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This is a serious legal analysis …

16/07/2013

The Plaintiff slipped and fell on steps when she stood on a gumnut.  The question for the Queensland Court of Appeal was whether the homeowner was under a duty to keep the stairs permanently free of gumnuts.

Justice Atkinson took notice of the following relevant factors.

1.     Gumnuts often fall from gum trees.

2.     No one had fallen over a gumnut in the previous 12 years

3.     The plaintiff regularly visited the house.

4.     The house was set amongst gum trees which were visually pleasing, provided shade and attracted birds.

5.     The plaintiff had walked up the same stairs two hours earlier.

The judge quoted Neindorf v Junkovic where the Chief Justice said:-

Not all people live, or can afford to live, in premises that are completely free of hazards. In fact, nobody lives in premises that are risk free. Concrete pathways crack. Unpaved surfaces become slippery, or uneven, many objects in dwelling houses could be a cause of injury. People enter dwelling houses for a variety of purposes, and in many different circumstances. Entrants may have differing capacities to observe and appreciate risks, and to take care for their own safety. …The response of most people to many hazards in and around their premises is to do nothing. The legislature has recognised, and has reminded courts, that, often, that may be a reasonable response”.

This case was similar to the case of Woodward v. The Proprietors of Lauretta Lodge where Justice Helman said:-

The risk presented by the presence of the mango leaves was such that any danger of a fall was far fetched or fanciful. In daylight, the leaves could easily be seen and avoided by users of the steps. There were only a few leaves at the time. Their presence was a familiar feature of these steps. Indeed, the presence of the mango tree and its leaves can have caused no surprise to anyone used to living in south east Queensland, as was [the plaintiff]. Even if it were a foreseeable risk, it is my opinion that no further steps were required to eliminate it. The body corporate acted reasonably in tolerating the situation that in fact existed. The small level of risk, balanced against the benefits of a handsome tree which provided shelter from sun and glare, meant that no further steps had to be taken”.

Justice Atkinson compared gumnuts and mango leaves.  Gumnuts are just as common in south east Queensland as mango leaves.

 “The finding that the tree should have been trimmed or removed to avoid the possibility of gumnuts falling on steps is in my view contrary to principle. Trees and bushes are common place and desirable attributes of homes in residential areas.”

Graham and ors v Welch [2012] QCA 282

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