The Plaintiff was the 76 year old Aunt of the female homeowner. She slipped and fell on steps outside a bushland property in the Brisbane suburb of Alexandra Hills when she stood on gumnut which had fallen from a gum tree in the garden which had a branch overhanging the steps.
The Plaintiff had been successful at first instance with the Trial Judge finding that the tree should have been trimmed or removed to avoid the possibility of gumnuts falling onto the steps.
In an unanimous decision of the Queensland Court of Appeal, that finding was overturned.
Justice Atkinson wrote the leading judgment and noted the following factors of relevance:-
- That gumnuts frequently fell from the flowering gum tree in the garden often moments after the stairs had been swept.
- That no one had ever experienced a problem traversing the steps either during the brief period when the Defendants had owned the property nor during its 12 years of occupation by its previous owners.
- That the plaintiff was a regular visitor to the house as she was assisting the defendants with the care of their young twins.
- The house was obviously in a bushland setting and the trees and bushes made the residential setting visually pleasing, provided shade and attracted birds.
- The plaintiff had slipped as she was leaving the property on steps which she had walked up just two hours earlier when she entered the property.
The court noted that there was no question of whether a duty was owed, the case simply concerned breach. In that regard Atkinson J quoted the judgment of Gleeson G in Neindorf v Junkovic where the Chief Justice said:-
“Not all people live, or can afford to live, in premises that are completely free of hazards. In fact, nobody lives in premises that are risk free. Concrete pathways crack. Unpaved surfaces become slippery, or uneven, many objects in dwelling houses could be a cause of injury. People enter dwelling houses for a variety of purposes, and in many different circumstances. Entrants may have differing capacities to observe and appreciate risks, and to take care for their own safety. …The response of most people to many hazards in and around their premises is to do nothing. The legislature has recognised, and has reminded courts, that, often, that may be a reasonable response”.
The Court of Appeal said this case was in many ways similar to the case of Woodward v. The Proprietors of Lauretta Lodge where Justice Helman had said:-
“The risk presented by the presence of the mango leaves was such that any danger of a fall was far fetched or fanciful. In daylight, the leaves could easily be seen and avoided by users of the steps. There were only a few leaves at the time. Their presence was a familiar feature of these steps. Indeed, the presence of the mango tree and its leaves can have caused no surprise to anyone used to living in south east Queensland, as was [the plaintiff].
Even if it were a foreseeable risk, it is my opinion that no further steps were required to eliminate it. The body corporate acted reasonably in tolerating the situation that in fact existed. The small level of risk, balanced against the benefits of a handsome tree which provided shelter from sun and glare, meant that no further steps had to be taken”.
Justice Atkinson said that like mango leaves the gumnuts could have been easily seen and avoided and the evidence suggested that there were only a few of them present as the steps were regularly cleaned. It was said that gumnuts were no less common in bushland gardens in south east Queensland than leaves from once ubiquitous mango trees.
It was held at paragraph 24 that:-
“The finding that the tree should have been trimmed or removed to avoid the possibility of gumnuts falling on steps is in my view contrary to principle. Trees and bushes are common place and desirable attributes of homes in residential areas.”
The decision is good news for all homeowners in Queensland. It reinforces that the court at the appellant level will exercise some common sense in applying value judgments to the question of reasonable response to foreseeable risk and that generally speaking, occupiers will not be held to the standard of a entity occupying a commercial premises or premises where people are invited for reward.