Occupiers Liability Update Victoria
January 20, 2016
Ernst v McRoss & Anor  VCC 1754 (9 December 2015)
The recent judgment in Ernst v McRoss & Anor  VCC 1754 is analogous to the earlier decision of Erickson v Bagley  VSCA 220, in that the occupier defendants escaped liability in the context of a personal injury claim arising out of a driveway slip at a domestic site.
The plaintiff claimed pain and suffering damages in respect of injuries suffered to his leg and shoulder in an accident on 13 May 2011 when he slipped on the driveway of the defendants’ (residential) premises while delivering flowers. The plaintiff alleged that the driveway was wet and unreasonably slippery.
Smith J found that the defendants owed the plaintiff a duty, pursuant to s14B of the Wrongs Act 1958 (Vic), to take reasonable care that any person on the premises would not be injured by reason of the state of the premises, or by reason of things done, or omitted to be done.
The trial judge defined the scope of the duty of care in the context of the subjective foreseeability of the risk of injury, the probability of the risk manifesting, and the reasonableness of precautions to protect against it. These factors were assessed from the defendants’ perspective in the circumstances as known or which ought reasonably to have been apparent at the time.
The plaintiff alleged that the driveway was wet and slippery. Although controversial, the trial judge found that the driveway was to some degree wet at the time of the accident and consequently provided less slip resistance than it would have provided if dry. A controversy arose as to whether the driveway was, in the circumstances, foreseeably dangerous.
The driveway was the subject of expert analysis by Dr John Culvenor, an engineer specialising in occupational health and safety. Dr Culvenor identified that there was a gradient in the driveway, but that it otherwise complied with relevant Australian Standards applicable to domestic driveways.
Dr Culvenor’s evidence was that the surface of the driveway when wet was on the ‘margin’ of a stable place for a pedestrian to walk adopting a ‘normal’ gait. Dr Culvenor noted that a person would usually adopt a different (more cautious) gait by taking shorter steps when walking on a surface suspected of being or known to be slippery.
The defendants led evidence that numerous friends and family had regularly visited the premises in fair weather and when wet, had accessed the premises via the driveway, and that no one had ever reported a fall, a slip, a ‘near slip’ nor complained that the driveway was slippery. Smith J accepted that defendants had never formed the view that the surface of the driveway presented a hazard.
His Honour concluded that the driveway was relatively steep, with a gradient that was obvious to a pedestrian in daylight. While the gradient constituted a foreseeable risk of danger, Smith J noted the same could be said of many ordinary homes in Melbourne. Smith J referred to the High Court judgment in Thompson v Woolworths (Qld) Pty Ltd, where it was said:
‘there are, for instance, no risk free dwelling houses.
The community’s standards of reasonable behaviour do not require householders to eliminate all risks from their premises, or to place a notice at the front door warning entrants of all dangers that await them if they fail to take care for their own safety.’
Smith J found in favour of the defendants, as he was not satisfied that the plaintiff had established that the defendants ought to have appreciated that the driveway was slippery or dangerous, or that the risk of injury to visitors was sufficiently significant to require warning to visitors. The gradient of the driveway was regarded as an obvious risk to all visitors such that it did not give rise to a duty to warn.
Ramifications for occupiers in a domestic context
The case of Ernst perpetuates the public policy expectation that occupiers of domestic homes are not held to a standard of perfection to eliminate all risks to pedestrians who enter upon their premises, as there are virtually no risk free houses.
Occupiers are not necessarily required to take further steps where the identified risks are considered to be low, and historical use of the premises has not revealed the existence of the risk. Residential occupiers are, within these confines, entitled to assume that persons walking onto their premises will take necessary precautions such as using torches in darkness, or shortening their steps in the wet in order to avoid an obvious risk of slipping.
Expert evidence is also important in order to demonstrate that a dwelling complies with relevant standards when defending these types of claims.
Authored by Brett Weir, Partner and Oliver Lesage, Lawyer, Melbourne.
 9 December 2015.
 25 August 2015.
 Citing Erickson v Bagley & Anor  VSCA 220 at ; Neindorf v Junkovic  HCA 75; (2005) 222 ALR 631 at .
 AS 2890.1:2004; AS 2890.1:1993.
  HCA 19.
  HCA 19 at .
 See also Neindorf v Junkovic (2005) 222 ALR 631.
 As in Erickson v Bagley  VSCA 220.
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