Domestic occupiers not required to remove all risks Graham v Welsh [2012] QCA 282 Paul Angus | May 2013 | General Insurance
On 19 October 2012 the Queensland Court of Appeal found in favour of the defendant occupier in an appeal from an action brought by a plaintiff in the Queensland District Court who slipped on a large gumnut which had fallen from a gum tree onto the entry stairs to a residential property.
Who does this impact? Liability insurers of residential premises.
Summary
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Queensland Court of Appeal not “nuts”
The Court of Appeal held that a residential occupier was not required to remove trees to avoid the potential risk in circumstances even where the risk to the entrant and the presence of the hazard was obvious. The Court of Appeal’s common sense approach in overturning the first instance judgment in the plaintiff’s favour provides some further protection to domestic occupiers. The decision also reinforces the observations of the High Court in Neindorf v Junkovic,1 that the response of people to many hazards in and around their premises is to do nothing and that this may be a reasonable response in the circumstances of a domestic occupier.
Facts The 76 year old female plaintiff was the aunt of the female defendant. The plaintiff was attending the defendant’s residential premises located in a suburban bushland setting entered by a well-made paved footpath and steps. The plaintiff slipped and fell on the steps after apparently stepping on a gumnut which had fallen from an overhanging branch of a gum tree. The plaintiff brought an action against the occupiers alleging they had failed to warn the plaintiff of a risk of injury, had failed to provide safe access to the premises, created a danger to users of the steps, and had failed to implement an adequate system of inspection and cleaning. The evidence was that the plaintiff had been to the defendant’s house many times and that the steps were regularly swept as part of routine maintenance of the property. It was accepted that gumnuts frequently fell from the flowering gum tree in the garden - often
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Queensland Court of Appeal not “nuts” Paul Angus | May 2013
The plaintiff slipped as she was leaving the property via the steps which she had walked up some two hours earlier when she entered the property.
At first instance The plaintiff was successful at first instance in the District Court on the basis that the Court found the defendant to have breached their duty in failing to provide safe access to the house by adequately pruning or removing the gumtree. Judgment was entered in favour of the plaintiff in the sum of $55,000. The defendants appealed to the Court of Appeal.
On Appeal The defendants conceded that the risk was foreseeable and the Court found that there could be no doubt that an occupier owed a duty of care to entrants to the land-that duty being a duty to take reasonable care to avoid a foreseeable risk of injury to another. The case, however, turned on whether there had been a breach of that duty by the defendants. In noting that the content of the duty of care must relate to the circumstances in which the parties find themselves, Atkinson J quoted Gleeson CJ in Neindorf v Junkovic: “the response of most people to many hazards in and around their premises is to do nothing. The Legislature had recognised, and had reminded Courts, that, often, that may be a reasonable response.” The Court found similarities in the Queensland Court of Appeal decision of Woodward v The Proprietors of Lauretta Lodge2 where mango leaves had dropped onto a set of stairs. In that case the Court had observed that: “…the presence of the mango tree and its leaves can have caused no surprise to anyone used to living in South East Queensland, as was the plaintiff.
Even if it were a foreseeable risk, it is my opinion that no further steps were required to eliminate it….. the small level of risk, balanced against the benefits of a handsome tree which provided shelter from sun and glair, meant that no further steps had to be taken.”3
In comparing the two cases, the Court noted that the gumnuts could be easily seen and avoided and that the steps had in fact been regularly cleaned. The Court noted that an occupier need not take action to remove all risks, no matter how obvious, from residential premises. The Court of Appeal commented that the trial judge’s finding that the tree should have been trimmed or removed to avoid the possibility of gumnuts falling on steps was contrary to principle given that trees and bushes are commonplace and desirable attributes of homes and residential areas:
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moments after the steps had been swept. No one had ever experienced any difficulties with the steps during the brief period the defendants had owned the property, nor during the 12 years of previous occupation.
“it is not reasonable for Court decisions to require the removal of such trees if an entrant to residential premises slips on a natural hazard which is readily apparent. This is a case in which there is an error to be corrected and unless corrected, may set a most undesirable precedent.” The Court of Appeal went further in noting that it would have been unreasonable for a Court to require the removal of a tree on the chance that it might result in a hazard appearing on the stairs. The Court unanimously overturned the trial judge’s decision and entered a verdict for the defendant occupiers.
Implications The decision of the Court of Appeal in this case is a timely reminder of the High Court’s 2005 statements in Neindorf that residential occupiers are not required to make their premises as safe as possible but only need act reasonably in the circumstances relevant to that occupier. There can be a tendency for District courts to ‘blur’ the line when considering breach of duty between the circumstances of residential occupiers and those of commercial occupiers in relation to removal of hazards.
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The decision of the Court of Appeal reminds us that because a plaintiff falls or trips on a hazard at a residential premises does not necessarily mean that there has been a breach of the duty of care owed by the residential occupier. The full circumstances of the matter and the position of both the occupier and entrant, including consideration of the surroundings of the residential premises and the number of times and manner in which the entrant has entered the premises, will be important in determining the breach of duty of care.
(2005) HCA 75. (1997) QCA 183. 3 per Helman J. 1 2
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Queensland Court of Appeal not “nuts� Paul Angus | May 2013
For more information, please contact: Paul Angus Partner T: 02 8257 5780 M: 0408 188 808 paul.angus@turkslegal.com.au
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