When a guest takes a tumble - The duty of care of residential occupiers When a guest takes a tumble - The duty of care of residential occupiers

When a guest takes a tumble - The duty of care of residential occupiers

18 March 2016 | Public & Product Liability

The New South Wales Court of Appeal recently considered the content and scope of the  duty of care owed by occupiers of residential premises located in Turramurra, in the decision of Swift v Wearing-Smith [2016] NSWCA 38.

On 5 November 2011 the respondent visited the premises for a family barbeque.  The respondent (the step father of the appellant, Kim Swift)  was familiar with the premises, having visited on many prior occasions.  The respondent had been seated at a table located on a balcony, which was about 3 metres above ground level and surrounded by glass panels.  He stood up to stretch his legs, leaning against the balustrade of the balcony fence, when a glass panel gave way, causing him to fall to the ground below, and sustain serious injuries.

The appellants had resided at the premises since February 2003. In December 2002 the appellants had obtained a pre-purchase inspection report in December 2002 which identified that the glass handrails on the balcony were not affixed with safety glass stickers and that there was some corrosion to the metal lugs and posts. The report recommended that the lugs and posts be rust proofed, repainted or replaced.

The respondent commenced a claim against the appellants which proceeded to trial in the New South Wales District Court in August 2014. The primary judge concluded that the balustrade had failed due to corrosion in a bolt.  He concluded that the appellants had breached their duty of care to the respondent, in circumstances where  the risk of harm was “the risk of the fall in circumstances where to the knowledge of the defendants there had been an earlier recommendation to replace the balustrade with a taller structure, with stickers on the glass, to make it comply with changed fencing requirements and that recommendation had been considered by the defendants and rejected due to considerations of cost”.  In short, the primary judge concluded that the appellants were on notice of the defect with the balcony due to the 2002 pre-purchase inspection report, and that in failing to take the steps recommended in that report, they had breached their duty of care to the respondent.

As the starting point to the correct identification of the nature and scope of the duty of care, the Court of Appeal noted that the premises were residential in nature.  The pre-purchase report had been obtained to assist in consideration of the purchase of the premises, including the reasonableness of its price, not to advise the appellants of potential dangers posed to entrants.  The report had not placed the observations regarding the balcony as falling under the heading of “issues” or “safety concerns” (whereas other matters fell under these headings in the report)  and the remedial action recommended (repainting or replacing) did not suggest that the rust was significant.

The Court of Appeal concluded that the primary judge’s formulation of the duty of care was unnecessarily narrow, and essentially required to the appellants to address all of the matters identified in the pre-purchase report, in order to fulfil that duty.  In what is becoming somewhat familiar language, the Court of Appeal cautioned against applying the benefit of hindsight in formulating a duty of care and focusing on the breach, rather than a prospective inquiry.  In terms of breach, the Court of Appeal found that the appellants had not been placed on notice of the potential for the bolt to fail, and that there was accordingly no breach of their duty of care.

The court of appeal accordingly set aside the decision in favour of the respondent on 9 October 2014 and substituted judgment in favour of the appellants, with the respondent ordered to pay the appellants costs of the trial and the appeal.  The decision is a salient reminder of the importance of correctly identifying the nature and scope of the duty of care, in a prospective, rather than retrospective manner.

Anna Clarke

Anna Clarke

Special Counsel

Fiona Sennett

Fiona Sennett

Principal