Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hoffmann v Boland [2013] NSWCA 158 Hearing dates: 3, 4 April 2013 Decision date: 06 June 2013 Before: Basten JA at [1]; Barrett JA at [41]; Sackville AJA at [45] Decision: CA 2012/194919 (Reverend Hoffmann's appeal) 1. Grant leave to appeal. 2. Allow the appeal against the First Respondent. 3. Dismiss the appeal against the Second, Third, Fourth, Fifth and Sixth Respondents. 4. Set aside Order (i) made by RS Hulme J on 29 May 2012. 5. In lieu of Order (i), verdict and judgment for the First Defendant against the Plaintiff. 6. The First Respondent pay the Appellant's costs of the appeal insofar as they relate to the appeal against the First Respondent. 7. The Appellant pay the Second, Third, Fourth, Fifth and Sixth Respondents' costs of the appeal insofar as they relate to the appeal against them. CA 2012/266953 (Plaintiff's Appeal) 1. Grant leave to appeal. 2. Dismiss the appeal against the Second, Third, Fourth, Fifth and Sixth Respondents. 3. The Appellant pay the Second, Third, Fourth, Fifth and Sixth Respondents' costs of the appeal. CA 2012/194919 and CA 2012/266953 (Costs of the Trial) In both appeals: 1. Set aside Orders 1, 2, 3 and 6 made by RS Hulme J on 5 June 2012. 2. In lieu thereof, Order that the Plaintiff pay: (a) the First Defendant's costs of the Plaintiff's claim against the First Defendant; (b) the Second Defendant's costs of the Plaintiff's claim against the Second Defendant; and (c) the Third, Fourth, Fifth and Sixth Defendants' costs of the Plaintiff's claim against them. 3. The First Defendant pay the Second, Third, Fourth, Fifth and Sixth Defendants' costs of the First Defendant's cross-claim against them. CA 2012/266987 (Plaintiff's Summons for Leave to Appeal on Costs) 1. Summons seeking leave to appeal dismissed. 2. No order as to costs. 3. Summons seeking leave to cross-appeal dismissed. 4. No order as to costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - personal injury - plaintiff injured as infant by falling down stairs while being carried - whether plaintiff's grandmother owed her a duty of care - whether plaintiff's grandmother negligent in manner in which she descended stairs - whether designer of the staircase or the builder responsible for renovations failed to take reasonable care in design and construction of staircase COSTS - whether Sanderson order appropriate Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, s 23 Civil Liability Act 2002, ss 5B, 5C, 5D, 5E, Pt 1A, Div 2 Civil Procedure Act 2005, s 98 Supreme Court Act 1970, ss 75A(10), 101(2)(e) Uniform Civil Procedure Rules 2005, rr 42.1, 51.52(1) Cases Cited: Anderson v Smith (1990) 101 FLR 34 Barrett v Enfield London Borough Council [2001] 2 AC 550 Boland v Hoffmann [2012] NSWSC 571 Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 Bullock v London General Omnibus Co [1907] 1 KB 264 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 Caparo Industries PLC v Dickman [1990] 2 AC 605 Cattanach v Melchior [2003] HCA 38; 215 CLR 1 Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469 Curmi v McLellan [1994] 1 VR 513 Doubleday v Kelly [2005] NSWCA 151 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 Hahn v Conley [1971] HCA 56; 126 CLR 276 Harriton v Stephens [2006] HCA 15; 226 CLR 52 Imbree v McNeilly [2008] HCA 40; 236 CLR 510 Jones v Bartlett [2000] HCA 56; 205 CLR 166 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Laresu Pty Ltd v Clark [2010] NSWCA 180 Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412 McCallion v Dodd [1966] NZLR 710 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Neindorf v Junkovic [2005] HCA 75; 80 ALJR 341 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (Wagon Mound (No 1)) [1961] AC 388 Posthuma v Campbell [1984] 34 SASR 321 Robertson v Swincer (1989) 52 SASR 356 Sanderson v Blyth Theatre Co [1903] 2 KB 533 Sibraa v Brown [2012] NSWCA 328 St Mark's Orthodox Coptic College v Abraham [2007] NSWCA 185 Sullivan v Moody [2001] HCA 59; 207 CLR 562 Surtees v Royal Borough of Kingston Upon Thames [1992] 2 Fam LR 559 Towart v Adler (1989) 52 SASR 373 Tweed Shire Council v Howarth [2009] NSWCA 103 Wilkinson v Law Courts Ltd [2001] NSWCA 196 Texts Cited: McCurdy, "Torts Between Persons in Domestic Relation", 43 Harvard L Rev 1030 at 1077 (1929-1930) Sappideen and Vines, Fleming's the Law of Torts (10th ed, 2011), p 766 Category: Principal judgment Parties: Matter No CA 2012/194919: Hannelore Hoffmann (Appellant) Molly Erica Hoffmann Boland by her tutor Jason Mark Boland (1st Respondent) Rodney David Rowe (2nd Respondent) David Thomas Spicer (3rd Respondent) Vicky Anne Butler (4th Respondent) Karin Brueggemann (5th Respondent) Clemens Alwin Brueggmann (6th Respondent) Matter No CA 2012/266953: Molly Erica Hoffmann Boland by her tutor Jason Mark Boland (Appellant) Hannelore Hoffmann (1st Respondent) Rodney David Rowe (2nd Respondent) David Thomas Spicer (3rd Respondent) Vicky Anne Butler (4th Respondent) Karin Brueggemann (5th Respondent) Clemens Alwin Brueggmann (6th Respondent) Matter No CA 2012/266987: Summons Seeking Leave to Appeal: Molly Erica Hoffmann Boland by her tutor Jason Mark Boland (Applicant) Hannelore Hoffmann (1st Respondent) Rodney David Rowe (2nd Respondent) David Thomas Spicer (3rd Respondent) Vicky Anne Butler (4th Respondent) Karin Brueggemann (5th Respondent) Clemens Alwin Brueggmann (6th Respondent) Summons Seeking Leave to Cross-Appeal: Hannelore Hoffmann (Cross-Applicant) Molly Erica Hoffmann Boland by her tutor Jason Mark Boland (1st Cross-Respondent) Rodney David Rowe (2nd Cross-Respondent) David Thomas Spicer (3rd Cross-Respondent) Vicky Anne Butler (4th Cross-Respondent) Karin Brueggemann (5th Cross-Respondent) Clemens Alwin Brueggmann (6th Cross-Respondent) Representation: Counsel: P J Deakin QC with B Kelleher (Appellant in 2012/194919; 1st Respondent in 2012/266953; 1st Respondent and Cross-Applicant in 2012/266987) (Hannelore Hoffmann) M Joseph SC with R O'Keefe (1st Respondent in 2012/194919; Appellant in 2012/266953; Applicant and 1st Cross-Respondent in 2012/266987) (Molly Erica Hoffmann Boland by her tutor Jason Mark Boland) R J H Darke SC with M J Gollan (2nd Respondent in 2012/194919, 2012/266953 and 2012/266987) (Rodney David Rowe) S J Harben SC with S Lowe (3rd-6th Respondents in 2012/194919, 2012/266953 and 2012/266987) (David Thomas Spicer Vicky Anne Butler, Karin Brueggemann, Clemens Alwin Brueggmann) Solicitors: Moray & Agnew Lawyers (Appellant in 2012/194919; 1st Respondent in 2012/266953; 1st Respondent and Cross-Applicant in 2012/266987) (Hannelore Hoffmann) Stuart Lawyers (Appellant in 2012/266953; 1st Respondent in 2012/194919; Applicant and 1st Cross-Respondent in 2012/266987) (Molly Erica Hoffmann Boland by her tutor Jason Mark Boland) Hicksons (2nd Respondent in 2012/194919, 2012/266953 and 2012/266987) (Rodney David Rowe) Rankin Nathan Lawyers (3rd-6th Respondents in 2012/194919, 2012/266953 2012/266987) (David Thomas Spicer, Vicky Anne Butler, Karin Brueggemann, Clemens Alwin Brueggmann) File Number(s): CA 2012/194919 CA 2012/266953 CA 2012/266987 Decision under appeal Citation: [2012] NSWSC 571 (29 May 2012) Before: RS Hulme J File Number(s): SC 2009/297331 Judgment 1BASTEN JA: I agree with the orders proposed by Sackville AJA in each of the four proceedings now before the Court. I also agree with his reasons in all respects, subject to the following comments which are limited to the question of whether the grandmother owed a legally enforceable duty of care to her six month old grandchild. In one sense it may be said that the conclusion as to this issue is immaterial in circumstances where the Court is satisfied (as it is) that there was no breach of that duty: see [134]ff below. On the other hand, it may seem illogical to conclude that there is no breach of a non-existent duty, and at least difficult to decide whether there is a breach if the existence, scope and content of the duty has not been determined. 2The claim for damages for personal injury brought by the child in the present case is governed by the Civil Liability Act 2002 (NSW). Part 1A, Div 2 of that Act is headed "Duty of care". It is commonly said that the primary provision in that division, s 5B, is concerned with breach of duty, rather than the existence, scope and content of the duty. However, that proposition is only partly true, for the reason that factors relevant to duty and breach, at least in their practical application, do not easily fit within watertight compartments. The section provides: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 3The focus of the provision is upon the "risk of harm" and the "precautions" which might be taken against such a risk. The section requires that the risk be foreseeable, being the criterion long identified as essential for the existence of a duty: s 5B(1)(a); Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (Wagon Mound (No 1)) [1961] AC 388 at 397. Further, if the risk be insignificant, it may well be possible to conclude that no duty was owed to take any precaution. There is something curious about the proposition (assuming s 5B is directed to questions of breach) that there is a duty, but it does not extend to the taking of any precautions and is therefore not breached. 4Although s 5B refers to the social utility of the activity that creates the risk, as relevant to determining what precautions should have been taken, it does not identify the fact that there may be policy considerations which militate against the creation of a duty giving rise to liability in tort. The particular role played by considerations of public policy in defining the limits of tort law was discussed by Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 at [94] and again by McHugh and Gummow JJ in Cattanach v Melchior [2003] HCA 38; 215 CLR 1 at [55]-[65]. 5In Caparo Industries Plc v Dickman [1990] 2 AC 605 at 617-618 Lord Bridge of Harwich stated, after reviewing earlier authorities: "What emerges is that, in addition to the foreseeability of damages, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope." 6This approach has been rejected by the High Court: Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [49]. The language of "proximity" was said to give little practical guidance in determining whether a duty exists in cases "that are not analogous to cases in which a duty has been established": at [48]. Further, the invitation to consider what is "fair, just and reasonable" was said to be "capable of being misunderstood as an invitation to formulate policy rather than to search for principle": at [49]. There was also rejection of any appeal to "some intuitive sense of what is 'fair' or 'unfair'": at [53]. 7It is not necessary for present purposes to explore the distinction between "policy" and "principle". It is helpful, however, to identify the kind of approach which has found favour with the Court in recent years. 8Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 involved a claim by a plaintiff who was criminally assaulted in a car park against the occupier of the car park. Accepting that the risk of harm was foreseeable in the sense that it was real and not far-fetched, but in rejecting the existence of a duty of care owed by the occupier, Gleeson CJ stated at [35]: "To impose such a burden upon occupiers of land, in the absence of contract or some special relationship of the kind earlier mentioned, would be contrary to principle; a principle which is based upon considerations of practicality and fairness. The principle cannot be negated by listing all the particular facts of the case and applying to the sum of them the question-begging characterisation that they are special. ... Most of the facts said to make the case special are, upon analysis, no more than evidence that the risk of harm to the first respondent was foreseeable." 9Hayne J in Modbury Triangle stated at [105]: "In cases such as the present, where the extent of the relevant duty is not clear, it is useful to begin by considering the damage which the plaintiff suffered, and the particular want of care which is alleged against the defendant. Asking then whether that damage, caused by that want of care, resulted from the breach of a duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff's allegations of breach and damage must depend." 10In Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540, the Court considered the imposition of a duty on the government to consumers of contaminated oysters. Gleeson CJ stated at [15]: "Here we are concerned with the problem of deciding, in a case where the government had certain powers, whether it is accountable, through the law of negligence, for not exercising its powers, or for not exercising them sufficiently. To apply that form of legal accountability requires the identification, not merely of a power, but also a duty; a duty of care owed to a citizen or a class of citizens. A conclusion that such a duty of care exists necessarily implies that the reasonableness or unreasonableness of the inaction of which complaint is made is a legitimate subject for curial decision. Such legitimacy involves questions of practicality and of appropriateness." 11In the same case, McHugh J referred to a series of factors relevant to determining whether a public authority owed such a duty, the sixth of which was whether there was "any supervening policy reason that denies the existence of a duty of care": at [84]. 12Callinan J stated at [321]: "True it may be, that vulnerability, power, control, generality or particularity of the class, the resources of, and demands upon the authority, may each be, in a given case, a relevant circumstance, but none should, I think, of itself be decisive. Nor do I think it convenient or satisfactory to pose a test whether a particular function of an authority involves a core, or a non-core function, or relates to a matter of policy or executive action." 13Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469 was concerned with the scope of the liability of a club for serious injuries suffered by a drunken patron when struck by a vehicle on a public road after leaving the club. Gleeson CJ stated at [18]: "The consequences of the appellant's argument as to duty of care involve both an unacceptable burden upon ordinary social and commercial behaviour, and an unacceptable shifting of responsibility for individual choice. The argument should be rejected." 14Cattanach v Melchior (above at [4]) involved a claim by parents against a medical practitioner who had carried out a tubal ligation of the mother's left fallopian tube only, accepting her advice that her right fallopian tube had been removed earlier, but without advising her to have that fact checked by investigation, or warning her that she could conceive if the assumption proved wrong. It was a case in which duty, breach and the award of some damages were all conceded, the issue being limited to the cost of raising and maintaining the child. The appeal was dismissed. In dissent, Gleeson CJ noted that the common law "does not allow a person to treat his or her own birth as actionable damage, just as it does not allow the death of a human being to be complained of as an injury": at [35]. In seeking to maintain coherence, in a passage of direct relevance in the present context, the Chief Justice continued: "The legal incidents of the parent-child relationship can only lawfully be avoided by adoption. The various ways in which common law and statute protect the child, by imposing and reinforcing parental obligations, reflect international norms. Article 23 of the International Covenant on Civil and Political Rights 1966 declares that '[t]he family is the natural and fundamental group unit of society', and Art 24 provides that every child shall have the right to such measures of protection as are required by the child's status as a minor, on the part of the child's family, society and the State. Article 10 of the International Covenant on Economic, Social and Cultural Rights 1966 requires that '[t]he widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children'. Article 18 of the Convention on the Rights of the Child 1989 refers to 'the principle that both parents have common responsibilities for the upbringing and development of the child'." 15Gleeson CJ also noted at [26]: "Mr and Mrs Melchior have the legal status of guardians and custodians of their son, subject to any order of a court, until he attains the age of 18 years [The Family Law Act 1975 (Cth), s 61C(1)]. Their responsibilities extend to the physical, mental, moral, educational and general welfare of the child [Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 278, Brennan J]. The Family Law Act 1975 (Cth) recognises (s 60B) that children have the right to be cared for by both their parents, regardless of whether the parents are married, and (s 66C) that the parents of a child have the primary duty to maintain the child." 