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)  QCA 388
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.
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  222 ALR 631 and Ghantous v Hawkesbury City Council  206 CLR 512.
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  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  QCA 354 involving a fall during the course of the plaintiff’s employment and Turnbull v Alm & Anor  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.