Johnson & Anor v Hancock [2014] QCA 130

McGill DCJ

Knew or ought to have known

[19] It will be apparent therefore that I have significant concerns about the credibility of the defendants. On the whole I was not impressed with either of them in the witness box, and neither struck me as a particularly reliable witness. In the circumstances I do not accept their evidence that they were not in fact aware of the presence of this drainage pit prior to the deceased’s fall, at least in the sense that they were aware of the metal cover which would have been visible in the corner of their property. Whether they had ever taken the trouble to investigate what was underneath it is another matter; it is, I think, quite plausible that they would not have done so.

[20] The fact that I reject their evidence that they were not aware of this does not mean that they have been proved to be aware of it. There was no direct evidence that they were aware of the presence of the pit, or at least the metal cover to the pit, prior to the fall of the deceased, but for reasons I have given I consider it probable that at least the white surplus sewerage pipes were placed there during the time they were in occupation of the premises. That is not something that would have been done by a tradesman doing work on the premises: a tradesman might have left them behind, but would not have taken the trouble of hiding them in this way. I consider the obvious explanation is that the defendants put the sewerage pipes in this position as an inconspicuous place where they could be left. There is no reason to think that they were put there after the fall of the deceased. The evidence also supports a conclusion that some other items there were put there by the defendants during their occupation of the property. In all of the circumstances, I consider that the evidence supports an inference that the defendants were in fact aware of the presence of the metal pipe cover prior to the fall of the deceased.

[21] In any case, I have no hesitation in concluding that they ought to have been aware of it, in the sense that a reasonable person in their position would have been aware of it. I consider that reasonably careful owners of a suburban residential property would familiarise themselves with the nature and characteristics of the property, to the point where they would look into a corner such as this to see what was there when the property was acquired, or not long thereafter.[22] This, I think, would be a product of natural curiosity, but I consider that in circumstances where occupiers know that people such as tradesmen, or even social invitees or children, may have occasion to come onto their property reasonably careful occupiers of a property will take the trouble to familiarise themselves with their property in order to ascertain whether there is any significant hazard to such persons on the property.

[22] The duty of a householder in the context of hazards presented by the state of the premises was considered by the Court of Appeal in Jaenke v Hinton [1995] QCA 484. Williams J, with whom the other members of the court agreed, held that the relevant duty of occupiers of land was to take reasonable care to avoid foreseeable risk of injury to the respondent, but in that case held that the risk was so low that a reasonable man would have been justified in disregarding it and taking no steps to eliminate it. This depends on the chance of the risk materialising (p 7), and I suppose on the seriousness of the consequences which could follow if it did.

[23] In that case it was held that the presence of an ordinary garden hose across a lawn did not pose such a risk of injury to a person who came to be walking across the lawn as to make the occupier liable in negligence for failing to remove the hose. But that was a case where the item in question was obvious, and would have been obvious to the person walking across the lawn, and the extent of the risk of injury could be easily evaluated. Where the injury arises from the presence of something which is concealed, the ability to assess the extent of the risk of injury depends upon an awareness of the presence of the circumstances giving rise to the risk. In these circumstances, the proper performance of the duty to take reasonable care for the safety of entrants requires an occupier of land to take reasonable steps to ascertain whether there are any hazards, particularly concealed hazards, present on the land which might endanger persons coming onto it.[23] That exercise can only be properly done by someone who is aware of the extent of the risk, because of the significance of the extent of the risk in determining whether a reasonable person would take steps to deal with it.

[24] The practical effect of this is that in my opinion it is part of the ordinary duty of care of an occupier of premises to which entrants are reasonably foreseeable to check the premises for the presence of any hazards, particularly concealed hazards, which might endanger a foreseeable entrant. Accordingly, if in fact there is a significant, concealed hazard on premises, in effect a concealed trap, and it is foreseeable that an entrant might be endangered by that hazard, it is not an answer for the occupiers to say that they were in fact unaware of the presence of that hazard. This is not a case where reasonable inspection by an ordinary person would have detected no indication of a potential problem;[24] reasonable inspection would have detected the metal lit, which should then have been investigated.

[25] It is unnecessary for this analysis to be undertaken on the basis of entrants in general, because it is sufficient to consider whether the duty to the deceased was breached. In circumstances where the defendants knew that the plaintiff’s husband was going to be doing work in the garden, then that I consider gave rise to a duty at least to check the areas where the deceased could foreseeably be working. That then makes it necessary to decide whether the deceased had been specifically told to cut back the murraya trees in the area behind the swimming pool, or whether he was just expected to do the usual lawn mowing and weeding of the gardens. The deceased told a solicitor at a time when he was in hospital that he had received these particular instructions. It seems to me obvious from the photographs that the murraya trees had been cut back, and indeed that palm trees had been planted, by December. I think it most unlikely that the deceased would have told his solicitor that he had received instructions to do something which had already been done.

[26] His offsider confirmed that on the day in question the deceased took him to the property and they embarked at once on a substantial program of cutting back the murraya trees: p 64. I think it quite unlikely that the deceased would have been conducting such substantial pruning on his own initiative and without any specific instructions or request that he do so.[25] I reject Mrs Johnson’s evidence that she gave no such instructions, accept the evidence of the deceased, and find that he was specifically instructed to do work which would take him into the vicinity of the murraya trees. In those circumstances, I consider there was an obligation to inspect that area to ascertain whether there was any hazard there which a reasonable person, knowing that the deceased would or could be working in that area, would take steps to protect the deceased against, whether by warning him or doing something to mitigate the risk. It is clear that that was not done.

