Homeowners liable to pay $445,000 to widow of elderly gardener, fatally injured whilst pruning trees
In the case of Annette Leith Hay Hancock v Michelle Francis & David Charles Johnson 213 (QDC) 341, sixty-one year old gardener, Cawood Hancock, sustained an injury to his leg when he fell through a metal cover on the property of the Defendants, Michelle and David Johnson, whilst he was undertaking gardening duties at their home. The metal cover had given way as Mr Hancock stepped onto it, causing him to fall 9 feet 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 although fortunate that his fall injuries were not worse because of this, he subsequently developed a blood clot in his injured leg, resulting in pulmonary embolism and his ultimate death. A claim was brought against the homeowners 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, due to a psychiatric illness which had precluded her from working for many years.
The Court found that the homeowners were liable
The Court found that the homeowners were liable for the injury sustained by Mr Hancock whilst working on their property and for his subsequent death, and ordered that they pay the Plaintiff the sum of $445,515.90 in damages for the losses she had sustained as his sole dependent.
In making its decision, the Court considered whether the homeowners were negligent in failing to identify the hazard posed by the unsafe metal cover, and in failing to warn Mr Hancock of the danger or to remove it prior to his entry to the property. The argument of the Defendants was that they were not to know of the metal cover, or the unsafe nature of same, because the metal cover was not readily discernible 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.
Owing a duty of care
In its determinations, the Court found that it was reasonable for the Defendants, 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 a risk of injury.
The Court held that the Defendants, whether they knew of the metal cover or not, as reasonably careful owners of a suburban residential property, ought to have been aware of it. The Court held that as reasonably careful residential property owners, the Defendants 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 therefore found that the Defendants should have been aware of the circular metal cover and further, that they should have investigated the installation to ensure it was safe for persons coming onto the property. The Court said 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.
Evaluation of the risk is dependent upon the chance of the risk
The Court also considered the difference between cases where the hazard is concealed, as in the subject circumstances where the metal cover was covered by dirt and foliage, making it more dangerous as a hidden trap, 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 that case that the obviousness of the risk made it so low that a reasonable man would be justified in taking no steps to remove it, whereas, in the case of Mr Hancock, the unsafe metal cover was a hidden risk. Judge McGill, 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.
A breach of duty of care
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. Accordingly, the Defendants were found liable for the injury sustained by Mr Hancock in the fall and ultimately his death from such injury, and to pay compensation to his widow for her loss resulting from his death.
The decision of His Honour Justice McGill was appealed to the Queensland Court of Appeal and the decision was upheld in all respects. See Johnson v Hancock (2014) QCA 130.
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