16Against this background of legal principle, it is clear that questions of coherence arise in respect of an action in tort by a child against either or both of his or her parents. However, it is not readily apparent how such issues are to be resolved. On the one hand, it may be thought to be supportive of such legal principles to allow a child to enforce parental obligations. On the other hand, it might be thought that to allow a child to bring proceedings in tort against a parent might be destructive of the underlying relationship which the law recognises, supports and seeks to maintain. A similar concern underlay the reasoning of McHugh and Gummow JJ, who were in the majority in Cattanach. In a joint judgment they stated at [56]: "It can hardly be disputed that, in myriad ways, the law reflects a concern with the value of life and the welfare of infant children. But, against that general background, even in the exercise of the parens patriae jurisdiction, hard choices are to be made rather than broad statements repeated." 17Harriton v Stephens [2006] HCA 15; 226 CLR 52 involved a claim by a child with severe congenital disabilities resulting from her mother being infected with the rubella virus during the first trimester of her pregnancy. Her mother, having been wrongly reassured that her illness was not rubella, allowed the pregnancy to proceed. The plaintiff claimed damages on the basis that, if properly advised, her mother would have terminated the pregnancy. The Court held that the doctor did not owe a duty of care to the child and that, in any event, it was not possible to establish damage by comparing a life subject to severe disabilities with non-existence. Kirby J dissented. The plaintiff in the present case relied upon a passage in the dissenting judgment to the following effect: "[128] The possibility of litigation of such a kind has occasioned expression of judicial revulsion. It has been condemned on the grounds that it would have the 'potential for the disturbance of family life [and] the fabric of society' and 'provide a basis for ... interfamilial [sic] warfare'. [129] The flaws in this reasoning are so obvious that they scarcely require expression. First, it is not unknown in Australia for children to sue their parents in tort. Australian law does not recognise any principle of parental immunity in tort. Thus, actions against parents by their children are not uncommon in the context of motor vehicle accidents. It has been held that children even enjoy a right of action against their mothers in respect of pre-natal injuries sustained as a result of the mother's negligent driving. There is no evidence that such proceedings have resulted in any disintegration of the family." 18There are cases in which children have sued their parents in negligence. It has been said that the existence of a parent/child relationship confers no immunity from suit: see Hahn v Conley [1971] HCA 56; 126 CLR 276 at 283 (Barwick CJ). However, the Chief Justice further held that "the moral duties of conscientious parenthood do not as such provide the child with any cause of action when they are not, or badly, performed or neglected". He accepted that in particular situations there will be a duty on a carer to take reasonable care to protect the child against foreseeable danger but "there is no general duty of care in that respect imposed by the law upon a parent simply because of the blood relationship": at 283-284. It followed that "parents like strangers may become liable to the child if the child is led into danger by their actions". 19In Robertson v Swincer (1989) 52 SASR 356 at 361-362, a case concerned with the responsibility of a father to a child who ran onto the road and was injured by a passing car, King CJ stated: "The social consequences of a legal rule imposing a duty of care upon the custodians of children to protect them from harm, requires consideration. The moral duty which rests upon parents and those acting in their place continues during every moment of the time during which the child is in their care. If that is to be converted into a legal duty it must be recognised that departure at some time from the standard of reasonable care even by the most alert and prudent of parents is almost inevitable. There are moreover no readily recognisable standards for parental supervision as there are for specific activities such as driving a motor car. ... The threat to the financial security of parents and families is by no means the only adverse social consequence to be feared. Parents and children in our society are very dependent upon the support and assistance of benefactors. Children are cared for frequently by supportive relatives and friends and by kindly neighbours. What would be the effect upon such supportive arrangements of the knowledge that a failure of care in supervision might expose the benefactor to being stripped of his assets in consequence of an action for damages?" 20Robertson was followed in Towart v Adler (1989) 52 SASR 373 at 375. The case involved a six year old girl, who climbed onto the top bunk of a double bunk bed, which was next to an open window and fell out. The premises were a holiday rental. She sued the landlord, who sought contribution from her father for negligence in leaving the window open. The landlord's claim was dismissed on the basis that the father owed his child no legally enforceable duty of care. (He was also found, in the alternative, not to have been negligent: at 376.) 21Many of the cases concerning the liability of parents or carers have involved motor vehicle accidents. It has often not been the child who has brought proceedings, but the driver of the vehicle who has sought contribution from the parent: Hahn v Conley and Robertson v Swincer both fell into that category. However, not all cases involve road accidents: some actions have been brought for failure to take reasonable care within the home. In one English example, a child sued her foster mother for allowing her to place her foot in a container of scalding water, which caused third degree burns: Surtees v Royal Borough of Kingston Upon Thames [1992] 2 FLR 559. In a passage approved by Lord Hutton in Barrett v Enfield London Borough Council [2001] 2 AC 550 at 588, Browne-Wilkinson V-C stated: "I further agree with Stocker LJ that the court should be wary in its approach to holding parents in breach of a duty of care owed to their children. It is accepted that the duty owed by Mr and Mrs H, as foster parents, to the plaintiff was exactly the same as that owed by the ordinary parent to his or her own children. There are very real public policy considerations to be taken into account if the conflicts inherent in legal proceedings are to be brought into family relationships." 22In this State, a seven year old child on a sleepover, who went outside, before adult members of the household were awake, and injured herself on a trampoline, sued her friend's parents in negligence: Doubleday v Kelly [2005] NSWCA 151. There was no discussion of whether or not there was a duty of care enforceable in tort law. 23In two other cases in this Court the question of parental duties enforceable in tort was expressly addressed. St Mark's Orthodox Coptic College v Abraham [2007] NSWCA 185 was again a third party contribution claim against a parent. The plaintiff, a nine year old boy, had been injured whilst playing at the school, prior to the time at which teachers became available to supervise the children. Ipp JA held at [35]: "Taking a nine-year old child from his home environment and leaving him at school is conduct that will usually involve a potential risk of harm to the child (which will vary in degree depending on the circumstances). In my view, any parent who performs such an act may owe a duty to the child to take reasonable care in not exposing the child to foreseeable harm in doing so. This duty, if it arises, will spring out of the particular situation: not the mere fact of the parent/child relationship. The duty may arise from the control that the parent (as guardian of the child) exercises over the child, the dependence of the child on the parent, the vulnerability of the child, the foreseeability of harm, and other factors that, according to the modern law of negligence, are relevant." 24In the event, the father was held not to be negligent. However, in reaching the conclusion that the father owed him a duty (for which he could no doubt have been sued for breach by his son) Ipp JA stated (in a judgment with which Young CJ in Eq and I agreed) at [34]: "The following example, albeit extreme, illustrates that in such circumstances a duty of care must arise. Assume that parents, for reasons solely of convenience to themselves, leave their nine-year old son at school, alone, at, say, 3.00 am in mid-winter, to fend for himself until the students and teachers arrive at about 8.00 am. Assume that in the darkness, in an attempt to find shelter, he injures himself. It could not be suggested that, in these circumstances, the parents did not owe a duty of care to their child." 25On reflection, I do not think that the example is persuasive in the way that was intended. First, extreme examples, invoking perhaps deliberate breach of duty, or reckless indifference as to foreseeable harm, or at least gross negligence, do not necessarily support the existence of a duty in less extreme circumstances. Further, the example distracts attention from the real issue, which is whether in the far more benign circumstances revealed by the case itself, the law would contemplate a suit brought by the son against his father. 26The second case was Tweed Shire Council v Howarth [2009] NSWCA 103. In this case a girl, aged two years and four months, was exposed to the dangers associated with an unprotected storm water drain running into a pond. The drain and pond were under the control of the Council. Bordering the drainage reserve was a property with a duplex owned by the young girl's father. He, and his father, went to the duplex to lay turf in the front yard, taking the girl with them. The girl wandered off and was found in the pond. She was resuscitated but suffered brain damage. The girl sued the Council, which claimed contribution from the father. Giles JA, in a judgment with which Ipp JA and I agreed, stated at [19], after having noted that there was no principle of parental immunity in tort: "There was much more here than a relationship of parent and child. Mr Howarth took Carly close to a source of danger to a small child if not well supervised, on the allegations in the proposed cross-claim a source of danger of which he knew or ought to have known. In my view, there is an arguable case that he thereby came under a duty to take reasonable care not to expose her to foreseeable harm. Reasonable care would include adequate supervision to guard against her wandering off while the turf was being laid and falling into the nearby pond." 27Howarth was concerned only with the availability of the cross-claim, not with its merit, the cross-claim having been struck out prior to trial. Reference was made to the comment in Abraham that "bringing up children cannot be made risk-free, and that exposure from time to time to risks of harm is 'inherent in the process of growing up, new experiences and maturing in an appropriate way'". While noting that such matters were not relevant to the circumstances then before the Court, they were nevertheless accepted as relevant to the determination of the claim. 28Sappideen and Vines, Fleming's the Law of Torts (10th ed, 2011) stated at p 766 that "[t]here is consensus that the parents' duty to feed, clothe, maintain, educate and generally care for their child is not enforceable in tort, whatever its moral, or other legal (for example, criminal) sanctions". They also found in the cases denial of "any general custodial duty of care towards the child", referring to Barrett v Enfield LBC, Robertson v Swincer and Towart v Adler, but noting two exceptions, Anderson v Smith (1990) 101 FLR 34 and Curmi v McLellan [1994] 1 VR 513. The authors accepted that a duty might arise where the parent was present and led the child along or across the road. 29Of the apparent exceptions, Curmi may be put to one side. It involved a father allowing his son and six of his son's friends, aged between 16 and 17, to spend a weekend on his houseboat, on which there was an unlocked cupboard containing an air gun and ammunition. One of the friends shot another in the eye. The victim successfully sued the father in negligence. The facts are remote from the present case. 30Anderson v Smith was a decision of Nader J sitting in the Supreme Court of the Northern Territory. A grandmother, who agreed to mind her 14 month old granddaughter whilst the child's mother went out with friends, failed to shut the backdoor securely, so that the child fell in a swimming pool, suffering severe injuries from which she ultimately died. The mother sued the grandmother for damages for nervous shock. The reason for considering whether the grandmother owed the child a duty of care arose from the submission by the defendant that she could not be liable for nervous shock suffered by the mother unless she herself owed a duty of care to the victim. Nader J referred to Hahn v Conley, stating that he did not think that the reasoning of Barwick CJ excluded liability in the case before him. Nader J also stated that he had "read" a number of South Australian cases, referring to Posthuma v Campbell [1984] 34 SASR 321, Robertson v Swincer and Towart v Adler. Although those decisions might be thought to be squarely against the conclusion to which he came, there was no further reference to them or attempt to distinguish them. Little weight can be given to the conclusion in Anderson. 31Returning to the present case, the appellant submitted that the trial judge had erred by failing to take into account the extensive list of factors relevant to considering whether a duty of care exists, as set out by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at [103]. These "salient features" provide a valuable checklist of the kinds of factors which can be of assistance. They do not constitute mandatory considerations, failure to address which will constitute error of law; nor do they lead to a formula which will provide a result in a particular case. Each involves considerations of varying weight; some will be entirely irrelevant. What is necessary is to focus upon the considerations which are relevant in the circumstances of the particular case. 32Just as the concept of a "proximate cause" proved unhelpful in identifying the relationship between the impugned conduct and the harm in Wagon Mound (No 1) at 397, so the related concept of "proximity" between the person responsible for causing the harm and the injured party has also proved unhelpful and has been rejected. It is perhaps an irony that in terms of proximity, it is hard to imagine a closer relationship between two persons than that of parent and babe in arms. However, it is the very closeness of that relationship which may render a legally enforceable duty inapt. As noted by McCurdy in "Torts Between Persons in Domestic Relation", 43 Harvard L Rev 1030 at 1077 (1929-1930), though in terms redolent of an earlier era: "If a cause of action is ever to be recognised between parent and minor child for a personal injury, the relation must necessitate to some extent a treatment different from that applicable to ordinary persons. Three basic factors can not be ignored. The fact that the parties are in such close relationship must render innocuous many acts and omissions that would usually be tortious. Every touching even against the will would not constitute a battery. Moreover, the amount of care required to meet the standard of due care is necessarily affected by the relation. Conduct in the family differs from ordinary conduct. The parties are in a common establishment and are engaged for a common benefit in a common domestic enterprise. The child can hardly be said to assume the risk of family management, as may be said of husband and wife, since he finds himself in the relation through no choice. But since the parent likewise finds himself in the relation through no legal choice, he should at most be held to no higher standard of care than his own abilities, and should ordinarily owe, in the affirmative conduct of the domestic establishment, no greater duty to the members thereof than he exercises in respect to himself. Since the law imposes the duty to rear and discipline the child, and confers the right to chastise it and prescribe a course of conduct designed for its development, there must be a wide sphere of discretion, conduct in the exercise of which must be privileged." 