October 28, 2012

A kindly aunt – battered and bruised after she lost her footing on paved suburban garden steps – has failed in her injury compensation bid after a court decided “doing nothing” may sometimes be a reasonable response to a householder’s duty of care.
Florence Welch felt something under her shoe before slipping and falling near the top of the second flight of stairs she was descending to the footpath – arm in arm with her sister – after leaving at their home, a gift for her niece’s newborn.

The trial judge accepted she had slipped on a gumnut deposited by an overhanging branch of the gum tree growing in the garden of the Alexandra Hills home. In that May 2012 ruling, the court found that by failing to prune or remove the tree, the homeowners – Florence’s niece and her husband – had failed to provide safe access for visitors to their dwelling.

The evidence had been that even after sweeping the stairs, tree droppings randomly appeared within moments. NRMA, the insurer that was ordered to pay agreed damages of $55,000 contended that given the remote risk of injury, nothing further was reasonably required on the homeowners’ part.

It appealed.

At issue was whether “occasional sweeping” was sufficient or whether, the requisite standard of care required the overhanging branch to be pruned or the tree to be removed.

Not in contest were that the small, cylindrical gumnuts could be easily seen and avoided, that there were only a “few of them” present at any time and that the 73 yr old plaintiff was aware of their presence from many visits prior to the November 2006 fall.

Noting that stones, seed pods and twigs were commonly found on external steps in “bushland settings” and that “trees and bushes are common place and desirable attributes of homes in residential areas”, the appeal court was satisfied that “regular” sweeping was a sufficient discharge of their duty of care.

This was particularly so given the low magnitude of risk – evidenced by no one having suffered a similar issue in more than 12 years – and the “expense, difficulty and inconvenience of taking alleviating action”.

Citing a 2005 High Court of Australia judgment, the court affirmed: “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. The response of most people to many hazards in and around their premises is to do nothing. …often, that may be a reasonable response”.

In a reference to the value proposition for an abundance of trees, the appeal judges decreed: “It is not possible to have the Australian gumtree without the possibility of gum nuts. Trees, often too large for, and otherwise unsuited to their position if measured by the standards of landscape architects, are part and parcel of Queensland suburbia.”

With no discussion in the judgments, either at trial or on appeal of the relative expense and work required to prune the offending branch – or in relation to an acceptable frequency for sweeping the steps – the implication is that only very major hazards will overcome the inherent (and potentially priceless) community value of suburban trees and shrubs.

Limitations to the intrinsic value of “green”,  in the context of injury avoidance, is likely to become a question for a future or higher court.

Graham & Ors v Welch [2012] QCA 282 Brisbane Muir JA and Atkinson and Applegarth JJ 19/10/2012

Categories: Personal Injury , Litigation & Law Practice

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