In Issues

  • Whether the trial judge’s findings on foreseeability and lack of reasonable care were supported by the evidence and affected by hindsight bias.

The Background

Kaylene Chandler (the respondent) sustained serious injuries when she slipped on wet tiled steps and injured her right arm as she fell through a glass door at a home owned by the appellant, her former partner and the father of her newborn baby.

The appellant had washed the adjacent walls of the house down on the day of the incident to remove bat droppings. His evidence was that he did not know if the steps were wet at the material time, but he had never found them to be slippery in wet or dry conditions in the 8 years he had owned the premises, or fielded complaints or concerns from others about the steps.

The Decision at Trial

The trial judge found that the steps were wet to some degree at the material time and found the appellant liable on the basis that “had he turned his mind to it” he would have or ought to have known that the steps were wet and slippery.

The appellant knew that the respondent would be visiting the house that night and failed to illuminate an outside light. The appellant’s failure to warn the respondent, or to dry the steps, or to illuminate them, was a breach of his duty as a residential occupier.

The Issues on Appeal

The appeal focussed on whether the risk was one that the appellant knew or ought to have known (and the use of hindsight by the trial judge), whether the wet steps caused the accident and whether the absence of lighting was causative of the respondent’s slip and fall.

The Decision on Appeal

The Court of Appeal unanimously dismissed the appeal and:

  • Concluded that the trial judge’s factual findings were supported and open to her on the evidence, including in particular, expert evidence;
  • Rejected an argument that the risk was not foreseeable and found that it was and that “had the appellant thought about it he would have realised that the steps were wet and slippery”;
  • Upheld the trial judge’s findings that in those circumstances a reasonable response to the risk (per section 9 of the CLA (Qld)) required the appellant to dry the steps, warn of the risk or illuminate the steps so the respondent “would have some prospect of seeing that they were wet and therefore potentially slippery”.

The appellant’s failure to do so amounted to a breach of duty of care sounding in damages.

Implications for you

This case arguably elevates the standard of care owed by residential occupiers and requires them to take remediating action against risks (including risks they would have appreciated ‘had they turned their mind to it’) even where the occupiers’ evidence supports an incident-free history of use or occupation.

Silwood v Chandler [2016] QCA 273