slipped. As a result of the slip, he attached squares of carpet to the tops of the steps. The carpet did not cover the whole of the step, leaving a border on each side. Prior to Sanig’s accident, she had visited Stenning’s home on approximately 50 occasions. Most of the time she would access his home by a side entrance. That was not possible on the day of the accident as Stenning had stacked some firewood blocking the entrance. This meant Sanig was obliged to use the front entrance and the subject path. She had used this path about 6 times before the day of the accident but had never used the steps as she would always walk on the grass as she regarded the steps as unsafe. Sanig was visiting Stenning on the day of the accident. It had been raining heavily all day and it was still raining when she left his house. She was aware the steps were slippery because she had been told either by Stenning or his wife he had slipped on them. Although her intention was to step off the path before she reached the steps and walk the rest of the way on the grass, she inadvertently placed her left foot on a part of the step not covered by carpet. Her foot slipped causing her to fall and suffer injury. Sanig sued Stenning in the District Court for damages in negligence. The District Court The District Court found Stenning liable to Sanig and awarded her $736,435 in damages. Stenning appealed the decision and challenged the finding: of negligence against him; and there was no contributory negligence on the part of Sanig. The Appeal Negligence The Court found the risk of harm was that a person, moving from the house to the road, would slip on one of the steps, particularly in wet conditions. The issue was whether the risk was foreseeable and whether Stenning’s response to that risk was reasonable. Was the risk foreseeable? The Court held the risk was not only foreseeable in the sense it “ought to have been known” pursuant to s 5B(1)(a) of the Civil Liability Act 2002 NSW (the CLA), it was actually known by Stenning because he had slipped on the steps. In addition, it was apparent persons were regularly avoiding the steps and walking across the grass as there was a well worn track diverging to the left of the path. It was foreseeable such persons might inadvertently place a foot on the uncovered part of the step and slip. Was Stenning’s response to that risk reasonable? Stenning’s response to the risk was to attach squares of carpet to part of the steps. There was no evidence what these squares of carpet were made of; its anti-slip quality; or if the carpet had made the steps safer. The Court held Stenning’s response was not adequate. The appropriate response was to remove or reduce the slipperiness of the steps which could have been done by adding non-slip steps or by covering the steps with a non-slip material. Stenning failed to establish the District Court erred in finding he was negligent. Contributory negligence The Court of Appeal found: the District Court erred in finding there was no contributory negligence on the part of Sanig; the evidence made it clear although Sanig was well aware of the slippery nature of the steps and intended to avoid treading upon them, she did not do so; Sanig’s failure to take reasonable care for her own safety went beyond mere inadvertence; and instead Sanig was not paying adequate attention to where she was placing her feet. The Court apportioned liability 85% against Stenning and 15% against Sanig as: it was Stenning who created the dangerous situation; Stenning had actual knowledge of the risk of harm but did not adequately respond to it; and Sanig’s contribution was much less as she played no part in bringing about the dangerous situation created by the steps. Conclusion The Court of Appeal reduced the amount awarded to Sanig to $539,692. Implications – What Amounts to Contributory Negligence Contributory negligence is governed by section 5R of the CLA. Section 5R provides: the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and the matter is to be determined on the basis of what that person knew or ought to have known at the time. In considering whether to make a finding of contributory negligence, a Court will consider: what the injured person knew at the time of the accident (e.g. was the person aware of the slippery nature of the steps); whether the injured person’s failure to take care for his/her own safety went beyond mere inadvertence; if the injured person had regard to the conditions at the time of the accident (e.g. heavy rain); and whether the injured person was paying adequate attention. This article was written by Lesley Woodmore, partner, and Sherryn Russell, associate.