It’s a harsh reality that one in three accidents occur in and around the home and most are preventable. This could be a result of hidden hazards such as electrical faults, structural defects, gas leaks, slip and trip hazards or unsafe pool fencing, to name just a few.
The recent Court of Appeal decision in Annette Leith Hay Hancock v Michelle Francis & David Charles Johnson 213 (QDC) 341 has emphasised that home owners need to make themselves aware of hazards on their property and warn visitors, including handymen, of the dangers. This case illustrates how a claim was brought against the home owners in negligence by the widow of Mr Hancock, who was totally dependent on him prior to his death, both financially and for care and assistance.
Cawood Hancock, a sixty-one year old gardener sustained an injury to his leg when he fell through a metal cover on the property of the Defendants, Michelle and David Johnston, while he was undertaking gardening duties at their home. The metal cover had given way as Mr Hancock stepped on to it, causing him to fall about 2 metres into a tank below. The cover gave way because a supporting metal grill underneath it was severely corroded, making the metal cover unsafe.
Mr Hancock was using a chainsaw to prune trees at the time of his fall and was fortunate not to have more severe injuries from the fall itself; however he subsequently developed a blood clot in his injured leg, resulting in pulmonary embolism and his ultimate death.
The court found that the home owners were liable for the injury sustained by Mr Hancock whilst working on their property and for his subsequent death, and ordered them to pay the Plaintiff the sum of $445,515.90 in damages for the loss and damage she had sustained as his sole dependent.
The argument of the defendants was that they were not to know of the metal cover, or the unsafe nature, because the metal cover was not readily noticeable in the corner of the property due to it being covered in dirt, leaves and other foliage and they had not installed it on the property.
In its determinations, the Court found that it was reasonable for the Defendant’s as homeowners, to expect that people such as Mr Hancock (tradesman, gardeners etc.) would be coming onto their property from time to time and therefore they owed such persons a duty of care whilst they were on the property to take reasonable steps to avoid exposing them to risk of injury. The Courts held that whether the defendants knew of the metal cover or not, as reasonably careful owners of a suburban residential property, they ought to have been aware of it and should have taken the trouble to familiarise themselves with their property in order to ascertain any significant hazards to persons coming onto the property.
The Court held that a reasonable inspection would have detected the metal lid on the property, and the danger posed by the corroded grill underneath would have been revealed by simply lifting up the cover to check what was underneath.
The Court also considered the difference between cases where the hazard is concealed, as in this case and where the hazard is a more obvious one such as in Jaenke v Hinton (1995) QCA 484 where the injury was caused by the Plaintiff tripping over a garden hose lying across the lawn in full view.
The Court held in Jaenke v Hinton the obviousness of the risk made it so low that a reasonable person would be justified in taking steps to remove it. In the case of Mr Hancock it was found that the unsafe metal cover was a hidden risk. The presiding Judge stated that evaluation of the risk is dependent upon the chance of the risk materialising and the seriousness of the consequences that could follow if it did.
The Court held that the Defendants breached their duty of care to Mr Hancock in failing to warn him of the danger posed by the metal cover whilst he was undertaking the gardening work on the property in the vicinity. Both the District Court and Court of Appeal decisions found that careful residential property owners had to familiarise themselves with their own properties and any hazards or risks.
The decision serves as a good warning to property owners that extra care needs to be taken to identify areas that pose a risk to entrants, such as steep driveways or slippery steps, and that “reasonable” measures must be taken to reduce the risk associated with these hazards, especially if the hazard is in a high traffic area.