[27] While he was working on the property the deceased was using a chainsaw, and in those circumstances his attention would have been focussed on the saw and on the trees he was pruning. That circumstance ought to have been reasonably foreseeable to the defendants. Because of the presence of the metal cover, the hazard presented by the pipe and the heavily corroded metal grill under the cover was by no means obvious, but was in the nature of a concealed trap. Nevertheless it ought to have been located by someone who was specifically checking for hazards rather than simply doing work on the site. Had it been seen, in my opinion a reasonable occupier would have investigated, at least to the point of lifting up the metal cover to see what was underneath, and the occupier at that point would have detected the hazard. Given the risk of significant injury being suffered by a person who fell into the pit as a result of standing on the lid, I consider that a reasonable person who was aware of the hazard would in the circumstances have taken steps to protect entrants such as the deceased from that risk; I did not understand that that proposition was contested on behalf of the defendants. Mr Johnson said that once he was aware of the hazard he put a sturdy cover over the pipe: p 44. Mrs Johnson said she would have done something about the hazard if she had known it was there: p 30.

[28] In the circumstances I find that the defendants knew, and ought to have known, that the drainage pit and hence the hazard that it presented, was there, and ought at least to have warned the deceased about its presence, if not gone further and taken appropriate steps to make the pipe safe by covering it with some sturdy lid. It is unnecessary to consider anything further than the failure to warn, because I accept that if the deceased had been warned about the presence of the hole he would have probably avoided standing on the lid and falling into the pit,[26] and in that way his death would have been avoided. Accordingly I find that there was negligence on the part of the defendants, and that that negligence caused the deceased to fall into the pit, and, for the reasons given earlier, his death. Accordingly the defendants are liable to the plaintiff for damages for loss of dependency.

Appeal

Boddice J with whom Gotterson JA and Thomas J concurred:

[69] The trial judge’s acceptance of Mrs Craven’s evidence that the drainage pipe and its cover were clearly visible on the day of settlement is not the subject of challenge in the Notice of Appeal. Once that finding is accepted, it must follow that from the commencement of the Appellants’ occupation of the property, the drainage pipe and its cover were clearly visible to any occupant of the property who ventured in or near that area.

[70] This conclusion renders important the findings of fact as to the placement of the two pieces of white PVC piping shown in the photographs taken on 15 December 2009. Mrs Craven gave evidence they were not placed there by her. She had acknowledged some of the items depicted in the photograph had been placed there during her occupancy. There was no reason for her to draw a distinction between those items. It was open to the trial judge to accept Mrs Craven’s evidence she was not responsible for the placement of the two pieces of white PVC piping.

[71] That evidence was consistent with the evidence of Mr Craig that he did not observe any white PVC sewerage piping on the date of his pre-purchase inspection. Whilst Mr Craig did not venture in that area during the pre-purchase inspection, he did look in that direction. There is good reason why he would have noticed their presence if they had been in that area. They were sewerage pipes, and he would have been keen to investigate their presence.

[72] Once the trial judge found the two pieces of PVC piping were not in the area on the day of settlement, the two pieces of PVC piping had to have been placed in the area during the Appellants’ occupancy. As there was no evidence any tradesperson had undertaken any sewerage work during that occupancy, it was a legitimate inference, open on the evidence, that the Appellants were responsible for the placement of those pipes. This is particularly so having regard to the evidence accepted by the trial judge, that other items located in that area, namely the black plastic and the sprinklers, were also not present during Mrs Craven’s occupancy of the property.

[73] The trial judge’s acceptance that these items were placed in the area during the Appellants’ occupancy of the property amply supported an inference the Appellants had, notwithstanding their denials, been in the area in which the drainage pipe was located at a time prior to the Deceased’s fall. Such an inference was not “glaringly improbable”. To suggest that an equally open inference, was that these items were placed after the Deceased’s fall would mean the Appellants had placed those items there after October 2009 but removed them prior to the photographs being taken in June 2010. There was no logical reason for the Appellants to have done so.

[74] The evidence, as accepted by the trial judge, also supported the finding the Appellants ought to have been aware of the existence of the drainage pipe. Mr Purcell opined a reasonable solicitor would have informed the Appellants of the outcome of the searches, which revealed the presence of the drainage easement, and would have informed the Appellants of the significance of that easement. The Appellants accepted the presence of the drainage easement was brought to their attention as part of the conveyance.

[75] It was open to the trial judge to conclude that once the Appellants knew of the presence of the drain they would, as reasonable people, have inspected it, within a reasonable time of their occupancy of the property. It was, as the Respondent contends, properly a matter for the trial judge to consider the Appellants’ denials as to the knowledge of the drainage pipe against that background. This is particularly so having regard to the finding the drain and its cover were clearly visible as at the date of commencement of their occupancy of the property.

Conclusions

[76] The findings of fact made by the trial judge were supported by the evidence. The inferences drawn by the trial judge were reasonably open having regard to those findings of fact. Those inferences were not “glaringly improbable”. The drawing of those inferences did not involve any misuse of the trial judge’s position of seeing and observing the witnesses.

[77] The trial judge was entitled, having regard to the totality of the evidence, to reject the Appellants’ denial of any knowledge of the existence of the drainage pipe. The trial judge was also entitled, having regard to his acceptance of the evidence of Mrs Craven, to find the Appellants ought to have known of the existence of the drainage pipe. There was the uncontradicted evidence of Mr Purcell that a reasonable solicitor would have brought the existence of the drainage easement to the attention of the Appellants, and the evidence of the Appellants that the drainage easement was brought to their attention.

[78] It was open to the trial judge to conclude a reasonable person in the position of the Appellants would, soon after their occupancy of the property, have inspected the area and ascertained the existence of the drainage pipe which was clear of debris as at the date of settlement.

Brisbane Barrister – David Cormack

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