15/08/2023
⚠️⚠️⚠️ If you are selling property, or if you are a real estate agent retained to sell property on behalf of your client, it is important you carry out adequate risk assessments and warn potential purchasers (for example, by way of a “Slippery When Wet” sign) attending open homes or inspections of any foreseeable risks.
***
Recently, Associate Justice Harrison handed down a decision in the matter of Furner v Jackson [2023] NSWSC 914, ordering that the defendants pay the Plaintiff damages in the sum of $1,509,512 and costs.
On 18 Jan 2020, Kellie Furner (the Plaintiff) and her husband attended an open home in Garden Suburb, NSW, for the purpose of inspecting a property for purchase.
A week or so before the open home, the owners of the property (the first and second defendants) had painted their sloping driveway. As the Plaintiff and her husband walked across the driveway, the Plaintiff slipped and fell, sustaining a number of injuries.
The Plaintiff sought personal injury damages, alleging negligence by the first, second and fourth defendants (or either one of them).
The fourth defendant, CK1 Realty Pty Ltd, had been engaged by the first and second defendants to sell the property. On the day of the incident, Ms Johnson, an employee of the fourth defendant, was conducting the open home. Ms Johnson was not called to give evidence at the hearing, and, as such, a Jones v Dunkel inference was drawn.
In finding that the Plaintiff had satisfied the requirements of ss 5B and 5C of the Civil Liability Act (a summary of the principles in these sections appears at [125]-[129]), her Honour noted that the first, second and fourth defendants owed duties of care to the Plaintiff - the risk of a person slipping on the driveway was foreseeable and not insignificant – and could have taken reasonable steps to warn those attending open homes that the driveway was slippery. Her Honour also noted that the fourth defendant was an occupier of the property at the time of the accident, and was under a duty to exercise reasonable care to take reasonable measures to avoid foreseeable risks of injury. At the very least, the fourth defendant was obliged to warn prospective buyers that the driveway was slippery.
Her Honour also summarised, at [167]-[171], the principles of causation in s 5D of the CLA -
♦ to establish causation - the plaintiff must prove on the balance of probabilities that if the defendant had taken identified steps, the injury to the plaintiff would either have not occurred, or been avoided. Causation requires a determination that “the negligence was a necessary condition of the harm”.
♦ to succeed - the plaintiff must show that it is more probable than not that, but for the defendant’s breach, the particular harm which materialised would not have been suffered. This involves two elements – “factual causation” (a statutory restatement of the “but for” test of causation) and “scope of liability”. The determination of both involves a value judgment.
