In the District Court of New South Wales, in the matter of McKenzie v Day (No 2)  NSWDC 236, the plaintiff claimed damages for negligence having sustained significant injuries to her lower legs and left elbow when she fell at the defendant’s residential premises in 2013. The defendant was a deaf and partially blind 92-year-old woman who owned and occupied the house. The plaintiff was employed by the Clarence Valley Council Community Support Services as a support worker and was at the time undertaking a regular ‘safety check’ on the defendant.
The defendant had asked the plaintiff to bring in washing from the rear of the house. Sheets were hung on a line attached to a wall immediately adjacent to steps leading from the rear veranda. A rotary line on the lower level of the yard was unused. The plaintiff estimated that she had visited the defendant about 50 times previously. Her unchallenged evidence was that on no occasion prior to the incident had she been outside at the back of the house (the defendant was assisted by support workers other than the plaintiff). However, and relevantly, it was unknown whether the defendant knew or remembered that the plaintiff had not been outside at the back of the house and whether the defendant was aware that the sheets had been hung on the wall line and not the rotary line.
The plaintiff gave evidence that she was standing on the rear veranda at the top of the steps when she reached forward to feel if the sheets were dry. The next thing she recalled was waking up at the bottom of the steps. She had no recollection of falling or seeing a handrail attached to the wall beneath the clothesline.
The house was constructed in accordance with local authority regulations and the tiles on the rear veranda and steps were compliant.
His Honour Judge Neilson found that the plaintiff had seen the steps on approach and knew she was standing at the top of the steps when she reached forward to touch the washing. The plaintiff had given evidence that she did not notice the handrail and she did not look where she placed her foot because she was ‘distracted’ by the sheet on the line.
The evidence of the plaintiff’s liability expert (that the steps were not delineated and would have created a hazard to any person in the plaintiff’s position) was held to be irrelevant in light of the plaintiff having seen and been aware of the steps.
His Honour found that the plaintiff misstepped, that is the best description of what occurred to her, because she failed to heed the presence of the step, which she had clearly seen on two occasions prior to standing where she stood to feel the clothing, immediately prior to misstepping.
His Honour opined that the duty of care which the law imposed on the defendant involved close assessment of the premise that the plaintiff herself exercise reasonable care for her own safety and found that section 5B(1)(c) of the Civil Liability Act 2002
“requires that, in the circumstances, a reasonable person in the position of the defendant would have taken the precautions to avoid the risk of harm. The precaution here urged upon me was to give the plaintiff a warning. It seems to me an extraordinary proposition that a 92-year-old lady should be required to warn a 60-year-old lady that there was washing hanging on the line near the steps and not to be distracted by the washing hanging on the line when the presence of the steps was obvious to the 60-year-old woman. In other words, I am also of the view that s 5B(1)(c) is not here satisfied.”
Ultimately the plaintiff’s case was advanced on the basis that the defendant was negligent in placing the clothesline on the wall above steps and not warning the plaintiff.
His Honour accepted the defendant’s submission that it would not be appropriate for liability to be imposed where the actual cause of the plaintiff’s fall was her failure to look where she placed her foot, knowing she was standing adjacent to steps. He found the defendant had not been negligent and gave judgment for the defendant.
Whether the defendant breached her duty of care was assessed in conjunction with careful consideration of whether the plaintiff had fulfilled her duty to take for her own safety.
Factual causation was not proved in circumstances where the plaintiff had failed to take proper heed of an obvious risk about which she was aware. While at first blush it may have seemed that the plaintiff was tasked with undertaking a dangerous chore (noting the awkward location of the washing line immediately adjacent to steps), careful examination of the facts revealed that the true cause of the accident was the plaintiff’s own inadvertence.
Judicial assessment of the relevant duties of plaintiff and defendant was conducted in the context of the accident occurring on domestic property owned by a 92-year-old disabled owner/occupier and as such took important public policy considerations into account. The decision contains an important and encouraging message of confidence for domestic occupiers and their insurers which will be welcome after the decision Schultz v McCormack  NSWCA 330 and may have the result that plaintiffs are less likely to pursue claims in negligence against domestic occupiers.
The decision is a reminder that close analysis of all the facts at an early stage is important when assessing liability prospects: a plaintiff positioned close to a hazard at the request of the defendant does not equate to an automatic breach of duty on the part of the defendant.