Written by Peter CarterJuly 27, 2014
Indooroopilly homeowners who purchased a residence over two years before their landscaper fell through a rusted drainage grate have been held liable for the financial consequences of his ultimate death, notwithstanding their denial of knowledge as to the manhole’s existence.
David and Michelle Johnson settled on the purchase of the home in June 2007. They had engaged Carwood Hancock a dozen or so times earlier, for gardening and pool maintenance jobs. In October 2009 he and his offsider’s role was to install a newly landscaped area in a 4 x 4 m plot beyond the paved pool surrounds and adjacent to the boundary.
In the very corner of that area, lay a smaller “sunken” space, about 30 cm below ground level and edged with timber boards, covered with leaf and other garden debris. Trimming branches to clear the new garden, Hancock stepped back into the sunken area and immediately crashed 2.5m down – chainsaw in hand – through the concealed rusted grate, into an underground stormwater collection tank.
His right knee which buckled under him on landing, was seriously injured. As a result of reduced mobility, he developed a deep vein thrombosis in his right leg which in turn led to a pulmonary embolism from which he died. It was “common sense” so ruled trial judge John McGill DCJ on the basis of expert medical opinion, that Hancock’s ultimate demise was as a result of the fall.
At stake in the trial, was a claim by Hancock’s widow for “dependency” damages as a result of the 61-year-old’s death. In their defence, the Johnsons – with whose recollection the judge had “significant concerns” – denied any knowledge of the drainage pit or having had any occasion or opportunity to inspect that part of their allotment.
From various witnesses and photographs, the court was able to draw inferences that they must have been at least aware of the metal pit cover. And because they had likely placed some landscaping equipment adjacent to the “sunken” area, they were also likely aware of the pit itself.
Even were that not the case, they ought – so ruled the judge – to have been aware of the hazard. They had, after all, been notified by their solicitor of the existence of a drainage easement along the boundary of their property in favour of an adjoining lot.
“Reasonably careful homeowners,” ruled His Honour, “knowing that tradesman, social guests or children may come onto their property, will take the trouble to familiarise themselves with it in order to ascertain whether there is any significant hazard”.
Because any reasonable inspection would likely have revealed the danger, the Johnsons were liable for the resulting foreseeable loss. They ought “at least to have warned Hancock about its presence if not gone further and taken steps by covering the pit with some sturdy lid.”
The Johnsons’ public liability insurer appealed the $446k damages order, alleging the above conclusions were “unreasonable and against the weight of evidence”. Unfortunately for them, the three appeal judges recently upheld Annette Hancock’s judgment.
As to damages – given the deceased and his widow were both in their 60s – the value of “loss of services”, allowed at $280k, by far outstripped loss of income support. Future loss of income support (“dependency”) was assessed (at about $1k/week) to total $141k, on the basis that Hancock would have continued working only a few more years, until age 68.
On the other hand, the value to her for lost “services” – especially for care and domestic support needed in connection with Annette’s recently acquired illness – was assessed at $380/week but over a much longer period: 22 years, until her statistical year of death at age 87.
Annette can now finally collect her damages from the Johnsons’ insurer, together with legal costs for the two day trial and the Court of Appeal proceedings. The Johnsons have since sold their Indooroopilly home.