Welch v Graham & Another [2012] QDC 103

Issue: liability

Background:

A visiting 76 year old lady slipped on a gumnut whilst descending the stairs of a house.

Everson DCJ

[14] As the High Court noted in Wyong Shire Council v. Shirt1 per Mason J: “But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.” In Jaenke v. Hinton2 the Queensland Court of Appeal held that it was not a breach of a home owner’s duty to a milkman to leave a hose traversing the front lawn at night. In Woodward v. The Proprietors of Lauretta Lodge3 the Queensland Court of Appeal held that the presence of mango leaves on steps did not constitute a breach of duty of care on the part of the relevant body corporate.

 

[15] On the facts before me however the gumnuts themselves being small, cylindrical and hard, are unlike mango leaves and clearly a significant hazard on the stairs. The stairs themselves were the designated means of access to the front door of the house. The gumnut tree was directly above the stairs and constantly dropped gumnuts on them. Despite the absence of previous instances of people slipping and falling on the stairs but because of the likely presence of gumnuts, I find the magnitude of the risk posed by the gumnuts was significantly greater than that posed by, for example, mango leaves in Woodward, and the hose lying across the lawn in Jaenke. The occasional sweeping of the stairs was clearly ineffectual in mitigating the risk the gumnuts posed to people accessing the house via the stairs. Although the duty owed by defendants was not as high as that owed by the occupiers of commercial premises they nevertheless breached their duty in failing to provide safe access to the house by adequately pruning or removing the gumnut tree.

[16] I therefore find that the defendants were negligent in failing to provide and maintain a safe access to the house via the stairs by taking the appropriate steps to ensure that the stairs remained free of gumnuts.

 

1 (1980) 146 CLR 40 at 48

2 Unreported Court of Appeal 3/11/95

3 Unreported Court of Appeal 12/06/97

Brisbane Barrister – David Cormack

NB:

Set aside on appeal –

Graham & Ors v Welch [2012] QCA 282

Related Posts

Recent Comments

    Categories