Open home visitor receives $1.5m in damages after fall

In the recent New South Wales Supreme Court decision of Furner v Jackson [2023] NSWSC 914, the Supreme Court awarded a visitor to an open home sales inspection damages of more than $1.5 million after they slipped on a steep driveway sustaining injuries.

Background

On 18 January 2020, the plaintiff, Mrs Furner, attended an open home sales inspection of a residential property located in Garden Suburb in New South Wales.

When Mrs Furner arrived at the property, she proceeded to walk down the driveway located at the front of the property to gain access to the house. Whilst walking down the driveway, Mrs Furner slipped and fell sustaining injuries. After being assisted to her feet by her husband, Mrs Furner slipped again after just a few steps. Mrs Furner suffered injuries to her right hip, elbow and neck, which required multiple surgeries.

Mrs Furner brought a claim against the owners of the property and the real estate agent engaged by the owners to sell the property.

Mrs Furner alleged that the agent was negligent for:

1. Failing to warn, or adequately warn her of the slipperiness of the driveway surface notwithstanding it was known that the driveway was dangerously slippery, particular when wet;
2. Failing to conduct any, or any adequate, risk assessment of the slipperiness of the driveway surface, particularly when wet; and
3. Failing to place non-slip mats or similar non-slip control measures over the driveway prior to the inspection.

Approximately one week prior to the open home sales inspection, the owners performed remedial works to the property, including painting the driveway. Mrs Furner alleged that this rendered the driveway dangerously slippery.

It was not raining at the time of the alleged incident, however, the driveway was wet from rain earlier that morning.

After Mrs Furner fell, the sales agent inspected the driveway and also slipped. The sales agent advised Mrs Furner that she found the driveway to be “very slippery”.

Issues to be considered

1. Whether the owners and agent were negligent;
2. Whether the risk of slipping on the newly painted driveway and sustaining injury was foreseeable and not insignificant; and
3. Whether a reasonable person would have taken steps to avoid the risk of harm from occurring.   

Decision

The Court determined that the agent was the occupier of the property for the purposes of opening the property to the general public for the open home sales inspection on the day of the alleged incident.

The Court held that the owners and the agent owed a duty of care to Mrs Furner to ensure that people, such as Mrs Furner, inspecting the property could safety enter and leave the property without slipping and falling on a very slippery driveway when wet. In particular, the Court stated that the agent was under a duty to exercise reasonable care to take reasonable measures to avoid foreseeable risks of injury.

Expert evidence obtained by Mrs Furner concluded that the use of the paint product on the driveway created a real and foreseeable risk. The Court accepted that the driveway when wet was very slippery. The Court found that the risk of a person slipping on the driveway, which was steep, was foreseeable and the risk was not insignificant.

The Court believed that there was a high probability that a person, such as Mrs Furner, would slip and fall on the driveway that appeared to be very shiny and became slippery when it was wet.

The Court found that the agent was obliged, at the very least, to warn prospective purchasers about the slipperiness of the driveway, such as having a warning sign to that effect or blocking off the slippery areas of the driveway. The Court did not believe that these precautions to avoid the risk of harm from occurring was, at all, burdensome.

The Court considered that a reasonable person ought to have known that the steep driveway would become slippery when wet. In addition, the Court noted that if a person slipped and fell on the driveway there was a very high risk that the injuries would be serious.

The Court concluded that the owners and the agent were negligent by failing to exercise reasonable care and therefore breached their duties of care owed to Mrs Furner, causing her to suffer injuries and disabilities.  

The Court found in favour of Mrs Furner and awarded her damages of over $1.5 million.

Conclusion

This decision demonstrates that the duty of care to take precautions against the risk of harm from occurring at open home sales inspections extends to both owners as well as agents, in their capacity as an occupier of the property for the purposes of opening the property to the general public at an open home sales inspection.

Agents conducting open home sales inspections should ensure that they undertake adequate risk assessments prior to conducting an open home sales inspection and ensure all potential risks are identified and reasonable measures are taken to avoid foreseeable risks of injury to persons attending the property. This may include erecting warning signs, barricading areas that are potential safety hazards and/or recommending to the owner that measures be taken to avoid foreseeable risks of injury from occurring.

Agents should also ensure that they keep adequate records on their sales files (including photographs, file notes of conversations and meetings, emails and letters) of their dealings with owner clients and prospective purchasers prior to and during the course of open home sales inspections.

Read more about agency practice: Know the rules before you knock.

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