ELLIS V UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q)
 QCA 388
The Queensland Court of Appeal [McMurdo P, Fraser JA and
Mackenzie AJA] has upheld the decision of the Supreme Court in
another trip and fall case where the primary judge held that the
unfortunate injury was not caused by the negligence of the
respondent but rather the plaintiff's own carelessness.
The plaintiff, Mr Ellis, was walking home late on a rainy
evening. He had consumed alcohol in the hours leading up to the
incident but not enough to impair his ability to keep a proper
lookout. He was in a hurry to get home and out of the rain. The
fall occurred on the driveway of the premises run by Lifeline. The
area of the fall was poorly illuminated due to the absence of a
nearby street light.
The plaintiff was well aware of the protruding paver.
He struck his foot on the raised paver and lost his balance.
The plaintiff was unable to walk after the accident and had to
crawl to the shelter of a nearby tree until someone found him which
did not happen for many hours.
Evidence was led that the respondent engaged in a system of
regular inspection of the premises, noting possible danger areas
and organising remedial work by a tradesman or volunteer if
It was accepted that the passage of vehicles over the pavers
caused them to become uneven and accepted that this occurred to the
extent that it was recognised by the respondent as creating a risk.
The pavers were later replaced with pebblecrete.
The plaintiff had merely encountered a normal hazard of daily
life on that evening ie unevenness on a road or footpath. This is
accepted as an everyday aspect of life. Although the respondent
knew of the hazard there was no duty on it to remove a slight and
obvious danger. Although it was a foreseeable risk, the law of
negligence would depart from the concept of fault according to
everyday standards if it imposed a duty to protect pedestrians on
footpaths against such a hazard. Skoien AJ drew on the decisions of
Neindorf v Junkovic  222 ALR 631 and Ghantous v
Hawkesbury City Council  206 CLR 512.
The plaintiff's Counsel on appeal attempted to argue that
the trial judge had erred in not determining Mr Ellis' claim on
the basis that the respondent's duty to him was that owed by a
commercial occupier to members of the public: Australian
Safeway Stores Pty Ltd v Zaluzna  162 CLR 479 rather
than the less demanding duty owed by an occupier to entrants of
"ordinary residential premises": Neindorf v
This was rejected by the Court of Appeal.
The Court distinguished the cases of Pascoe v Coolum Resort
Pty Ltd  QCA 354 involving a fall during the course of
the plaintiff's employment and Turnbull v Alm &
Anor  NSWCA 173 involving a fall by a pedestrian on a
footpath owned by a shopkeeper.
The respondent was not the occupier of the land. However, the
primary judge had generously assumed that a duty of care was owed
by the respondent as if it had occupied the driveway, namely a duty
of care under the ordinary principles of negligence to take
reasonable care for the safety of entrants. Here the magnitude of
the risk and the degree of probability of an accident was so slight
that reasonableness did not require any corrective action on behalf
of the respondent.
Although appreciated by both Courts that the Civil Liability
Act 2003 (Qld) applied the case did not require relevant
departure from the common law principles.
This case can be added to the growing body of authority
supporting a finding of no breach of duty for everyday hazards on
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