$1.5m award of damages to open home visitor - upheld on appeal

In the appellate decision of Jackson v Furner [2024] NSWCA 66, the NSW Supreme Court of Appeal upheld a decision holding a sales agent and seller responsible for a slip and fall injury during an open home inspection at a Newcastle home.

Readers may recall our earlier article regarding the first instance decision of Furner v Jackson [2023] NSWSC where we set out the background facts of the case.

Background

On 18 January 2020, Mrs Furner attended an open home inspection of a residential property located in Garden Suburb, Newcastle.

When Mrs Furner arrived at the property, she proceeded to walk down the sloping driveway located at the front of the property to gain access to the house, choosing not to utilise the nearby stairs. 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 sellers 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, particularly 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 inspection, the owners performed remedial works to the property, including painting the driveway. Mrs Furner alleged that his 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, an employee of the sales agent inspected the driveway and also slipped twice on the driveway. The sales agent’s employee advised Mrs Furner that she found the driveway to be “very slippery”.

In the first instance decision, the primary judge found that:

1. The driveway was painted by the sellers one week prior to the accident;
2. A non-slip paint was not used by the sellers;
3. The driveway was wet after rain;
4. On a visual inspection, the driveway was “shiny” or “glossy”;
5. The driveway was very slippery as evidenced by two slips suffered by the employee of the sales agent;
6. A cursory examination of the driveway would have revealed that it was very slippery when wet;
7. The sellers and the sales agent were each occupiers and obliged to take reasonable care to avoid foreseeable risks of injury; and
8. A reasonable person in the position of the sellers and sales agent ought to have known that the driveway was sloping and became very slippery when wet.

Issues on appeal

There were several evidentiary issues on appeal including that the primary judge had misinterpreted the female seller’s evidence (based on a contradiction in her statements) that the paint used on the driveway was non-slip, and that the primary judge had failed to find that the sellers and the sales agent had done all that was necessary to discharge their duty owed to Mrs Furner by using non-slip paint recommended by experts.

One issue on appeal was that the primary judge had erred in finding that the sales agent was aware of a problem with the surface of the driveway before the date of the accident when there was no evidence to that effect.

The sellers and sales agent also argued that the primary judge had erred in finding that they ought to have been aware that the driveway was slippery, and that the primary judge had erred in finding that the risk of falling was foreseeable to them.

Appellate Decision

Relevantly for the sales agent, the appellants had argued that the primary judge allegedly erred in finding that the sales agent was aware of a problem with the surface of the driveway before the date of the accident, when there was no evidence to that effect.

During the trial, the sales agent had been asked whether she was aware that the driveway had been repainted a week before the open home. Rather than answering that she did not recall, or was not certain of the fact, she categorically rejected the proposition. The primary judge maintained that the Court could hold no confidence in her memory of dates, and whether or not she knew of a problem with the driveway.

It was admitted by the sales agent that they were also an occupier of the property at the time of Mrs Furner’s accident. The sales agent was under a duty to exercise reasonable care to take reasonable measures to avoid foreseeable risks of injury. The evidence led the Court to believe that the driveway, when wet, was very slippery. The sales agent was therefore obliged at the very least to warn prospective buyers about its slipperiness, such as a warning sign to that effect or blocking off the slippery areas of the driveway.

The Court had found that the scope of the agent’s duty was to ensure that members of the public, such as Mrs Furner, inspecting the open home could safely enter and leave the property without slipping and falling. There was a high probability that a person would slip and fall on the driveway that appeared to be very shiny/glossy. There was no dispute it had been raining before the accident, and if a person slipped and fell there was a high risk that the harm would be serious. The Court maintained that taking the precaution to avoid the risk of harm was not burdensome.

On appeal, it was held that the primary judge was correct in establishing that each of the sellers and sales agent ought to have known of the identified risk of harm, and that there was no doubt that it was for this reason they had sought to amend their case to plead that the risk of harm identified was not obvious. This amendment to the case was rejected, and as such, the decision holding the sales agent liable was upheld.

Further, the Court of Appeal held that the sales agent and sellers were each occupiers and obliged to take reasonable care to avoid foreseeable risks of injury. It was noted that a cursory examination of the driveway on the day, of the kind conducted by the employee of the sales agent, would have revealed that the driveway was very slippery.

The appeal was dismissed, and the sales agent and sellers were ordered to pay Mrs Furner’s costs of the appeal. The award of damages of over $1.5 million was therefore upheld.

Conclusion

The decision, maintained on appeal, demonstrates that sales agents have a duty of care to take precautions against risk of harm occurring at open home inspections. A sales agent may therefore be considered an occupier of the property for the purposes of opening the property to the general public at an inspection.

Sales agents should ensure that they undertake adequate risk assessments prior to conducting an open home and take proactive steps to prevent any risk of harm from occurring. In this instance, the sales agent could have directed people away from the driveway and asked that they utilise the stairs to the front door. The NSW Court of Appeal upheld that this was not burdensome for a sales agent and would be a reasonable step to take.

It would therefore be best practice for sales agents to consider erecting warning signs, barricading areas that are potential safety hazards and/or recommending to seller clients (in writing) that measures ought to be taken to avoid foreseeable risks of injury from occurring.

Read more from Carter Newell Lawyers: Going, going, gone: The law and authority of auctioning real property.

Or browse our suite of property sales articles here.