Aged persons are often unsteady on their feet. As visitors to a property, they are susceptible to falls if the access ways are uneven or have unexpected dips.

In Scott v Wanklyn [2016] VSC 382, the Supreme Court of Victoria (Keogh J) found in favour of 90 year old Mr Scott, who suffered a subcapital fracture of the left femur when he lost his footing and fell at the door to Mr Wanklyn’s shed.

How was the injury caused?

Mr Scott was a retired dairy farmer who lived at home with his wife in Swan Hill, Victoria.  

Mr Wanklyn had a shed on his property 8 kms away at Tyntynder which he used as a workshop. He had a sign at the front of his property advertising cabinetmaking services.

Mr Wanklyn had dug a trench about eight or nine inches wide and about six inches deep along the edge of the concrete slab floor of the shed where the sliding door was. He did so to drop the sliding door into the trench to allow him to unbolt and repair the rollers.

On Christmas Eve 2014, at around noon, Mr Scott was driven to Mr Wanklyn’s property to collect a wooden chair, which he had left with Mr Wanklyn for repair some time previously because it was ‘all wonky’ and coming apart.

Mr Scott did not telephone beforehand to say he was planning to visit. Mr Wanklyn was away buying petrol at the time.

As Mr Scott was walking across the gravel driveway area towards the shed, he came to the sliding door at the front of the shed, which was open. Intending to step into the shed, he placed his left foot down before the slab believing it to be solid ground. Although he was watching where he was going, he found that he had stepped into the trench. He lost his balance, fell backwards and suffered injury.

Breach of the duty of care – the law

The occupier’s duty of care is found in s 14B (3) & (4) of the Wrongs Act 1958 (Vic) which codifies the common law. The court formulated the duty as being:

to take such care as in all the circumstances was reasonable to see that the plaintiff would not be injured by reason of the state of the premises, or of things done or omitted to be done in relation to the state of the premises.

The court identified the risk of harm for the purposes of s 48 of the Wrongs Act 1958 (Vic) as:

The risk of harm is … the risk that an entrant onto the property would step into, or lose their footing in a trench located across the doorway of the shed immediately next to the slab which was the floor of the shed, fall and suffer injury.

After citing High Court authority that there are no risk-free dwelling houses, the court considered the three issues posited by s 48(1) of the Wrongs Act 1958, to find if there was a breach of the duty of care namely:

whether the postulated risk was foreseeable, whether it was not insignificant, and whether in the circumstances a reasonable person in the defendant’s position would have taken the precautions postulated by the injured plaintiff.

Breach of the duty of care – the analysis

The court undertook this analysis:

  • The nature and use of the property was as a residence, with a commercial aspect being the part-time cabinetmaking business carried on in the shed. It was foreseeable that customers might come to the property in response to the sign, to check on progress and to collect completed work. The frequency that customers attended was not great, which weighed against Mr Scott on breach.
  • The nature of the danger posed by the trench weighed in favour of Mr Scott. While the height differential between the gravel drive and the concrete floor (a small step up) might be expected, a trench positioned directly and immediately across the entry doors to the shed was not. Although the frequency of visitors could be expected to be relatively low, it was easily foreseeable that any one visitor could suffer a musculoskeletal injury if they were not warned of the existence of the trench.
  • The age of the plaintiff was taken into account. Mr Scott was reasonably mobile, used a walking stick from time to time, and his daughter had a reasonable concern in relation to the risk of falling. This weighed in favour of Mr Scott.
  • It was easy for the defendant to take precautions against the risk of harm by erecting a temporary barrier restricting access through the shed door (such as by closing it) or by warning of the existence of the trench (by a sign). This weighed in favour of Mr Scott.

The court concluded that there was a breach of the duty of care by leaving the trench unguarded and without warning as to its existence.

The court rejected the submission of contributory negligence for these reasons:

  • the trench was not patently visible: it could have been in shadow; it was not clearly defined in terms of colour or with a sharp edge; it was unexpected; and it could have had leaves or other organic material in it which disguised its existence.
  • Mr Scott was taking reasonable care in watching where he was stepping.

The injury, loss and damage

The court awarded Mr Scott $230,000, made up as follows:

  • General damages of $110,000 for: the serious surgery and extended period of hospitalisation; restricted mobility; use of analgesics twice daily for continuing pain and discomfort; and the considerable reduction in the enjoyment of his life by not being able to return to playing bowls or maintaining his vegetable garden.
  • Past and future medical expenses of $15,000.
  • Gratuitous attendant care services, past and future, of $105,000 for: the time spent by Mr Scott’s daughter to care for her father, consisting of making meals and changing beds – of 6 hours per day for the first 6 months and 1 ½ hours per day afterwards for 213 weeks (at $30 per hour, less 15%).

Conclusions

An occupier’s duty of care to aged visitors means that they must take precautions to ensure that paths and access ways are safe – they must be even and have no unexpected dips. If they do, a barrier should be installed and a sign posted.

Scott’s case demonstrates that even 90 year olds can be awarded large amounts for personal injury claims arising from occupier’s liability.

And the decision provides another reason why public liability insurance is so important for property owners and occupiers. Without it, Mr Wanklyn may have been forced to sell his property and be bankrupted.