Liability to entrants to the family castle

7th Dec 2016

The Supreme Court of Queensland’s decision in Chandler v Silwood [2016] QSC 90, delivered by Holmes CJ and recently upheld on appeal, further highlights the duty of care owed by owner/occupiers of a family homes towards those lawfully entering the property.

By way of background, at approximately 8:30pm on 9 September 2008, Ms Kayleen Chandler arrived at the residence of her former partner, Mr Clive Silwood, for a pre-arranged drop off of their two–week-old baby.

On arrival at Mr Silwood's residence, Ms Chandler got out of her car and made her way towards the entrance of the property, which consisted of a small tiled alcove area and two tiled steps leading to the front door. Ms Chandler gave evidence that upon arrival, there were no lights on within the property or outside the front door of the house.

On Ms Chandler’s approach to the front door, she slipped on the wet surface as she stepped from the tiled area to the lower of the two stairs. In trying to stop herself from falling, Ms Chandler put her outstretched right arm through the bottom glass panel of the front door, resulting in a severed artery which caused profuse bleeding. Ms Chandler was subsequently taken to hospital by ambulance where she underwent urgent surgery.

It later became apparent that Mr Silwood had, earlier in the day in question, been washing bat droppings off his house in the vicinity of the entry to the property and at the time had been unconcerned by the amount of water falling onto the stairs and tiles . At trial, Mr Silwood gave evidence that the stairs at the time of the fall might well have still been wet, but he did not know for sure. The Defendant also gave evidence that he had owned the property for approximately eight years and during this period he had not had any prior difficulty with the steps in question.

Liability remained contested at trial; however, quantum had been agreed between the parties in the sum of $650,000. There was no dispute that Mr Silwood as occupier of the property owed a duty to the plaintiff as a lawful entrant to take reasonable care to prevent injury to her. Ms Chandler alleged that Mr Silwood had breached that duty of care through, inter alia, failing to: turn on the outdoor light so that any water was apparent, warn the plaintiff that the area could be wet and through failing to ensure that the steps were dry.

Mr Silwood’s insurer denied the allegations of negligence and also alleged that the incident was the result of Ms Chandler’s own negligence caused by her intoxication and inadvertence, which was not accepted by the court.

The court ultimately accepted that there was residual moisture on the stairs and the risk of injury associated with this was foreseeable and not insignificant, particularly when it was also considered that the area was in darkness. Her Honour found that a reasonable person in Mr Silwood’s 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’.

This decision is somewhat similar factually and in result to the recent decision of the New South Wales Court of Appeal in Schultz v McCormack [2015] NSWCA 330. In this instance, the court found the home owners liable for injuries sustained by a dinner guest who slipped and fell on the tiles of a partially covered porch, which had become wet following rainy and windy conditions earlier in the evening, resulting in his sustaining an ankle fracture which required fusion.

The Court of Appeal determined that the home owners owed the entrants to their home a duty to take reasonable care to avoid a foreseeable risk of injury, and that they had breached that duty through their failure to warn the appellant that the porch was wet and slippery and through failing to provide a non-slip mat to address the issue created by the wet and slippery tiles. In reaching their decision, the critical finding of the Court related to the inferred constructive knowledge of the relevant risk by the homeowners.

Both of these cases demonstrate the duty upon residential property owners to take action against risks of which they ought to have known. It can be seen as a move from the position adopted by the courts in a number of previous cases, which found that the occupier of a domestic property was not required to address and/or warn of common dangers within the domestic setting.

Kaine Shanahan is an Associate at Gouldson Legal, a Queensland personal injury plaintiff litigation firm.

Kaine has practised since 2007 in NSW, London and Queensland, predominantly in the area of personal injury law.


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Tags: NSW Queensland Kaine Shanahan Liability