33Thus, the fact that a baby will be entirely vulnerable and dependent upon a carer is obvious and must, no doubt, not be ignored; but, like the underlying policy of maintaining and supporting family relationships, that fact provides little guidance in a particular case. 34An additional consideration, identified by King CJ in Robertson v Swincer, is that the law has no "readily recognisable standards for parental supervision". According to McCurdy any standard might have to take account of the actual capabilities of the individual parent - not an approach favoured by the law of negligence generally: see Imbree v McNeilly [2008] HCA 40; 236 CLR 510 at [10] (Gleeson CJ, Crennan J agreeing), [69] and [72] (Gummow, Hayne and Kiefel JJ, Crennan J agreeing), [179] (Kirby J). The closest analogy is to be found in care and protection legislation, pursuant to which a government authority, or a court, may determine that a child is at risk of harm in the care of its natural parents and will be better off if removed to foster care or to an institution. The present test in New South Wales is identified in the Children and Young Persons (Care and Protection) Act 1998 (NSW), s 23: 23 Child or young person at risk of significant harm (1) For the purposes of this Part and Part 3, a child or young person is at risk of significant harm if current concerns exist for the safety, welfare or well-being of the child or young person because of the presence, to a significant extent, of any one or more of the following circumstances: (a) the child's or young person's basic physical or psychological needs are not being met or are at risk of not being met, (b) the parents or other caregivers have not arranged and are unable or unwilling to arrange for the child or young person to receive necessary medical care, (b1) in the case of a child or young person who is required to attend school in accordance with the Education Act 1990-the parents or other caregivers have not arranged and are unable or unwilling to arrange for the child or young person to receive an education in accordance with that Act, (c) the child or young person has been, or is at risk of being, physically or sexually abused or ill-treated, (d) the child or young person is living in a household where there have been incidents of domestic violence and, as a consequence, the child or young person is at risk of serious physical or psychological harm, (e) a parent or other caregiver has behaved in such a way towards the child or young person that the child or young person has suffered or is at risk of suffering serious psychological harm, (f) the child was the subject of a pre-natal report under section 25 and the birth mother of the child did not engage successfully with support services to eliminate, or minimise to the lowest level reasonably practical, the risk factors that gave rise to the report. (2) Any such circumstances may relate to a single act or omission or to a series of acts or omissions. 35It is clear that this provision would not usually be satisfied by isolated acts of negligent behaviour. However, there is nothing in this statutory scheme, or any other operating in this State, which would suggest that a baby would have a right of action against its parent or indeed a close relative, for physical injury resulting from some isolated inadequacy in the level of domestic care provided in the home. Nor, as analysed above, do the cases to which reference has been made reveal such a cause of action having been accepted, except in relation to claims for contribution. 36The case law reveals a range of different circumstances, which may give rise to differing results. First, where a child is injured in a road accident, where the nature and standard of the duty depend on what is required generally of the driver of a motor vehicle, and in circumstances where liability will usually be met by a third party insurance policy, the courts have had no hesitation in imposing a legally enforceable duty of care to a child. Secondly, where a young child is removed from the safety of the home and exposed to potential dangers, an enforceable duty of care has been accepted. Thirdly, the law has not imposed an enforceable duty in respect of decisions by parents as to the future upbringing of a child: Barrett v Enfield LBC at 588 (Lord Hutton). Fourthly, in the case of a very young child in the care of his or her parents (or foster carers) within the home, the weight of authority is against the existence of any enforceable duty of care. 37The issue in the present case involves the liability of the grandmother to her baby granddaughter; however, it is helpful to consider the situation first by reference to one hypothetical variation in the facts, that is to suppose it was the mother who was carrying her baby at the time of the slip and fall. The mother had both moral and legal obligations with respect to the custody and care of her child, borne jointly with her husband, until the child reached 18 years of age. The accident would have rendered those responsibilities significantly more burdensome and, as in many cases of permanent disability, a burden which is likely to continue for the life of the child, including through adulthood, unless and until the child acquires sufficient skills to care for herself or, possibly, is placed in an institution. At least for the period of her minority, it would be legally incoherent to say that the negligence of the parent gave rise to a legal obligation to care for the child. Perhaps ironically, at least in the absence of insurance, the occurrence of the accident may well diminish, rather than increase, the resources available to the parents to look after the plaintiff. Legal proceedings would diminish those resources further. So long as the parents remained together, such proceedings would never be brought. Yet, no legal principle has been identified why there should be a duty of care in such circumstances, enforceable by the law of tort. To so find would be nonsensical or, in the preferred language of legal principle, it would render the law incoherent. 38If that conclusion is correct in respect of harm arising during the child's minority, it is difficult to see how the duty should arise merely because a 'breach' causes injuries likely to require care and assistance extending into the child's adulthood. 39Further, if those conclusions are correct, it is necessary to ask what aspect of legal principle would give rise to a different conclusion with respect to a member of the family, such as the grandmother in the present case, who voluntarily takes over the care of the child for a period to allow the mother to rest. The answer is that no legally enforceable duty exists. 40A conclusion that no duty of care was owed in the present circumstances says nothing about the circumstances where a child is subjected to domestic violence or even gross and continuing negligence of the kind which might put the child "at risk of significant harm". Nor does it say anything about the position of professional carers providing services for reward. It is not necessary to consider whether that would be so in respect of an older child with some capacity to look after him or her self. The conclusion is limited to the proposition that a grandmother assisting a child's mother by looking after her in the home, whilst the mother rested, owed no greater duty of care to the child than did the mother. The mother owed no duty enforceable by an action in tort in respect of her ordinary day-to-day care of her baby; the grandmother was in a similar position and it follows that the child's claim against her should have failed on the basis that she owed no duty of care enforceable in tort. 41BARRETT JA: I have had the advantage of reading in draft the judgments prepared by Basten JA and Sackville AJA. 42Their Honours have come to different conclusions on the question whether, in the circumstances pertaining at the time the plaintiff was injured, the grandmother owed her a duty of care in negligence. They are, however, agreed (and I too accept) that, for the reasons stated by Sackville AJA, there was no breach of any such duty to which the grandmother was subject. 43There is accordingly no need for me to offer an answer to the question whether the grandmother owed a duty of care. I merely say that there is, in my opinion, much to be said for the view that courts should be slow to characterise as negligent gratuitous care bestowed on a child by a person exercising parental functions in a family or domestic setting, whether or not the person is a biological parent. 44The Court should make orders as Sackville AJA proposes. Subject to the foregoing, I agree with his Honour's reasons. 45SACKVILLE AJA: This is a very sad case. A baby, aged just under six months, suffered serious and apparently permanent injuries when her grandmother fell down the staircase while carrying the baby. The accident happened at about 5.30 am on 25 January 2006, at a holiday home owned by the baby's great uncle. I refer in this judgment to the baby, whose name is Molly, as "the Plaintiff" and to her grandmother as "Reverend Hoffmann". The Proceedings 46The Plaintiff, by her father as tutor, sued Reverend Hoffmann claiming damages for breach of duty. Reverend Hoffmann filed cross-claims against several cross-defendants, not all of whom are parties to the applications for leave to appeal to this Court. In due course, the Plaintiff's representatives joined the cross-defendants as defendants to the principal proceedings. The various cross-defendants then filed cross-claims against each other. 47Directions were given for a separate trial on the issue of liability. The proceedings before the primary Judge took nine hearing days. As the primary Judge (R S Hulme J) noted, the litigation generated reports from no less than six experts, all of whom addressed the question of the safety of the staircase as designed and constructed. His Honour was critical of the duplication of expert evidence and of the volume of documentation produced by the parties, the effect of which was to add to the length and complexity of the trial. 48The outcome of the trial was that the Plaintiff succeeded in her claim against Reverend Hoffmann. However, the Plaintiff failed in her claims against the builder who undertook the extensions to the holiday home and against the designer who designed and installed the staircase. Reverend Hoffmann's cross-claims against the builder and designer were dismissed. In addition, the designer's cross-claim against Reverend Hoffmann and the builder was dismissed, as was the builder's cross-claim against Reverend Hoffmann and the designer: Boland v Hoffmann [2012] NSWSC 571. 49The primary judgment dealt only with the question of liability; damages have not been assessed. Such a judgment is interlocutory. Thus Reverend Hoffmann requires leave to appeal to this Court against his Honour's decision, as do the other parties seeking to challenge that decision: Supreme Court Act 1970, s 101(2)(e). 50The applications for leave to appeal were heard concurrently with full argument on the appeals. Having regard to the importance of the issues to the parties, it is appropriate that leave be granted in each application. (I shall deal separately with challenges to the primary Judge's decision on costs). Abbreviations 51It is convenient to list the parties to the appeals and the abbreviations I shall use: Party Designation Appellant The Plaintiff First Respondent Reverend Hoffmann Second Respondent (the builder) Mr Rowe Third to Sixth Respondents (the designer, t/as Twin Town Joinery) Spicer Third Respondent Mr Spicer 52The following three persons also participated in the events leading up to the accident: Richard Roberts t/as R Grahame Roberts (a designer of an earlier version of the staircase, originally joined as a defendant but not actively involved in the appeal) Mr Roberts The Plaintiff's mother (Reverend Hoffmann's daughter) Ms Hoffmann The owner of the house (the Plaintiff's great uncle, at one stage a defendant to the proceedings) Dr Barrie 53The appeals before the Court are as follows: * Reverend Hoffmann appeals against the decision entering a verdict and judgment against her in favour of the Plaintiff. * Reverend Hoffmann also appeals against the decision entering a verdict and judgment for Mr Rowe and Spicer on Reverend Hoffmann's cross-claims against them. * The Plaintiff appeals against the decision dismissing her cross-claims against Mr Rowe and Spicer. Neither Mr Rowe nor Spicer has sought leave to appeal against the dismissal of their respective cross-claims. 54The Plaintiff has filed a notice of contention seeking to uphold the primary Judge's finding that Reverend Hoffmann owed the Plaintiff a duty of care on grounds said to be different to those relied on by his Honour. Circumstances of the Accident 55There was no challenge to the findings made by the primary Judge as to the circumstances of the accident. To assist in understanding the configuration of the staircase, described by his Honour, I reproduce a plan that was in evidence, although a full appreciation of the configuration requires reference to the photographs that were also in evidence. 56The primary Judge's account was as follows: [2] The premises were a holiday home which had been owned by [Dr] Barrie for many years. The premises were small and, partly because of asthma suffered by one of Dr Barrie's children and thought to be exacerbated by the premises, and partly to provide guest accommodation, Dr Barrie and his wife, Dr Ursula Barrie decided to extend them. They consulted Mr Rowe, who had carried out work on the premises previously and Mr Rowe suggested that they talk to ... Mr Roberts who was a building designer. ... [3] Mr Roberts was consulted on or about 24 February 2002. After an initial design which was not regarded as satisfactory and a number of discussions, a design generally but not exactly in accordance with what was finally constructed was decided upon and on 29 June 2004 the local Council approved the drawings for construction. Some time later Mr Rowe entered into a contract with Dr Barrie and thereafter set about the construction of the alterations. [4] [Spicer] carried on business as manufacturers of timber products including staircases and designed, manufactured and installed the staircase on which [Reverend Hoffmann] fell. It is only ... Mr Spicer, who was directly concerned in events. ... [6] To appreciate the issues that have arisen in the case, it is necessary to understand the physical nature and circumstances of the staircase on which the accident occurred. For the moment it is sufficient to say that it is something over 800 mm wide and consists of what in laymen's terms are three flights and in plan view it takes roughly the shape of a "U", with the top of the left upright depicting the bottom of the stairs. The top of the right upright of the "U" depicts the top of the stairs that joins a landing or walkway running across (in plan view) the top of the "U". The bottom rung of the stairs is some few feet inside and directly opposite an entrance door. The staircase then ascends six steps. There are then two winders that have the effect of turning the staircase 90 degrees to the right. There are then another two steps followed by a quarter landing, from the right side of which another flight of four steps ascends to the upper floor landing. On the side of the quarter landing opposite to the side from which the top flight of stairs commences to ascend, there is one step up leading into a room referred to as an office. [7] Going up, on the left side of the stairs are walls and on the right side of each flight is a shaped timber balustrade. Below each balustrade and parallel to it is a series of steel wires. At the two internal corners of the staircase where the middle flight meets the top and bottom flights are square timber "newel posts" that support the stairs and balustrades and to which the wires are fixed. The posts are somewhat wider than the balustrades and each has a virtually flat top of the same cross-section as the body of the posts. At each newel post the bottom of the upper balustrade intersects the newel post a distance I would estimate from the photographs to be 30-50 mm below the horizontal top of the post and the top of the lower balustrade intersects some 300 mm below that. Also from the photographs I would estimate the width of the balustrades at about 60-70 mm and the newel posts about 20 mm wider. [8] The steps are plain, made wholly from blackbutt timber and without ornamentation or grooves or the like. The riser height - the vertical distance between the upper surface of adjacent steps - is, give or take 1 mm, 185 mm. With the exception of the two winders the going of each step - the horizontal distance from the front of one step to the front of an adjacent step - is between 248 and 250 mm or near enough. There is some overlap of the steps and the depth of each rectangular one is, according to uncontradicted evidence of Mr Spicer, 270 mm. [9] The "winders" are stairs basically triangular in shape. One side is parallel to the other steps in the adjacent flight, one side runs parallel to a wall and the diagonal of each winder runs from the newel post to the outside corner of the staircase at that level. The "corner" next to the newel post is cut off and where a winder intersects with the newel post it is a little, say 10 mm, wider than the newel post itself. Although it did not occur in the staircase with which I am concerned, it might be mentioned also that sometimes a 90 degree turn in a staircase is effected by three steps, two triangular in shape between which is a "kite winder". The name comes from the fact that the step is in the shape of a traditional kite, with a narrow angle adjacent to the newel post and the opposite angle being 90 degrees formed by both outside walls. Where a kite winder is used, and assuming a staircase of the same width, the area of each of the three steps forming the 90 degree bend is obviously appreciably less than when only two winders are used. [10] In the days surrounding the accident, there