Neighbour injured by “obvious risk”

14 October 2019

A residential occupier was not liable for serious injuries suffered by a neighbour who fell through a laserlite patio roof while removing a solar hot water unit. The risk of stepping onto laserlite panels and falling was found by the Court to be an obvious risk.

In Issue

  • Did the Tomlinsons owe a duty of care to Gors?
  • Was the risk that if Gors stepped onto the patio roof he might sustain serious injury, an obvious risk? If so, did the Tomlinsons owe Gors a duty to warn him of the risk given Part 1A Division 6 of the CLA?
  • If the risk was not an obvious risk, did the defendants owe Gors a duty to warn him that the patio roof was constructed of laserlite panels and that if he stepped onto them they would not hold his weight and he could fall and sustain serious injury?
  • If the Tomlinsons breached the duty of care owed to Gors by failing to warn him of the risk, did that breach cause his injury?

The Background

Gors (plaintiff) and his brother (Clifton) attended the Tomlinsons’ (defendants) house for the purpose of removing a hot water system unit from the roof. Whilst on the roof Gors and his brother offered to clean Mr Tomlinson’s gutters and replace some tiles that had cracked (near the unit). Mr Tomlinson went to the shed to get some replacement tiles, and Gors and Clifton moved the hot water system towards the gutters to allow it to drain. After placing the unit down, Gors took two steps backwards without looking, and fell through laserlite panels on the patio roof, sustaining serious injuries.

Gors was the Tomlinsons’ neighbour, and had been to the property on a number of occasions. It was obvious that the panelling over the patio allowed light in, meaning it must be constructed of laserlite or some plastic material that would not likely bear the weight of an adult person. In addition, Gors had constructed a canopy over his own pool out of laserlite, and was presumed to be familiar with the appearance of laserlite, its inability to withstand the weight of an adult, and the risk of working at heights.

While he had been in attendance and spoken with Gors prior to the accident, at the time of the accident Mr Tomlinson had left. Gors and Clifton has planned to walk with the hot water system in a straight line to the ladder they had erected away from the patio, this line being directly over tiles, which would not have posed a risk to Gors. The decision to move the hot water system to the gutter next to the patio was made after Mr Tomlinson had left. Gors fell before Mr Tomlinson returned.

The Decision at Trial

The Court found that the risk of injury to Gors if he stepped onto the patio roof was an obvious risk for the purposes of the s5O of the CLA and there was nothing to suggest that Gors was not aware of the risk. The Court went on to find that even if it was wrong about the risk being an obvious risk, Mr Tomlinson did not owe Gors a duty to warn him of the risk of walking on the laserlite as working on a roof is always dangerous and presents some risk of injury. Gors constructed his own work method and did not request, or expect, Mr Tomlinson’s input. Finally, the Court considered whether any failure of Mr Tomlinson to warn Gors of the risk caused the accident. The Court found that even if Mr Tomlinson had warned Gors, the circumstances of the accident meant it was unlikely that a warning would have prevented the accident, and accordingly Mr Tomlinson could not be held liable.

Implications for you

This decision is a timely reminder that, when determining whether a risk is obvious (in accordance with section 5F of the Civil Liability Act 2002 (WA)), the Court will apply an objective test (being what a reasonable person in the position of the plaintiff would regard as obvious).

This case is subject to an appeal.

Keven Gors by his Plenary Administrator of Janet Christine Gors v Tomlinson [2019] WADC 88

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