Australia: Slippery when wet: When inviting your ex over goes horribly wrong

Last Updated: 29 December 2016
Article by Aaron Clark

The recent Queensland Court of Appeal decision of Silwood v Chandler [2016] QCA 273 (Silwood) is one which should make residential occupiers very nervous.

The case sets a very high bar in imposing an obligation to ensure entryways to properties are free of hazards, particularly when the residential occupier knows the area may be hazardous to guests. No longer can a residential occupier rely on an argument they are not under an obligation to take proactive steps against a risk to which they are not aware.

Facts

The plaintiff and the defendant had previously been in a relationship, which had ended by the time of her accident on 9 September 2008. During their relationship, a child was conceived and had been born in late August 2008.

On the evening of 9 September 2008, the plaintiff had contacted the defendant and arranged for him to look after the newborn baby while the plaintiff, worn out from performing these duties herself, caught up on sleep.

The plaintiff arrived at the defendant's residence and exited her vehicle. A concrete pathway led to a tiled area containing two steps up to the defendant's front door. No outside lights were on and the plaintiff admitted to having consumed alcohol prior to driving to the residence.

As the plaintiff approached the front door, she placed one foot on the tiled area and another on the bottom step. She felt herself slide forward and instinctively outstretched her arms to prevent herself from falling. In doing so, the claimant put her arms through the bottom panel of the glass door. She bled profusely from her right arm, having damaged an artery.

At trial, evidence was adduced indicating the defendant had hosed the area that afternoon but had neglected to dry it.

At First Instance

The plaintiff alleged that as occupier, it was incumbent upon the defendant to:

  • Switch on the outdoor light or otherwise illuminate the relevant area;
  • Warn the claimant the area may be wet; and
  • Ensure the area was dry.

In response, the defendant argued the incident was caused by the claimant's inebriation and carelessness, or, in the alternative, these matters constituted contributory negligence in the amount of 50%.

Expert evidence was adduced which suggested residual moisture was likely present on the stairs. In the opinion of Her Honour Holmes CJ, this created a significant risk of slipping and rendered them unsafe. This risk was only compounded by the lack of light provided. Her Honour noted a reasonable person would have ensured the steps were dry or at least warned the plaintiff they may be wet. The defendant's failure to do so amounted to a breach of the duty of care he owed to the plaintiff as occupier of the property.

Further expert evidence was adduced pertaining to the plaintiff's supposed intoxication. However, it was concluded her blood alcohol concentration (estimated to have been between 0 and 0.053) was unlikely to have affected the claimant's ability to safely approach the defendant's door.

Judgment was awarded in favour of the plaintiff to the value of $650,000.00

On Appeal

The defendant appealed, arguing the Her Honour Holmes CJ was incorrect in finding the claimant's accident was caused by the existence of water on the step. It was further alleged Her Honour had impermissibly used a hindsight bias in finding the defendant ought to have taken steps to prevent the risk of the plaintiff slipping on the steps.

Ultimately, however, Her Honour Atkinson J (with McMurdo P and Gotterson JA agreeing) upheld the decision on first instance. Her Honour concluded the steps were wet, slippery, and shrouded in darkness. Consequently, it was considered "unsurprising" the plaintiff slipped on the steps. It was found "a reasonable response to that situation was to dry the steps, to warn the plaintiff of the risk, or at least have illuminated the steps so the plaintiff would have some prospect of seeing that they were wet and therefore potentially slippery".

Take Away Points

Reading this decision in line with the New South Wales Court of Appeal decision in Schultz v McCormack [2015] NSWCA 330 (Schultz), there looks to be a shift in the way the Courts view the duty owed by a homeowner to their visitors.

Courts have previously been reluctant to make findings of liability given the fact residential premises are never free from risk and it is not generally feasible or practical for a residential occupier to proactively warn of those risks.

However, this general reluctance has faded and the upshot of cases such as Silwood and Schultz shows Courts are beginning to expect occupiers to actively mitigate potential risks they may be aware of. A homeowner may not think their wet steps or porch are slippery. However, if a guest has no way of knowing these surfaces are wet at all, it is now incumbent upon an occupier to warn the guest against that risk.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

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Authors
Aaron Clark
 
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