Plaintiff in need of a gardening angel
Jun 2012 |Background
Occupiers of domestic premises must ensure that the stairs to their premises are clean and free from horticultural tripping hazards, a Queensland District Court has recently found.
Tim and Jane Graham (the Defendants) purchased a house in a bushland setting in mid 2006. Access to the front of the house was via a set of double flight timber stairs. Overhanging the stairs was a gumnut tree which dropped gumnuts onto the stairs.
On 27 November 2006, Florence Welch (the Plaintiff) and the 76 year old aunt of Jane Graham attended at the premises while they were absent. As she was leaving via the stairs, she suffered injuries when she slipped and fell on a gumnut which had fallen from the tree onto the stairs.
The Plaintiff sought damages against the defendants on the basis that they breached their duty to her as owners and occupiers of the premises by failing to remove the gumnuts or by failing to prune the tree. The Defendants, who had a young family with a child who was sick in hospital at the time of the accident, had occupied the premises for about two months before the accident.
The Defendants contended that although the risk of injury was foreseeable, they did not breach their duty by taking no alleviating action.
Quantum was agreed upon by the parties prior to trial at $55,000. The matter proceeded to trial on liability issues only.
Decision
The court found that the magnitude of the risk posed by the gumnuts on the stairs was high enough to warrant action on the part of the defendants over and above simply sweeping the stairs from time to time. Their failure to take those measures was found to represent a breach of the Defendants’ duty to provide safe access.
Curiously, the basis for these findings did not involve a consideration of the provisions of the Civil Liability Act 2003 (Qld) which applied to the claim. In particular, the burden on the Defendants of pruning the tree and the social utility of its presence were implicitly not thought to outweigh the risks to the plaintiff arising from the presence of the gumnuts on the stairs.
Decisions such as these illustrate the fact that occupants of premises may be held to onerous standards in order to discharge their duties to visitors on their premises.