//
you're reading...
Australian Law and Politics

Another Trip And Fall Case Rejected


The Queensland Court of Appeal [McMurdo P, Fraser JA and Mackenzie AJA] has upheld the decision of the Supreme Court in another trip and fall case where the primary judge held that the unfortunate injury was not caused by the negligence of the respondent but rather the plaintiff’s own carelessness.

ELLIS V UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q) [2008] QCA 388

FACTS

The plaintiff, Mr Ellis, was walking home late on a rainy evening. He had consumed alcohol in the hours leading up to the incident but not enough to impair his ability to keep a proper lookout. He was in a hurry to get home and out of the rain. The fall occurred on the driveway of the premises run by Lifeline. The area of the fall was poorly illuminated due to the absence of a nearby street light.

The plaintiff was well aware of the protruding paver.

He struck his foot on the raised paver and lost his balance.

The plaintiff was unable to walk after the accident and had to crawl to the shelter of a nearby tree until someone found him which did not happen for many hours.

Evidence was led that the respondent engaged in a system of regular inspection of the premises, noting possible danger areas and organising remedial work by a tradesman or volunteer if necessary.

It was accepted that the passage of vehicles over the pavers caused them to become uneven and accepted that this occurred to the extent that it was recognised by the respondent as creating a risk. The pavers were later replaced with pebblecrete.

AT TRIAL

The plaintiff had merely encountered a normal hazard of daily life on that evening ie unevenness on a road or footpath. This is accepted as an everyday aspect of life. Although the respondent knew of the hazard there was no duty on it to remove a slight and obvious danger. Although it was a foreseeable risk, the law of negligence would depart from the concept of fault according to everyday standards if it imposed a duty to protect pedestrians on footpaths against such a hazard. Skoien AJ drew on the decisions of Neindorf v Junkovic [2005] 222 ALR 631 and Ghantous v Hawkesbury City Council [2001] 206 CLR 512.

ON APPEAL

The plaintiff’s Counsel on appeal attempted to argue that the trial judge had erred in not determining Mr Ellis’ claim on the basis that the respondent’s duty to him was that owed by a commercial occupier to members of the public: Australian Safeway Stores Pty Ltd v Zaluzna [1987] 162 CLR 479 rather than the less demanding duty owed by an occupier to entrants of “ordinary residential premises”: Neindorf v Junkovic.

This was rejected by the Court of Appeal.

The Court distinguished the cases of Pascoe v Coolum Resort Pty Ltd [2005] QCA 354 involving a fall during the course of the plaintiff’s employment and Turnbull v Alm & Anor [2004] NSWCA 173 involving a fall by a pedestrian on a footpath owned by a shopkeeper.

The respondent was not the occupier of the land. However, the primary judge had generously assumed that a duty of care was owed by the respondent as if it had occupied the driveway, namely a duty of care under the ordinary principles of negligence to take reasonable care for the safety of entrants. Here the magnitude of the risk and the degree of probability of an accident was so slight that reasonableness did not require any corrective action on behalf of the respondent.

Although appreciated by both Courts that the Civil Liability Act 2003 (Qld) applied the case did not require relevant departure from the common law principles.

This case can be added to the growing body of authority supporting a finding of no breach of duty for everyday hazards on footpaths.

About Craig Hill

Teacher and Writer. Writing has been cited in New York Times, BBC, Fox News, Aljazeera, Philippines Star, South China Morning Post, National Interest, news.com.au, Wikipedia and others.

Discussion

No comments yet.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

If you liked what you just read, click "Subscribe" to become a follower of the Craig Hill site. You will receive an email each time a new post is published.

Join 14,942 other followers

An archive of all my old posts

Follow me on Twitter

Most Recent Posts Post on My Blog About China: China News

Cadence Column: Asia, October 25, 2021

Cadence Column: Asia, October 25, 2021

Taiwan was thrust into a position without being asked. In 1971, the United Nations removed the Taipei-seated government known today as “Taiwan” and switched to recognizing the Beijing-based government known as “China”. The Taiwanese were elbowed out of the global forum. Now, the US is working to bring Taiwan back in, but not the same […]

China’s trade practices come under fire

China’s trade practices come under fire

China’s trade policies have come under strong criticism during a review at the World Trade Organization (WTO). The US accused China of “skewing the playing field” by using “unfair trade practices” such as preferential treatment for state businesses. Meanwhile Australia said the country’s behaviour was “inconsistent” with its WTO commitments. China said it was committed […]

China’s economy weakens, then gets even worse and now there’s a global shipping crisis. What’s next?

China’s economy weakens, then gets even worse and now there’s a global shipping crisis. What’s next?

The world is waking up to the fact that maybe being dependent upon China for its goods is not such a good idea. In 2019 at about the same time the US was closing on the trade deals with China, COVID emerged in China. In 2019 China’s economy was also beginning to slow down. COVID […]

U.S. needs nuclear spacecraft to compete with China, NASA official tells Congress

U.S. needs nuclear spacecraft to compete with China, NASA official tells Congress

A NASA official told Congress on Wednesday that the United States needs more nuclear spacecrafts in order to compete with China. “Strategic competitors including China are aggressively investing in a wide range of space technologies, including nuclear power and propulsion,” Bhavya Lal, NASA’s senior advisor for budget and finance, told the House Science, Space, and […]

China shows off drones recycled from Soviet-era fighter jets

China shows off drones recycled from Soviet-era fighter jets

China has for the first time showed off retired 1950s era fighter jets that have been converted to unmanned drones, with satellite photos of two of its east coast bases near Taiwan showing a large number of the jets on site. The People’s Liberation Army’s Eastern Theater Command published the photos of two Shenyang J-6s […]

China’s propaganda machine is intensifying its ‘people’s war’ to catch American spies

China’s propaganda machine is intensifying its ‘people’s war’ to catch American spies

“Let’s fight a ‘people’s war’ against the spies, so that they cannot move a single step and have no place to hide!” That was the rallying cry of a Chinese military newspaper on social media over the weekend, as Beijing urges public vigilance against American espionage following the launch of a CIA mission center dedicated […]

China’s blackouts break power cutoff pledge

China’s blackouts break power cutoff pledge

As China struggles to control the latest surge of power shortages, the government seems to be hoping that the public will have short memories for how it has dealt with similar problems in the past. After months of downplaying the power crisis and recommending partial fixes, central government authorities belatedly acknowledged the spread of electricity […]

Cadence Column: Asia, October 18, 2021

Cadence Column: Asia, October 18, 2021

According to Chinese and US claims, China has a high-orbit, hypersonic missile that can hit a target within 24 miles. And, that’s why China is the new boss of the world and everyone else should hate America. The end. But, that’s not the end in the mind of Taiwan or the US Pentagon. This week, […]

China ‘making its nuclear submarines harder to detect’

China ‘making its nuclear submarines harder to detect’

China is upgrading its nuclear missile-equipped submarines to make them harder for rival powers such as the US to detect, reports suggest. The People’s Liberation Army Navy has redesigned its type 094 submarines to make them quieter, The South China Morning Post reports. Defence experts believe the Chinese 094 submarine can carry and launch the […]

Could China’s economy collapse?

Could China’s economy collapse?

For almost half a century, Chinese officials have overseen one of the greatest economic transformations in human history. The country has gone from collectivized farms and famine to world-leading tech companies and gleaming megacities connected by superfast trains. More than 800 million Chinese have been pulled out of poverty as the Communist Party and its leader […]

%d bloggers like this: