Until now, residential occupiers have generally been able to take comfort that they were not under an obligation to take remediating action against risks of which they were not, and ought not reasonably have been, aware.
Two recent decisions of Schultz v McCormack  NSWCA 330 and Chandler v Silwood  QSC 90 arguably elevate the burden upon residential occupiers, and call into question what a residential occupier ought to know, and do.
In each case the Court was persuaded by expert evidence as to the measureable slip resistance values of steps, and was prepared the find that those results were compelling evidence of the slipperiness of the steps when wet, despite the occupiers’ own evidence that they had not found the steps to be slippery, that no concerns or complaints had been brought to their attention by others, and in the absence of knowledge of prior like incidents.
This article follows on from a publication by Barry.Nilsson.’s Nick Robson entitled ‘Residential Occupiers: Has the Castle Been Breached?’ published 11 November 2015, regarding the Schultz decision. Since then the occupiers, the McCormacks, have sought and been refused special leave to appeal to the High Court, on a narrow point of statutory construction pertaining to obvious risks.
In the intervening period judgment was recently handed down in the factually similar matter of Chandler, a Queensland Supreme Court decision in which Mr Silwood, a residential occupier, was found liable for injuries sustained as a result of a slip and fall by an entrant to his premises.
The claim arose out of an accident at Mr Silwood’s home on the night of 9 September 2008.
Mrs Chandler and Mr Silwood were the parents of a newborn child, but had separated prior to the date of the incident, and had never resided together. Mrs Chandler had been to Mr Silwood’s house on many occasions, and had arranged to bring the child to Mr Silwood’s premises on the night of the incident.
Upon arriving at Mr Silwood’s residence Mrs Chandler had left her child in her vehicle and walked from the driveway, along a concrete path and toward the house, intending to bring her arrival to Mr Silwood’s attention and summon his assistance to bring in the child, and her belongings.
As she approached the house she slipped on one of two tiled steps in an alcove outside the front door, and fell, with her right arm extending through a glass panel in the front door, sustaining significant and disabling injuries to her dominant arm.
Mrs Chandler had consumed some alcohol before attending at Mr Silwood’s residence on the evening of the incident, the amount and effect of which was in dispute. The trial judge ultimately concluded that the plaintiff’s blood alcohol concentration was unlikely to have had any deleterious effect on her capacity.
Mr Silwood’s evidence was that he had hosed bat droppings from walls above and adjacent to the tiled alcove some five hours earlier, on the afternoon of the incident. He was not able to say whether the tiled steps in the alcove were wet or damp at the time of the incident, as a result of his earlier hosing. He conceded both after the incident and at trial that they may have been, but that he did not know.
At trial the Court made findings of fact that residual moisture remained on the tiled steps.
Mr Silwood’s evidence was otherwise that the tiled steps had been in situ when he bought the premises in 2000, that there had been no previous similar incidents or complaints by guests of them being slippery, and that he himself had never found them to be slippery in either wet or dry conditions.
A good Samaritan neighbour came to the assistance of Mrs Chandler after hearing the incident take place, and gave evidence at trial that she did not find the tiles or the steps slippery and could not recall seeing any water on them when she attended only moments after the incident.
Mrs Chandler tendered expert liability evidence comprising a report of Intersafe, which made certain assumptions about the angle of the plaintiff’s approach towards the steps, was critical of the slipperiness of the steps when wet and which indicated that water was unable to drain freely from the steps and was unlikely to have completely evaporated by the time of the plaintiff’s arrival.
There was one external light at the premises which was not illuminated at the time.
Mrs Chandler alleged that Mr Silwood had breached his duty of care by failing to take steps in circumstances where he knew Mrs Chandler would be attending at his premises on the night of the incident, and where Mr Silwood had created a hazard by earlier hosing the walls adjacent to the tiled alcove and the step.
Her Honour Chief Justice Holmes found that, as a residential occupier, Mr Silwood owed Mrs Chandler a duty to take reasonable care to avoid a foreseeable risk of injury to her, on the premise that she was exercising reasonable care for her own safety.
In the present situation, the duty included an obligation to take such precautions as a reasonable person in the circumstances would have taken by way of response to the risk of injury posed by the wet and slippery steps.
Despite unchallenged evidence that Mr Silwood had never found the steps to be slippery when wet, nor encountered any problem with them, the Court found that the effect of the moisture on the steps was to produce a significant risk of slipping, and that Mr Silwood had breached his duty of care.
Her Honour found that a reasonable person in his position was required to take precautions and ought to have “made sure the stairs were dry or at least warned Ms Chandler…that they might be wet and should be taken with care, and would certainly have made sure that the light was on”.
An appeal has been commenced in the Queensland Court of Appeal on behalf of Mr Silwood challenging a number of the findings at first instance. No date for the hearing of the appeal has been set. It remains to be seen whether the Court of Appeal will overturn the findings at first instance such that residential occupiers in Queensland are still ‘safe as houses’, with respect to defects at their premises of which they were not reasonably on notice, or whether the Castle has again been breached.