had been a family gathering at Dr Barrie's house. Molly's mother Susan Hoffmann, Molly, a sister a few years older than Molly and Reverend Hoffmann had arrived at the house on 22 January. Molly and her mother were allocated the office as their bedroom. Reverend Hoffmann and Molly's sister slept on the top floor and it is to be inferred that at least some of the others slept in the ground bedrooms. According to Reverend Hoffmann, on the morning of the accident she heard her granddaughter crying at a time she placed at about 5.15. She went into the office, picked Molly up, walked her up and down (along) the upstairs landing and tried to comfort her. Reverend Hoffmann was not successful in her endeavours. Molly's mother woke. Reverend Hoffmann took Molly to her mother who fed her. Molly did not go back to sleep and Reverend Hoffmann offered to take her downstairs. [11] ... [Ms] Hoffmann agreed to her mother taking Molly and the two left the office. Before doing so, Reverend Hoffmann asked that [Ms] Hoffmann's bedside light be left on until she reached downstairs and it was. [12] Reverend Hoffmann described what occurred thereafter as follows. When she picked Molly up, she held her vertically in front of her chest using her right arm. When she walked out of the office onto the landing she paused and, to ensure she had a firm grip, readjusted her hold on Molly. Then she took hold of the railing with her left hand and commenced to descend the stairs. At the same time she glanced down at the stairs and saw the outline of that part of the steps. Her descent was slow and careful. When she reached the newel post, and because of it, she let go of the handrail. Still descending, she reached for the next handrail. Asked if she noticed something as she did so, Reverend Hoffmann said "I have a body memory (sic) of my left foot tipping at that point ... and began to stumble". She adhered to the description of her foot tipping over the edge of the step at the commencement of her fall and rejected the suggestion that she slipped. She agreed that she was not looking directly at the first winder at the moment of her stumble. Her evidence made it clear that at the time the fall commenced her left foot, which was the one that tipped, was close to the balustrade and that the fall commenced almost simultaneously with her reaching for the next handrail. [13] When she began to stumble she reached for and grasped the balustrade but this did not stop her and, still grasping Molly firmly, she fell to the bottom. In cross-examination Reverend Hoffmann agreed that after she reached the end of the (middle) balustrade she could have easily put her hand on the Newell post but ignored it. She conceded that putting her hand on the post would have been easy and that it was something to steady herself with. [14] She agreed also that she had used the staircase on numerous occasions prior to the accident and "knew the staircase". She had not experienced any difficulties previously. Asked if on prior occasions she had found that the winders provided adequate room for her feet, she indicated that they had because she was walking much more in the middle of the stairs on those occasions. She said that on the occasion of the accident she was so intent on being safe with Molly that she was very focused on the hand rail rather than the steps and was "over more than I would have been on my normal descent". [15] Reverend Hoffmann described the lighting at the time she was walking Molly along the landing as "very poor" but, as stated in her answers to interrogatories, sufficient. She said that the only light - I took her to mean illuminated light - in the vicinity was in the office, that cast light on the landing and a few of the steps but that she could not recall it casting light on the winders. She agreed with the suggestion that as she commenced to descend from the landing it was apparent that the lighting in the area she was going into was very poor. Later she agreed that if she had continued to look past Molly's head as she had done at the beginning of her descent, she would have been able to see dimly the outline of any part of the steps in front of her including the winder. She indicated that the dimness was why she was hanging on very tightly to the handrail. She was not paying much attention to her feet and was not looking at the first winder at the moment of her stumble. She agreed that she could not see the step clearly. [16] Asked about why she did not switch on more lights, at one stage Reverend Hoffmann said that she didn't think about it although earlier she had said that she did not switch on more lights because she didn't want to wake anybody up. The conflict in this evidence leads me to the view I should not rely on either answer. [17] At the time the Reverend Hoffmann weighed about 128 kg although it should also be said that, according to Dr Barrie, she had a nifty way of moving around that belied her weight. 57The primary Judge later found (at [93]) that: ... the most proximate cause of Mollie's injuries and of the [Reverend Hoffmann's] fall was her placing of a foot on, probably the top, winder at a position close to the newel post and where the step was too narrow to provide substantial support combined with an attitude or movement of her body which had the effect of causing her to tip over and thus commence the fall. Events Leading to Construction of the Staircase 58The primary Judge noted (at [18]) that the principal foundation for complaints against (relevantly) Mr Rowe and Spicer was the design of the staircase. The major criticism was directed to the use of winders at the top of the first flight of the staircase. However, there were other criticisms: The newel posts were not formed so as to constitute a handhold; The arrangement of the balustrades and newel posts meant that it was necessary to release one's grip between one and another; There was no handrail; The individual steps lacked any anti-skid or anti-slip finish and obvious nosings; There was no sensor lighting to automatically illuminate the steps when in use. To address these claims, his Honour made detailed findings as to the events preceding the construction of the staircase. 59The plans prepared by Mr Roberts and approved by the Council provided for a staircase: depicted as having three flights and a platform or quarter-landing at each 90 degree turn. The lower flight had five risers up to and including the lower platform, the middle flight had three to and including the upper platform and the upper flight had five risers up to and including the top-floor walkway. The entrance to the office opened off the upper platform. The nature and design of the staircase was never discussed between Mr Roberts and Dr Barrie (at [26]). 60The conditions imposed by the Council on the extension included the following (at [30]): 4. ... [A]ll building work must be carried out in accordance with the provisions of the Building Code of Australia (BCA). ... 38. The stair and/or balustrade is to be constructed in accordance with Part 3.9.1 and/or 3.9.2 of the Building Code of Australia. Openings within the balustrade and between stairs shall not exceed 125 mm, so as not to permit a 125 mm spear to pass through. The proposed balustrade is to be a minimum of 1.0 m high. 61Part 3.9.1 of the BCA specified the dimensions for risers and goings. The BCA made it clear that because the bottom and middle flights were joined by winders rather than a landing, they were to be regarded as a single flight. Clause 3.9.1.1 of the BCA included the following requirements: (b) The nominal dimension of goings and risers of a stair must be constant throughout each stair flight except that the going of winders in lieu of a quarter or half landing may vary from the going of the straight treads within the same flight provided that the going of all such winders is constant. . . . (d) A flight of stairs must not have more than three winders in lieu of each quarter landing or six winders in lieu of each half landing. . . . (g) Treads must have a non-slip finish or a suitable non-skid strip near the edge of the nosings. The BCA did not require handrails to be installed. 62On 15 August 2004, Dr Barrie and his wife entered into a written building contract with Mr Rowe for construction in accordance with the approved plans (at [33]). Construction started at about this time. 63In February 2005, Dr Barrie and his wife visited the premises. No staircase was then installed, but they noticed that the floor of the office on the mezzanine floor was placed in such a way that the clearance of the storeroom below the office was insufficient for comfort. Dr Barrie requested Mr Rowe to change the height of the office floor (at [34]). 64Mr Rowe told Dr Barrie that if the floor of the office was elevated, the staircase would have to be changed. There would need to be an extra step and a step up from a staircase platform to the office and turns would have to be placed in the staircase. Mr Rowe said that the stairs had to be made safe and that he did not particularly like winders. Dr Barrie responded that he had no problem with winders and that he did not see the use of winders as a more dangerous way to construct stairs (at [35]). Prior to this conversation, Dr Barrie had not noticed that the plans provided for quarter landings rather than winders. After the discussion with Mr Rowe, Dr Barrie had nothing to do with the staircase until installation was practically complete (at [38]). 65Mr Rowe said he would need to discuss these matters with the staircase builder and get back to Dr Barrie (at [36]). However, without talking to Mr Spicer, Mr Rowe went about changing the level of the office, satisfying himself that a staircase could be constructed to fit the new levels (at [36]). 66In about April or May 2005, Mr Rowe contacted Spicer and asked Mr Spicer to design a staircase that would fit within the space and that was BCA compliant (at [40]). 67Mr Spicer went to the site to measure up. At this stage the walls had been constructed and the front door was in place. Mr Spicer showed a rough sketch of the final design incorporating the winders to Mr Rowe (at [41]). In due course Spicer installed the staircase for a price of $5,450.00, inclusive of GST (at [42]). 68The extensions to the holiday house were substantially completed in October 2005. Dr Barrie and his family stayed in the house for a short time then and for most of the time from the beginning of December until the date of the accident. During these periods, the stairs were used on a daily basis without incident (at [50]). 69Ms Hoffmann said that before the accident she had walked up and down the stairs without difficulty. However, when carrying the baby she had to place her feet carefully when negotiating the winders and she did not find it easy to use the handrails at the corners (where the balustrade met the newel posts). Reverend Hoffmann had carried the baby up and down the staircase prior to the accident and Ms Hoffmann had no concern about Reverend Hoffmann taking the restless baby down the staircase in the early morning of 25 January 2006. Primary Judgment Expert Evidence 70The primary Judge recorded the matters agreed by the five experts who gave evidence concurrently. His Honour adopted their conclusions which he summarised as follows (at [59]): (i) In a house such as Dr Barrie's a staircase with winders is less safe than one with quarter or half landings instead; (ii) In 2005, the proposition in (i) should have been apparent to a reasonably competent builder, architect or draftsperson; (iii) The Building Code of Australia (the "BCA") provides no guidance or recommendations as to when quarter landings or winders should or should not be used in a house such as Dr Barrie's; (iv) The staircase as depicted in Mr Roberts' drawings was not suitable for construction because the drawings showed only 13 risers, the maximum height permitted by the BCA for each riser is 190 mm, and in consequence the staircase would not span the distance between the RLs specified; (v) The following features would reduce a risk of injury to persons using a staircase that contained winders:- (a) Adequate illumination; (b) Delineation of nosings; (c) A continuous handrail; (d) Slip resistant treads. (vi) The handrail and newel post in this case did provide adequate hand support for a person descending the stairs; (vii) The use of winders did not prevent a continuous handrail being installed at the point where the winders exist on the open side of the staircase. I add a qualification to this below. (vii) A handrail could have been installed on the non-open side of the staircase but it would not have been usual practice to install one; (ix) The design of the staircase as constructed was a reasonably practical design on the assumption that it was to be installed without any structural alterations. (x) In the staircase as constructed, and give or take 2 mm, the riser height was 185mm and the goings were between 248 and 250 mm. (xi) The width of the stairs (not including the supporting stringers) was 810 mm for the top flight and 850mm for the other two flights. ... ... (xiii) Discontinuity of any handrail occurs on the open side of a staircase in the vicinity of either winders or quarter landings. ... 71His Honour's qualification to (vii) was that if continuity of the handrail was to be maintained in the vicinity of the winders (on the newel post side), the handrail would need to be near vertical at that point (before resuming its straight trajectory). 72All five experts agreed that the staircase could have been built in accordance with the BCA with quarter or half landings instead of winders, while still accommodating Dr Barrie's revised requirements (at [61]). However, his Honour found that there were disadvantages to this course. To incorporate a second quarter landing instead of winders would have required another riser in the bottom flight (at [66]). This would have narrowed the space between the bottom step and the door opposite (which opened inwards). When the door was opened, it would intrude about 850 mm into that reduced space, which was 1020 mm as the staircase was actually constructed (at [67]). His Honour considered (at [71]) that another disadvantage of adding another step in the bottom flight was that a person opening the door from the inside would have to take measures to avoid hitting his or her ankle or tripping on the riser. 73To keep the space between the door and the bottom step to no less than 900 mm (as was desirable), it would have been necessary to narrow the upper walkway or to chamfer the edge of it above the lowest steps to provide the required headroom in that area (at [68]). One consequence of this may have been to reduce the width of the middle flight from 850 mm to 790 mm (at [69]). (Mr Spicer said that although the BCA did not prescribe a minimum width for a staircase, the normal width was 900 mm (at [65]). Findings 74The primary Judge found that the available lighting on the staircase was not inadequate (at [85]). 75His Honour made the following findings concerning the adequacy of the balustrades and the newel posts (at [88] - [92]): [88] I have referred above to the fact that neither the BCA or Australian Standard require handrails or handholds and that the experts regarded the "handrail" (by which they clearly meant the balustrade) and newel post as providing adequate hand support for a person descending the stairs. They held this view notwithstanding that there was general acceptance during the concurrent evidence of the obvious limitations and inherent consequences to someone using the balustrades and newel posts as a hand-hold or a person-steadying feature of the staircase. All agreed that the installation of a handrail doubling as a balustrade was consistent with good building practice. ... [89] There was disagreement on the question whether at some time a person descending the stairs would have to cease their grip on both the balustrade and newel post but in my view the geometry makes obvious that there would have to be a period of grip release when moving from a newel post to a lower balustrade. In the case of a hand moving from a balustrade above a newel post to the newel post, the period would be minimal. [90] Dr Barrie said that he did not find the presence of the newel post between the balustrades near the winders awkward, albeit he accepted that he did not have a continuous handhold during the exercise. [91] I also take the view that a handrail, at least one constructed more or less in accordance with the Australian Standard, is likely to provide a more secure grip than the balustrades or newel posts in this case. Such a handrail has a smaller cross-section and thus a hand can grip it better. ... [92] Mr Spicer accepted that continuous handrails were sometimes installed in residential premises. He said that there was no reason why a continuous handrail could not have been used on the subject staircase apart from cost, they being "far more expensive". He estimated the extra cost at $3,500, a figure which might be compared with [Spicer's] charge for the staircase of $5,450 and the full cost of the alterations which was in the mid $400,000s. I infer that in this evidence Mr Spicer was envisaging a handrail on the balustrade side of the staircase. One on the wall side would have not have necessitated vertical components but presumably would have had some horizontal sections. It would of course have had the advantage that someone holding it would tend to be towards the outside of the winders where their tread is wider. However, as Dr Johnson pointed out, the presence of a handrail would operate to effectively narrow the staircase - if built in accordance with the Australian Standard - by 80 to 100 mm. 76The primary Judge found that Reverend Hoffmann's fall was not caused by any slipperiness of the surface of the steps (at [94]). Nor was the lighting inadequate and, even if it was, the inadequacy had nothing to do with the fall since Reverend Hoffmann elected not to turn on the lights (at [94]). 