Case note – Stenning and Sanig
Stenning v Sanig [2015] NSWCA 214
On 27 July 2015, the New South Wales Court of Appeal affirmed a finding that a homeowner was negligent in his construction of steps from Caesarstone which caused a plaintiff to slip, however substantially decreased the plaintiff’s award of damages for future assistance.
Sue-Anne Sanig, a 57-year old housewife, and Robert Stenning were neighbours. In about 2008, Mr Stenning installed three steps on the path to his front door made from Caesarstone, a smooth quartz stone typically used for benches in kitchens. It was common ground between the parties that Caesarstone was slippery when wet. Mr Stenning slipped on the steps a few months later and so he had squares of carpet attached to the centre of the top of the steps.
On 24 October 2010, it was raining and approaching darkness as Ms Sanig was leaving Mr Stenning’s house. She intended walk off the path on the plaintiff’s lawn to avoid the Caesarstone steps, but she inadvertently placed her left foot on a part of the top Caesarstone step which was not covered by carpet. Her left foot slipped sideways causing her to fall and suffer injury.
First instance
Ms Sanig brought proceedings in negligence against Mr Stenning. She alleged that as a result of the incident, she fractured her left wrist and significantly damaged her left knee, on which she had previously undergone a knee reconstruction.
Finnane DCJ found that Mr Stenning was negligent and awarded Ms Sanig damages in the amount of $736,435.
Court of Appeal
(Hoeben JA, with Macfarlan and Gleeson JJA in agreement)
Negligence
The Court rejected Mr Stenning’s argument that once the carpet squares had been installed this satisfied the requirement to take reasonable precautions for the safety of invitees to his premises. There was no evidence of the material or slip resistance of the squares of carpet or that Ms Sanig would have been any safer treading on the carpet squares in the conditions which prevailed on that night.
The Court also found that a reasonable response would have been to remove or reduce the slipperiness of the Caesarstone step, particularly where Mr Stenning (having already slipped upon the steps himself) was aware of the risk of slipping.
Contributory negligence
The Court concluded that the trial judge erred in finding that there was no contributory negligence on the part of Ms Sanig. The evidence was that Ms Sanig had used this path about six times before the subject incident, but that she would always walk on the grass rather than using the steps. While Ms Sanig was well aware of the slippery nature of the steps and intended to avoid treading upon them, she did not do so. The Court found that her failure to take reasonable care for her own safety went beyond mere inadvertence and could not be explained by a lack of visibility.
Ms Sanig’s failure to take care was not placed as high as Mr Stenning’s moral culpability; it consisted of being careless as to where she placed her foot in circumstances where she was aware of the danger. Accordingly, liability was apportioned as to 85% against Mr Stenning and 15% against Ms Sanig.
Future domestic assistance
Mr Stenning successfully challenged the trial judge’s assessment of the damages to be awarded for future care on the basis that there was no proper analysis. The Court held that it was not sufficient for the trial judge to simply reject out of hand the report of Mr Stenning’s occupational therapist (Ms Hammond) and accept all of the recommendations of Ms Sanig’s occupational therapist (Ms Flanagan).
Mr Stenning challenged the hourly rate of $40.40 for 4.23 hours per week of house cleaning, arguing that a figure of $70 for 3½ hours of cleaning was a more accurate assessment based on the assistance that Ms Sanig had already been receiving. The Court rejected this argument, citing the evidence that Ms Sanig was dissatisfied with the standard of cleaning assistance which she had been receiving.
The Court rejected Ms Flanagan’s allowance for 2 hours per week for assistance with shopping, accepting Ms Hammond’s opinion that the allowance was unnecessary as Ms Sanig shared the shopping with her husband. The court noted that both occupational therapists supported an allowance for window cleaning, but favoured Ms Flanagan’s recommendation of an allowance for cleaning 4 times a year. Similarly, the Court accepted Ms Flanagan’s recommendation for an allowance of 4 hours per week for assistance with outdoor maintenance.
The Court agreed with trial judge that (based on Ms Flanagan’s assessment) a 10% discount should be applied for the future domestic assistance allowance for vicissitudes, considering that Ms Sanig might, as she got older, move in to a smaller house which would require less maintenance.
The award of damages for future care was reduced to $284,963.81. Adjusting for a 15% reduction for contributory negligence, the total amount of damages awarded was reduced to $539,692.78.
Implications
The Court’s findings on negligence are in line with the established interpretation of s.5B of the Civil Liability Act 2002 (NSW), which requires a defendant to take steps to limit a risk of which he is aware. It is clear in this case that the steps taken by Mr Stenning did not attain the required standard to reduce the relevant risk.
The findings in respect of future domestic assistance should be of interest to defendants and insurers, as they demonstrate that the Court of Appeal will assess the strength of the relevant evidence, where there has been a failure to do so at first instance.
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