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The reasonable response to do nothing: NSWCA posts a win to home owners

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The NSW Court of Appeal delivers a win for home owners and their insurers, confirming residential occupiers are not expected to take precautions for every possible hazard at their home.

Judgment date: 14 September 2021

Citation: Prouten v Chapman [2021] NSWCA 207

Jurisdiction: NSW Court of Appeali

 

Principles

  • Home owners are not required to remove all potential hazards to visitors and passers-by to their property, only to do what is reasonable
  • A reasonable response to a slight and insignificant risk of harm may not warrant any response. It can be reasonable for a defendant to do nothing
  • Whether a defendants actions are reasonable will depend upon the Courts assessment of the particular risk of harm

Background

A postal delivery officer (the plaintiff) sustained injuries after she took evasive action to avoid colliding with the extended bed of the defendants’ caravan parked on the nature strip outside their home. The extended bed had not been present on previous days.

The Supreme Court awarded judgment in favour of the home owners on the basis the plaintiff did not establish that the accident occurred in the manner alleged, that breach of duty was not established and that the plaintiff failed to prove that her injuries were caused by the accident. The likelihood of a motorist travelling at speed and colliding with the caravan’s extended bed was so low and insignificant that it could not be expected for a reasonable homeowner to take any precautions. A reasonable response to the risk was to do nothing.

The decision was appealed on the basis the primary judge had erred in rejecting the plaintiff’s version of the incident and failed to provide adequate reasons for his findings. The plaintiff submitted that a reasonable homeowner would not have left the caravan on the nature strip. It was argued the caravan presented a foreseeable risk of harm as it was was both parked illegally and left with its bed extended. A reasonable person would have taken precautions against the risk.

Decision

In a 2-1 majority, the Court of Appeal upheld the primary judge’s decision and found there was no negligence on the part of the defendants. The extended bed of the caravan only posed a risk of harm to someone who was travelling along the nature strip and abruptly turned the corner of the caravan. This was a very slight risk. It could not be expected that a reasonable homeowner would have foreseen that leaving the caravan’s bed extended posed a hazard to passers-by.

The Court stated that motorists like the plaintiff are expected to take care for their own safety. There could have been any manner of things concealed behind the caravan that could have required evasive action. The plaintiff should have known to keep an eye out for obstacles as she navigated the nature strip during her postal run.

In a dissenting judgment, Brereton JA was of the view a reasonable home owner should have known that leaving the caravan on the nature strip posed a hazard to passers-by, especially to postal officers who navigate nature strips and footpaths daily to deliver mail. He considered there were reasonable precautions that could have been taken by the defendants with relative ease, such as retracting the extender bed, erecting a warning flag, or parking the caravan elsewhere.

Why this case is important

Home owners and their insurers should be comforted in knowing that they are generally entitled to expect both visitors and passers-by to their property to take reasonable care for their own safety.

In line with decisions of Sibraa v Brown,ii and Neindorf v Junkovic,iii a homeowner is not expected to remove all potential hazards from their property, only to do what is reasonable. In cases where there is only a slight risk of harm, such as this one, a reasonable response can be to do nothing.

The decision serves as another reminder that merely because a risk of harm may be foreseeable and not insignificant does not equate to a finding of negligence. Anything will be foreseeable to someone with sufficient imagination. A finding of negligence requires consideration of the full suite of factors under s 5B of the Civil Liability Act 2002 (NSW).

 


i Meagher JA, Leeming JA, Brereton JA
ii [2012] NSWCA 328
iii (2005) 222 ALR 63

Contributors

Renee Magee
Associate

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