77His Honour found (at [95]) that the presence of a continuous rail near the newel posts and balustrades may have enabled Reverend Hoffmann to avoid slipping or falling or at least allowed her to reduce the magnitude of the fall. However, it was "impossible to conclude that the presence of such a handrail probably would ... have done so". By contrast, a handrail on the wall side of the staircase probably would have averted the fall. Had such a handrail been installed, Reverend Hoffmann probably would have traversed the outside and wider sections of the winders (at [98]). Case Against Spicer 78Boiled down to its essentials, the case against Spicer was that Mr Spicer was guilty of a lack of reasonable care because he designed and built a staircase with winders in a domestic house in circumstances where (at [106]): A staircase containing winders is more dangerous than a staircase without; He knew this; It was possible to design and construct a staircase without winders without undue expense. 79Mr Spicer had been presented with the space and heights, including the altered height of the office (at [109]). He could have designed and built a staircase without winders, although this probably would have required Mr Rowe to chamfer under, or narrow, the upstairs walkway (at [110]). His Honour continued as follows (at [111] - [112]): [111] ... a different design necessary to fit in a staircase without winders would have been a reasonable course for Mr Spicer to adopt. I have identified above disadvantages I see in extending the lower flight by one riser as suggested by the Plaintiff's counsel. The expert evidence and the standards make clear that there are features, e.g. comfort and functionality to be considered in addition to physical possibility and safety and I am disposed to agree that the changes in goings, risers and flight width would have resulted in a staircase that could fairly be described as "mean". Although the BCA permits going and riser heights of 240 mm and 190 mm respectively, the Australian Standard recommends against both of these figures, in the case of the former by a wide margin. The latter document also recommends a minimum stair width of 900 mm. ... [112] Furthermore, it does not seem to me that reasonable care required Mr Spicer to take any of these courses. It does not seem to me that reasonable care requires that winders be avoided just because it is possible to do so or was possible in this case. The evidence makes clear that they are a common feature of domestic premises. They are inherently obvious to anyone who takes even a modicum of care when negotiating them and they meet both the BCA and the Australian Standard. (Emphasis in original) Case Against Mr Rowe 80The primary Judge said (at [107]) that the case against Mr Rowe was essentially that he was guilty of a lack of reasonable care because: 1. In circumstances where:- a staircase containing winders is more dangerous than a staircase without; he knew this; and it was possible to design and construct a staircase without winders without undue expense; he, as the builder of the alterations to the premises being a domestic house, directed, agreed to, or accepted a staircase with winders. Or alternatively, 2. In circumstances where:- a staircase containing winders is more dangerous than a staircase without; and he knew this; when asked to change the height of the office floor/under-office store-room ceiling in a domestic house he was as builder altering, he did not limit the change, or make further changes, (in circumstances where such limits or further changes could be effected without undue expense) so as to ensure a staircase without winders could be built. 81The primary Judge accepted (at [115]) that Mr Rowe had the opportunity at an earlier stage than Mr Spicer to consider the reconfiguration of the staircase. Mr Rowe, for example, could have fixed the height of the storeroom ceiling and of the office floor at a level one riser lower. But the test was not whether Mr Rowe could have done something differently, but whether his failure to take steps to avoid using winders constituted a lack of reasonable care. In his Honour's view (at [116]), it did not. 82The primary judge continued as follows (at [117] - [120]): [117] In concluding as I have in the case of Mr Spicer and Mr Rowe, I do not ignore answers given by them in cross-examination such as Mr Spicer's reference to making stairs "as safe as possible" and Mr Rowe's statement to Dr Barrie that "you have to make these things safe" and in evidence his agreement that "competent stair designers, suppliers and installers ought to avoid using winders unless there is no other option having regard to the space available". I do not regard the test of reasonableness to be so high. [118] So far I have concentrated on the existence of the winders. As I have said, counsel for the Plaintiff also sought to rely on the asserted inadequacies in the balustrade and winder posts for gripping or balancing purposes, the absence of any other handrail, the lack of delineation of the steps and the absence of sensor lighting. [119] Once one accepts that the obligation of those defendants responsible for the design and construction of the staircase was only to take such care as is reasonable in the circumstances and not to make the premises as safe as "reasonable care and skill on the part of anyone can make them" - see Wilkinson v Law Courts Limited [2001] NSWCA 196 at [21] - the opinions of the experts that I have recounted in [59 (vi), (vii) and (ix)] above go a long way to answering the first two of the criticisms in the immediately preceding paragraph. [120] In any event, based on my general experience of staircases which, as a tribunal of fact I am entitled to take into account, I take the view that the balustrade and newel posts accorded with what is common practice. So is the absence of a separate handrail on both or either sides of the staircase. Common practice is not of course determinative of what is reasonable but I am not persuaded that there was any lack of reasonable care in the nature of the balustrade and newel posts and in the absence of handrails. Causation 83His Honour was not persuaded (at [122]) that any of the matters complained of by the Plaintiff, either individually or in combination, were causative of Reverend Hoffmann's fall or the Plaintiff's injuries, with the exception of the use of winders. However, as his Honour had previously found, a handrail on the wall side of the staircase probably would have avoided the injury because Reverence Hoffmann would have used a much wider part of the winders to descend the staircase while holding the baby. Civil Liability Act 84The primary Judge observed (at [123]) that up to that point he had not specifically addressed the individual factors identified in the Civil Liability Act 2002 ("CL Act"). He considered (at [124]) that the risk of injury to someone using or being carried on a staircase with winders was foreseeable. The risk was neither far-fetched nor fanciful. However, the probability of injury was low, as indicated by the prevalence of winders in domestic premises (at [125]). 85"Common experience" suggested that harm flowing from an accident on the staircase was likely not to be serious, but injuries could be extremely serious (at [126]). When regard was had to all of the matters to which his Honour had referred, he was (at [127]): ... satisfied that Mr Spicer was not guilty of a failure to take reasonable care in designing or building the stairs as he did. 86The primary Judge reached the same conclusion in Mr Rowe's case. Mr Rowe's duty did not extend to ensuring that the staircase did not include winders (at [128]): ... Given the obviousness of them, the widespread use of steps of that type and the fact that the BCA and the Australian Standard regarded them as acceptable, I do not think reasonable care on the part of Mr Rowe required that he avoid winders merely because he could. Case Against Reverend Hoffmann 87The primary Judge returned to the position of Reverend Hoffmann whom he considered (at [130]) to be "primarily responsible" for the Plaintiff's injury. After considering a number of authorities, his Honour acknowledged (at [142]) that there were difficulties in bringing the law of negligence "well into the parent/child relationship". Despite these difficulties, he remained (at [143]) unpersuaded that: ... parents (and close relatives) have no legal duty to exercise reasonable care when they undertake physical actions involving their children. 88The primary judge then gave brief reasons (at [144]) for finding that Reverend Hoffmann had not exercised reasonable care: ... I accept that she thought that she was being careful. I accept that often babies are attended to in the middle of the night and, in order that other members of a household are not disturbed, without lights being turned on. Nevertheless, when regard is had to the totality of circumstances including where Reverend Hoffmann walked and the absence of reasonable illumination, I am persuaded that she did not take that reasonable care. Accordingly, there should be a verdict and judgment for the Plaintiff against her. Orders 89The primary Judge relevantly made the following orders: 1. Verdict and judgment for the Plaintiff against Reverend Hoffmann. 2. Verdict and judgment for Mr Rowe and Spicer against the Plaintiff. 3. On Reverend Hoffmann's amended cross-claim against Mr Rowe and Spicer, verdict and judgment for Mr Rowe and Spicer. 4. On Spicer's amended cross-claim against Reverend Hoffmann and Mr Rowe, verdict and judgment for Reverend Hoffmann and Mr Rowe. 5. On Mr Rowe's amended cross-claim against Reverend Hoffmann and Spicer, verdict and judgment for Reverend Hoffmann and Spicer. Judgments on Costs 90The primary Judge delivered two judgments on costs. In the first, delivered on 1 June 2012, he addressed the claims of the Plaintiff, Mr Rowe and Spicer that a so-called Bullock v London General Omnibus Co [1907] 1 KB 264 or Sanderson v Blyth Theatre Co [1903] 2 KB 533 order be made against Reverend Hoffmann. 91His Honour pointed out that the vast bulk of the costs incurred in the litigation arose in the context of the issues involving Mr Rowe and Spicer (as well as Mr Roberts). The Plaintiff had submitted that she should be absolved from any liability to meet the costs of Mr Rowe and Spicer, since she had joined them in the proceedings only because Reverend Hoffmann had filed cross-claims against them. His Honour rejected this submission on the ground that it was the Plaintiff's choice to proceed directly against Mr Rowe and Spicer. That choice had appreciably increased the costs of the litigation. 92Mr Rowe and Spicer had sought an order that their costs in the first instance be paid by Reverend Hoffmann. They argued that it was likely to be some considerable time before the Plaintiff could pay any costs ordered against her and that they should be protected in the meantime. His Honour approached this submission on the basis that it was impossible to distinguish between the costs incurred by Mr Rowe and Spicer in defending the Plaintiff's claim and Reverend Hoffmann's cross-claim. Taking this into account, his Honour thought that the ultimate result should be that the Plaintiff and Reverend Hoffmann each bear 50 per cent of the costs of Mr Rowe and Spicer. However, since the "inspiration" for the Plaintiff's joinder of Mr Rowe and Spicer was the action of Reverend Hoffmann in filing cross-claims against them, he made orders that Reverend Hoffmann pay the costs of Mr Rowe and Spicer and that the Plaintiff pay Reverend Hoffmann 50 per cent of those costs. 93The primary Judge also ordered Reverend Hoffmann to pay the Plaintiff's costs of the successful claim against her. 94In the second costs judgment of 5 June 2012, the primary Judge limited the costs payable by Reverend Hoffmann to the Plaintiff and to Mr Rowe and Spicer so as to exclude certain unnecessary costs incurred in relation to expert evidence. In the result, the primary judge relevantly made the following costs orders (using his Honour's numbering): 1. Reverend Hoffmann to pay the Plaintiff's costs. 2. Reverend Hoffmann to pay Mr Rowe's costs (subject to certain exclusions). 3. Reverend Hoffmann to pay Spicer's costs (subject to certain exclusions). 4. ... 5. No order for costs as between Mr Rowe and Spicer. 6. The Plaintiff pay to Reverend Hoffmann 50 per cent of the costs that Reverend Hoffmann is to pay to Mr Rowe and Spicer. Submissions Reverend Hoffmann's Appeal Reverend Hoffmann's Submissions 95Mr Deakin QC, who appeared with Mr Kelleher for Reverend Hoffmann, submitted that the primary Judge erred in holding that Reverend Hoffmann owed a duty of care to the Plaintiff. Mr Deakin submitted that the circumstances of this case, where a grandmother was doing her best to care for a baby in less than ideal circumstances, showed the undesirability of the law imposing a duty of care on family members. Mr Deakin contended that the law should be slow to intrude into the relationship between a child and his or her parents or family members. To do so would infringe social norms and encourage inter-family disputes. 96Mr Deakin submitted that the primary Judge's analysis of the question of duty involved three errors justifying appellate intervention. His Honour had: impermissibly reversed the onus of proof, requiring Reverend Hoffmann to show that she owed no duty of care; failed to take into account the factors identified in cases such as Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649, as relevant to the existence of a duty of care, in particular the social utility of the tasks undertaken by Reverend Hoffmann and the danger of limiting the autonomy of parents and family members required to discharge the heavy burden of caring for infants and small children; and * incorrectly applied the principles governing whether a duty of care existed in the circumstances of the case, especially in failing to take account of the fact that Reverend Hoffmann had not actively led the Plaintiff into a situation of danger, but at worst had omitted to take steps that might have ameliorated the inherent risks that Reverend Hoffmann faced in a difficult situation. 97Mr Deakin next submitted that even if Reverend Hoffmann owed the Plaintiff a duty of care, the primary Judge was wrong to conclude that a breach had been established. Mr Deakin contrasted the primary Judge's detailed examination of the alleged breach of duty by Spicer and Mr Rowe with the brevity of his Honour's reasoning concerning the finding of breach against Reverend Hoffmann. His Honour's treatment of the subject (at [144]) made no reference to s 5B of the CL Act and thus (so Mr Deakin argued) did not take into account, for example, the social utility of the activity that had created the risk of harm (s 5B(2)(d)). Had the primary Judge factored this into the analysis, the risk of harm would have been balanced against the: significant social utility in the role played by grandparents in providing respite to parents in the onerous and tiring duties of caring for newborn infants. 98Mr Deakin also argued that the primary Judge had not identified with any particularity the risk against which Reverend Hoffmann was required to take precautions. This led to his Honour failing to identify how better illumination would have assisted Reverend Hoffmann, in circumstances where she was concentrating on the handrail and was proceeding in a slow and careful fashion to descend the staircase while holding the Plaintiff. Similarly, his Honour found that Reverend Hoffmann breached her duty of care to the Plaintiff by descending the staircase close to the balustrade and newel post without considering that she was attempting to employ the only support available to her. In order to use the balustrade, Reverend Hoffmann simply had no choice but to descend in the manner she did. Plaintiff's Submissions 99Mr Joseph SC, who appeared with Mr O'Keefe for the Plaintiff, submitted that Reverend Hoffmann owed a duty of care, not because she was in loco parentis to the Plaintiff, but because she was the temporary guardian of the infant and her carer. According to Mr Joseph, there is nothing novel in imposing a duty of care on the carer of an infant, where the carer accepts responsibility for the safety of the infant. 