Turkalert slippery slope

Paul Angus | April 2014 | Insurance & Financial Services

Summary

Facts

Caruana v Darouti [2014] NSW CA 85

The plaintiff, Mr Darouti (the respondent in the appeal), was injured on 4 September 2010 when he slipped and fell while walking down the steep sloping driveway of a property.

On 28 March 2014 the Court of Appeal in NSW held a domestic occupier liable for a plaintiff’s slip on a steep sloping driveway after the defendant had personally undertaken the sealing of the driveway approximately 12 months before.

The occupier of the residential premises was found negligent for failing to either engage an expert to reseal the driveway or properly follow the manufacturer’s guidelines or heed the warning regarding the use of the sealant product on sloping surfaces.

This decision sounds warning bells for domestic occupiers who undertake DIY projects which create a danger as a result of which an entrant subsequently suffers injury.

The property was occupied by the defendant, Ms Caruana (but owned by Mr Caruana’s mother who had in fact died earlier that same day). The plaintiff was returning with Ms Caruana to the house to discuss funeral arrangements when he fell on the wet, steeply sloping driveway and suffered injury. He sued Ms Caruana in her personal capacity as occupier of the property and in her capacity as executor of the deceased’s estate.

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Slippery Slope - Domestic occupier held liable for DIY on slippery driveway

The driveway had been built in 2000 by a builder who had allegedly sealed the driveway at the time. Ms Caruana personally resealed the driveway “a couple of times” since its construction - the last time being 11 months prior to the plaintiff’s fall.

There had been no prior slips in either wet or dry conditions. The plaintiff however gave evidence that he had noticed the driveway was slippery when wet when visiting the premises previously although he hadn’t told Ms Caruana.

Following the fall Ms Caruana was found to have said to the plaintiff “I am sorry. Due to rain, the driveway is very slippery”.

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First Instance The primary judge found that Ms Caruana had been negligent as the occupier (even though she was not the owner of the property) and that she was aware, before the accident, that the driveway would be slippery when wet.

The primary judge found that it was reasonably foreseeable on Ms Caruana’s part that people, such as the plaintiff, could slip and fall even in circumstances where no accident had happened in the past.

The judge found that: • the accident was caused by a positive act (as opposed to an omission) on Ms Caruana’s part in sealing the driveway inappropriately and without expert assistance • a reasonable exercise of care on Ms Caruana’s part would have extended to:

o erecting a hand rail on or adjacent to the driveway or

o mixing an additive with the sealer or

o not applying it to the sloping site (as per manufacturer’s recommendation).

Ms Caruana was found to have breached her duty of care as an occupier and was found liable to Mr Darouti for damages of $121,000.

On appeal The Court of Appeal found that it was open to the trial judge to: • •

find the driveway was resealed in 2009 prefer the plaintiff’s expert evidence over that of the defendant.

One of the main grounds of Ms Caruana’s appeal was that in circumstances where no other person had previously slipped on the driveway in either wet or dry conditions it was not reasonably foreseeable to her that someone might slip on the driveway.

The Court of Appeal found that the defendant’s statement to the plaintiff immediately after the accident that “Due to rain, the driveway is very slippery”, when taken in combination with the insistence of the defendant that she had mixed an additive with the sealer prior to applying it and the warning on the can of the sealer, were evidence that the defendant was acutely aware that the driveway could be slippery when wet.

In considering what precautions were necessary for the occupier to take in response to the foreseeable risk, the Court of Appeal found that Ms Caruana could have: 1. Not applied any sealant; 2. Had an expert of some form apply the sealant; 3. If she decided to apply it herself, do so properly by carefully and accurately following the relevant instructions from the manufacturer or; 4. Apply it properly with some slip resistant additive.

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Paul Angus | April 2014

The Court did not consider it necessary to consider whether a hand rail should have been installed or not as no significant evidence was bought on the cost or inconvenience of installing a hand rail but it was noted by the Court that such installation was uncommon in domestic premises.

In concluding that the occupier had breached her duty of care, the Court found that she had effective control of the premises for at least nine years preceding the accident and had personally carried out the works which created the dangerous situation that in fact caused Mr Darouti to slip and fall.

The Court of Appeal declined to disturb the primary judge’s findings and rejected the appeal.

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Implications The decision of the Court of Appeal, while based to some extent on factual findings against the occupier, sounds a significant warning to domestic occupiers who undertake ‘do-it-yourself’ renovations or work at their premises upon which an entrant is subsequently injured.

Whilst a domestic occupier is not required to make a premises ‘as safe as possible’ the Court of Appeal has clearly stated that a domestic occupier will be liable where it undertakes works that create a hazard or create circumstances that give rise to a foreseeable risk of injury.

The failure of a domestic occupier to retain a professional tradesperson, or at the very least to carefully follow the instructions of the manufacturer of any product being applied or item being installed, may be enough for an allegation of a breach of duty of care to be sustained against the occupier.

For more information, please contact: Paul Angus Partner T: 02 8257 5780 M: 0408 188 808 paul.angus@turkslegal.com.au

Alexzandra Harvey Lawyer

TurkAlert

Paul Angus | April 2014

Insurers of domestic premises and occupiers of those premises will need to be careful when occupiers personally undertake even minor DIY works at the premises which might create a foreseeable hazard.

In such circumstances policy exclusions such as faulty workmanship exclusions will need to be carefully considered before indemnity is granted by insurers.

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