Contact: Stephen White, Partner and Emma Topen, Associate; Carter Newell (Queensland, Australia)
Readers will recall in our June 2012 newsletter we reported the case of Welch v Graham & Another [2012] QDC 103 in which the Queensland District Court found the homeowner Defendants liable for the elderly Plaintiff's personal injuries for failing to remove a gumtree overhanging the front steps of their suburban Brisbane home.
The Plaintiff, who had been a regular visitor during the Defendants short occupancy of the premises, alleged she sustained injuries when, whilst leaving the premises via the front stairs, she slipped and fell on a gumnut which had fallen from the tree onto the stairs.
In a win for the homeowners (and their insurers), the Queensland Supreme Court has overturned the trial Court's initial decision, with Atkinson J finding:
'It is not reasonable for court decisions to require the removal of such trees if an entrant to residential premises slips on a natural hazard which is readily apparent. This is a case in which there is an error to be corrected and unless corrected, may set a most undesirable precedent.'
In reaching its decision, the Court considered precedent analogous cases and found that the risk of persons traversing the steps and slipping on a gumnut fallen from the tree, did not outweigh the benefit of the tree, particularly as it is reasonable to expect Australians are familiar with gumtrees and will take appropriate action to avoid them (leaving aside the particular issue of the Plaintiff's history of using the stairs).
This case affirms that in order to succeed in a negligence action, the Plaintiff must not only prove the risk complained of was foreseeable but also that the magnitude of the risk (assessed by reference to the particular circumstances of the case) outweighed the burden of the action required to eliminate the risk.