100The key factors in the present case were the extreme vulnerability of the Plaintiff; Reverend Hoffmann's ability to protect her; the foreseeability of a risk of serious harm to the Plaintiff in the event of a fall; and Reverend Hoffmann's knowledge that she had to maintain a proper lookout as to where she placed her feet. Mr Joseph emphasised that the duty of care in this case did not arise simply because of the familial relationship between Reverend Hoffmann and the Plaintiff, but because of the particular circumstances in which Reverend Hoffmann took responsibility for the care of the infant. The fact that family members should be encouraged to take care of an infant was not a reason to deny a duty of care. 101Mr Joseph supported the primary Judge's findings on breach of duty. He submitted that because of the simplicity of the actions being considered and of the manner in which the risk could have been avoided, there was no need for detailed reasons on the issue of breach. The risk against which Reverend Hoffmann was required to guard was that of tripping or falling down the stair case. 102Since the primary Judge had regard to the totality of the circumstances, his Honour should be taken to have found that Reverend Hoffmann failed to take reasonable care in: failing to keep a proper look out for the state of each step in the staircase and where she was placing her foot; * walking too close to the balustrade and away from the centre of the staircase; * failing to keep her hand on the newel post when traversing the winders; and * placing her foot in a place where she would have an insufficient foothold. 103Mr Joseph submitted that, although his Honour did not expressly refer to s 5B of the CL Act in analysis of Reverend Hoffmann's alleged breach of duty, he should be understood to have considered its provisions, as he had in dealing with the Plaintiff's case against Spicer and Mr Rowe. On the assumption that this is what his Honour did, Mr Joseph challenged two findings made by the primary Judge, namely that: the probability of injury occurring as a result of the use of winders was low (at [125]); and the harm flowing from an accident on the staircase was very likely not to be serious, although in a particular case it could be serious (at [126]). 104The finding of breach of duty was justified because Reverend Hoffmann knew the lighting was very dim, yet nonetheless proceeded down the staircase carrying the Plaintiff. Previously, she had walked down the centre of the staircase, indicating that she must have been aware of the risk of descending close to the balustrade and newel post. She took the risk without sufficient illumination and without holding on to the newel post. The Appeals Against the Orders in Favour of Mr Rowe Plaintiff's Submissions 105Mr Joseph submitted that Mr Rowe breached his duty of care to the Plaintiff because he knew that it was better to build a staircase without winders and had the opportunity to ensure that it was so built, yet did not take the steps necessary to eliminate winders. Mr Rowe, so Mr Joseph argued, contravened "best practice", which required a staircase to be constructed without winders. Further, despite acknowledging that he did not particularly like winders, Mr Rowe had never taken up the issue with Dr Barrie after the meeting on site in February 2005. Mr Joseph contended that the expert evidence strongly supported a finding that the use of winders in the staircase constituted a want of reasonable care on Mr Rowe's part. 106Mr Joseph invited this Court to infer that had Mr Rowe expressed to Dr Barrie his reservations about the use of winders and had Mr Rowe acted in accordance with industry best practice, Dr Barrie would have agreed to the construction of a staircase without winders. Mr Joseph contended that Mr Rowe could not escape the consequences of his failure to exercise reasonable care by claiming that he relied on Mr Spicer's expertise. Reverend Hoffmann's Submissions 107Reverend Hoffmann's appeal against the dismissal of her cross-claim against Mr Rowe arises only if her own appeal against the verdict in favour of the Plaintiff fails. Reverend Hoffmann's submissions in support of her appeal against Mr Rowe covered much the same ground as those of the Plaintiff. Mr Rowe's Response 108Mr Darke SC, who appeared with Mr Gollan for Mr Rowe, submitted that the duty of a builder in constructing a staircase is only to take reasonable care in response to the risk of injury occasioned by falling. It is not a duty to construct stairs as safe as reasonable care and skill can make them. In circumstances where: the applicable BCA provisions allow winders; there is no relevant industry practice whereby restrictions are placed upon the use of winders in domestic premises; winders are in common use; and any additional hazards associated with winders are clearly apparent to users of stairs, there was no basis for concluding that Mr Rowe had breached his duty of care by installing a staircase with winders. The Appeals Against The Orders in Favour of Spicer Plaintiff's Submissions 109The Plaintiff submitted that Mr Spicer had elected to design a staircase incorporating winders without considering any alternative. As the evidence showed that an alternative design with a platform was feasible and as Mr Spicer acknowledged that he would have preferred to avoid winders, Spicer had breached its duty of care by designing and installing a staircase with winders. Mr Joseph submitted that the evidence justified a finding that "the acknowledged practice [is] that a staircase with winders should be avoided where possible". Reverend Hoffmann adopted the Plaintiff's submissions. Spicer's Submissions 110Mr Harben SC, who appeared with Mr Lowe for Spicer, essentially restated Spicer's submissions at the trial, which can be summarised as follows: When Spicer was retained, the construction of the house was well advanced and the space for the staircase pre-determined. The available footprint for the staircase was therefore restricted. The staircase was designed and constructed precisely in accordance with the instructions given by Mr Rowe. The staircase as constructed was a reasonably practicable design for the premises in circumstances where no substantial structural alteration was feasible. The mere fact that an alternative design could have been prepared (albeit with consequential additions to the work required) did not establish that Spicer had breached its duty of care. Further and in the alternative, the real cause of the accident was Reverend Hoffmann's negligence. Reasoning on Liability Reverend Hoffmann's Appeal Duty of Care 111The primary Judge was unpersuaded (at [143]) that parents and other close relatives have no legal duty to exercise reasonable care when they undertake physical actions involving their children. Although his Honour did not formulate the duty positively, I understand him to have held that Reverend Hoffmann, having taken physical care and control of the Plaintiff, owed her a duty to take reasonable care to protect her against foreseeable dangers while she was in Reverend Hoffmann's care and control. This was in substance the formulation adopted by Barwick CJ in Hahn v Conley [1971] HCA 56; 126 CLR 276, at 283, cited by the primary judge (at [135]). 112Mr Joseph seemed to accept that Reverend Hoffmann did not owe a duty to the Plaintiff simply because she was the Plaintiff's grandmother, but rather because of her "one-off" act of caring for the Plaintiff in a domestic situation. However, it is not entirely clear whether Mr Joseph intended to adopt the formulation accepted by the primary Judge, or whether he contended that Reverend Hoffmann's duty was narrower, namely to take reasonable care to avoid the risk of slipping or falling down the staircase. 113In determining whether the primary Judge was correct to find that Reverend Hoffmann owed the Plaintiff a duty of care, it is a mistake to consider first what measures could have been taken to prevent the injury and to take those measures as the basis for determining the relevant duty, its scope and content. To take this approach risks simply assuming that because the defendant could have avoided the accident by taking certain precautions, there must have been a duty to take those precautions. Whether a duty exists and, if so, the scope and content of that duty depends on the foreseeability of the relevant risks and the nature of the relationship between the plaintiff and the defendant: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, at [19] - [20], per French CJ and Gummow J (dissenting, but not on these issues). 114A second and related point is that a defendant who owes a duty of care to an injured plaintiff is not necessarily liable to the plaintiff even if it was within the defendant's power to take precautions that, in retrospect, would have avoided the injury. This is recognised by s 5B of the CL Act, which provides as follows: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. The term "negligence" means failure to exercise reasonable care and skill: s 5. 115The effect of s 5B(1)(c) of the CL Act is that a person is not negligent in failing to take precautions against a risk of harm if, in the circumstances, a reasonable person in that person's position would not have taken those precautions. Moreover, s 5C(b) provides that in proceedings relating to liability for negligence: the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done. 116By adopting a standard of reasonableness, the CL Act, like the common law, allows for the infinite variety of circumstances in which injuries can take place: see Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341, at [8] - [9], per Gleeson CJ. As the Chief Justice observed in that case, reasonableness is not a matter of prescription, but allows for flexibility depending on the particular circumstances of the case. 117The High Court has considered whether a parent or grandparent owes a duty to take precautions to prevent injury to a young child in the care of the parent or grandparent. In Hahn v Conley, a three year old child was struck by a vehicle while crossing a road in the Barossa Valley in South Australia. The child was being cared for by her grandparents. She had wandered away from the house, but initially remained on the house side of the road. The grandfather was on the opposite side of the road conversing with a neighbour when he heard the child cry out. He said "I am over here Anne". There was no dispute that the driver of the vehicle had been negligent. The question before the Court was whether the grandfather had also been negligent and thus was liable to contribute to the damages awarded to the child. 118Barwick CJ stated (at 283-284) the relevant principle as follows: whilst in particular situations and because of their nature or elements, there will be a duty on the person into whose care the child has been placed and accepted to take reasonable care to protect the child against foreseeable danger, there is no general duty of care in that respect imposed by the law upon a parent simply because of the blood relationship. 119His Honour considered that the grandfather owed the child no duty of care at the time she called out. However (at 284): had [the grandfather] called her to come to him, he would have come under a duty to take reasonable care for her safety in relation to any danger to her which the crossing of the road would involve. That duty would spring ... out of the fact that he beckoned her to him: or did something which he ought to have known would bring her to him. A stranger who did so could ... in the same circumstances come under the same duty. Barwick CJ found on the facts that the grandfather had not called the child to him and thus no duty of care arose. 120McTiernan J seems to have assumed (at 287) that the grandfather, having turned his attention to the child when he heard her voice, owed her a duty of care. However, his Honour concluded that there was no breach of that duty since any deficiencies on his part fell short of negligent conduct. 121Menzies J, with whom Walsh J agreed, said (at 288) that if the grandfather had called the child to cross the road he would have been negligent because: by so doing, he would both have exercised control over her and exposed her to danger. His calling would both found a duty of care and constitute a breach of that duty. His Honour considered that on the findings made by the trial Judge, the grandfather had not called the child to cross the road. Nonetheless, Menzies J found that the grandfather's awareness that the child was likely to cross the road required him to do something for her protection. The grandfather's belated response was "less than reasonable" and thus he was liable to contribute to her damages. 122Windeyer J accepted (at 294) that the particular situation imposed an obligation on the grandfather to take "reasonable care in the existing circumstances". But the grandfather was not in breach of his duty simply because he failed to prevent the accident. He was insufficiently blameworthy to have breached his duty. 123In St Mark's Orthodox Coptic College v Abraham [2007] NSWCA 185, Ipp JA (with whom Basten JA and Young CJ in Eq agreed) stated (at [31]) the ratio of Hahn v Conley, as follows: while the mere existence of a parent/child relationship does not bring about a duty of care on the part of a parent towards a child, the circumstances of a particular situation may give rise to such a duty. Hahn v Conley therefore establishes no more than that a parent (or grandparent or other carer of a small child) may owe a duty of care to the child, depending on the circumstances of the case. The actual decision in Hahn v Conley turned on the particular facts of the case. 124It follows that Hahn v Conley does not compel the conclusion that in the particular circumstances of the present case, Reverend Hoffmann owed the Plaintiff a duty of care. Nonetheless, it is of some significance that all members of the Court in Hahn v Conley apparently accepted that if the grandfather had exercised control over the child and exposed her to danger (for example, by calling to her to cross the road), he would have owed her a duty of care. A majority accepted that the grandfather's awareness that the child was likely to cross the road was enough to impose on him a duty to take reasonable care for her safety. The members of the Court clearly assumed that there was no tortious immunity for the grandparent of a child, a proposition that has since been accepted in relation to a parent who is alleged to have negligently caused injury to his or her child: Harriton v Stephens [2006] HCA 15; 226 CLR 52, at [129], per Kirby J; St Mark's Orthodox Coptic College v Abraham, at [31], per Ipp JA. 125A critical feature of the present case is that Reverend Hoffmann took physical custody and control of the Plaintiff when she carried the Plaintiff from the room in which the infant had been sleeping. Once Reverend Hoffmann took charge of the Plaintiff in this way, the infant became entirely dependent on her grandmother for protection against injury. It would be evident to any responsible adult in Reverend Hoffmann's position (as it undoubtedly was to Reverend Hoffmann herself) that an infant can be injured in a myriad of ways in even the most carefully designed house. Whenever an adult carries an infant there is a foreseeable risk that the infant could be harmed through misadventure, for example, if the adult falls (whether on a staircase or elsewhere) or causes the child to come into contact forcefully with a hard object. The likelihood of such an event occurring in an ordinary domestic situation on any given occasion is no doubt low, but as a matter of common experience household accidents involving falls are not unusual. If common experience is not a permissible basis for such a conclusion, the evidence concerning the safety standards applicable to staircases justifies the inference that the risk of an adult falling down a staircase is ever present and (as Reverend Hoffmann's actions demonstrate) is a risk against which a reasonably prudent person would take some basic precautions. 