Graham & Ors v Welch [2012] QCA 282

I refer to my earlier posting.

The court of appeal upheld the appeal in favour of the householder and their insurer finding:

[19] There can be no doubt that an occupier owes a duty of care to entrants to the occupier’s land and that duty is consistent and coincident with the usual duty to take reasonable care to avoid foreseeable risk of injury to another.[9] The question in this case concerned whether there was a breach of that duty.

[20] The content of the duty in these circumstances must relate to the circumstances in which the parties find themselves. The defendants obviously lived in a home in a bushland setting. As Gleeson CJ said in Neindorf v Junkovic:[10]

“Not all people live, or can afford to live, in premises that are completely free of hazards. In fact, nobody lives in premises that are risk-free. Concrete pathways crack. Unpaved surfaces become slippery, or uneven, many objects in dwelling houses could be a cause of injury. People enter dwelling houses for a variety of purposes, and in many different circumstances. Entrants may have differing capacities to observe and appreciate risks, and to take care for their own safety. … The response of most people to many hazards in and around their premises is to do nothing. The legislature has recognised, and has reminded courts, that, often, that may be a reasonable response.”

[21] An example of a case which is very similar to this case on the facts is found in this court’s decision in Woodward v The Proprietors of Lauretta Lodge.[11] The court considered the risk posed by mango leaves on a set of stairs not dissimilar to those involved in this case. Helman J cited with approval the observations of the trial judge that:

“…the risk presented by the presence of the mango leaves was such that any danger of a fall was far fetched or fanciful. In daylight, the leaves could easily be seen and avoided by users of the steps. There were only a few leaves at the time. Their presence was a familiar feature of these steps. Indeed, 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 body corporate acted reasonably in tolerating the situation that in fact existed. The small level of risk, balanced against the benefits of a handsome tree which provided shelter from sun and glare, meant that no further steps had to be taken.”

[22] The trial judge distinguished the present case on the basis that “gumnuts themselves being small, cylindrical and hard, are unlike mango leaves and clearly a significant hazard on the stairs.”[12] However, there is no basis for making such a distinction. Like mango leaves, the gumnuts could be easily seen and avoided, and the evidence suggested there were only a few of them present at a time as the steps were regularly cleaned. The plaintiff’s evidence was that she was aware of the presence of gumnuts on the steps. Like leaves, it is common to find gumnuts or similarly shaped objects such as stones, seed pods or twigs on external steps in suburban residences, particularly those in a bushland setting. There is no basis for distinguishing between the two examples of the same principle: that an occupier need not take action to remove all risks, no matter how obvious, from residential premises.

[23] The evidence shows that the plaintiff was familiar with the steps having been there often and presumably had either experienced no danger in respect of the gumnuts or ought to have been aware of any danger that existed. Accordingly the risk that she would suffer an injury of the type that eventuated was remote. Gumnuts are no less common in bushland gardens in south east Queensland than leaves from the once ubiquitous mango trees.[13]

[24] The finding that the tree should have been trimmed or removed to avoid the possibility of gumnuts falling on steps is in my view contrary to principle. Trees and bushes are common place and desirable attributes of homes in residential areas. It is not possible to have the Australian gumtree without the possibility of gumnuts falling or a Casuarina without the possibility of seed pods, or many common native or exotic trees or shrubs which flower and then produce nuts, berries, seeds, or seed pods. I agree with Muir JA as to the aesthetic and ecological desirability of trees in suburban gardens. 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. Accordingly I would grant leave to appeal, allow the appeal, order that the order made on 16 May 2012 be set aside, enter judgment for the defendants and order that the respondent pay the applicants’ costs of the proceeding in the District Court and of the appeal to be assessed on the standard basis.

Brisbane Barrister – David Cormack

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