Legal Update - Property Owner's Liability for "Obvious" Risk

In a recent appeal case of Odrrlijn v Beard, the Court of Appeal of the NSW Supreme Court ruled on the extent of a property owner's liability for "obvious" risk, that is, a guest of a renter being injured by a ceiling fan.

The injured applicant sought leave to appeal against the judgment of the District Court Judge who found in favour of the property owner. The Court of Appeal refused to grant leave to appeal on the basis that the District Judge had not made any alleged error in her judgment.

The applicant was a school student who was visiting a friend in a rented unit in the Gold Coast during "schoolies" week. He was injured in a friend's rented unit, when he raised his hand while dancing and struck it on a ceiling fan.

In the original hearing the District Court Judge:

• entered judgment for the property owner on the basis that there was an "obvious risk" and there was no duty of care to take precautions against such a risk; and
• noted that, even if the claim had been successful, of the $73,148 damages that would have been awarded, she would have reduced this amount by 80% for contributory negligence.

Key considerations in the above judgment and appeal are the following provisions of the Civil Liability Act 2003 (Queensland):

• as a general principle, a person does not have a duty to take precautions against a risk of harm unless the risk was foreseeable, not insignificant; and a reasonable person in the circumstances would have taken such precautions (Section 9);
• a person does not owe a duty to another person to warn of an "obvious risk" to that other person (Section 15); and
• an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person and including a risk that was patent or a matter of common knowledge (Section 13).

The applicant argued that the District Court Judge was in error in making her decision because the property owner had breached the applicable duty of care by failure:

• to put a warning sign on the wall of the apartment notifying him of the presence of the ceiling fan; or
• to install a less dangerous fan, that is, one with timber fan blades rather than metal blades; or
• installing a guard covering the fan.

The Appeal Court in effect confirmed the correctness of the District Court Judge's rationale and application of the above provisions of the Civil Liabilities Act. That is:

• in all the circumstances, she correctly considered the "obviousness" of the risk to conclude it was an obvious risk that did not warrant the property owner having a duty of care to take precautions;
• it had not been proven that even if timber fan blades had been used that injury would have been avoided; and
• the installation of the fan guard would have been unsightly and created an obstruction by lowering the height of the fan to two metres and thus be impractical and unacceptable.

In deciding that the case involved an "obvious risk" the District Court Judge relied on the reasoning in the case of Jaber v Rockdale City Council (involving the application of the equivalent statutory provisions in NSW), in which a person was injured when diving off a public jetty into shallow water and suffered a severe spinal injury. In that case, the Court held that the injured person should have been aware of the dangerous nature of diving and of the high risk of the injury suffered. Consequently, the Court held that, as he had not ensured that the water was in fact deep enough, he had failed to take any reasonable care for his own safety. Similarly, in this case it was held that the risk of injury from fan blades travelling at speed was obvious based on expert testimony and photographic evidence showing that the ceiling fan had large metal blades with thin edges.

In relation to the other issues, expert evidence on behalf of the property owner was accepted by the Court, including that timber fan blades, like metal blades, have thin edges to cut through air and thus would probably cause injury. Conversely, the expert testimony on behalf of the injured applicant was not accepted in that it was not persuasive based on plausible "scientific enquiry".

This case provides instructive insight as to the detailed approach that courts appear to take in considering and determining the liability of property owners towards third parties depending on the nature and obviousness of the underlying risk. Whether this statutory exclusion of a duty of care will apply in a particular scenario would need to be considered on a case-by-case basis.