126It is also self-evident, as the primary Judge found, that if an adult falls or slips while carrying an infant, the consequences can be very serious indeed. Such a finding is in no way the product of reasoning backwards from the particular accident and injury that occurred in this case. 127In Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649, Allsop P reviewed the High Court authorities dealing with the circumstances in which a duty of care to prevent injury to another will arise. His Honour stated (at [102]) that where the posited duty of care is novel, the proper approach is to analyse closely the facts bearing on the relationship between the injured person and the putative tortfeasor by reference to the "salient features" affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury. He identified (at [103]) the following salient features to be considered: (a) the foreseeability of harm; (b) the nature of the harm alleged; (c) the degree and nature of control able to be exercised by the defendant to avoid harm; (d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself; (e) the degree of reliance by the plaintiff upon the defendant; (f) any assumption of responsibility by the defendant; (g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant; (h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff; (i) the nature of the activity undertaken by the defendant; (j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant; (k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff; (l) any potential indeterminacy of liability; (m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff; (n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests; (o) the existence of conflicting duties arising from other principles of law or statute; (p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and (q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law. 128Allsop P stated (at [104]) that the list was not intended to be exhaustive, but should be seen as: a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content. Allsop P's analysis has been treated in this way in subsequent cases: see, for example, Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412, at [17], per Hodgson JA; at [93]-[94], per Simpson J. 129It will be seen that the first eight of the salient features identified by Allsop P strongly suggest that Reverend Hoffmann owed a duty of care to the Plaintiff. Indeed, there would be few cases where an injured person is more vulnerable and less capable of taking steps to protect herself than the present. Plainly Reverend Hoffmann was completely in control of the situation, in the sense that her actions determined whether the Plaintiff would be safeguarded against the foreseeable risk of injury. Reverend Hoffmann herself recognised that she had to take particular care when descending the staircase (and presumably whenever she was carrying the Plaintiff) in order to avoid the possibility of serious harm to the Plaintiff (features (j), (k)). 130Allsop P recognised (at [105]) that: assessment of the facts in order to decide whether the law will impute a duty, and if so its extent, involves an evaluative judgment which includes normative considerations as to the appropriateness of the imputation of legal responsibility and the extent of thereof. One of those normative considerations is the undesirability of the law intruding into the relationship between a parent (or other family carer) and a child. The effect of imposing tortious liability on the parent or carer for negligence is to entitle a child to sue his or her own parent or family member. This may seem distasteful, particularly if the parent or carer has attempted in good faith to carry out his or her responsibilities. 131But if Reverend Hoffmann owed a duty of care to the Plaintiff, as I think she did, it was not because she was the Plaintiff's grandmother but because of the circumstances in which she undertook responsibility to protect the Plaintiff from the risk of foreseeable harm. That same duty may well be imposed on a non-relative who takes physical care and control of an infant in a domestic situation. And, as Hahn v Conley establishes, there is no parental immunity in tort. 132Courts have from time to time invoked considerations of policy as a justification for negating the existence of a duty of care owed by a parent to a child. In Robertson v Swincer (1989) 52 SASR 356, King CJ suggested (at 361) that there would be "alarming personal implications for parents" if the moral duty of custodians of children to protect them from harm was converted into a legal duty. His Honour made these comments in a case in which contribution was sought from the parents of a small child who had failed to prevent the child wandering onto a road, where he was struck by a vehicle. Hahn v Conley was distinguished on the ground that the parents had not positively led the child into a situation of danger, but had simply been "engaged in the ordinary social activity of visiting friends with their family". Whether or not the emphasis in Robertson v Swincer on the absence of a "positive act" is consistent with the current law, the facts in that case were different from those of the present case. King CJ expressly recognised (at 359-360), consistently with Hahn v Conley, that a parent or carer may owe a duty of care, depending on the particular circumstances of the case. 133There is nothing particularly novel in holding that a parent or grandparent, in a situation similar to that of Reverend Hoffmann, owes a duty of care to the infant in his or her physical care and custody. Each case must of course depend on its own circumstances. But in St Mark's v Abraham, the Court held that the father owed a duty of care to the son when leaving the boy unattended at school, but decided that the father had not breached his duty. Other cases in which a parent was held to be under a duty of care include Anderson v Smith (1990) 101 FLR 34 (S Ct NT) (a grandmother held liable for failing to shut a door securely and thus allowing a child to gain access to a swimming pool) and McCallion v Dodd [1966] NZLR 710 (a father having the care and control of a child at night while walking along a road owed a duty of care to the child). 134For these reasons I think the better view is that Reverend Hoffmann owed the Plaintiff a duty to take reasonable care to protect her from the foreseeable risk of injury arising while she was in Reverend Hoffmann's physical care and control. That duty was not limited to taking reasonable care not to trip or fall on the staircase in a manner that might cause injury to the Plaintiff, but included a duty to take reasonable care not to trip or fall on the staircase so as to create a risk of injury to the Plaintiff. It is, however, not necessary to express a concluded opinion on the existence of the duty. As I shall explain, even if Reverend Hoffmann owed a duty of care to the Plaintiff, she did not breach that duty. Breach of Duty 135The existence of a duty of care is one thing. Breach of the duty is another. The materialisation of a risk against which Reverend Hoffmann was obliged to take reasonable precautions does not establish that she breached her duty to the Plaintiff. That question turns on whether Reverend Hoffmann failed to exercise reasonable care for the safety of the Plaintiff and whether the Plaintiff can show that the requirements of s 5B of the CL Act have been satisfied. 136The primary judge made no reference to s 5B of the CL Act when finding that Reverend Hoffmann had breached her duty of care to the Plaintiff, although he did refer to the section when addressing the liability of Spicer and Mr Rowe for the Plaintiff's injuries. The absence of any reference to s 5B in connection with the Plaintiff's claim against Reverend Hoffmann does not necessarily constitute an error, provided that the primary Judge considered the matters that s 5B requires to be addressed and determined: Sibraa v Brown [2012] NSWCA 328, at [33], [34], per Campbell JA, with whom Hoeben JA and Tobias AJA agreed, following Laresu Pty Ltd v Clark [2010] NSWCA 180, at [42], per Macfarlan JA, with whom Tobias JA and Handley AJA agreed. The difficulty with the primary Judge's reasoning is that there is nothing to indicate that his Honour did consider all the matters he was required to take into account. In substance, he simply recorded his conclusion that Reverend Hoffmann had failed to take reasonable care in the circumstances, having regard particularly to where she walked on the staircase and the absence of reasonable illumination. 137Section 5B(2)(d) of the CL Act required the primary Judge, when determining whether Reverend Hoffmann should have taken the relevant precautions, to consider among other things, the social utility of the activity that created the risk of harm. That consideration was of particular importance since the accident occurred while Reverend Hoffmann was rendering assistance in a domestic setting, both to the Plaintiff and to the Plaintiff's mother, Ms Hoffmann. 138The conduct that created the risk of harm to the Plaintiff was Reverend Hoffmann's act in taking physical custody and control of the infant from Ms Hoffmann. Reverend Hoffmann acted as she did in order to provide temporary relief to Ms Hoffmann from the early morning burden of caring for an unsettled and perhaps distressed infant. Reverend Hoffmann's decision to proceed down the staircase while carrying the Plaintiff was in furtherance of that purpose. Domestic assistance of this kind has a very high social utility: it goes to the very heart of what family members do for each other. Parliament has directed courts to consider this factor in making a normative judgment as to the precautions that a reasonable person in the position of Reverend Hoffmann should have taken against a foreseeable risk of harm. 139The primary Judge did not undertake this task and thus did not take into account a factor to which he was bound by statute to give consideration. Since his Honour erred in this respect, it is necessary for this Court to reconsider the question of breach of duty by Reverend Hoffmann. 140Reverend Hoffmann arrived at the holiday house about three days before the accident. Prior to the accident, she had descended the staircase on a number of occasions and had no difficulty in doing so. On those occasions she was apparently not carrying the infant and she walked towards the centre of the staircase. 141When Reverend Hoffmann carried the Plaintiff downstairs, she was intent on descending the staircase safely, bearing in mind that she was carrying the Plaintiff. She did not have the option of descending on the closed side of the staircase while holding onto a handrail, since there was no handrail on that side. She proceeded slowly down the staircase close to the newel post so that she could hang "on tight" to the upper banister with her left hand. As she descended, she was holding the Plaintiff vertically in front of her chest, using her right arm to do so. 142As Reverend Hoffmann reached the newel post, she was conscious that she had to take particular care. She was also conscious that the upper balustrade finished at the newel post. She released her (left hand) grip from the handrail as she approached the newel post and, as the primary Judge found, reached for the lower handrail. At that point she stumbled. 143Reverend Hoffmann said that she had been surprised when she reached for the lower handrail because she was expecting it to continue "on the same level". Her evidence was consistent with the positioning of the upper and lower portions of the balustrade: the top of the upper balustrade intersected with the newel post at a point about 30-50 mm from the top of the post, while the top of the lower portion of the balustrade intersected with the post at a point some 300 mm lower. Reverend Hoffmann accepted that she would have had to lean forward as she attempted to locate the lower handrail and that it was "possible" that the act of leaning forward had contributed to her fall. The primary Judge found (at [13]) that when Reverend Hoffmann began to stumble she reached for and grasped the lower balustrade, but this action did not prevent the fall. 144A defendant may be found to be negligent even if he or she acts in good faith and takes precautions to guard against the relevant risk of harm (for example, if the defendant, exercising reasonable care, should have realised that the precautions would be ineffective). In this case, however, Reverend Hoffmann not only appreciated that there was a risk of a fall while she carried the Plaintiff, but she took sensible and appropriate precautions to guard against the risk of such a fall on the staircase. She decided that the best protection was to grip firmly the only available support: the balustrade. In order to take that safety precaution, she had to negotiate the turn in the staircase with her feet close to the newel post on the narrowest part of the winders. 145In my view, it verges on the fanciful to suggest that Reverend Hoffmann breached any duty of care she owed to the Plaintiff because she elected to descend the staircase in this manner. She was assisting her family in a typically fraught domestic situation involving a restless infant. She was conscious of the need to proceed safely. Had she descended the staircase towards the centre she would either have had to forego the safety of the balustrade or have stretched in order to reach the balustrade. Either course would have involved its own dangers, although not the one that in fact materialised. She made a reasonable decision in the circumstances; it certainly cannot be characterised as a failure to take reasonable precautions for the protection of the Plaintiff. 146For the same reason, the criticism that she placed her feet on the narrowest section of the winders lacks substance. She did so in order to obtain support from the balustrade. Her own mode of descent was very similar to Ms Hoffmann's description of her practice when carrying the Plaintiff. There was no want of reasonable care in Reverend Hoffmann's placing her feet on the narrow part of the winders. 147The Plaintiff's alternative contention was that Reverend Hoffmann was negligent because she did not attempt to grasp the newel post as she made the transition from grasping the upper balustrade to grasping the lower balustrade. The Plaintiff does not suggest that Reverend Hoffmann was negligent because she assumed that the lower balustrade would be placed in a higher position than it was. She was proceeding carefully, moving to the next level at which she could secure support from the lower balustrade for her descent. While this involved a period of "grip release", his Honour found (at [89]) that grasping the newel post while descending would also have involved a period of grip release. This was so because Reverend Hoffmann would have had to move her hand from the newel post in order to transfer her grip to the lower balustrade. Moreover, if she had grasped the newel post, she would have had to grip a rectangular post configured differently to the balustrade, a manoeuvre that may have created its own difficulties bearing in mind that she was carrying an infant. 148Reverend Hoffmann did not act unreasonably by transferring her grip from the upper to the lower balustrade as she did. It was unfortunate that her expectation as to the height of the lower balustrade was not met, but that was a product of the design of the balustrade. Her failure to grasp the newel post in the course of the manoeuvre was, at the very highest, a small error of judgment. Having regard to the care Reverend Hoffmann was exercising to minimise the risk of harm to the Plaintiff, the failure to grasp the newel post was not negligent. 149The primary Judge identified (at [144]) the absence of reasonable illumination as an element in Reverend Hoffmann's breach of duty. His Honour must have meant that Reverend Hoffmann had been negligent because she had failed to turn on the lights before descending the staircase. In my view, this finding did not adequately take account of the circumstances in which Reverend Hoffmann found herself. 150As the primary Judge acknowledged (at [144]), it is not uncommon for carers of infants not to turn on lights in order to avoid disturbing other people who are sleeping. Reverend Hoffmann did not recall having previously turned on the staircase light and said that she was not conscious of the location of the switches. In any event, she took the precaution before descending the staircase of asking Ms Hoffmann to leave the bedside light on in the office. Reverend Hoffmann agreed that the light on the staircase was very poor, but said that the illumination was sufficient for her to see the outline of the steps and that she adjudged the light to be sufficient. His Honour cast no doubt on this evidence. 151The evidence rises no higher than suggesting that, in retrospect, it may have been better had Reverend Hoffmann ascertained where the switch was and turned on the light. But she appreciated that illumination was needed and, to that end, asked for the bedside light to remain on. The light was sufficient to enable her to see the outline of the steps even if she could not see them clearly. This was not an unreasonable response to Reverend Hoffmann's situation, which required her to take a crying infant down the staircase. 