Be careful, the driveway upon which you are to walk is no different from most other driveways By Benjamin Buckhurst and Peter Riddell | February 2006
On 8 December 2005, the High Court of Australia handed down its decision in the matter of Neindorf v Junkovic. It reversed the earlier judgment of the Supreme Court of South Australia which ruled that the occupier of domestic premises was liable to compensate a visitor to the occupier’s garage sale who tripped over on uneven paving stones on the driveway1 .
Facts On 5 February 2000 Mrs Neindorf opened her premises to the general public for the purposes of a garage sale. Mrs Junkovic entered the premises and, whilst walking towards a trestle table, tripped on an uneven section of driveway, suffering a fracture to her right foot. The unevenness complained of was a height difference of some 10 to 12 millimetres between two paving slabs.
The Majority The majority (Gleeson C J, Hayne J, Heydon and Callinan J) was at pains to point out that it was not the intention of the Court to set a statement of principle. The verdict was instead confined to the interpretation of the relevant section (Section 17C) of the Wrongs Act 1936 (South Australia). This section of the Act provides, in part, that the following factors are to be taken into account in determining the scope and extent of the duty of care owed by occupiers of land: · · ·
the nature and extent of the premises. the nature and extent of the danger arising from the state or condition of the premises. the age of the person alleged to have suffered injury, damage or loss and the ability of that person to appreciate the danger.
The majority considered that the extent of the danger was minor and common on suburban footpaths. At previous stages in the history of proceedings the fact that a garage sale had been held at the occupier’s premises was used to suggest that the relationship between the occupier and entrant was similar to a commercial retailer and customer, giving rise to a stricter duty of care. The majority rejected this, stating that the circumstances of entry were “far removed from the selling of goods on a daily basis by a commercial retailer.” The majority considered that there was no infirmity on the part of the Plaintiff which would have precluded her from negotiating the height differential and also considered it was inappropriate to describe the uneven paving stones as a “danger”. There was no evidence of any previous incidents involving that section of driveway. The Court stated that: “It is in our opinion an overstatement to describe the slightly raised concrete on one side as a “danger” of which the Appellant was aware or should have been aware. Therefore it was not unreasonable for the Appellant not to have taken measures to guard against the slight risk it presented.”
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Obvious Risk During the course of the litigation to the High Court, it was considered in the Supreme Court proceedings that the unevenness was so obvious to the Plaintiff that the duty of care owed by an occupier of domestic premises did not extend to risks which were obvious. This reasoning was based upon the High Court’s decision in Ghantous v Hawksbury City Council 2. Chief Justice Gleeson considered that the obviousness of the danger was a fact to be taken into account but otherwise supported the majority verdict which simply dealt with the issue on the basis of the South Australian Wrongs Act.
Implications The judgment is a welcome one for domestic insurers and home owners alike, the Court recognising that a reasonable response to ordinary common place hazards, such as in this case, may be to take no action at all. The decision is also a reminder that the “obviousness” of a risk is only one factor to consider when determining the scope of the duty of care. In this case the High Court echoed this general principles set out in the Vairy and Mulligan cases3 but limited its consideration of the issues to the criteria stipulated by the South Australian Wrongs Act. In a broader context, the general position of the High Court could be viewed as attempting to steer lower courts into giving appropriate weight to the various factors which determine the scope of the duty of care in order to create a balanced approach towards cases of Occupiers Liability, rather than focussing exclusively on “obvious risk”. Since 2001, particularly in NSW, there has been a noticeable shift towards a more pro-Defendant attitude by appellate courts. Increasingly, courts are asking themselves why entrants do not take greater care for their own safety. There has been a tendency for courts to consider that if a risk is sufficiently obvious, then it absolves the occupier from all liability. The High Court can therefore be viewed as attempting to remedy what it views as misconceptions whilst in general leaving pro-Defendant decisions effectively undisturbed. Despite the pronouncement that this judgment makes no statements in principle, it does have application outside of South Australia. The Victorian Wrongs Act provisions in relation to occupiers liability are markedly similar to South Australia’s and, consequently, a High Court decision showing how these criteria are to be evaluated will be useful in determining the scope of occupier’s liability within Victoria.
Endnotes 1. See our Turk Alert of 26 November 2004 for a full report on the Supreme Court decision. 2. [2001] HCA 29 (31 May 2001) 3. For detailed analysis of the decisions in Vairy and Mulligan see our Turk alert of 28 October 2005.
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For more information please contact: Benjamin Buckhurst Lawyer T: 03 8600 5007 benjamin.buckhurst@turkslegal.com.au
Peter Riddell Partner T: 03 8600 5005 peter.riddell@turkslegal.com.au
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