A patron of the restaurant (hereafter called Mr. Smith) proceeded to use the washroom facilities located in the basement of the building. As Mr. Smith approached the basement staircase, he missed the first step down and fell forward. While falling into the staircase, he attempted to grab the handrail to stop his fall, however, he was unsuccessful and continued falling to the bottom of the staircase. As a result of the fall, Mr. Smith suffered serious personal injuries. Examination of the staircase by an independent engineer indicated that the handrail did not meet the current building code. The Engineer's report suggested that had the shape of the handrail met building code requirements, Mr. Smith could have possibly been able to arrest his fall by grabbing the handrail.

Dr. Pilette was retained to conduct a review of the construction details of the staircase, and to determine whether any deficiencies would have contributed to Mr. Smith's accident. The staircase components were examined in detail: dimensions of the steps, top and bottom landings, slip resistance of the walking surfaces, handrail, and lighting.

The investigation revealed that the staircase was original construction dating back to 1981. The construction details of the staircase met the requirements of the building code in effect at the time of construction. Newer handrails are required to meet geometric dimensions and be graspable. More stringent requirements in subsequent upgrade of the building codes cannot be enforced to existing construction, unless the building, or part thereof, is being renovated.

In this case, the handrail requirements in the newer building code were found to be more demanding than those in effect before 1981. However, those newer requirements could not be enforced. Despite the non-compliance to current building code, the existing handrail was not hazardous. It was found that Mr. Smith's incident was as a result of his own misfortune.