152In my opinion, the attempt to attribute a want of reasonable care to Reverend Hoffmann essentially reflects a search for measures that, in retrospect, might have avoided the particular accident that occurred. I do not think that the Plaintiff has shown that Reverend Hoffmann failed to exercise reasonable care for the Plaintiff's safety. Nor has the Plaintiff shown, for the purposes of s 5B of the CL Act, that a reasonable person in Reverend Hoffmann's position would have taken the precautions identified by the primary Judge and the Plaintiff. The finding of negligence cannot stand. Causation 153One of the criticisms made by Reverend Hoffmann of the primary judge's reasoning is that he did not address the question of causation, on which the Plaintiff bore the onus of proof: CL Act, s 5E. Since I have concluded that Reverend Hoffmann did not breach any duty of care she owed to the Plaintiff, it is not necessary to consider the question in this judgment. However, one point should be made. 154Had the primary Judge addressed the issue of causation, he would have had to determine, among other matters, whether Reverend Hoffmann's failure to turn on the lights was "a necessary condition of the occurrence of the harm" (s 5D(1)(a)). It is difficult to see how a finding to that effect could be made. The "proximate cause" of the fall was the positioning of Reverend Hoffmann's foot (at [93]) on the top winder close to the newel post where the step was too narrow to provide substantial support, coupled with the forward movement of her body. At the time of the fall, Reverend Hoffmann was concentrating on the balustrade, not on the steps. On the findings of the primary Judge, the fall does not appear to have been the result of the poor illumination. It was not put to Reverend Hoffmann, for example, that the poor lighting caused her to fail in her initial efforts to grasp the lower balustrade. Thus, to the extent that any finding of negligence were to rest on Reverend Hoffmann's failure to turn on the staircase light, I do not think that the Plaintiff could establish that any such failure was a necessary condition of the occurrence of the harm. 155It is not necessary to pursue the question of causation any further. The Appeals Against the Orders in Favour of Mr Rowe 156It was common ground that Mr Rowe owed a duty of care to the Plaintiff to take reasonable precautions in the construction of the staircase against the foreseeable risk that someone carrying the Plaintiff would fall on the staircase and that the fall would result in her being injured. It is, however, important to appreciate, as Mr Darke submitted, that Mr Rowe was not under a duty to make the staircase as safe as reasonable care and skill on the part of anyone could have made it: Jones v Bartlett [2000] HCA 56; 205 CLR 166, at [92], per Gleeson CJ; Wilkinson v Law Courts Ltd, at [31], [32], per Heydon JA (with whom Meagher JA and Rolfe AJA agreed). Moreover the courts have recognised that stairs are inherently, but obviously dangerous and that the risks of misjudging footing or tripping are ordinarily avoided by people taking reasonable care for their own safety: Wilkinson v Law Courts Ltd, at [32]. 157The primary Judge's finding that Mr Rowe did not breach the duty he owed to the Plaintiff took into account the circumstances with which Mr Rowe was confronted. At the February 2005 meeting, Dr Barrie requested that the height of the storeroom ceiling be adjusted. This required an adjustment to the height of the office floor. It also required a change in Mr Roberts' plans for a staircase which had not included winders (but which presented other problems). Mr Rowe recognised at the time that because of the restricted space, turns would have to be incorporated in the redesigned staircase. Mr Rowe told Dr Barrie that the staircase had to be safe and that he (Mr Rowe) did not particularly like winders. Dr Barrie indicated that he had had experience with winders and had no problem with them. 158Mr Rowe subsequently asked Mr Spicer to design a staircase that would fit within the available space and that would be BCA compliant. Spicer designed and installed the staircase with the characteristics already described, including the winders. 159The evidence supports critical findings made by the primary Judge: the staircase as constructed complied with the BCA ([59(iii)]); the design of the staircase, as constructed, was reasonably practicable on the assumption that it was to be designed without any structural alterations ([59(ix)]); and the width of the winder at a point 27 centimetres from the newel post was approximately equivalent to the width of the other treads ([49]). 160In addition, the primary Judge found (at [112]) that winders are a "common feature of domestic premises". This finding reflected the evidence of experts called by Reverend Hoffmann and Mr Rowe to the effect that there was no relevant industry practice relating to the use of winders in the construction of stairs in residential dwellings. 161It is true that the experts, with one exception, agreed that a staircase in a holiday house is safer if it uses quarter or half landings rather than winders. It is also true that they agreed (subject to certain reservations) that the staircase could have been designed and constructed in accordance with Dr Barrie's wishes and BCA requirements using quarter or half landings instead of winders, although such a design would have necessitated reducing the length of the goings and the width of the stairs. The design, as the primary Judge found, also would have had other disadvantages. 162Mr Rowe did not design or install the staircase himself. He engaged Spicer to perform those tasks, instructing Mr Spicer that the staircase had to fit within the available space but also had to comply with the requirements of the BCA. Even if Spicer failed to exercise reasonable care in giving effect to Mr Rowe's instructions, it is not clear why Mr Rowe's actions involved a breach by him of his own duty to exercise reasonable care. 163In any event, the evidence rose no higher than showing that it was possible to design a staircase without winders that complied with the owner's requirements and that such a staircase would be likely to be safer than one with winders. The evidence did not establish that a staircase with winders would contravene any applicable building standards, nor that it was inconsistent with standard building practice. On the contrary, the evidence affirmatively established that the staircase complied with relevant standards and was consistent with industry practice for residential dwellings. Furthermore, the construction of a staircase that did not incorporate winders involved disadvantages of the kind identified by the primary Judge. The evidence falls well short of what is required to establish that Mr Rowe breached his duty to use reasonable care in the design and construction of the staircase. 164Mr Joseph rather faintly submitted that Mr Rowe had failed to exercise reasonable care by not ensuring that the staircase incorporated a continuous handrail. The evidence suggested that such a handrail could have been incorporated at an additional cost of $3,500. However, there was no evidence that the absence of such a handrail contravened applicable building standards or departed from standard practice in the industry. Moreover, all the experts agreed that the handrail and newel post on the staircase as constructed provided adequate hand support for a person descending the staircase. This submission is untenable. 165No error has been shown in the primary Judge's finding that Mr Rowe did not breach the duty of care he owed to the Plaintiff. The Appeals Against the Orders in Favour of Spicer 166As the primary Judge found (at [109]), Spicer was retained to design and install the staircase within a pre-determined space in a partially erected building. Mr Spicer gave evidence, which appears to have been accepted by his Honour, that he had limited options because he had to work within the confines of what had already been built. As I have noted, Mr Rowe gave instructions to Mr Spicer to construct a staircase within the available space and to ensure that the staircase complied with the BCA. There was no dispute that Spicer constructed the staircase in accordance with their instructions. 167Spicer's position is not identical to that of Mr Rowe. Unlike Mr Rowe, Spicer actually designed and installed the staircase. However, contrary to the Plaintiff's submissions, Mr Spicer did not simply choose to construct a staircase with winders, while ignoring any other alternative. When questioned by Mr Joseph (who represented the Plaintiff at trial), Mr Spicer gave this evidence: Q. Prior to showing him this [the drawing of the staircase], had you at that point any instructions concerning whether or not there should be winders used at the lower 90 degree turn in the staircase? A No specific instructions, no. Q. So when you showed him this, the drawing that is, what did you say to him? A. I said because we have a maximum distance from the back wall to where the bottom door opens of 2,500 millimetres, and that the stair width normally would be 900 millimetres, which at the back wall I have a measurement of 2,300 millimetres, it gives me two, 250 millimetre treads between the two sets of stairs. On a calculation of 6 by 250 millimetre treads with a 900 wide set of stairs at the back, I had a maximum length of 2,400 millimetres, which gave me a clearance between the door and the front tread. Had I put a platform there, the door would have hit the front of the stairs when it was opened. HIS HONOUR Q. Had you put a platform there, do you mean at the lower of the two 90 degree turns? A. Yes, yes. Where the two, where the platform is now split into two, had I put a platform there the door would not have opened. Q. Because if you put a platform there you would have needed to put an extra - A. Tread at the bottom, yes correct. Q. To get the height that you achieved at the second 90 degree turn, is that what you mean? A. Yes. JOSEPH Q. What you have just recounted in terms of measurements and calculations and discussion, you are saying you had those words of discussion with Mr Rowe at that time? A. I would have told him that. I would have said to him, "We have to put a kite in that platform to pull one tread back to allow the door to open." Q. Was the door present and installed at that time? A. Yes. Q. At that time, given the state of construction, you say you had no alternative but to draw this? A. In my mind I had no alternative, yes. 168Mr Spicer recognised in his evidence, as did Mr Rowe, that it was preferable to avoid the use of winders, both for safety and cost reasons. However, he also said that he thought nothing of putting a kite winder in this particular staircase "because 65 to 75 per cent of the stairs that I do consist of kite winders". Mr Spicer's own experience reinforced his Honour's finding that winders are a common feature of staircases in domestic premises. It also reinforces the conclusion that there was no industry practice that winders should not be used in domestic premises if an alternative design is available. 169As I have indicated (and as the primary Judge found (at [110]), Spicer could have designed and installed a staircase without winders, although this would have required significant changes in the design of the kind identified by his Honour. For essentially the same reasons as I have given in relation to Mr Rowe, the evidence does not establish that Spicer's design and installation of the staircase involved a breach of any duty of care owed to the Plaintiff. The mere fact that the staircase could have been designed and installed without winders does not establish that the primary Judge was wrong to find that Spicer had not breached its duty to use reasonable care in the design and installation of the staircase to avoid the foreseeable risk of harm to users of the staircase. 170Similarly, no basis has been established for the contention that Spicer's failure to incorporate a continuous handrail as a feature of the staircase involved a breach of the duty of care owed to the Plaintiff. Orders 171I propose the following orders on the various appeals: 1. Allow Reverend Hoffmann's appeal against the Plaintiff. 2. Dismiss Reverend Hoffmann's appeal against Mr Rowe and Spicer. 3. Dismiss the Plaintiff's appeal against Mr Rowe and Spicer. For reasons I shall give, costs should follow the event. Thus I propose orders that: 4. The Plaintiff pay Reverend Hoffmann's costs of Reverend Hoffmann's appeal against the Plaintiff. 5. Reverend Hoffmann pay the costs of Mr Rowe and Spicer of Reverend Hoffmann's appeal against them. 6. The Plaintiff pay the costs of Mr Rowe and Spicer of the Plaintiff's appeal against them. I shall deal separately with the costs orders made by the primary Judge. Reasoning on Costs 172Reverend Hoffmann sought leave to appeal against the orders made by the primary Judge that she pay the entire costs of Mr Rowe and Spicer. Her notice of appeal sought orders, among others, that: 1. The Plaintiff pay the costs of Mr Rowe and Spicer in respect of the claims brought by the Plaintiff against them. 2. Reverend Hoffmann pay the costs of Mr Rowe and Spicer in respect of Reverend Hoffmann's cross-claim against them. 173The Plaintiff sought leave to cross-appeal against the orders requiring her to make a contribution to the costs of the successful defendants (Mr Rowe and Spicer). The argument on costs took place at the conclusion of the hearing of the substantive appeals. At that time, the parties were unaware of the outcome of the appeals. In the light of the proposed orders on the substantive appeals, any costs questions have to be resolved on the basis that the Plaintiff has failed against Reverend Hoffmann, Mr Rowe and Spicer. 174Mr Joseph submitted that even if Reverend Hoffmann's appeal succeeded (at it has), the Plaintiff should not be ordered to pay the costs of her claims against Mr Rowe and Spicer. Instead, so he argued, Reverend Hoffmann should be ordered to pay the costs of Mr Rowe and Spicer incurred by them in defending the Plaintiff's claim. The basis for the submission, as I understood it, was that the Plaintiff joined Mr Rowe and Spicer as defendants only because Reverend Hoffmann had already joined them as cross-defendants and that the Plaintiff realistically had no choice but to follow suit. 175Mr Joseph characterised his submission as an application for a Sanderson order. Such an order is ordinarily made where it is appropriate that an unsuccessful defendant bears the costs of a successful co-defendant, rather than the plaintiff. In the present case, all defendants have ultimately succeeded against the Plaintiff. 176In any event, the foundation for the submission is wanting. The primary Judge found that the Plaintiff's decision to join Mr Rowe and Spicer as defendants was a choice freely made by her. Moreover, her decision resulted in an appreciable increase in the costs of the litigation. No sound basis has been advanced for challenging either of these findings. That being so, the costs orders relating to the proceedings at first instance should follow the event: Civil Procedure Act 2005, s 98; Uniform Civil Procedure Rules 2005 (UCPR), r 42.1. 177Because Reverend Hoffmann's appeal has been allowed, Orders 1, 2, 3, 4 and 6 made by the primary Judge cannot stand. Thus a further order should be made in Reverend Hoffmann's appeal setting aside those orders. 178In their place, the following orders should be made: 1. The Plaintiff pay Reverend Hoffmann's costs of the Plaintiff's claim against her. 2. The Plaintiff pay Mr Rowe's costs of the Plaintiff's claim against him. 3. The Plaintiff pay Spicer's costs of the Plaintiff's claim against it. 4. Reverend Hoffmann pay the costs of Mr Rowe and Spicer of Reverend Hoffmann's cross-claim against them. 179These orders will require a taxing officer to distinguish between the costs incurred by Mr Rowe and Spicer in defending the Plaintiff's claim and the costs incurred by them in defending Reverend Hoffmann's cross-claim. This may well require a robust approach, but the task is by no means impossible. 180As Reverend Hoffmann's appeal has been allowed, all the costs orders I have proposed can be made by this Court in the exercise of its appellate jurisdiction without the need for a grant of leave to appeal against the primary Judge's costs orders: Supreme Court Act 1970, s 75A(10); UCPR r 51.52(1). The simplest course, which involves no injustice to any party, is to dismiss each summons, with no order as to costs. Consolidated Orders 181I propose the following orders: CA194919 of 2012 (Reverend Hoffmann's appeal) 1. Grant leave to appeal. 2. Allow the appeal against the First Respondent. 3. Dismiss the appeal against the Second, Third, Fourth, Fifth and Sixth Respondents. 4. Set aside Order (i) made by RS Hulme J on 29 May 2012. 5. In lieu of Order (i), verdict and judgment for the First Defendant against the Plaintiff. 6. The First Respondent pay the Appellant's costs of the appeal insofar as they relate to the appeal against the First Respondent. 7. The Appellant pay the Second, Third, Fourth, Fifth and Sixth Respondents' costs of the appeal insofar as they relate to the appeal against them. CA266953 of 2012 (Plaintiff's Appeal) 1. Grant leave to appeal. 2. Dismiss the appeal against the Second, Third, Fourth, Fifth and Sixth Respondents. 3. The Appellant pay the Second, Third, Fourth, Fifth and Sixth Respondents' costs of the appeal. CA194919 of 2012 and CA266953 of 2012 (Costs of the Trial) In both appeals: 1. Set aside Orders 1, 2, 3 and 6 made by RS Hulme J on 5 June 2012. 2. In lieu thereof, Order that the Plaintiff pay: (a) the First Defendant's costs of the Plaintiff's claim against the First Defendant; (b) the Second Defendant's costs of the Plaintiff's claim against the Second Defendant; and (c) the Third, Fourth, Fifth and Sixth Defendants' costs of the Plaintiff's claim against them. 3. The First Defendant pay the Second, Third, Fourth, Fifth and Sixth Defendants' costs of the First Defendant's cross-claim against them. CA266987 of 2012 (Plaintiff's Summons for Leave to Appeal on Costs) 1. Summons seeking leave to appeal dismissed. 2. No order as to costs. 3. Summons seeking leave to cross-appeal dismissed. 4. No order as to costs. *************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2013