Case note on Chandler v Silwood WORDS BY BRETT HEATH, SPECIAL COUNSEL, CARTER NEWELL LAWYERS

What is the duty of care owed by an occupier of a property to a lawful visitor?

Introduction

The recent Supreme Court of Queensland judgment in Chandler v Silwood', now the subject of an appeal to the Queensland Court of Appeal, deals with an occupier 's liability for the safety of a visitor.

The judgment is instructive insofar as it reflects the court 's reluctance to reduce a significant personal injuries claim for contributory negligence, even in circumstances in which the visitor was, arguably, intoxicated, in circumstances in which the court held that the risk presented to the visitor to the property was both foreseeable and could have been easily reduced or extinguished.

The facts

The house was owned and occupied by Mr Clive Silwood (the defendant).

On the afternoon of 9 September 2008 the defendant hosed some bat droppings from the front wall of his house. The wall was adjacent to the front stairs to his house. As a result of the defendant 's maintenance work, water pooled on the front stairs to the house.

That evening, the defendant 's former partner, Ms Chandler (the plaintiff) arrived at the house, pursuant to an arrangement the two had struck earlier that day.

The plaintiff conceded that she had consumed, before arriving at the house, three (3) glasses of a concoction of equal parts red wine and lemonade.

As the plaintiff made her way up the stairs to the front door, she slipped on a wet stair and slid into the front door. The plaintiff threw up an arm to protect herself. Her arm pierced a glass panel adjacent to the front door. The plaintiff was rushed to hospital, after having lost almost a litre of blood at the house (the accident).

The proceedings

The plaintiff commenced proceedings against the defendant in the Supreme Court. Prior to the trial, the parties agreed the quantum of the plaintiff 's claim for damages in the amount of $650,000. Therefore, the trial proceeded on liability issues alone.

In seeking to deny liability for the claim, the defendant argued that the plaintiff had been the author of her own misfortune insofar as she had been intoxicated at the time of the accident and, furthermore, the house was one with which she was familiar, having traversed the stairs on other occasions, in both wet and dry conditions.

Neither of those arguments prevailed.

Intoxication

The court dismissed the defendant's contributory negligence argument predicated upon the plaintiff 's alleged intoxication.

The forensic medical experts who gave evidence at the trial agreed that, based upon the contemporaneous medical records in respect of the plaintiff compiled in the immediate aftermath of the accident, her blood alcohol concentration was in a range of between o and 0.3% which, it was considered, would have had a minimal effect on the plaintiff 's judgment and perception.'

Wet stairs

An engineer retained by the plaintiff undertook friction tests on the stairs to the house in conditions equivalent to that on the night of the accident.

The engineer 's experiments revealed that, when wet, the slip resistance of the stairs was minimal and, therefore, the surface materials generated a moderate to high slip risk.

Reasonable care

The court held that the plaintiff could not have identified, nor appreciated, the risk of slipping on the wet stairs because it was too dark to see the water pooled on the stairs. Notwithstanding this finding, the Court held that, even if the stairs had been illuminated, the light may not have "revealed that there was a

change in the surface to which the person using it would respond". 3

The Court observed that, had he turned his mind to the matter, the defendant should have foreseen the not insignificant risk to a visitor, such as the plaintiff, of slipping on the wet stairs, particularly given the fact that the defendant knew that the plaintiff would be visiting the house later that evening.

The Court dismissed the defendant's contributory negligence argument to the effect that the plaintiff had previously visited at the house during wet weather conditions and, so, should have been prepared for any risk presented by the wet stairs

and observed that "the lack of any previous accident may well have been a matter of luch7 4

The Court held that the defendant's

failure to turn his mind to the risk presented by the wet stairs, or make any effort to minimise the foreseeable risk presented by those wet stairs — which stairs were wet due'to the defendant's own actions — amounted to a breach of the duty of care he owed to the plaintiff.

The defendant was ordered to pay the plaintiff's damages in the agreed sum of $650,000.

This significant judgment is presently the subject of an appeal to the Queensland Court of Appeal.

PAGE 38 REIQ JOURNAL I AUGUST 2016

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ed that, had he to the matter, the have foreseen the

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that the 146k et mut previtus aaideitt matt well have bast a matter of la" . 4

' (2016) QSC go.

Ibid [as]. 3 Ibid [22] .

3 Ibid [26].

Accordingly, occupiers, agents and those engaged in the real estate industry should be mindful of their proactive duty to warn visitors to properties of risks presented to those visitors, and to take reasonable action to reduce foreseeable risks which could result in injury to visitors.

Carter Newell will monitor the progress of this case through the Queensland Court of Appeal.

In the meantime, occupiers should be careful as to who they invite over and vigilant with respect to the state of their properties. A small slip could lead to a large claim.

REIQ JOURNAL I AUGUST 2016

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Practical advice for occupiers

The judgment of Chief justice Holmes of the Supreme Court of Queensland in Chandler illustrates the Court's reluctance to discount claims for contributory negligence when the Court considers that the occupier knew, or should have known, that a not insignificant risk is presented to a visitor to a property, and the occupier could have easily taken simple steps to ameliorate or extinguish that risk.

In this case, the Court observed that the defendant could have done a number of things to avoid the risk presented to the plaintiff, such as drying the stairs off after they had been wet, cautioning the plaintiff of the risk of the wet stairs when he made the arrangements for the plaintiff to visit the house, leaving the outside light on to illuminate the stairs, or installing a sensor light to illuminate the stairs. That the defendant did none of these things was clearly a significant factor in the Court's reasoning that the arguments of contributory negligence should be rejected.