The Supreme Court of Queensland has confirmed that an occupier
of a residential premises is under no obligation to investigate
hidden defects, notwithstanding other reported balcony fall
incidents in the locality of the incident.
The plaintiff was a contractor who was at the home of the
defendants on 10 July 2001, to dye their carpet. At the completion
of the work, the plaintiff was passing a hose to the ground floor
from a balcony on the first floor, when a balustrade collapsed as
he leant against it for support. He fell some five metres and
sustained a fracture and dislocation of his right elbow and also
sustained a head injury and cervical spine pain.
The plaintiff's allegations against the defendants were
essentially that they:
Failed to make an adequate inspection of the balustrade to
ensure it was safe
Failed to affix the balustrade to the side walls when they
should have done so
Ought to have ensured that the railing of the balustrade was
attached so as to provide adequate support if it was lent
Ought to have taken some steps when they observed a cracked
tile on the balcony
Given they lived on the Gold Coast, they should have been aware
that people fell off balconies.
A 'joint report of experts' was obtained by the parties
which concluded that the looseness of the balustrade would have
been apparent upon a visual inspection or on light contact and set
out what a reasonable homeowner would have done in the
However, the Court rejected these, and other similar findings of
the experts as they were found to be matters of fact for the court
to determine on the evidence.
It was otherwise observed that the experts' report seemed to
submit that the balustrade was not properly installed as there were
inappropriate lengths of bolts used and that the bolts were
recessed into inappropriate plastic sleeves or anchors.
However, the Court found that:
The balcony was rarely used by the defendants, who had occupied
the premises for 10 years prior
There were no signs or any significant warnings indicating that
there was any defect in the balustrade such that it was obvious to
a normal householder
There was no evidence of any looseness, instability or
flexibility in the balustrade prior to the incident and even if
there was any looseness, there was no evidence that this was
Although there was a single crack in a balcony tile, this was
not necessarily a cause for concern based on the experts'
The defendants had no reason to doubt the integrity of the
anchors on the balcony prior to the incident a
Neither defendant had any relevant experience or training in
safety, building or construction and the work on the balustrade had
been carried out by tradesmen.
It was established that the defendants were neither aware of any
defects in the balustrade nor were there any warnings of such
defects prior to the incident. The defendants were therefore
entitled to assume the balcony was safe and were under no legal
Investigate hidden defects
Obtain a safety expert's opinion as to the structural
integrity of the balcony railing. The plaintiff's claim
This case serves as a reminder that the evidence of experts is
used to assist the court in matters within their expertise only.
Conclusions drawn by an expert which cross over into the
court's responsibility to determine 'matters of fact'
will be rejected.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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