June 25, 2012

A 28 yr old would-be police officer, who broke her ankle by falling into an unguarded stairway void at South Brisbane’s Chalk Hotel in the dying hours of an alcohol-fuelled year-end celebration in December 2007, has failed in an injury compensation claim that blamed the hotel owner for the fall.
So alcohol-impaired had she been, that Mairead Kelly had no memory of the path she had taken that led to the fall into the gap between an external staircase and the surrounding natural ground. Of her subsequent history, her recollection was also “patchy, to say the best about it”, leaving his honour with the “uneasy feeling that she was less than forthcoming in her responses in the witness box”.

After stepping outside for some fresh air, her fiance was barred from re-entry and retaliated with exaggerated threats to “stab” and “kill” hotel security staff whose heads he would be pleased to separate from their bodies. Suspected of plotting a return route to re-join the merriment inside, the couple had been “lingering” in the shadowy regions beyond the well-illuminated hotel car park.

Despite frustration with the lack of evidence from the protagonists as to the precise location of the fall and their preceding orbit in the hotel surrounds, his honour concluded she “blindly” set off through – what the defence had labelled a garden and what his honour more neutrally described, as “bark-covered ground” – to arrive at and tumble into the hazard.

Ambulance officers took 1.5 hrs to extricate her from the stairwell pit before transporting her to the Princess Alexandra Hospital just a stone’s throw away. She sued the publican and the adjacent property owner for failing to warn of and cover the hazard.

But despite the unguarded nature of the trap and the foreseeability of injury, they could not be held liable – so held the court – as no reasonable person would have attempted to take the path that she did given its “total unsuitability as a means of access”. There were after all, at least two other paved routes, that Mairead could have taken to her intended destination.

In terms of the Civil Liability Act, the court found all seven elements of s9 to be satisfied: the risk of harm was slight, but not insignificant and its likely seriousness “was certainly more than minor”. Despite qualifying under all criteria, the property owners were held to have acted reasonably by leaving the void exposed: “nothing in the evidence demonstrated that it was viable or…how costly” it would have been to fill it in or cover it up. It “was not their obligation to eliminate all risk”.

That was enough for the claim to be dismissed and the plaintiff to be ordered to pay the defendants’ costs of their defence.

But for the further instruction of lawyers and their clients, the court also ruled that although “it was not prominent or conspicuous”, the hazard was an “obvious risk” because it was nevertheless, physically observable. And due to the absence of any recollection of pre-fall events, the plaintiff could not discharge her CLA s14 onus of establishing she was unaware of such risk. She was therefore taken, by virtue of s14 (1), to have known of it.

Even so and notwithstanding CLA s15 was held to operate in favour of the defendants, they fell short of convincing the court that the plaintiff’s acceptance of the risk was “voluntary”. Neither was the court satisfied – in the theoretical exercise of assessing contributory negligence – of any greater discount that the CLA prescribed 25% minimum.

In what looked like from some quarters to be a hopeless case from the start, the plaintiff, in fact, held all but one of the several legal and factual points of the two-day trial. Damages, however, were (theoretically) assessed at just $34,000 – making the entire exercise, perhaps unworthy of the powder and shot.

Kelly v Trentham Holdings P/L & Ors [2012] QDC 141 Brisbane Dorney QC DCJ 14/06/2012

Categories: Personal Injury , Litigation & Law Practice

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