Welch v Graham[2012] QDC 103

1. [1]
   In this proceeding, the plaintiff claims damages for negligence against the first and second defendants who are the owners and occupiers of a dwelling house ("the house") where she slipped and fell on 27 November, 2006, injuring herself ("the incident").

2. [2]
   Quantum has been agreed by the parties in the sum of $55,000.00, including a Medicare refund in the sum of $5736.00, and a PBS refund in the sum of $58.60.

3. [3]
   It remains for me to determine liability.  Such a determination must also take into account allegations of contributory negligence. 

4. [4]
   The plaintiff is the aunt of the second defendant.  She was born on 18 July, 1930 and therefore 76 years of age at the date of the incident.  The second defendant and her husband, the first defendant, had purchased the house a few months earlier and the plaintiff helped them move in on 30 September, 2006.  Thereafter the plaintiff was a regular visitor at the house, assisting the second defendant with the care of her young twins.

5. [5]
   The house is in a bushland setting with two flights of wooden sleeper steps ("the stairs") providing access to the front door.  These are illustrated in photographs 1 to 6 in Exhibit 1.  Above the lower flight of steps is a relatively small tree which was referred to in the evidence before me as "the gumnut tree".  A branch of this tree is shown to protrude across the stairs in photograph 2.  The gumnut tree dropped what were described in evidence as "gumnuts", a sample of which is the subject of photograph 8 in Exhibit 1.  It is generally cylindrical in shape, apparently hard and of a similar size to a car key for a late model Holden Commodore. No horticultural evidence was called by either party with a view to more precisely describing it or the tree in question and a specimen was not tendered during the course of the trial.

6. [6]
   The gumnut tree was the only tree of this type on the defendants' property, although there were others in the neighbourhood.

7. [7]
   The first defendant gave evidence that he would regularly sweep the stairs when he did the gardening and that gumnuts randomly appeared on the stairs, sometimes within moments of sweeping them.  The second defendant confirmed this evidence.  Neither the defendants nor the previous owners of the house, who had lived there for twelve years, were aware of anyone slipping on the stairs.

8. [8]
   I accept that neither of the defendants seriously considered that the gumnut tree posed a danger to people using the stairs, and that the sweeping of the stairs only occurred as part of the routine maintenance of their property.  This was in the context of several elderly relatives regularly visiting the house in the period leading up to the incident.

9. [9]
   On the day of the incident, the defendants were not at home.  They were in hospital with their newborn third child who was very sick.  The plaintiff telephoned and spoke to her sister, Mrs White, who was staying at the house and looking after the twins.  The plaintiff arranged to visit with a gift for the newborn baby.  The defendants were unaware of this and were not present during the course of the plaintiff's subsequent visit.

10. [10]
    After accessing the house via the stairs, the plaintiff was leaving the house via the stairs, arm in arm with Mrs White, when she slipped and fell near the top of the second flight she was traversing, sustaining the injuries giving rise to this proceeding.  She felt something under her shoe before she fell and subsequently noticed gumnuts in the vicinity.

11. [11]
    Mrs White also noticed gumnuts on the stairs.  No issue was taken with respect to the stairs themselves, nor with the state of the plaintiff's footwear in the course of the trial.

12. [12]
    I find, on the balance of probabilities, that the plaintiff slipped on a gumnut which had fallen onto the stairs from the gumnut tree above.  I find that she was using the stairs in a prudent manner and did not expose herself to a risk of injury which might reasonably have been foreseen and avoided in slipping and falling in the way described.  I therefore find that she was not guilty of contributory negligence.

13. [13]
    The issues concerning liability narrowed considerably during the course of the trial.  The defendants concede that there was a foreseeable risk of injury of the type suffered by the plaintiff from the gumnuts on the stairs.  The plaintiff alleges that the defendants breached their duty of care in failing to remove the risk of injury posed by the gumnuts on the stairs by not pruning or removing the gumnut tree.  The defendants contend that they did not breach their duty of care given the nature of the risk.

14. [14]
    As the High Court noted in Wyong Shire Council v. Shirt^[1] per Mason J:

"But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty.  The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

In Jaenke v. Hinton^[2] the Queensland Court of Appeal held that it was not a breach of a home owner's duty to a milkman to leave a hose traversing the front lawn at night. In Woodward v. The Proprietors of Lauretta Lodge^[3] the Queensland Court of Appeal held that the presence of mango leaves on steps did not constitute a breach of duty of care on the part of the relevant body corporate.

15. [15]
    On the facts before me however the gumnuts themselves being small, cylindrical and hard, are unlike mango leaves and clearly a significant hazard on the stairs.  The stairs themselves were the designated means of access to the front door of the house.  The gumnut tree was directly above the stairs and constantly dropped gumnuts on them. Despite the absence of previous instances of people slipping and falling on the stairs but because of the likely presence of gumnuts, I find the magnitude of the risk posed by the gumnuts was significantly greater than that posed by, for example, mango leaves in Woodward, and the hose lying across the lawn in Jaenke. The occasional sweeping of the stairs was clearly ineffectual in mitigating the risk the gumnuts posed to people accessing the house via the stairs. Although the duty owed by defendants was not as high as that owed by the occupiers of commercial premises they nevertheless breached their duty in failing to provide safe access to the house by adequately pruning or removing the gumnut tree.

16. [16]
    I therefore find that the defendants were negligent in failing to provide and maintain a safe access to the house via the stairs by taking the appropriate steps to ensure that the stairs remained free of gumnuts.

17. [17]
    I order that the defendants pay the plaintiff the sum of $55,000.00.

18. [18]
    I order that the defendants pay the plaintiff's costs of and incidental to the proceeding on the standard basis.