Burton v Brooks [2011] NSWCA 175 - Facts and Circumstances

Mr Brooks attended the home of his brother in law Mr Burton, to help him lop down two palm trees. Mr Burton provided the step ladder and chainsaw that were needed as well as the skip in which to place the foliage and timber. As a “bit of an afterthought” it was then decided to lop branches from two other trees located near an empty pool on the property.

These two trees, a privet tree and a mulberry tree, were situated on a neighbouring property but their boughs were hanging over a colorbond fence on Mr Burton’s property adjacent to the pool. There was no more than a couple of metres between the colorbond fence and the edge of the empty pool and the over hanging branches substantially reduced the area next to the pool available for work and standing.

Mr Burton lent his ladder against the colorbond fence and used his chainsaw to lop branches. Mr Brook’s role was to carry them away.

When work commenced on the mulberry tree, Mr Burton asked his brother in law to hold the branch in order to steady it so that it could be cut as the branch was “springy”. Mr Burton did not get all the way through the branch and as Mr Brooks grabbed it to take it away it didn’t come so he gave it another tug and it suddenly came away causing him to lose his balance and fall into the pool. Mr Brooks sustained serious injury and he sued Mr Burton.

The Law

The court held that Mr Burton’s as “the occupier of the premises upon which the accident occurred and [was] to take reasonable care to avoid a foreseeable risk of injury…” Further, “Mr Brooks was on the property for the purposes of assisting Mr Burton to undertake an activity that was for Mr Burton’s benefit and the judge held, the job was done the way the defendant [Mr Burton] wanted to do it. The plaintiff was simply helping ….as an organiser of an activity involving a risk of injury to those engaged in it Mr Burton was under a duty to use reasonable care in organising the activity to avoid or minimise that risk…. The fact that Mr Brooks was not paid for his assistance did not lessen the duty that Mr Burton owed to him.”

What then did that duty oblige the homeowner to do?

The court found that “the magnitude of the risk of serious harm resulting to Mr Brooks was such that Mr Burton was not justified in proceeding with the activity in question without taking precautions to eliminate or substantially reduce that risk”…“the activity was one that it was open to Mr Burton to refrain from undertaking. In these circumstances it was not in my view incumbent upon Mr Brooks to identify the precautions that, if taken, would have enabled Mr Burton to proceed”.

Mr Brooks was found contributorily negligent and responsible for his injuries to the extent of 25%. Obviously he had the option too of simply refusing to do the job if he regarded it as unsafe.

Conclusion

The message for occupiers is just because you are having a mate or family member come over to do work with only the promise of a stubbie afterwards, this does not mean that you can throw caution to the wind if potentially dangerous activities are being conducted. Some form of risk assessment and risk mitigation must still be put in place to avoid a finding of negligence.