Can agents be held liable for failing to take adequate precautions to prevent injuries to potential buyers from hazards in homes they open up for inspection and any driveway injury?
Consider the case of Kellie Furner – wife of rugby league international David Furner – who was keen to inspect an “Italian mansion” listed for sale in Cupania Crescent in Newcastle that commanded a magnificent view.
They were looking to re-locate to accommodate Kellie’s recent appointment as Community Relationships Coordinator for the Newcastle Knights where David was assistant coach.
Alan Jackson and wife Linda Kondouras had listed the property with The Agency who recruited CK1 Realty at Kotara – operated by Cveta Kolarovski – to conduct the inspections and make the ultimate sale.
It was a Saturday afternoon in January 2020 when the couple arrived with their two adult children at the home in fine weather after a morning shower had left the road and the steep driveway wet.
As Kellie stepped onto the driveway, her right foot instantly slipped from under her causing her to land heavily on her right side. After being assisted to her feet by her husband, she slipped again after just a few steps.
They reported the incident and the “very shiny and glossy” driveway to agent-on-duty Brittany Johnson who herself slipped on it when she went to investigate and agreed it was “very slippery”.
Furner was diagnosed by MRI with a bulging disc in her neck at Lake Macquarie Private Hospital on the following Wednesday.
Her condition deteriorated over the Australia Day long weekend culminating with an admission to the hospital and a subsequent transfer to the John Hunter Hospital in Newcastle where a C6/7 disc replacement was performed but did not substantially relieve her pain.
Owner Jackson had in fact painted the driveway just a week prior to the accident.
The inevitable compensation claim came before Associate Justice Joanne Harrison in the NSW Supreme Court in Sydney.
Safety expert Denis Cauduro considered the painted surface to be “adequately slip resistant” when clean and dry but that it had an unsafe level of slip resistance in wet conditions for which it failed the Australian Standards.
He also swore as to the “high probability that a person who suffers a slip and fall while walking within the built environment might suffer injury”.
Agent Kolarovski was taken by Justice Harrison to be a “singularly unimpressive witness” and rejected her plea – in the face of text messages to the contrary – that she was unaware of the driveway issue prior to the plaintiff’s fall.
The court found that the owners and real estate agents all owed a duty to take reasonable care to avoid the risk of injury to persons traversing the newly painted driveway to inspect the home for sale.
CK1 Realty was taken to be a co-occupier of the property at the time of the accident.
The risk of a person slipping on the driveway after rain that morning was “foreseeable” and “not insignificant”.
She rejected the owner’s contention that – in the absence of any corroborative evidence – the paint applied was purchased as slip resistant.
All parties were found to have been in breach by conducting the open for inspection with the hazard present and by failing to warn Furner of the potential danger.
Following Kellie’s fall, David and the children shared the domestic chores at their Sydney home with the Newcastle Knights releasing David from the final 2 years of his contract so he could do so.
The evidence orthopaedist Matthew Giblin as to the extent of and prognosis for her neck injury was preferred over that of his colleague Professor Michael Shatwell.
Psychiatrist Leonard Lee who examined Kellie on behalf of the defendants ruled out any accident-related depressive disorder.
He suspected malingering because of her status as a compensation claimant and lack of cooperation and inconsistency during the course of his examination.
Justice Harrison, in accepting the contrary “reasonable and measured evidence” of psychologist Kate Glancey – recruited by the plaintiff – excused such behaviour as being “consistent with abnormal illness behaviour”.
She rejected Dr Lee’s evidence because of his strident denial of what her appeared to be “common sense”.
She assessed general damages at 45% of the most extreme case, equating to$352,500.00.
Past and future expenses were allowed at $220k with $200k allowed for past loss of income and $400k for the future making up a total award – including future care of more than $200k – of $1,336,812.
Furner v Jackson  NSWSC 914 Harrison AsJ, 3 August 2023 Read case